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Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7 (27 February 2019)

Last Updated: 28 February 2019





CITATION: Various Applicants from Santa Teresa v Chief Executive Officer (Housing) DECISION NUMBER: [2019] NTCAT 7 PARTIES: VARIOUS APPLICANTS FROM SANTA TERESA

APPLICANT

v

CHIEF EXECUTIVE OFFICER (HOUSING)

RESPONDENT MATTER TYPE: Original Jurisdiction - Residential Tenancies Act FILE NO: SEE ATTACHED SCHEDULE HEARING DATE: 19-23 NOVEMBER 2018 DECISION OF: LES MCCRIMMON DATE OF ORDERS: 27 FEBRUARY 2019



APPEARANCES and REPRESENTATION (if any):



APPLICANTS: MR ALBERT RESPONDENT: MR LITTLEJOHN

REASONS FOR DECISION:

These applications arise in the Residential Tenancies Act (NT) (‘RTA’) jurisdiction of the Northern Territory Civil and Administrative Tribunal (the ‘Tribunal’). On 5 February 2016, 70 Initiating Applications against the Chief Executive Officer (Housing) (the ‘Respondent’) were filed in the Tribunal by the Applicants’ representative, Mr Danial Kelly. Mr Kelly is a solicitor with the Australian Lawyers for Remote Aboriginal Rights. All 70 Applicants live in the town of Santa Teresa. Santa Teresa is an Aboriginal community located approximately 85 kilometers from Alice Springs, Northern Territory. Given the commonality of issues, both factual and legal, pertaining to all 70 matters, the parties agreed that four matters would proceed to hearing. Those four matters are noted in the Schedule to this decision. The Applicants are Ms Jasmine Cavanagh, Ms Enid Young, Mr Robert Conway and Mr Clayton Smith (collectively referred to as the ‘Applicants’). The hearing was held over five days; in Santa Teresa on 19 November 2018, and in Alice Springs on 20-23 November 2018. Due to the complexity of the legal argument presented by the Applicants in closing address, which in substantial respects departed from the Amended Initiating Application (‘Amended IA’) filed on behalf of each of the four Applicants on 16 February 2018, the Applicants and Respondent were directed to file written submissions, the last of which was due on 22 January 2019. In the Initiating Applications, the Applicants sought orders from the Tribunal requiring the Respondent to effect emergency repairs pursuant to s 63 of the RTA. As the matter progressed so did the pleadings, and by the time the matter came on for hearing the Applicants were seeking compensation pursuant to s 122 of the RTA for the Respondent’s failure to act with reasonable diligence to have the defects in the Applicants’ premises repaired pursuant to s 57(2)(a) of the RTA. In the alternative, the Applicants claimed that the Respondent breached s 48(1) of the RTA. Initially, the Respondents counterclaimed against all of the Applicants for unpaid rent owing from 21 September 2015, and for the cost of repairs which the Respondent maintained were caused by the Applicants. At the hearing the Tribunal was advised that the period from which unpaid rent was being sought no longer dated back to 2015, but rather from the date that the Applicants executed new Public Housing Tenancy Agreements with the Respondent on various dates in 2017. To facilitate reference to documents at the hearing, the parties provided to the Tribunal a three volume Court Book (‘CB’). While most of the documents in the CB were before the Tribunal by consent, the Applicants objected to the admission of the following documents, although the bases of the objections were not articulated. Instead, I was informed by the parties that they had agreed that the following items in the CB were not to be taken as evidence in the proceeding: 10, 14, 18, 22, 25, 41-44, 47, 49, 59, 60, 65, 67-72, 83, 85, 88, 90, 92, 98, 100-103, 118, 122, 123, 127, 128, 130-132 and 136.

Background facts

In 2010, the Commonwealth of Australia represented by the Northern Territory Department of Families, Housing and Community Services and Indigenous Affairs, purported to enter into residential tenancy agreements with all four Applicants. The involvement of the Commonwealth arose out of the application of the Northern Territory National Emergency Response Act 2007 (Cth) to the community of Santa Teresa. The effect of this legislation, and its impact on existing Northern Territory legislation relevant to the determination of the matters in these proceedings, was conclusively dealt with by Southwood J in Cavanagh v Chief Executive Office (Housing) [2018] NTSC 52. In Cavanagh, Southwood J held at [7(1)] that, while “there has a substitution in landlords from time to time, at all material times, the 2010 tenancy agreement has persisted by operation of the Residential Tenancies Act”. His Honour held further at [7(2)], with reference to the question posed by the President of the Tribunal set out at [5(2)], that the 2010 tenancy continued after 21 September 2015[1] as a tenancy between the Applicant[2] as tenant and the Respondent as landlord within the meaning of the RTA. Finally, as noted at [61] of Cavanagh:

The tenancy which persisted immediately prior to 21 September 2015 has continued for the reasons set out above. The respondent has not entered into a fresh lease with the applicant and the original periodic tenancy has still not been terminated. Since September 2017 the respondent has continued to manage the premises as a landlord.

It follows, therefore, that the RTA governs the relationship between the Applicants as tenants and the Respondent as landlord.

Jasmine Cavanagh’s tenancy

Ms Cavanagh lives at Lot 190 in Santa Teresa. Her tenancy agreement included a start date of 2 July 2010, and the rent stipulated in the agreement was $40 per week. A bond of $160, payable to the Respondent on demand, also was stipulated, and the occupancy of the premises was restricted to a minimum of two persons and a maximum of six. The agreement was signed by Ms Cavanagh on 2 July 2010, and her signature was witnessed by Mr Jason Abbott, who was at the time a Housing Support Officer with the Respondent. The circumstances surrounding the signing of the tenancy agreement are in dispute. Ms Cavanagh’s evidence was that Mr Abbott came to her house in July 2010 to attend to the signing of the tenancy agreement and related documents. According to Ms Cavanagh, Mr Abbott “seemed rushed”.[3] Further,

[h]e spoke quickly. I did not understand him much but I did understand that I had to sign some forms before I could have the keys to my house. He didn’t explain what was in the forms. He said sign them now and told me where to sign. I signed the forms because I wanted the keys to my house. He did not give me a copy of what I had signed. He did not say how much rent I had to pay. Just that everyone would have to start paying rent.[4]

Ms Jacobsen, Director, Client Relations, Public Housing Safety and Compliance for the Respondent, was called on behalf of the Respondent. In her evidence she did not specifically address the circumstances surrounding the signing by Ms Cavanagh of the tenancy agreement and associated documents. She noted, however, that the “environment that Housing Support Officers ... worked in at the relevant time was extremely demanding. It is possible that someone is ‘rushed’ but staff endeavour to take their time during sign up and ensure the tenants understand the documents they are signing.” For reasons which were not explained, Mr Abbott was not called to give evidence. I accept the evidence of Ms Cavanagh regarding the circumstances giving rise to her signing the tenancy agreement and related documents on 2 July 2010. In the absence of evidence from Mr Abbott, and in light of the lack of specific knowledge on the part of Ms Jacobsen regarding the circumstances surrounding the execution of the tenancy and related documents by Ms Cavanagh, Ms Cavanagh’s evidence on this issue is uncontradicted. At the hearing much of Ms Cavanagh’s evidence had to be given through an interpreter given that English is not her first language, although she appeared to understand questions asked of her in English. I generally found her to be a truthful witness. I have no hesitation in accepting as reliable Ms Cavanagh’s account of the circumstances surrounding the signing of the tenancy agreement on 2 July 2010. The tenancy agreement with Ms Cavanagh was not executed by the Respondent. It was Ms Jacobsen’s evidence that the tenancy agreement signed by Ms Cavanagh “has not been executed in accordance with the policy as it is not dated and has not been signed by a person of authority”.[5] The reason for this oversight was not explained. Notwithstanding the express statement of rent payable in the tenancy agreement, the Respondent maintained that the total rent for the premises was, in fact, $140 per week. According to Ms Jacobsen, the inclusion of $40 per week in the tenancy agreement was an error. As evidenced by an excerpt from the Tenancy Management System at item 11 of the CB, the total rent the Respondent charged for the premises, at least for the period 2 July 2010 to 17 August 2016, was based on rent payable of $140 per week. In her Amended IA, Ms Cavanagh sought compensation pursuant to s 122 of the RTA for the failure on the part of the Respondent to act with reasonable diligence to have the following items repaired. The date of notification of the repair, and the date of repair, as stipulated in the parties’ amended pleadings, also are noted. As is evident from the table some of the dates are in dispute.

Item Description of item Date of notification of repair - Applicant Date of notification of repair - Respondent Date of repair - Applicant Date of repair - Respondent 1 Missing front door handle 22/01/2016 22/01/2016 Not complete 12/02/2016 2 Hole in bedroom window fly screen 22/01/2016 22/01/2016 Sometime after 12 Feb 2016 Date of repair is agreed but notes item is Applicant’s responsibility 3 Powerpoint near oven broken and wires exposed In or about 2014 26/10/2015 Sometime after 1/02/2016 Not noted 4 Missing kitchen and bedroom fan knobs Unknown 26/10/2015 Sometime after 18/02/2016 Not noted 5 Entrance light detached from roof Unknown 26/10/2015 Sometime after 18/02/2016 Date of repair agreed but notes item is Applicant’s responsibility 6 Cracked tiles in hallway 22/01/2016 22/01/2016 Sometime after 12/02/2016 Date of repair agreed but notes item is Applicant’s responsibility 7 Cracked hallway bricks and hole in kitchen wall 22/01/2016 22/01/2016 Sometime after 12/02/2016 Date of repair agreed but notes item is Applicant’s responsibility 8 Holes in front porch roof At various times commencing in 2008 (verbal) and written notice provided on 22/01/2016 22/01/2016 Approx March-April 2016 Date of repair agreed but notes item is Applicant’s responsibility 9 Non-functioning oven 22/01/2016 22/01/2016 Sometime after 16/02/2016 Not noted 10 Leaking taps in bathroom resulting in flooding of the premises and shut down of water at the mains to prevent flooding 19/01/2011 and numerous times following, including 26/08/2014, 22/01/2016, 19/04/2016 22/01/2016 (although does note earlier notification of flooding resulting from blocked plumbing including the toilet) Sometime after 5/10/2016 12/02/2016

The Respondent counterclaimed against Ms Cavanagh for unpaid rent, which is discussed below, and for the cost of repairing the items noted at items 2, 5, and 6 in the preceding paragraph. The cost of repairs claimed was $665.00. Ms Cavanagh and the Respondent purported to enter into a new tenancy agreement in 2017. The details of the agreement were as follows: 19.1. the agreement was signed by both parties (the Respondent on 22 May 2017 and Ms Cavanagh on 31 May 2017);

19.2. the commencement date was 31 May 2017;

19.3. the rental term, while not stated, was to be periodic;

19.4. the rent payable was $140 per week; and

19.5. the security deposit was $560. Clause 26 of the new lease agreement provided: (a) This Tenancy Agreement replaces any previous tenancy agreements between You and Us for the Premises

(b) If, by entering into this Tenancy Agreement You remain in occupation of the Premises following termination of a previous tenancy agreement, the existing Condition Report will be evidence of the condition of the Premises at the Start Date unless We prepare a new Condition Report. During the course of her tenancy with the Respondent, Ms Cavanagh paid a total of $6,566.93 in rent. She also paid a $161.20 security deposit. Ms Cavangh claims that such payments should be refunded pursuant to s 122(1)(b) of the RTA for the reasons outlined under the Applicants’ submissions below.

