Makowska v St George Community Housing Ltd [2021] NSWSC 287 (26 March 2021)

Last Updated: 26 March 2021

Supreme Court New South Wales

Case Name:	Makowska v St George Community Housing Ltd
Medium Neutral Citation:	[2021] NSWSC 287
Hearing Date(s):	17 March 2021
Decision Date:	26 March 2021
Jurisdiction:	Common Law
Before:	Basten J
Decision:	(1) Dismiss the summons filed by the plaintiff on 2 October 2020. (2) Order that the plaintiff pay the costs of the first defendant in this Court.
Catchwords:	ADMINISTRATIVE LAW – judicial review – alternative relief by way of appeal not availed of – absence of satisfactory explanation – avoidance of time limit for an appeal – avoidance of need to obtain leave to appeal – value of claim small – whether relief should be refused on discretionary grounds ADMINISTRATIVE LAW – judicial review – decision of Appeal Panel of NCAT – error of law by Tribunal member identified by Appeal Panel – whether Appeal Panel erred in law in dismissing error as immaterial – whether member found breach of duty by landlord entitling tenant to compensation ADMINISTRATIVE LAW – judicial review – grounds – irrelevant consideration – whether finding of Appeal Panel an irrelevant consideration – overlap of grounds – reliance on “no evidence” and unreasonableness as equivalent to a prohibited consideration – whether error of law LEASES AND TENANCIES – residential tenancy – right to quiet enjoyment – failure to repair drains resulting in stormwater impeding access to car park – no substantial interference LEASES AND TENANCIES – residential tenancy – reduction of facilities provided with the residential premises – failure to repair drains resulting in stormwater causing deterioration of lawn in common area – reduction of rent allowed – whether entitlement to compensation
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 34, 80, 83 Civil Liability Act 2002 (NSW), ss 3, 16 Housing Act 2001 (NSW), s 13A Residential Tenancies Act 2010 (NSW), ss 44, 50, 187 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 50.3, Pt 50
Cases Cited:	Ackroyd v Whitehouse (Director of National Parks & Wildlife Service) (1985) 2 NSWLR 239 Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264 Allen v TriCare (Hasting) Pty Ltd [2015] NSWSC 416 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 Makowska v St George Community Housing Ltd (NSWCATCD, 13 February 2020) Moore v Scenic Tours Pty Ltd [2020] HCA 17; 94 ALJR 481 Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; [2006] WASCA 219 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Southwark London Borough Council v Mills [2001] 1 AC 1
Texts Cited:	Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017)
Category:	Principal judgment
Parties:	Zofia Makowska (Plaintiff) St George Community Housing Ltd (First Defendant) NSW Civil and Administrative Tribunal (Second Defendant)
Representation:	Counsel: Plaintiff unrepresented A R Langshaw (First Defendant) Solicitors: Colin Biggers & Paisley (First Defendant) Crown Solicitor’s Office (Second Defendant)
File Number(s):	2020/285408
Decision under appeal:
Court or Tribunal:	NSW Civil and Administrative Tribunal
Jurisdiction:	Appeal Panel, Consumer and Commercial Division
Citation:	[2020] NSWCATAP 159
Date of Decision:	29 July 2020
Before:	Dr R Dubler SC; D Robertson
File Number(s):	AP 2020/09740