2017 Tenancy Agreement

The Applicants’ legal representatives were not made aware of the circumstances surrounding, and the existence of, the 2017 tenancy agreements entered into by Ms Cavanagh and the other Applicants until the CB for the hearing was prepared in late October 2018. I note also that there was no mention of the 2017 tenancy agreements in Cavanagh v Chief Executive Office (Housing) [2018] NTSC 52. Why Mr Kelly, who at all material times was the solicitor of record for the Applicant, was not notified by the Respondent that his clients were being asked by to sign new tenancy agreements was not explained by the Respondent at the hearing. The legality of the 2017 tenancy agreements is discussed below. In my view, however, it was improper for the employees of the Respondent to contact the Applicants about executing a new tenancy agreement without first notifying the solicitor of record. The Respondent was well aware of the ongoing proceedings in this Tribunal relating to the earlier tenancy agreements, and that the Applicants were legally represented. In the 22 January 2016 letter requesting repairs and maintenance sent by Mr Kelly to the Respondent on behalf of all the Applicants, it was noted:

We are further instructed to request that all correspondence, notices and communications in relation to this matter be forwarded to us on our client’s behalf. However, to the extent that you wish to inspect the Premises, please provide notice directly to our client, and provide us with a duplicate copy of the notice. Please otherwise advise us if you intend to contact our client (whether directly, or through your sub-contractors or agents).

The Respondent, as a model litigant,[6] has an ongoing obligation to “[a]ct honestly, consistently and fairly when handling claims and litigation brought by or against the Northern Territory”.[7] As Griffith CJ stated in Melbourne Steamship Co Ltd v Morehead [1912] HCA 69; (1912) 15 CLR 333 at 342, “the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects” should be “regarded as elementary”. In my view, the failure to inform an Applicants’ legal representative before contacting the Applicants to execute a ‘replacement’ tenancy agreement falls below the honest and fair handling of litigation expected of a model litigant. In making these observations I am not suggesting that Mr Littlejohn or his instructing solicitors, Povey Stirk, had any part in the Respondent’s conduct noted above. Both Mr Littlejohn and Povey Stirk were retained after the 2017 tenancy agreements were signed.

Enid and Gerald Young’s tenancy

Enid Young lives at Lot 165 in Santa Teresa. The tenancy agreement relating to Lot 165 is in the name of Enid Young and Desmond Young. Whether Gerald Young and Desmond Young are the same person is not clear, and only Enid Young gave evidence to the Tribunal. The tenancy agreement indicated a start date of 30 June 2010, but a review of the document indicates that it was not signed until 14 December 2011. Unlike the agreement signed by Ms Cavanagh, the Respondent signed the Young’s tenancy agreement. The rent was $184 per week, and the term was periodic. A bond of $736, payable to the Respondent on demand, also was stipulated. In an unattested declaration dated 6 October 2018, Enid Young gave evidence regarding the circumstances surrounding the signing of the tenancy agreement. She indicated:

A while ago, a whitefella I had never seen before came to my door. He spoke to me only in English. He didn’t have a local person with him. I spoke to him as best I could. He then got me to sign paper. He didn’t explain what I was signing. He just said “sign here”. He seemed in a hurry.

Ms Young is in her late 70s and speaks very little English. She also does not read English.[8] Her first language is Eastern Arrernte. At the hearing, she gave evidence through an interpreter. I understood from the way the Applicants’ case was presented that the ‘whitefella’ referred to in Ms Young’s statement was Jason Abbott. This was not challenged by the Respondent. I note, however, that the tenancy agreement signed by Ms Young was witnessed by Mellissa Young. Mellissa Young was not called as a witness at the hearing. In their Amended IA, Enid and Gerald Young sought compensation pursuant to s 122 of the RTA for the failure on the part of the Respondent to act with reasonable diligence to have the following items repaired. The date of notification of the repair, and the date of repair, as stipulated in the parties’ amended pleadings also are noted.

Item Description of item Date of notification of repair - Applicant Date of notification of repair - Respondent Date of repair - Applicant Date of repair - Respondent 1 No backdoor installed at premises 22/01/2016 22/01/2016 Late March 2016 09/03/2016 2 Perimeter fence bent to ground in numerous places 22/01/2016 22/01/2016 Not repaired 09 & 30/03/2016 3 Front window does not open or close 22/01/2016 22/01/2016 17/02/2016 17/02/2016 4 Leak under kitchen sink 23/10/2014 22/01/2016 Sometime after 12/02/2016 12/02/2016 5 No air conditioner installed at premises 20/12/2012 22/01/2016 Late April 2016 12/04/2016 6 Two rings on stove not working. Griller and oven not working. 29/10/2015 22/01/2016 Sometime after 16/04/2016 10/02/2016 – stove replaced 14/04/2016 7 Shower head leaking and drain cover needs replacing 22/01/2016 22/01/2016 Sometime after 12/04/2016 10/02/2016 8 Toilet does not flush properly 23/10/2014 22/01/2016 Sometime after 09/04/2016 22/10/2015; 03/03/2016; 02/04/2016 9 Light and fan removed and residual circuit breaker turned off to all lights during installation of air conditioner/removal of ceiling fan. Wires left exposed from ceiling. Tenant left without functioning lights. 16/05/2016 [9] 22/01/2016 Sometime after 17/06/2016 04/02/2016 & 24/04/2016

I was informed that Enid Young signed a ‘replacement’ tenancy agreement in 2017, however, it could not be located in the records of the Respondent. In the circumstances, counsel for the Respondent confirmed that the tenancy agreement referred to at [26]-[27] was being relied upon in support of the Respondent’s counterclaim in these proceedings. Further, counsel for the Respondent confirmed that no counterclaim for unpaid rent was being made against Ms Young, however, the counterclaim for damage to the premises in the sum of $699.38 was being maintained. The damage claim consisted of the following:

Item Description Expenditure amount Expenditure date 1 Pest control treatment $120.27 05/08/2011 2 Kitchen switch light pushed in $90.00 29/10/2015 3 Grill door $100 29/10/2015 4 Kitchen light switch; stove grill and oven $264.20 21/12/2015 5 Replace toilet roll holder $34.91 05/04/2016 6 Holes in roof $90.00 27/09/2016 Total $699.38



During the course of her tenancy with the Respondent, Ms Young paid a total of $15,694.00 in rent. She also paid a $706.00 security deposit. Ms Young claims that such payments should be refunded pursuant to s 122(1)(b) of the RTA for the reasons outlined under the Applicants’ submissions below.

Robert Conway’s tenancy

Mr Conway lives at Lot 195 in Santa Teresa. His tenancy agreement showed Mr Conway and his wife, Josephine Cavanagh, as the tenants. Ms Cavanagh passed away in June 2018. The rent stipulated in the agreement was $184.00 per week, and a start date of 23 November 2011 was indicated. A bond of $736.00, payable to the Respondent on demand, also was stipulated. The tenancy was periodic. The agreement was signed by Mr Conway and his wife on 23 January 2011. Ms Patricia Crowe, a Tenancy Support Officer, witnessed the signatures. The Respondent did not sign the tenancy agreement. The circumstances surrounding the signing of the 2011 tenancy agreement were referred to by Mr Conway in his Unattested Declaration dated 25 October 2018 at [11]:

A long time later, a Housing Officer called Trish Crow came around to the library, where my wife worked, and got us to sign all the forms again. She was there for maybe 20 minutes. We knew Trish, because she was the wife of the Santa Teresa school principal, Greg Crowe. We told Trish that we weren’t really happy with the house, and Trish said that she would follow it up. She explained that rent would be taken out of our pay, but that rent would change depending how much money we made.

Apparently, Mr Conway and his wife signed documents when they first moved into the premises in 2010; hence, the reference to signing all the forms again. Mr Abbott was the Housing Officer who attended on Mr Conway and his wife on that occasion. In his Amended IA, Mr Conway sought compensation pursuant to s 122 of the RTA for the failure on the part of the Respondent to act with reasonable diligence to have the following items repaired.

Item Description of item Date of notification of repair - Applicant Date of notification of repair - respondent Date of repair - Applicant Date of repair - Respondent 1 Broken back window 31/08/2010 22/01/2016 15/02/2016 15/02/2016 2 Front window loose in frame 31/08/2010 22/01/2016 Sometime after 12/02/2016 10/02/2016 3 Missing fly screens in most windows 22/01/2016 22/01/2016 Sometime after 12/02/2016 10/02/2016 4 Electrical outlet in kitchen does not work 12/03/2013 22/01/2016 Sometime after 16/02/2016 10/02/2016 5 Outside power point does not work 22/01/2016 22/01/2016 Sometime after 16/02/2016 10/02/2016 6 Missing knob on fan controller 12/03/2013 22/01/2016 Sometime after 12/02/2016 12/02/2016 7 Missing front gate 22/01/2016 22/01/2016 Sometime after 12/02/2016 10/02/2016 8 Leaking air conditioner in bedroom; does not cool premises 22/01/2016 22/01/2016 Not completed 10/02/2016 9 [10] Oven and griller do not work. Griller does not seal. 22/01/2016 22/01/2016 Sometime after 16/02/2016 10/02/2016 10 Leaking shower 27/10/2015 22/01/2016 Sometime after 12/02/2016 11/02/2016 11 Failure to replace tiles following tap repair 13/06/2014 22/01/2016 Sometime after 12/02/2016 12/02/2016 12 Insect infestation

22/01/2016 Not completed Responsibility of tenant

On 28 November 2017, Mr Conway and Ms Cavanagh as tenants, and the Respondent as landlord, signed a ‘replacement’ tenancy agreement. This agreement was for a fixed term commencing on 29 November 2017 and expiring on 03 March 2018. The stipulated rent was $184 per week, and the security deposit was $736. Clause 26 in the 2017 tenancy agreement executed by Mr Conway and Ms Cavanagh was identical to that in Ms Cavanagh’s 2017 tenancy agreement referred to at [20] above. The Respondent counterclaimed against Mr Conway for unpaid rent from 3 December 2017 to 28 November 2017 in the sum of $3,627.30. It also sought the following amount from Mr Conway pursuant to s 51 of the RTA for damages the Respondent maintained were caused by, or the responsibility of, Mr Conway:

Item Description Expenditure amount Expenditure date 1 Replace bedroom door and privacy set $892.50 10/12/2015 2 Broken window and screens; missing nobs on controllers $2,000.00 10/06/2016 Total $2,892.50



During the course of his tenancy, Mr Conway paid a total of $10,736.00 in rent. Mr Conway claims that such payments should be refunded pursuant to s 122(1)(b) of the RTA for the reasons outlined under the Applicants’ submissions below.