JUDGMENT

1. BASTEN J: The plaintiff, Zofia Makowska, is a tenant of premises operated by the defendant, St George Community Housing Ltd, pursuant to an arrangement with the owner, the Land and Housing Corporation, under s 13A of the Housing Act 2001 (NSW). It is common ground that the defendant is the landlord under a lease which falls within the Residential Tenancies Act 2010 (NSW).
2. Although there has been no physical intrusion on the unit occupied by the plaintiff, on 29 May 2019 she commenced proceedings in the Civil and Administrative Tribunal (the Tribunal) in its Consumer and Commercial Division, seeking compensation for breach of the landlord’s obligation to provide quiet enjoyment of the premises. The interference with her enjoyment was said to result from a failure to repair drains in the common area which resulted in stormwater blocking convenient access to the car park and causing deterioration of the lawn in a recreational area, which she helped to maintain and enjoyed.
3. By a decision handed down on 13 February 2020, the Tribunal upheld her claim in part and exercised a power under s 44 of the Residential Tenancies Act to reduce her rent for a period of 12 months, from 1 April 2019 to 31 March 2020. Otherwise, the claim for compensation was dismissed.
4. On 26 February 2020 the plaintiff filed a notice of appeal from the decision of the Tribunal to the Appeal Panel, pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act). The appeal was available as of right on any question of law, or with leave of the Appeal Panel on any other ground: s 80(2)(b).
5. On 29 July 2020 the Appeal Panel delivered its decision, dismissing the appeal with respect to one ground which raised an error of law and otherwise refusing leave to appeal.^[1] On 2 October 2020 the plaintiff filed a summons seeking judicial review of that decision.

A preliminary procedural issue

6. Pursuant to s 83 of the Tribunal Act, a party to an appeal to the Appeal Panel may, with leave of this Court, appeal to this Court on a question of law. Pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 50.3(1), the appeal must be filed within 28 days after the material date (being the date of the decision of the Appeal Panel) or within such further time as this Court may allow.
7. The plaintiff did not seek leave to appeal under s 83, either within time, or at all. Rather, on 2 October 2020 a little over two months after the date of the Appeal Panel decision, she commenced proceedings in the supervisory jurisdiction of the Court under s 69 of the Supreme Court Act 1970 (NSW).
8. Before the plaintiff would be able to appeal, she would need to obtain an extension of time within which to file an application for leave to appeal, and would need to obtain leave. Unless there is a full explanation of why the path provided by the statutory appeal was not followed, and a clear indication that a substantial miscarriage of justice would occur if relief were not available in the supervisory jurisdiction, the proper course is to refuse any potentially available relief on discretionary grounds. The importance of the leave requirement is accentuated when an attempt is made to challenge a decision where no issue of legal principle is engaged and where the amount in dispute is insufficient to justify the costs involved.
9. In resisting that conclusion, the plaintiff submitted that the defendant should not be allowed to rely on the statutory power to “refuse to conduct a judicial review of a decision of the Tribunal if ...an appeal to a court could be ... lodged against the decision.”^[2] In fact, the statutory power reflects a general law principle of long-standing,^[3] which it neither expands nor constrains. Further, the second decision referred to below, which the plaintiff expressly addressed in her oral submissions, was a case in which s 34(1) was discussed. The first case applied general law principles.
10. The two decisions, neither of which was directly on point, may be briefly addressed. The first, Ackroyd v Whitehouse (Director of National Parks & Wildlife Service),^[4] involved an application for judicial review of a decision by the Director peremptorily to cancel the applicant’s licence, which permitted him to trap and sell fauna. There had been a denial of procedural fairness. The Director submitted that relief should be refused on the basis that the applicant could have appealed to the Minister and would have had an opportunity to present his case to the Minister and, if unsuccessful, to seek review at that stage. This Court rejected that contention, holding that the existence of an appeal to the Minister did not deprive the applicant of his entitlement to procedural fairness from the Director. He was entitled to seek judicial review to enforce that procedural right. That case, it may be seen, is significantly different from the present case, the plaintiff not having been denied procedural fairness at any stage.
11. Secondly, the plaintiff relied on the reasoning of Beech-Jones J in Allen v TriCare (Hastings) Pty Ltd.^[5] The defendant in that case, being the owner of a residential park, sought to terminate its agreements with residents so that it could redevelop the park. Its application was approved by the Tribunal. However, the plaintiffs, seeking to challenge that decision, did not avail themselves of the internal appeal to the Appeal Panel, but rather commenced proceedings immediately in this Court seeking judicial review of the Tribunal decision at first instance. Beech-Jones J noted that there was “[a]t the outset a significant question ... as to whether [the] proceedings should be dismissed because the plaintiffs did not pursue an internal appeal to an appeal panel of NCAT.”^[6] The process involved in that case engaged the terms of s 34 of the Tribunal Act, which expressly empowers a court to refuse to conduct a judicial review if satisfied that there is adequate provision for an internal review by an appeal panel. Having decided that the Tribunal decision had been infected by jurisdictional error, Beech-Jones J nevertheless gave careful consideration to the explanation why the internal appeal process had not been availed of and only concluded “with some reluctance” that the matter should not be dismissed on discretionary grounds.^[7]
12. Again, the case is not in all respects the same as the present case, in that the present plaintiff has availed herself of the internal appeal to the Appeal Panel: rather, she has invoked the procedure by way of judicial review in place of the statutory right of appeal from the appeal panel, either of which processes would bring the matter before this Court. By doing so, she avoids compliance with the time limit and with the obligation to obtain leave before the matter could proceed in this Court. In Allen, although the failure to obtain internal review was not adequately explained, the judge determined that “[t]he delay involved in [refusing relief] would be likely to be disadvantageous to both parties.”^[8] As noted, that conclusion was reached on the basis of a finding of jurisdictional error on the part of the Tribunal.
13. More broadly, where this Court has the benefit of decisions at first instance and on an internal appeal, it is appropriate to ask:

(a) has either party been materially disadvantaged by the failure to seek leave to appeal within the prescribed time?

(b) if leave to appeal had been sought, is it is likely that leave would have been granted?

(c) would there be a miscarriage of justice if the court declined to conduct a judicial review of the Appeal Panel decision?

14. In this case no explanation has been given for the failure to seek an extension of time within which to appeal, except to refer to her status as an unrepresented litigant.^[9] On the other hand, it is not known whether that the defendant would have opposed an extension of time, or done so successfully. It is also not clear that leave to appeal would have been granted had time been extended; but that application would probably have turned on an assessment of the merits of the case. Whether the Court should be satisfied that a miscarriage of justice would result from dismissal of this proceeding on a discretionary basis turns on a similar assessment. Accordingly, it is necessary in any event to identify the nature of the case sought to be run by the plaintiff.

Claim before the Tribunal

15. In her application to the Tribunal, the plaintiff sought relief under paragraphs (a), (b), (d), (e) and (f) of s 187(1) of the Residential Tenancies Act. Relevantly for present purposes, there was an order for payment of compensation under par (d). The reasons for the orders sought were expressed in the following terms:

“The extensive deterioration to the lawns has prevented tenant access and enjoyment, and the stormwater pits at the lower end of the car park and on the south-west path flood during periods of heavy rainfall making access impossible.”

16. The Tribunal member distinguished between two claims, one being the flooding of the pathway to the car park and the second being the damage to the lawn constituting a common recreational area. He identified the former as causing “inconvenience to access to the car park and is the loss of quiet enjoyment.” The second claim he identified as a “reduction or withdrawal of the facility” constituted by the recreational area.
17. Although it is not entirely clear that the plaintiff intended to draw that distinction, it does not appear that she took objection to it before the Appeal Panel, nor in this Court. Indeed, noting that the Tribunal used two headings in its reasons, “Breach of Quiet Enjoyment”, commencing at par 19, and “Reduction or withdrawal of good[s], services or facilities”, commencing at par 26, she stated that the former “would ordinarily be referenced to non-economic losses” and the latter “would ordinarily be referenced to s 44 of the [Residential Tenancies Act] ... because the former is the language of the common law and the latter is the statutory language of s 44 of the [Residential Tenancies Act].”^[10]
18. Accepting that such a distinction was available, she nevertheless referred this Court to the terms of her original lease, in the form of an agreement with the Department of Housing executed on 31 September 1989. Section 2 provided for the tenant to “peaceably possess and enjoy the premises during the tenancy” and provided that “rent shall abate if the dwelling becomes uninhabitable by accident, fire, flood or tempest.” By contrast, clause 3 imposed obligations on the tenant including the following:

“(o) To establish and maintain lawns and gardens in a tidy condition and where several premises share a common area of land, to co-operate with the tenants of other premises in maintaining such common area.”