Clayton Smith’s tenancy

Clayton Smith lives at Lot 247 in Santa Teresa. The tenancy agreement relating to Lot 247 was dated 27 January 2012 and indicated a commencement date of 4 October 2010. Mr Smith’s signature on the tenancy agreement also is dated 4 October 2010. The tenancy agreement was signed by a representative of the Respondent on 27 January 2012. The reason for the discrepancy between the dates each party signed the document was noted by Ms Jacobsen in her Unattested Declaration dated 1 November 2018. According to Ms Jacobsen, after the agreement was signed by Mr Smith, the document was misplaced (it is assumed either by employees of the Respondent or the Commonwealth). It was subsequently located and “executed on behalf of the Commonwealth on 27 January 2012”.[11] The rent stipulated in Mr Smith’s tenancy agreement was $182 per week, and a security deposit of $728 was payable to the Respondent on demand. The tenancy was periodic. The circumstances surrounding Mr Smith’s signing of the tenancy agreement are set out at [4]-[5] of his Unattested Declaration dated 6 October 2018 (CB item 114):

In 2010, a man and a woman came to my house and told me to sign papers. I had never met the man before. He said to me “sign here, sign here”. He seemed like he was in a rush. The papers I signed were not completely filled in.

Neither told me how much rent I had to pay. He just said “we’ll take the rent out of your pay”. I gave them a payslip and signed all the forms so that Housing could do that and so they would give me a key. Housing said words to the effect of “the more pay you get, the more we take out for rent. Less pay means less rent”.

In his Amended IA, Mr Smith sought compensation pursuant to s 122 of the RTA for the failure on the part of the Respondent to act with reasonable diligence to have the following items repaired.

Item Description of item Date of notification of repair - Applicant Date of notification of repair - Respondent Date of repair - Applicant Date of repair - Respondent 1 Front door keys missing 22/01/2016 22/01/2016 10-20/02/2016 17/02/2016 2 Inability to secure door 22/01/2016 22/01/2016 10-20/02/2016 17/02/2016 3 Inability to access 3rd bedroom because door locked and key lost 22/01/2016 22/01/2016 10-20/02/2016 17/02/2016 4 Electrical socket in one bedroom not working 22/01/2016 22/01/2016 unknown 17/02/2016 5 Missing smoke alarm 22/01/2016 22/01/2016 10-20/02/2016 17/02/2016 6 Infestation of mice and cockroaches in roof 22/01/2016 22/01/2016 Not competed Responsibility of tenant 7 Light in oven stopped working 22/01/2016 22/01/2016 Unknown 10/02/2016 8 Small leak from shower head 22/01/2016 22/01/2016 1-12/02/2016 31/05/2016 9 Hand basin unusable due to crack in drain pipe 22/01/2016 22/01/2016 4-5/02/2016 4/02/2016

On 26 June 2017, Mr Smith and the Respondent entered into a ‘replacement’ tenancy agreement for Lot 247. The start date of the agreement was 26 June 2017, and the term was periodic. The rent payable was $140 per week and the security deposit was $444. The Respondent counterclaimed against Mr Smith for unpaid rent from 28 June 2017 to 11 November 2018 in the sum of $6,610. It also sought the following amount from Mr Smith pursuant to s 51 of the RTA for damages the Respondent maintained were caused by, or the responsibility of, Mr Smith:

Item Description Expenditure amount Expenditure date 1 Missing front door key – replace lock; repair door; missing 3rd room key – replace lock; repair oven light; repair shower head $1,700 10/06/2016 2 Broken window and screens; missing knobs on controllers $346.21 05/09/2016 Total $2,046.21



During the course of his tenancy, Mr Smith paid a total of $9,154 in rent. Mr Smith claims that such payments should be refunded pursuant to s 122(1)(b) of the RTA for the reasons outlined under the Applicants’ submissions below.

Respondent’s calculation of rent

While the 2010 tenancy agreements stipulated the amount of rent payable, this was not the rent the Respondent charged the Applicants. The actual rent for remote housing was calculated based on a number of factors, including: the number and age of tenants living at the premises; whether those tenants were working or were on Centrelink benefits; whether those tenants were subject to any government pensions or allowance, such as the old age pension or youth allowance; and the number of bedrooms in the premises.[12] In cross-examination, Ms Jacobsen stated that, while the maximum rent payable was stipulated in the tenancy agreement and could not be exceeded, the actual rent payable by a remote housing tenant would fluctuate based on the circumstance noted in the preceding paragraph. Further, she noted that under the Housing Act (NT), the Respondent can increase the rent payable at any time. While not referred to specifically, it is assumed that Ms Jacobsen was referring to the power vested in the Minister pursuant to s 23(1) of the Housing Act which allows the Minister, from time to time, “by Gazette notice [to] determine the rent to be paid for a dwelling or a class of dwelling”. Ms Jacobsen did acknowledge under cross-examination that the rent payable by Ms Cavanagh did, on occasion, exceed the $40 per week stipulated in the 2010 tenancy agreement. This was because the Respondent calculated the actual weekly rent payable based on a maximum of $140 per week, not on $40 per week. Finally, Ms Jacobsen noted that while the rent payable by any tenant would fluctuate, the tenants named on the lease were ultimately responsible for the maximum weekly rent noted on the tenancy agreement should the contributing members in the household fail to pay their portion of the maximum rent.

Applicants’ submissions

The Applicants, in their closing address and in their written submissions, argued the following: 52.1. the 2017 tenancy agreements entered into by the Applicants (other than Ms Young [13] ) were void;

) were void; 52.2. the 2010 tenancy agreements signed by Ms Cavanagh, Mr and Mrs Young, and Mr Smith, and the 2011 tenancy agreement signed by Mr Conway, also were void;

52.3. the default prescribed agreements under s 19(4) of the RTA and the Residential Tenancies Regulations (‘RTA regs’), cl 10, Sch 2, also were void because the rent payable by each of the four Applicants was uncertain at the commencement of the tenancy;

(‘RTA regs’), cl 10, Sch 2, also were void because the rent payable by each of the four Applicants was uncertain at the commencement of the tenancy; 52.4. as a consequence of all of the agreements referred to in [52.1]-[52.3] being void, no rent was payable by the Applicants and any rent paid should be returned to the Applicants by the Respondent;

52.5. the amount of rent overpaid by the Applicants was as follows:

Applicant CB item number Rental period Amount of overpaid rent Security deposit payments to be returned R Conway 61 05/12/2012-05/10/2016 $10,736 N/A C Smith 117 05/12/2012-05/10/2016 $9,154 N/A E Young 83 13/11/2011-05/10/2016 $15,694 $706 J Cavanagh 11 25/12/2011-17/8/2016 $6,566.93 $161.20

52.6. the Applicants were entitled to compensation for the Respondent’s: 52.6.1. failure to ensure that the premises complied with the requirements stipulated in s 48(1) of the RTA; and

52.6.2. breach of its obligation to repair as set out in s 57 of the RTA.

52.7. the Respondent’s counterclaim for unpaid rent should fail because: 52.7.1. there being no valid tenancy agreement between the Applicants and the Respondent, no arrears of rent arise; or

52.7.2. even if the Tribunal finds that there was a valid tenancy agreement between the parties, the Respondent failed to put forward any admissible evidence as to the quantum of the unpaid rent owing;

52.8. the Respondent’s damages claim against the Applicants should fail because no evidence to substantiate such claims was tendered.

Respondent’s submissions

In response to the Applicants’ submissions, the Respondent maintained that: 53.1. a tenancy agreement under the RTA can be terminated with the consent of the parties to the agreement. The RTA does not require that termination of a periodic tenancy occur only as stipulated in ss 89 or 82 of the RTA;

53.2. in 2017, the parties consented to the replacement of the tenancy agreements entered into in 2010 and 2011 with the tenancy agreements executed by the Applicants and the Respondent in 2017. Further, the 2017 agreements are valid;

53.3. the tenancy agreements executed by Ms Cavanagh, Mr and Mrs Young and Mr Smith in 2010, and Mr Conway in 2011, also are valid. The Respondent submits that this was the finding of Southwood J in in Cavanagh v Chief Executive Office (Housing) [2018] NTSC 52 at [60];

[2018] NTSC 52 at [60]; 53.4. in the absence of a valid tenancy agreement between the parties, the RTA does not apply and the Tribunal would have no jurisdiction to make any order of compensation under s 122 of the RTA;

53.5. the Applicants’ case, as articulated in their Amended IA, was for compensation under s 122 arising from an alleged failure of the Respondent’s obligation to repair pursuant to s 57 of the RTA, and the Respondent’s failure to ensure that the premises were habitable and complied with all health an safety requirements as required by s 48 of the RTA and cl 14 of the Remote Public Housing Tenancy Rules. The Applicants’ claim for all rent paid by the Applicants during the tenancy pursuant to s 122(1)(b) falls outside the scope of the Applicants’ pleadings;

53.6. the Respondent attended to the repairs as soon as reasonably practicable after being notified by the Applicants of the need to repair. Consequently, the Applicants are not entitled to compensation under s 122(2)(b) of the RTA;

53.7. with respect to the counterclaim for repair costs, in the absence of any condition reports the Respondent acknowledged that it relied on “the Tribunal’s inferences and a certain amount of res ipsa loquitor -style reasoning” [14] to substantiate its claim;

-style reasoning” to substantiate its claim; 53.8. the Respondent is entitled to arrears of rent owing notwithstanding the lack of admissible evidence to substantiate the amount of such claims.

Consideration

Validity of the 2017 tenancy agreements

Clause 26(a) of the 2017 tenancy agreements entered into between the Respondent and Ms Cavanagh, Mr Smith and Mr Conway, purported to replace “any previous tenancy agreements” between the parties. It was common ground between the parties at the hearing that no notice as required to terminate a periodic tenancy by the landlord was given pursuant to s 89 of the RTA. Further, it was accepted that Ms Cavanagh, Mr Smith and Mr Conway did not provide the required notice to terminate their existing periodic tenancies pursuant to s 94 of the RTA. The Respondent argued that there was nothing in the RTA which prohibited the parties to a periodic tenancy from terminating a previous tenancy agreement by consent. The Applicants raised a number of grounds as to why the 2017 tenancy agreements were void, however, only one of the grounds needs to be dealt with here; namely, that the RTA stipulates how a periodic tenancy can be terminated in the absence of a breach by the tenant, and any purported termination other than in accordance with the RTA is invalid. The Applicants maintained that the RTA: “sets out an exhaustive code for the means by which tenancy agreements can be lawfully and effectively terminated. ... Crucially, the legislative code does not include termination by consent or agreement of the parties – that is, the common law of contract in that respect does not apply.”[15] I agree with the Applicants’ submission. The RTA does exclude common law principles relating to the termination of periodic tenancies. That this is the case is evident from the inclusion in the RTA of s 85. As Blokland SM (as Her Honour then was) noted in Jetsleaf Pty Ltd t/as Raine & Horne v Meara & Frazer [2005] NTMC 059 at [14]:

Clearly, in the case of periodic tenancies governed by the Residential Tenancies Act, there are two periods of statutory notice, 42 days when the grounds are not specified by the landlord (s 89) and 14 days notice when the grounds are not specified by the tenant (s 94). S 85(a) makes it clear that the old rules (required by law) have been subsumed by the statute in terms of notice. It clarifies that those rules do not apply to tenancies governed by the Residential Tenancies Act. To interpret the words “apart from this Act” as meaning that the periodic tenancy rules at law may apply (rather than “the Act”) would frustrate a very large part of the legislative regime.

Similarly, to introduce into the RTA a method by which a subsisting periodic tenancy agreement could be ‘replaced by consent of the parties’ also would “frustrate a very large part of the legislative regime”. Section 82(1)(a) provides that: “A tenancy is only terminated ... if the landlord or tenant terminates the tenancy under this Act” (emphasis mine). In the absence of a breach by either party, the only way a landlord can terminate an existing periodic tenancy agreement and ‘replace’ it with a new tenancy agreement is in accordance with s 89. For a tenant, the relevant termination provision is s 94. It is not contested that there can only be one tenancy agreement in existence between a landlord and tenant at any one time. The Respondent submitted, however, that requiring the parties to terminate the existing agreement in accordance with the notice provisions in ss 89 or 94 would constitute a “charade” which was not intended by the legislature when the parties were in agreement as to the need for a new tenancy agreement. In support of this submission the Respondent relied on the decision of Dr Lowndes SM (as his Honour then was) in Holdeth Investments Pty Ltd v Ivinson & Halliday [2009] NTMC 16. The facts in Holdeth varied substantially from those before the Tribunal. In Holdeth, upon the expiry of a fixed-term residential tenancy agreement, the parties entered into a series of Memorandum of Variation (MOV) on the same terms as the fixed-term agreement, except that in each MOV the rent increased and the term of the agreement was varied. The appellant argued, and Dr Lowndes SM agreed, that the MOVs did not offend s 41 of the RTA, notwithstanding that the original fixed-term agreement did not provide for increases of rent during the currency of the agreement. With respect to s 82 of the RTA, Lowndes SM noted at [165]-[167]:

Section 82 provides that a tenancy is only terminated under one of the circumstances specified therein. Those circumstances include termination of the tenancy by the landlord or the tenant or by a court or the Commissioner.

In my opinion, there is nothing in s 82 of the Act that would persuade me to alter my analysis of the contractual dealings between the parties.

Section 82 merely sets out the circumstances whereby a residential tenancy may be terminated before it has run its natural and legal course. The section has nothing to say about the termination of a tenancy by the effluxion of time. A fixed term tenancy begins on a certain date and ends on a certain date.

Holdeth does not assist the Respondent in that it dealt with the ability of the parties, by consent, to agree to new terms regarding rent and term once a fixed term contract had come to an end. It says nothing about the ability of parties to terminate a periodic tenancy other than pursuant to the relevant provisions of the RTA. If a periodic tenancy agreement was in existence, which is addressed below, it could not simply be replaced without it first being terminated by either the Respondent or the Applicants pursuant to ss 89 or 94 respectively.

Validity of the 2010 and 2011 tenancy agreements

As has been noted above at [15] and [35], the tenancy agreements signed by Ms Cavanagh on 2 July 2010, and by Mr Conway and his wife on 23 January 2011, were not signed by the Respondent. The Applicants submitted that the failure on the part of the Respondent to sign the agreements renders them void. I agree. The law is articulated clearly in s 19(4) of the RTA:

If a tenancy agreement is not in accordance with subsection (1) or the Regulations or is not signed by all the parties to the agreement, a tenancy agreement, if any, prescribed for the purposes of this section is taken to be the agreement between the parties for the purposes of this Act. [Emphasis mine]

The consequences of a failure of a party to sign a tenancy agreement was accurately summed up by Mr O’Reilly of this Tribunal in Gabriel & Gabriel v Fyfe & Ors [2018] NTCAT 562 at [13]:

In my view the purpose of s 19 is clear. It is designed to ensure that the terms of the tenancy agreement are written and known to all parties to an agreement from the outset. This is clearly consistent with the objectives of balancing; improving understanding of; and ensuring mechanisms for enforcement of, the rights and duties of tenants and landlords. Section 19(1) sets out the detail necessary for a written tenancy agreement. If those requirements are not met or where all parties have not signed the tenancy agreement the purported agreement is replaced by the prescribed agreement created by Regulation 10 and Schedule 2 [of the RTA regs]. One way or another the agreement between the parties will be a written one. Consistent with the objectives of the Act and in circumstances where the responsibilities of tenants are exercised jointly and severally it is critical that the terms of any agreement are as far as possible manifest and understood by all parties from the outset.

Prima facie, therefore, the operative agreement between Ms Cavanagh and Mr Conway and the Respondent was the prescribed residential tenancy agreement set out in Schedule 2 of the RTA regs. The Applicants’ submission that the prescribed agreements also were void is addressed below. The Applicant submitted that the tenancy agreements signed by Mr and Mrs Young on 14 December 2011, and by Mr Smith on 4 October 2010, also were invalid notwithstanding that both agreements were signed by the Respondent. This submission was founded on s 19(1), in addition to s 19(4), of the RTA. Relevantly, s 19(1) of the RTA provides that:

If a landlord enters into a written tenancy agreement the agreement is to: ...

(d) contain each term, or a term to the same effect as each term, that is specified by or under this Act to be a term of a tenancy agreement; ...

Whether a term is “specified by of under this Act” within the meaning of s 19(1) of the RTA can be ascertained from the wording of particular provisions. For example, of relevance to these proceedings, s 51(1)(a) of the RTA relating to cleanliness and damage provides that:

It is a term of a tenancy agreement that a tenant:

(a) will not maintain the premises and ancillary property in an unreasonably dirty condition, allowing for reasonable wear and tear; [Emphasis mine]

Elevating an obligation of a tenant or landlord to a statutory “term of a tenancy agreement” also occurs in ss 12, 21, 35, 48, 52, 54, 55, 56, 57, 58, 64, 65, 68 and 78. The Applicants submitted that if the term in the tenancy agreement entered into between the Respondent and Applicants does not contain “a term to the same effect” as each term specified under the RTA to be a “term of a tenancy agreement” within the meaning of s 19(1)(d) of the RTA, s 19(4) is engaged and the tenancy agreement “prescribed for the purpose of this section is to be taken to be the agreement between the parties for the purposes of this Act”. In other words, the Applicants maintained that the tenancy agreement as a whole is invalid, and that the prescribed tenancy agreement will apply, not simply that the inconsistent provision itself will be void to the extent of the inconsistency. Finally, the Applicants maintained that if a clause of the tenancy agreement entered into between the parties was not designated in the RTA to be a “term of a tenancy agreement”, then an inconsistent clause will be “void to the extent of the inconsistency” within the meaning of s 20(1) of the RTA. Such a clause will not trigger the substitution of the agreement between the parties by the prescribed tenancy agreement in Sch 2 of the RTA regs. The Applicants submitted that tenancy agreements signed by the Applicants in 2010 and 2011, which incorporated clauses 11.5 and 11.6 of the Remote Public Housing Tenancy Rules, were not to “the same effect” as s 51 of the RTA. Consequently, the 2010 and 2011 tenancy agreements were not “in accordance with subsection (1)” within the meaning of s 19(4) of the RTA. The result is that the prescribed tenancy agreement is taken to be the agreement between the parties. Clauses 11.5 and 11.6 of the Remote Public Housing Tenancy Rules[16] provided:

The tenant must:

11.5 Maintain the Premises and Ancillary Property in a reasonably clean condition, allowing for reasonable wear and tear.

11.6 Maintain and keep at their own expense the Premises in a neat, tidy and clean state, including without limitation [a number of specified items].

Section 51(1)(a) of the RTA, by contrast, provides that:

It is a term of a tenancy agreement that a tenant ... will not maintain the premises and ancillary property in an unreasonably dirty condition, allowing for reasonable wear and tear. [Emphasis mine]

The Respondent submitted that clauses 11.5 and 11.6 were consistent with s 51(1)(a) of the RTA in that they were terms “to the same effect” within the meaning of s 19(1)(d). Further, the Respondent relied on the fact that Southwood J in Cavanagh v Chief Executive Office (Housing) [2018] NTSC 52 at [7] stated in relation to Ms Cavanagh’s tenancy agreement that, “at all material times, the 2010 tenancy agreement has persisted by operation of the Residential Tenancies Act”. In my opinion, clauses 11.5 and 11.6 of the Remote Public Housing Tenancy Rules are not terms “to the same effect” as the term stipulated in s 51(1)(a) of the RTA. When acting as a delegate of the Commissioner of Tenancies, the President of the Tribunal considered in Rosas v Chief Executive Officer (Housing) [2015] NTRTCmr 25, whether a substantially identical clause to cl 11.6 of the tenancy agreement at issue in these proceedings was inconsistent with s 51(1)(a) of the RTA. He concluded that it was inconsistent, noting at [53] that:

By purporting to require the tenants to maintain the premises and ancillary property in a ‘neat, tidy and clean state’ the clause imposes an obligation of a fundamentally different order from section 51(1)(a) by which the tenant’s relevant obligation is to ensure that premises are not allowed to become, or stay, unreasonably dirty.