19. There appears to have been no consideration given to the relevance of this document, or its operation since the commencement of the Residential Tenancies Act. It may be noted that a statutory right to quiet enjoyment now arises under s 50 of the Residential Tenancies Act, which provides:

50 Tenant’s right to quiet enjoyment
(1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord.
(2) A landlord or landlord’s agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises.
Maximum penalty—10 penalty units.
(3) A landlord or landlord’s agent must take all reasonable steps to ensure that the landlord’s other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.
(4) This section is a term of every residential tenancy agreement.

20. The plaintiff (and the Tribunal) accepted that the common law principles with respect to what constitutes a breach of the right of quiet enjoyment still apply. There was no issue raised as to whether this section was to be construed by reference to case-law dealing with what Lord Hoffmann once described as “the bleak laissez-faire of the common law” with respect to tenants’ rights.^[11]
21. With respect to the second matter, it was accepted by the plaintiff (and the Tribunal) that the presence of the lawns and gardens constituted “goods, services or facilities provided with the residential premises” which could be reduced or withdrawn, thus entitling the Tribunal to award a reduction of the rent payable, pursuant to s 44(3) of the Residential Tenancies Act. There was no discussion of how cl 3(o) of the 1989 agreement might apply.
22. The Tribunal made factual findings in relation to both aspects of the plaintiff’s claim. These will, so far as relevant to the present proceeding, be noted below.

Appeal to Appeal Panel: ground 1

23. Ground 1 in the notice of appeal to the Appeal Panel read:

1. The Tribunal erred in law in respect of applying section 3 of the Civil Liability Act 2002 as a bar to the awarding of compensation for non-economic losses in circumstances where the appellant’s alleged non-economic losses were not sought for personal injury in relation to the landlord’s withdrawal of access to the lawns.

24. The Tribunal identified the claim for compensation as a claim for non-economic loss. In its reasons,^[12] the Tribunal observed that, as defined in s 3 of the Civil Liability Act 2002 (NSW), a claim for non-economic loss includes a claim for pain and suffering and loss of amenities of life. The member held that the plaintiff’s claim fell within this definition and therefore engaged s 16(1) of the Civil Liability Act, which precludes recovery of damages for non-economic loss unless the injury suffered is at least 15% of a most extreme case. The member was, understandably, not satisfied that the plaintiff had suffered such a loss.
25. The Appeal Panel correctly accepted that the claim for compensation for loss of quiet enjoyment of the premises, and for inconvenience, did not constitute a claim for personal injury damages and did not fall within the definition of non-economic loss in s 3 of the Civil Liability Act. The Appeal Panel concluded:

“[30] We accept that the Tribunal made an error of law to the extent that it applied s 16(1) of the Civil Liability Act to the appellant’s claim for compensation for loss of enjoyment of her property and inconvenience. That s 16(1) is not applicable to such claims is made clear by the decision of the High Court in Moore v Scenic Tours Pty Ltd [2020] HCA 17; [94 ALJR 481].
[31] However, that error had no impact upon the Tribunal’s ultimate decision. The Tribunal having determined that the respondent was not in breach of its obligation to give quiet enjoyment, there was no basis for the Tribunal to award compensation in respect of the appellant’s loss of enjoyment and inconvenience.”

26. If the conclusion that the error was immaterial was unimpeachable, then so far as the plaintiff had an appeal as of right to the Appeal Panel, it was correctly dismissed. However, the plaintiff challenged the ruling as to immateriality in terms which will be addressed below.