Clause 11.5 also is inconsistent with s 51(1)(a) of the RTA. To adopt the wording used in Rosas, requiring the tenant to maintain the premises “in a reasonably clean condition” is of a fundamentally different order from the requirement of a tenant to “not maintain the premises in an unreasonably dirty condition” (s 51(1)(a)). As the Applicants submitted, and I agree, the RTA distinguishes between the condition in which a tenant must maintain the premises (s 51(1)(a) discussed above) and the obligation on the landlord to ensure that the premises are “reasonably clean when the tenant enters into occupation” (s 48(1)(c)). The latter envisions a higher degree of cleanliness. The term ‘unreasonably dirty” and “reasonably clean” are not terms “to the same effect” within the meaning of s 19(1)(d). Both clauses 11.5 and 11.6, incorporated into the Applicants’ tenancy agreements, were inconsistent with the term stipulated in s 51(1)(a) of the RTA. I have also concluded that the Applicants were correct that such an inconsistency engages s 19(4). Section 19(1)(d) states clearly that the tenancy agreement between the parties must “contain each term” stipulated in the RTA to be “a term of a tenancy agreement”. Section 51(1)(a) is such a term and the inclusion of clauses 11.5 and 11.6 in the Applicants’ tenancy agreements meant that such agreements were not in accordance with s 19(1)(d). Consequently, the inescapable conclusion is that s 19(4) directs that the prescribed tenancy agreement will be taken to be the agreement between the parties for the purposes of the RTA. In Rosas, reliance was placed on s 20 of the RTA to deal with the invalidity of the clause of the tenancy agreement at issue in that case. The effect of s 19(4) of the RTA was not considered. Consequently, I find that the reasoning in Rosas does not preclude the conclusion that I have reached in these proceedings. Finally, the decision of Southwood J in Cavanagh v Chief Executive Office (Housing) [2018] NTSC 52 at [7] does not assist the Respondent. It is clear from a review of the decision that, when arguing the matter before His Honour, no objection was taken by either party to the validity of the tenancy agreement executed by Ms Cavanagh on 2 July 2010. That the lease was validly executed was not a fact in issue. While counsel for the Applicants in argument before me resiled from that position, this does not affect the substantive determination of the validity of the Applicants’ tenancy agreements once their validity was put in issue. It follows from what has been said above that, prima facie, the operative agreement between the Applicants and the Respondent was the prescribed residential tenancy agreement set out in Schedule 2 of the RTA regs. It is to the validity of the prescribed agreement that I now turn.

Validity of the prescribed tenancy agreements

The Applicants submitted that the prescribed tenancy agreements were void for uncertainty because: 82.1. in the case of Ms Cavanagh and Mr Conway, the 2010 tenancy agreements were not signed by the Respondent and, therefore, there was no rent amount agreed between the Respondent and these Applicants at any time; and

82.2. in the case of Ms Young and Mr Smith, while there was an agreement as to the rent amount, such agreement was not reached at the “beginning of the tenancy” as required by cl 2(2) of the prescribed tenancy agreement.[17] It is well recognised that for there to be a binding tenancy agreement between parties, there must be “an agreed rent or a mechanism for determining the rent”.[18] Further, when the prescribed tenancy agreement under Schedule 2 of the RTA regs applies, cl 2(2) provides that the tenant must pay before each rental payment period “the amount of rent, if any, agreed at the beginning of the tenancy”. The tenancy agreements purportedly entered into between the Applicants and the Respondent were, for the reasons discussed above, invalid. The tenancy agreements, however, are of some assistance in determining factual questions; namely, what type of tenancy existed between the Applicants and the Respondent, and what amount of rent was to be paid. At the hearing, Ms Jacobsen gave evidence that the rent payable by the Applicants was calculated based on a maximum rent payable for the dwelling. What each occupant had to pay at any given time was determined by how many people occupied the premises. Further, whether an occupant was employed, receiving a benefit such as unemployment benefits, etc, also was taken into consideration. Finally, Ms Jacobsen noted that the Applicants, as signatories to the tenancy agreements, were responsible for the maximum amount of rent payable. In practice, however, the amount paid would be less based on the above factors. The questions for the Tribunal, therefore, are whether the maximum amount of rent payable for each dwelling can be ascertained and, if so, was there agreement between the parties as to the amount of rent payable as at the commencement of the tenancy.

Mr Conway’s tenancy

Dealing first with Mr Conway’s tenancy, in evidence at the hearing Mr Conway noted that, before his house was renovated by the Respondent in 2010, he was paying $100 per week in rent. After he and his wife moved back into the premises after the renovations, he was paying $184 per week. I note that the latter amount is consistent with the amount noted in the tenancy agreement Mr Conway signed in 2011. The payment of rent weekly indicated a periodic tenancy. Finally, based on the evidence presented at the hearing, Mr Conway’s periodic prescribed tenancy agreement commenced on 5 February 2012.[19] The learned author of Butt’s Land Law noted at [7.280]:

Periodic tenancies may arise by express agreement. More commonly, though, they arise by implication from the manner in which rent is paid. Thus, where rent is paid and accepted on a weekly basis, a periodic tenancy from week to week arises. Where rent is paid and accepted on a monthly basis, a periodic tenancy from month to month arises. In the same way may arise tenancies for any other period, such as quarter to quarter, or half-year to half year, or year to year.[20]

It can be implied by the facts of Mr Conway’s case that at the commencement of the periodic tenancy entered into between Mr Conway and his wife, and the Respondent, Mr Conway agreed to pay $184 per week. The fact that the actual rent paid by Mr Conway may have been less than $184 per week is irrelevant. As Kitto J noted in Thorby v Goldberg [1964] HCA 41; (1964) 112 CLR 597 at 605:

But an agreement is not void for uncertainty because it leaves one party of group of parties a latitude of choice as to the manner in which the agreed stipulations shall be carried into effect, nor does it for that reason fall short of being a concluded contract.

Finally, while at the hearing much was made of the fact that Mr Abbott failed to explain the terms of the tenancy agreements to any of the Applicants at the time the 2010 and 2011 agreements were signed, this does not lead me to conclude that, as at the commencement of Mr Conway’s prescribed tenancy agreement, Mr Conway was not in agreement with the Respondent as to the rent payable. On 23 November 2011, Mr Conway signed a Family Rent Agreement which indicated clearly the total property rent payable of $184 for the premises.[21] This was not a complicated legal document. Further, while Mr Conway’s first language is Arrernte, he completed grade 9 at St John’s College in Darwin and also has completed an adult education course at the Batchelor Institute of TAFE.[22] I find that he had the capacity to read the documents he signed as they related to the total rent payable for the premises he rented.

Mr Smith’s tenancy

The 2010 tenancy agreement signed by Mr Smith on 4 October 2010 indicated clearly on the first page that: “The rent is $182 per week”. While Mr Smith’s first language is Arrernte, he has completed schooling to “about a year 9 level”.[23] Further, he stated in evidence at the hearing that, prior to 2011, he had worked for three years as a ranger. He also noted that he was aware in 2011 that his rent was “approximately $200 per week” and that the rent would be deducted from his pay. As has been noted above, the 2010 tenancy agreement signed by Mr Smith was not signed by the Respondent until 27 January 2012. This fact, coupled with the evidence to be gleaned from the Respondent’s records,[24] leads me to conclude that the commencement date of Mr Smith’s prescribed tenancy agreement was 5 February 2012.

Ms Young’s tenancy

The tenancy agreement signed by Mr and Mrs Young, and the Respondent, dated 14 December 2011, indicated a rent payable of $184 per week. I also note that Mr and Mrs Young signed a Family Rent Agreement dated 27 September 2011 in which the rent was stated clearly to be $184 per week. As has been noted above at [29], Ms Young speaks very little English. I am satisfied on the balance of probabilities, however, that at the commencement of the prescribed tenancy agreement Ms Young was aware of the weekly rent payable. While I accept that Mr Abbott failed to explain adequately the terms of the 2011 tenancy agreement, by the time the prescribed tenancy agreement commenced Ms Young had signed at least one document that stipulated that the total property rent was $184 per week. I find that she was aware at the beginning of the prescribed tenancy agreement that her rent was $184 per week. When did Ms Young’s prescribed tenancy agreement commence? In support of Ms Young’s claim for overpayment of rent, counsel for Ms Young relied on item 83 of the CB. This document was a Department of Housing statement for Mr and Ms Young for the period of 1 June 2010 to 5 October 2016.[25] That document indicated a commencement date of 13 November 2011, which I find was the commencement date of the prescribed tenancy agreement. I note that, by agreement between the parties, item 83 was included in a list of documents that were not to be taken as evidence in the proceedings. I also note, however, that item 83 was relied on by Ms Young to quantify her claim for reimbursement of rent paid. In light of this fact, I conclude that the inclusion of item 83 in the agreed list of documents not to be taken as evidence was an error. Even if it was not an error, the Tribunal was not bound by the agreement between the parties regarding the documents to which it could have reference in deciding this matter; although such agreement generally will be given due weight. In coming to this conclusion, I considered s 53(2)(d) of the NTCAT Act. It provides that:

The Tribunal ... must ensure, so far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all relevant facts.

To decide Ms Young’s claim for overpaid rent, the Tribunal would have to have reference to item 83 given that it was the only document relied on by Ms Young to substantiate her claim. Item 83 also is relevant to the issue of commencement of the prescribed tenancy agreement. In the circumstances, the Tribunal is entitled to consider the document.

Ms Cavanagh’s tenancy

Ascertaining the rent agreed upon by the parties at the commencement of the prescribed tenancy agreement in the case of Ms Cavanagh is complicated by the fact that the Respondent’s records were, to put it at its highest, confusing. As has been noted above at [10], the rent stipulated in the 2010 tenancy agreement was $40 per week, which Ms Jacobsen on behalf of the Respondent stated was an error. According to Ms Jacobsen, the total rent payable was $140 per week. Unfortunately for the Respondent, other documents it prepared, and Ms Cavanagh signed, indicated varying amounts of rent payable. A Family Rent Agreement dated 12 February 2012 indicated a total property rent for Ms Cavanagh’s premises of $88 per week, of which Ms Cavanagh’s share was $40 per week.[26] A Family Rent Agreement dated 6 April 2013 indicated a maximum dwelling rent of $140 per week, of which Ms Cavanagh’s share was $40 per week.[27] Ms Jacobsen, in cross-examination, stated that the Family Rent Agreement was only relevant to the apportionment between family members, not to the total rent payable for the premises. I reject this evidence. The Family Rent Agreements, in addition to stipulating the rent payable by each occupant, also stipulated the total rent payable for the dwelling and was evidence of this amount. Based on all of the evidence, and in light of the conflicting evidence as to the maximum rent payable for the dwelling, I find that Ms Cavanagh agreed with the Respondent to pay a total of $40 per week at the commencement of the prescribed tenancy agreement. While I accept Ms Cavanagh’s evidence that Mr Abbott did not tell her how much rent she had to pay when she signed the 2010 tenancy agreement, she was aware that she had to pay rent.[28] Further, reference to the first page of the 2010 tenancy agreement, which Ms Cavanagh signed, stipulated the rent payable. Ms Cavanagh completed school by correspondence until the age of 17 years. She understands English and she can read English although not very well.[29] At the hearing she testified that she has worked in retail and at an Aboriginal Corporation in Santa Teresa. The fact that she chose not to read the documents she signed cannot be relied upon as evidence of the fact that she was unaware of the rent she had to pay. As was noted in L’Estrange v F Graucob Ltd [1934] 2 KB 394 at 404:

... the plaintiff, having put her signature to the document and not having been induced to do so by any fraud or misrepresentation, cannot be heard to say that she is not bound by the terms of the document because she did not read them.

The above-noted ratio in L’Estrange was applied by the High Court of Australia (‘HCA’) in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [46]. In Toll, the HCA also noted at [45] that:

It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents ... whatever they might be.

While I have found that the 2010 tenancy agreement signed by Ms Cavanagh was void, the document is evidence of the fact that Ms Cavanagh knew as at 2 July 2010 that she was required to pay rent in the sum of $40 per week. For the purpose of the prescribed tenancy agreement, I find that such agreement commenced on 25 December 2012, which is the commencement date indicated in the Department of Housing statement for Ms Cavanagh’s tenancy for the period 02 July 2010 to 17 August 2016.[30]

Conclusion regarding the validity of the prescribed tenancy agreement

It follows from what has been stated above that I reject the Applicants’ submission that the prescribed tenancy agreements were void for uncertainty. Consequently, I reject the Applicants’ submission that they are entitled to compensation for overpayment of rent and the return of security deposits in the amounts set out at [52.5] above. The prescribed tenancy agreements under s 19(4) of the RTA and the RTA regs cl 10, Sch 2, are valid and continue to govern the tenancy relationship between the Applicants and the Respondent. To the extent that any of the Applicants occupied the premises before the commencement date, they did so as tenants at will of the Respondent. In conclusion, the rent payable, and commencement date, of the Applicants’ prescribed periodic tenancies are as follows:

Applicant Commencement date Total rent payable R Conway 5 February 2012 $184/week C Smith 5 February 2012 $182/week E Young 13 November 2011 $184/week J Cavanagh 25 December 2012 $40/week

In light of my finding regarding the validity of the prescribed tenancy agreements, it is not necessary for me to address the Respondent’s submission that the Applicants’ claim for overpayment of rent falls outside the scope of its pleadings. In this regard, I note only that such a claim for compensation would fall under 122(1)(b) of the RTA. Nowhere in the Amended IA filed by any of the Applicants was reference made to this provision or to any claim for overpayment of rent. Counsel for the Applicants noted that in the Initiating Application reference was made to s 122(1)(b), however, this does not assist the Applicants. The Respondent and the Tribunal were entitled to proceed on the basis that the Initiating Application was replaced by the Amended IA. While, admittedly, the Tribunal was required by s 53(2)(c) of the NTCAT Act to act with as little formality and technicality as a proper consideration of the matter permits, in a case such as this where both sides were represented by counsel the Tribunal was entitled to expect that the Amended IAs reflected the bases on which the Applicants were putting their case. Unfortunately in this proceeding, much of the Applicants’ case, particularly in relation to the validity of the tenancy agreements, bore little resemblance to the facts pled in the Amended IAs, or to the facts that were admitted by the Respondent in its Amended Response based on the Applicants’ Amended IA.

Improvised dwelling

In support of their submission that they should be repaid all monies paid to the Respondent for rent, the Applicants argued that the homes they occupied were ‘improvised dwellings’. Reference was made to the Remote Housing Rent policy of the Respondent in which it was stipulated that no rent was payable by people living in improvised dwellings.[31] In the Respondent’s document entitled Glossary, which was entered as exhibit 147 at the hearing, the term ‘improvised dwelling’ was defined as follows:

An improvised dwelling is one which does not have the full range of amenities available or is a structure never intended to be a house, eg. a shed, car body, humpy or iron/tin structures.

The term ‘amenity’ is defined in the Glossary as, a “[f]eature that a Department of Housing dwelling has that is additional to standard facilities”. While there were issues with the homes the Applicants rented from the Respondent (discussed in detail below), they were not ‘improvised dwellings’. The structures the Applicants lived in were houses with the amenities one would expect to find in public housing in a remote community. A large part of the Applicants’ compensation claim rests on the assertion that such amenities, periodically during the course of the tenancy, required repair. The amenities were available, but at times did not work properly for which a claim was made by the Applicants under the RTA.

Applicants’ claim for compensation

The Applicants’ claim for compensation was based on the following: 114.1. the Respondent failed to ensure that the premises and ancillary property were habitable (s 48(1)(a) of the RTA), and “met all health and safety requirements specified under an Act that apply to residential premises or the ancillary property” (s 48(1)(b) of the RTA); and

114.2. the Respondent failed to ensure that the premises and ancillary property were in a reasonable state of repair when the Applicants entered into occupation of the premises (s 57(1)(a) of the RTA), and failed to maintain the premises in a reasonable state of repair (s 57(1)(b) of the RTA).

Relevant law – s 48 claims

I note at the outset that the Applicants made a number of claims for breach of s 48 which were untenable on the evidence. While no alternate claim was made in their counsel’s closing submissions, I am cognisant of the fact that all of the items set out in the Applicants’ notices to the Respondent dated 22 January 2016 were stipulated in the Amended IAs to be a breach of the Respondent’s duty to repair (s 57(1) of the RTA) and, in the alternative, to be a breach of s 48(1). I deal, therefore, with both claims in these reasons. Section 48 of the RTA states: (1) It is a term of a tenancy agreement that the landlord must ensure that the premises and ancillary property to which the agreement relates: (a) are habitable; (b) meet all health and safety requirements specified under an Act that apply to residential premises or the ancillary property; and (c) are reasonably clean when the tenant enters into occupation of the premises.

(2) It is not a breach of the term specified in subsection (1) if the failure to comply with the term is caused by: (a) an act or omission of the tenant; or (b) the tenant’s failure to notify the landlord of repairs required to the premises.

Whether residential premises are ‘habitable’ within the meaning of s 48(1)(a) of the RTA was considered by me in Blakeney v Klein [2016] NTCAT 513. In Blakeney I noted at [26]-[27]:

The words ‘habitable’ and ‘uninhabitable’[32] are not defined in the RTA. The Macquarie Dictionary (6th ed, 2013) at page 667 defines the word habitable as “capable of being inhabited”. While the Macquarie Dictionary does not define the word ‘uninhabitable’, it follows from the definition of ‘habitable’ that ‘uninhabitable’ means not capable of being inhabited.

The meaning of the words ‘habitable’ and ‘uninhabitable’ also can be gleaned from the common law. In Morgan v Liverpool Corporation [1927] 1 KB 131, the English Court of Appeal considered the meaning of the term ‘fit for human habitation’ in the context of the Housing Act 1925 (UK). Lord Atkin, at page 145, held that the term meant that, if the state of repair of a house is such that by ordinary user damage may be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respect reasonably fit for human habitation.

I noted in Blakeney that Lord Atkin’s definition also was applied in De Soleil v Palhide Pty Ltd [2010] NSWCTTT 464 by the Consumer, Trader and Tenancy Tribunal of New South Wales (the ‘NSWCTTT’). In De Soleil, the NSWCTTT noted:

The Tribunal has considered the term “fit for habitation” in a number of cases. It is sometimes viewed as meaning that the state of the premises does not represent a threat to the life, limb or health of the tenant. (Morgan v Liverpool Corporation (1927) 2 KB 131 at 145). To find that the premises are not habitable the Tribunal would have to be satisfied that there is a threat to the tenant’s safety, going to both structural and health issues. The Tribunal in Jex and Jex v Struk (2000) held that “Fit for habitation sets an objective standard”. The decision of the South Australian District Court in Hampel v South Australian Housing Trust [2007] SADC 64 relying on the Queensland Supreme Court in Gray v Queensland Housing Commission [2004] QSC 276 concluded that premises are not fit for habitation if “the state of repair is such than [sic] injury is to be expected, or will naturally occur from the ordinary use of the premises they cannot be regarded as fit for human habitations”. The test is a very high test. [Emphasis mine]

The Applicants submitted that, when considering whether the Respondent has breached its s 48(1)(a) obligation, the Tribunal should ask itself the following question: Does the inadequacy identified by the Applicants, “make the premises, at any time ... uninhabitable in the sense that it made the living conditions not consistent with the tenant’s humanity and/or that it does not provide reasonable comfort, judged by contemporary standards”? I disagree with the Applicants’ articulation of the relevant test of ‘habitable’ contained in s 48(1)(a). Based on the authorities noted above, the test is much higher than that suggested by the Applicants. To find that the Respondent had failed in its obligation to ensure that the premises and ancillary property were habitable, I must conclude that the state of the premises and ancillary property were such that there was “a threat to the tenant’s safety, going to both structural and health issues”, to use the words of the Tribunal in De Soleil v Palhide Pty Ltd [2010] NSWCTTT 464. Further, the obligation is on the tenant to show that the state of the premises and ancillary property were such that a threat to the tenant’s safety will naturally occur from the ordinary use of the premises. Finally, I agree with the conclusion of the NSWCTTT in De Soleil that the test the tenant must meet is high. It is much higher than the question articulated by the Applicants in the preceding paragraph would indicate. The Applicants identified the following items as establishing, on the balance of probabilities, that the Applicants’ premises were not habitable for a period of time within the meaning of s 48(1)(a) of the RTA:

Applicant Item[33] Description of item Lot 190 - Cavanagh 1 Missing front door handle (a breach of s 49(1) of the RTA also was submitted) 3 Powerpoint near oven broken and wires exposed 10 Leaking taps in bathroom resulting in flooding of the premises and shut down of water at the mains to prevent flooding Lot 165 - Young 1 No backdoor 2 Perimeter fence down in a number of places 3 Front window does not open or close 4 Leak under kitchen sink 5 No air conditioner 7 Shower head leaking and drain needed replacing 8 Toilet does not flush properly 9 Damages arising from installation of air-conditioner: Light and fan removed and residual circuit breaker turned off to all lights during installation of air conditioner/removal of ceiling fan. Wires left exposed from ceiling. Tenant left without functioning lights. Lot 195 - Conway 8 Leaking air-conditioner 10 Leaking shower 11 Failure to replace tiles following tap repair Lot 247 – Smith 2 Inability to secure door 5 Missing smoke alarm 8 Small leak from the shower head 9 Hand basin unusable due to crack in drain pipe

Relevant law – s 57 claims

The remainder of the Applicants’ compensation claims related only to an alleged breach by the Respondent of the landlord’s obligation to repair set out in s 57(1) of the RTA. Relevant to these proceedings are s 57(1) and (2) which provide: (1) Subject to this Part, it is a term of a tenancy agreement that the landlord: (a) must ensure that the premises and ancillary property are in a reasonable state of repair when a tenant enters into occupation of the premises; and (b) must maintain the premises and ancillary property in a reasonable state of repair, having regard to their age, character and prospective life.

(2) A landlord is not in breach of the term specified under subsection (1) unless he or she: (a) has notice of the defect requiring repair; and (b) fails to act with reasonable diligence to have the defect repaired.

The tenant’s requirement to notify the landlord of the defect requiring repair relevant to this proceeding is set out in s 58(1) and (3) of the RTA: (1) It is a term of a tenancy agreement that if premises or ancillary property require repair or maintenance, other than repair or maintenance of a negligible kind, a tenant is, as soon as reasonably practicable after becoming aware of the need for the repairs or maintenance, to notify the landlord orally or in writing of the requirement.

(2) ...

(3) If the landlord requests the tenant to put the notice in writing, the tenant is not to be taken to have given notice under subsection (1) unless it is given to the landlord in writing. The Applicants submitted, and I accept, that the term ‘reasonable state of repair’ in s 57(1) means that everything in the premises works as it should.[34] In other words, the items in the premises are “undamaged and in good working order”.[35] The Applicants also submitted that, while s 57(1) is concerned with all manner of repair, s 57(2) has a narrower application as it is concerned only with defects requiring repair. In other words, the Applicants maintained that a tenant’s obligation to notify the landlord of the repairs required only related to defects which could not be discovered by a landlord during an inspection. If the repairs required arose from damage to the premises – for example by the actions of the tenants or others – s 57(2)(a) has no application. The Applicants submitted that, “[t]his is consistent with common sense – defects can be hard to discover, damage generally is not. The Tribunal must give effect to the words the legislature chose”.[36] While the Applicants’ interpretation of s 57(2)(a) appears at odds with what I see as the purpose of the section – namely, inter alia, to require the landlord to act with reasonable diligence to effect repairs of which it has notice – little turns on this issue given ss 58 and 122(2)(b) of the RTA. Section 58 requires the tenant to notify the landlord either orally or in writing as soon as reasonably practicable if repairs or maintenance are required. Section 58 is not limited to notification of defects only. It stipulates that the notice requirement applies to all repairs or maintenance, except those of a negligible kind. Section 122(2)(b) provides that a party such as the Applicants may not apply for compensation for a breach of the landlord’s duty to repair (s 57(1)), unless notice under s 58(1) has been given. In other words, notice under s 58(1) is a precondition to an award of compensation to a tenant for loss or damage arising from a landlord’s breach of its obligation to repair in s 57(1). A tenant’s failure to comply with s 58(1) is fatal to any claim it may have for compensation arising from a landlord’s breach of s 57(1). The Applicants submitted that s 122(2)(b) merely requires notice to be given by the tenant. Once given, compensation can be awarded for repairs (as opposed to defects) from the date such need for repair arose, regardless of when the notice was given; which in some cases may be years after the need for repair became evident to the Applicants. I reject this submission. It ignores the clear wording of s 58(1). The tenant must give notice as soon as reasonably practicable “after becoming aware of the need for repairs or maintenance”. If the Applicants’ interpretation was correct, the legislature would have stipulated in s 58 that notice was only required as soon as reasonably practicable after the tenant became aware of the need for repair of a defect. When considering the Applicants’ s 122(2)(b) claims for loss or damage suffered by reason of a breach of the Respondent’s duty to repair, the following questions arise: 128.1. did the Applicants provide notice to the Respondent “as soon as reasonably practicable after becoming aware of the need for repairs or maintenance” (s 58(1));

128.2. if so, once notified, did the Respondent act with reasonable diligence in carrying out the repair or maintenance (s 57(2)(b)); and

128.3. if a breach of the Respondent’s duty to repair is established, have the Applicants proved, on the balance of probabilities, that loss or damage was suffered by reason of the Respondent’s breach of its duty to repair (s 122(2)(b)). If it is found that the Applicants did act as soon as reasonably practicable within the meaning of s 58(1), then s 57(2)(b) will need to be considered. The term ‘to act with reasonable diligence’ is not defined in the RTA. In Alan v Vehicle Builders Employees’ Federation of Australia [1978] FCA 29; (1978) 34 FLR 294, Smithers J noted at page 298 that:

In Young v Paddle Bros Pty Ltd[37] Herring CJ referred to a statement by Dr Lushinton in The Europa[38] that the meaning of the expression “reasonable diligence” is not the doing of everything possible, but the doing of that which, under ordinary circumstances and with regard to expense and difficulty, could be reasonably required.

The circumstances to be considered when determining whether a landlord “failed to act with reasonable diligence to have the defect repaired” within the meaning of s 57(2)(b) will include the nature of the defect being repaired. Minor repairs, for example, would not in the ordinary circumstances and with regard to expense and difficulty of getting a tradesperson to attend to make the repair, reasonably be required to be completed in a short period of time.

As soon as reasonably practicable

The term ‘as soon as reasonably practicable’ is not a defined term in the RTA. The Applicants submitted, and I agree, that guidance as to the meaning of the term can be gleaned from Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82. While the Full Court of the Federal Court in Snedden considered the meaning of the term in the context of the Extradition Act 1988 (Cth) rather than in the context of residential tenancy legislation, the court’s observations are nonetheless of assistance to the Tribunal in these proceedings. At [116] the court noted:

There are essentially three elements to the composite expression “as soon as reasonably practicable”. First, the word “practicable” has the meaning of “capable of being carried out in action; feasible”: M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146 (M38/2002) at [65]. It identifies that which is able to put into practice and which can be effected or accomplished: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb) at [121]. Secondly, the qualification “reasonably” limits or qualifies what would otherwise be an absolute obligation: M38/2002 at [65]. It introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme: Al-Kateb at [121]. Thirdly, the phrase “as soon as” supplies a temporal element: Al-Kateb at [121]. It directs the decision-maker to make the determination without delay once it is reasonably practicable to do so: Santhirarajah at [74]; Judgment at [24].

In determining whether notice was given “as soon as reasonably practicable” the Applicants submitted that the following facts were relevant:[39] 132.1. the Applicants live in a remote community;

132.2. the Respondent primarily manages and administers the Applicants’ tenancies from Darwin; approximately 1,600 kilometers away;

132.3. only some of the Applicants were provided with a phone number on which he Respondent could be contacted;

132.4. some of the Applicants were illiterate; and

132.5. the evidence indicated that the Housing Reference Group for Santa Teresa met only irregularly. Whether the above-noted factors are relevant depends on the particular Applicant in question. For example, as is discussed below, Ms Cavanagh submitted numerous Maintenance Requests to have her leaking shower and plumbing problems rectified. It would appear, therefore, that she was well aware of a method by which notification to the Respondent of the need for repairs or maintenance could be made. Further, neither Ms Cavanagh, Mr Conway nor Mr Smith were illiterate. Finally, all three gave evidence that they had worked for at least some period during the currency of the tenancy and, it can be assumed, would have had some access to either a telephone or the internet during that period. It was clear from the evidence that at least Ms Cavanagh, Mr Smith and Mr Conway had some knowledge of how to notify the Respondent of matters requiring repair. That Ms Cavanagh submitted Maintenance Requests has been referred to above. Mr Smith gave evidence in cross-examination that he called Ingkerreke Commercial and Building Construction (‘Ingkerreke’) – an Aboriginal Corporation sometimes used by the Respondent to carry-out repairs – about some of the problems he was having with his appliances, and that Ingkerrek made the repairs. Mr Conway gave evidence that, for at least some period during the tenancy, he had access to the internet and logged in to his ‘MyGov’ account. With respect to his rental payments, he also noted that he could ring up at anytime to check whether his rent was being deducted from his Centrelink account. While the factors noted at [132] above may apply to a tenant such as Ms Young, they are of limited application to tenants such as Ms Cavanagh, Mr Smith and Mr Conway. Tenants such as Ms Cavanagh, Mr Smith and Mr Conway were not as disadvantaged in their interactions with the Respondent as the submissions of Applicants’ counsel would suggest. The Respondent submitted that the Tribunal must take into account how the notification of the need for a significant number of repairs came to the attention of the Respondent. As was affirmed by Mr Kelly, the solicitor for the Applicants who gave evidence at the hearing, the Applicants did not contact him regarding the issues with their rental properties. Rather, Mr Kelly identified Santa Teresa as a community which should be investigated regarding the state of the residents’ premises. This was done by way of a survey conducted by Mr Kelly and volunteers. It was the results of that survey that informed Mr Kelly of the repairs required, as set out in his letters to the Respondent on behalf of the Applicants dated 22 January 2016. On this point the Respondent’s Written Submissions dated 21 November 2018 at [13] stated simply, and unhelpfully, that, “[w]hat the Tribunal makes of this evidence in the context of the requirements of s 58(1) is uncertain”. What I take from the facts articulated in the preceding paragraph, however, is that if it can be shown that a repair identified in Mr Kelly’s letters of 22 January 2016 had existed for some time before that date, and no notification of repair had been made by Ms Cavanagh, Mr Smith or Mr Conway to the Respondent, the repair was of a negligible kind within the meaning of s 58(1) of the RTA. Alternatively, if the Tribunal finds that it was not a repair of a negligible kind, then it is evidence which supports the Respondent’s submission that the Applicants’ notification to the Respondent was not made as soon as reasonably practicable after the tenant became aware of the need for repair. I acknowledge, however, that considerations more in line with those articulated by the Applicants at [132] would apply to Ms Young. For the reasons noted at [29] above, Ms Young was at a greater disadvantage in her dealings with the Respondent than were the other Applicants. Turning now to the assessment of the Applicants’ claims for an alleged breach of the Respondent’s duty to repair, the following preliminary matters need to be noted: 139.1. first, as has been noted at [6] above, the parties agreed that a number of documents in the CB were not to be taken as evidence in the proceeding. Most of these documents were property condition reports and inspection reports (items 10, 14, 18, 22, 25, 65, 67, 85, 118, 122 and 123). As a result of the agreement between the parties, documents which would have shed some light on the condition of the premises at various times in the tenancy were not before the Tribunal. While the Tribunal is not bound by the agreement made between the parties, I accept that agreement as it relates to inspection reports and condition reports. The RTA contains very specific provisions regarding condition reports (see RTA: Pt 5, Div 1, s 73, Pt 12, Div 1), and inspection of the premises (s 70). It may be that the agreement between the parties regarding the inadmissibility of such documents was related to these provisions;

139.2. secondly, while the Tribunal is not bound by the rules of evidence (s 53(2)(b) of the NTCATT Act), it is required to comply with the rules of natural justice (s 53(2)(a) of the NTCATT Act). Consequently, there should be “a reluctance to dispense with the rules of evidence where there is a real dispute over a matter which goes to the heart of a case”.[40] In these proceedings, the alleged breach by the Respondent of its duty to repair goes to the heart of the case. Consequently, the Tribunal may apply relevant rules of evidence; the most obvious being the onus of proof on the balance of probabilities which in the case of the alleged breach rests on the Applicants.

Lot 190 – Cavanagh

Leaking shower

Ms Cavanagh’s evidence regarding the leaking shower was as follows:

The main problem was the leaking shower. The toilet was blocked and leaked sewerage into the water leaking from the shower. Water was everywhere in the back area of our house. This started soon after I moved in. I complained about it many times to Housing. Sometimes I got a bandaid solution. Then the same problem would start again. ... When it was leaking, we would have to mop up dirty water about every four hours. I would mop it up at 8pm, then get up at mid-night and mop it up again, and then get up in the early morning and mop it up again. I used to have to go and have a shower at my mum’s house. We would also wash the kids there.[41]

According to Ms Cavanagh, while the Respondent repaired the toilet in 2016, problems still existed.

When they put in the drain in the shower they made it too high. The water now floods the bathroom. They also did not build any wall around the shower floor to stop water, so we have to mop it ups every time we use it still.[42]

The Respondent admitted that the issues arising from the leaks in Ms Cavanagh’s shower arose early in her tenancy and that they were consistently reported. The Respondent also maintained that it responded to Ms Cavanagh’s request for maintenance and arranged for the problem to be fixed. As evidence that the maintenance requests were attended to by the Respondent, the Tribunal was referred to CB items 28, 29, 32, 35, 37, 38, 39, 42, 49 and 50. Finally, the Respondent conceded that the intermittent flooding and loss of water described by Ms Cavanagh may warrant a claim for compensation under s 122(2)(b) of the RTA for breach of the Respondent’s duty to repair. The Respondent submitted, however, that, without quantification of the timeframes over which the flooding occurred, the Tribunal is unable to proceed with an assessment of compensation with reference to the usual formula in these claims. Instead, the Tribunal is likely to be limited to awarding only a nominal amount of compensation for this item.[43] I find that the leaking shower, combined with the blocked toilet, did pose a threat to the health of Ms Cavanagh and the other occupants of the premises so as to render the premises not habitable within the meaning of s 48(1)(a) of the RTA. Further, the evidence established that the failure of the Respondent to comply with s 48(1)(a) was not caused by Ms Cavanagh’s failure to notify the landlord of the repairs required (s 48(2)(b)). Based on the evidence presented, Ms Cavanagh’s premises were not habitable due to the leaking shower and associated plumbing problems for the following periods:

CB item number Description of item Date reported Date repaired Number of days 27 & 28 Maintenance Request & Maintenance Order 19/01/2011 [44] 21/03/2011 61 days 29 Maintenance Order 30/03/2011 1/04/2011 2 days 32 Email for Ruth Tahere to Dept of Housing 2/08/2013 4/08/2013 2 days 35-39 Maintenance Request 08/05/2014 21/11/2014 196 days 42 Contractors Service Report N/A 12/02/2016 [45] 0 days 48 Maintenance Request 19/09/2016 27/09/2016 8 days Total 269 days

A matter which was pled in the Respondent’s Amended Response to the Points of Claim was the application, if any, of the Limitation Act (NT) to the Applicants’ claim for compensation. This ground was not argued by the Respondent at the hearing, and the Tribunal was subsequently advised by counsel for the Respondent that the Limitation Act was no longer being relied upon by the Respondent.[46] I find that Ms Cavanagh is entitled to compensation for the period her house was not habitable due to the leaking shower and associated plumbing issues. The amount of compensation awarded is addressed under the heading ‘Section 122 Compensation’ below. Having come to this conclusion, there is no need to assess this head of damage under s 57(1) of the RTA. Section 122 allows the Tribunal to order compensation for loss or damage suffered by, in this case, Ms Cavanagh for the loss or damage she suffered as a consequence of the Respondent’s breach of the prescribed tenancy agreement. The fact that the same facts give rise to more than one breach does not impact on the central question; what loss or damage was suffered by the applicant.

Broken power point near oven and wires exposed; missing kitchen and bedroom fan knobs

With respect to this item, Ms Cavanagh noted only that, “[t]he electrical powerpoint near the oven was broken and had exposed wires from about 2014”.[47] No evidence was adduced to show that these items posed any threat to the tenant’s safety. Ms Cavanagh’s case in this regard appeared to proceed on the basis that the threat to her safety was self-evident. Suffice to say that it was not self-evident to me. I find that Ms Cavanagh has not proved that the existence of a broken power point and exposed wires rendered her premises uninhabitable. There was no evidence to suggest that the exposed wires were a threat to the safety of the occupants of the premises. While they might have been, the onus was on Ms Cavanagh to prove on the balance of probabilities that they were a threat. This she failed to do. Turning now to the claim under s 57(1), while Ms Cavanagh noted that the need for repair arose “from about 2014”[48] there was no evidence that notice was given to the Respondent at this time. In relation to the missing kitchen and bedroom fan knobs, no evidence was given by Ms Cavanagh as to when the need for this repair arose.[49] It is the Respondent’s evidence, which I accept, that notice of the need for repair of both the power point and missing fan knobs was given on 26 October 2015.[50] Ms Cavanagh in her Amended IA indicated that the broken power point was repaired sometime after 1 February 2016 and the missing fan knobs were repaired sometime after 18 February 2016. The date of repair was not put in issue by the Respondent. Based on this evidence, I conclude that the notice to the Respondent of the need to repair the broken power point and wires was not given by Ms Cavanagh “as soon as reasonably practicable after becoming aware of the need for repairs” (s 58(1)). This claim for repairs is dismissed. I also find that the Respondent acted with reasonable diligence in the repair of the missing fan knobs. This repair, contrary to Ms Cavanagh’s claim in her Amended IA,[51] was not an ‘emergency repair’ within the meaning of s 63 of the RTA. Given the nature of the repair, the delay of just over two months cannot be considered a failure of the Respondent to act with reasonable diligence to effect the repair within the meaning of s 57(2)(b). This claim for repairs is dismissed.

Missing front door handle

Ms Cavanagh’s evidence was that, when she moved into the property, there was no door handle and lock on the front door. According to Ms Cavanagh, the “house had old garage doors at the front”. She indicated that she raised the matter with the Respondent but does not indicate when such conversation took place.[52] Counsel for Ms Cavanagh argued that the date of 19 January 2011 should be adopted because this was the date stipulated in the Amended IA. This submission fails to take into account the fact that this date was not admitted by the Respondent in its Amended Response to Points of Claim. Consequently, it was incumbent upon Ms Cavanagh to establish the fact on the balance of probabilities. I am not prepared, based on the evidence provided by Ms Cavanagh, to infer that her conversation with the Respondent took place when she entered into possession of the premises. There is simply insufficient evidence to support such a finding. There is evidence, however, that written notice of the need for the installation of a front door handle was given on 22 January 2016. There also is in the documents exchanged between the parties and placed on the NTCAT file a document entitled ‘Contractors Service Report’ issued by the Respondents to Ingkerreke dated 12 February 2016.[53] In the work to be carried out by Ingkerreke, the following is noted: “Front door has no handle. Please install new door lock.” From this evidence I conclude that the Respondent, through its contractor Ingkerreke, repaired Ms Cavanagh’s front door handle on or about 12 February 2016. I also conclude that, once notified of the need for repair, the Respondent acted with reasonable diligence to have the door handle installed (s 57(2)(b)). Consequently, Ms Cavanagh’s claim of a breach of the Respondent’s obligation to repair is dismissed. The evidence also falls short of establishing that the absence of a front door handle and lock constituted a threat to the life, limb or health of Ms Cavanagh so as to satisfy the high test required to prove a breach of s 48(1)(a). Her claim under this section also is dismissed. While not pled in the Amended IA, counsel for Ms Cavanagh submitted that the missing front door handle and lock constituted a breach of the Respondent’s obligations under s 49(1) of the RTA to “take reasonable steps to provide and maintain locks and other security devices that are necessary to ensure the premises ... are reasonably secure”. Ms Cavanagh also noted that, because of the lack of a front door handle and lock, people entered her house “to steal our possessions and do damage”.[54] This evidence was not challenged by the Respondent. The Respondent submitted that no door handle or lock was required given the design of the house.[55] Unfortunately for the Respondent, no evidence was submitted in support of this proposition. I light of Ms Cavanagh’s evidence that her house was burgled as a result of the lack of a front door handle and lock, I find that the Respondent did fail to ensure that the Ms Cavanagh’s house was reasonably secure within the meaning of s 49(1). Whether this gives rise to compensation under s 122 is discussed below.

Lot 165 – Young

No backdoor

Ms Young’s evidence regarding the missing backdoor was as follows:

I had no backdoor on the house until about March 2016. When they put a door there, they left a hole on the side between the door and the frame. We had a snake come through the hole, so we had to block off the door.[56]

Ms Young’s solicitor noted in his letter of 22 January 2016 that: “There is no backdoor, on the premises, the tenant has installed a mesh-steel door to secure the property. A new door is required”.[57] The Respondent submitted that a new door was installed “sometime in March [2016]”, however no evidence was led to substantiate this date. The Applicant indicated in her Amended IA that the door was installed in late March 2016. No evidence was led by the Respondent as to why the premises were let without a backdoor, nor did the Respondent lead any evidence to suggest that the backdoor was removed by the occupants of the premises. The Respondent submitted that the installation of the backdoor “is an example of a repair requested, and completed, in the ordinary course of business. It was not an emergency repair”.[58] While I agree that the installation was not an ‘emergency repair’ within the meaning of s 63 of the RTA, this was only because the tenants had installed a door. I disagree with the Respondent’s submission that the door was installed ‘in the ordinary course of business’. It should not take over 6 weeks to install a backdoor which, in the ordinary course of a landlord’s business, usually comes with a freestanding dwelling. As has been noted above at [130], the circumstances to be considered when determining whether a landlord “failed to act with reasonable diligence to have the defect repaired” within the meaning of s 57(2)(b) will include the nature of the defect being repaired. Replacing knobs on appliances, for example, would not in ordinary circumstances and with regard to expense and difficulty of getting a tradesperson to attend to make the repair, reasonably be required to be completed in a short period of time. A backdoor is different. Once notified of the need to install a backdoor, the Respondent should have acted sooner to make the repair. While the delay was not substantial, I find that in taking over 6 weeks to install the backdoor the Respondent was in breach of its duty to repair (s 57(1)). In the Amended IA and in the Applicants’ closing submissions, an alternative argument was put that the absence of a backdoor rendered the premises uninhabitable within the meaning of s 48(1)(a) and not reasonably secure within the meaning of s 49(1). I reject both submissions. While the absence of a backdoor is odd in an Australian context, it does not render a house uninhabitable within the test articulated at [120] above. Further, It is difficult to see how the absence of a backdoor, and hence a lock, could constitute a breach of the Respondent’s obligation under s 49(1). The Respondent cannot be required to “provide and maintain” a lock on a door that does not exist.

Bent perimeter fence

Ms Young’s evidence regarding the bent perimeter fence was as follows:

The fence around the property was bent to the ground in many places. This was not caused by me – I do not have the strength. I think it may have been caused by roaming wild horses.[59]

While in her Amended IA Ms Young alleg