Appeal to Appeal Panel: other grounds

27. In other respects, the grounds of the internal appeal, although some were expressed as involving errors of law, were held by the Appeal Panel to turn on factual findings and to require leave. The grounds (other than ground 1) relied on before the Appeal Panel, were as follows:

2. The Tribunal erred in law by reaching a mistaken conclusion in circumstances where the Tribunal disentitled itself from making a rent reduction order on the basis that the withdrawal of the south-west path did not amount, in the determination of the Tribunal, to a breach of quiet enjoyment.
3. The Tribunal erred in law by asking itself the wrong question in circumstances where the Tribunal asked itself whether by taking an alternative route to avoid the flooding of the south-west path amounted to substantial interference, instead of asking itself whether the appellant showed that the landlord made the south-west unusable by removing a service that had previously been there and that was relied upon by the tenant, as to whether it will amount to a breach of the covenant of quiet enjoyment.
4. The Tribunal erred in law where it made orders which are inutile.
5. The Tribunal erred in law by identifying a wrong issue in respect of the implication of the reasonable steps the landlord had taken and was taking to remedy the flooding of the south-west path and the deterioration of the lawns.
6. The Tribunal erred in law by ignoring relevant material where “there was a reduction of goods, services or facilities in the residential premises by the respondent” prior to 15 March 2019.
7. The Tribunal made material errors of fact in respect of the cause of the deterioration to the lawns, the extent of the deterioration of the lawns, the adequacy of the work on the stormwater lines to prevent flooding, and the date when the landlord was taken to have ... received notice of the appellant’s complaint about the deterioration of the lawns and flooding of the south-west path.

28. In short, the plaintiff accepted before the Appeal Panel that the Tribunal had not been satisfied that there was a breach of the right of quiet enjoyment. The Appeal Panel dealt with that question in the following terms:

“[27] In our view the Tribunal clearly applied the correct test for determining whether the respondent had breached its obligation to provide the appellant with quiet enjoyment. That test, as set out in the Judgment of Austin J in Advance Fitness v Bondi Diggers,^[13] is whether there had been substantial interference with the enjoyment of the premises through an act or omission that was either deliberate or negligent in the sense that the consequences were reasonably foreseeable.
[28] The Tribunal’s finding, that, in circumstances where there was an alternative path to access the appellant’s unit, the occasional flooding of the appellant’s preferred pathway was not a substantial interference in her enjoyment of her unit, was a finding of fact.
[29] We do not consider that the Tribunal made an error of law. Nor do we consider that the Tribunal’s finding of fact was against the weight of evidence or not fair and equitable.”

Application for judicial review

29. The plaintiff’s summons for judicial review contained one ground stated as follows:

“The Appeal Panel ... relied on an irrelevant consideration which caused it to suffer a jurisdictional error of law in finding that the Tribunal’s error of law to apply s 16(1) of the Civil Liability Act had no impact upon the Tribunal’s ultimate decision to deny the plaintiff’s compensation claim for breach of the first defendant’s obligation to give quiet enjoyment, in circumstances where the Tribunal had determined that the first defendant was in breach of the plaintiff’s covenant of quiet enjoyment.”

There are a number of elements of this ground which require comment. Further, in her written submissions the plaintiff treated the “irrelevant consideration” ground as encompassing a decision made in the absence of logically probative material (the “no evidence” ground) and a decision which is manifestly unreasonable.

30. The correct understanding of the “irrelevant consideration” ground of judicial review is that the tribunal has taken into account a consideration which is forbidden or prohibited by law. No such consideration was identified by the plaintiff in her submissions. Rather, she stated in her written submissions:^[14]

“I seek relief on the basis that the Panel relied on a consideration which was irrelevant to its exercise of discretion, because being unsupported by the evidence of the reasons in the [Tribunal decision] it was an impermissible consideration. In that sense, I will attempt to show for the Court that it was ultimately a manifestly unreasonable decision, or a decision so unreasonable that no reasonable person would take it.”

31. It is true that an error of law may be found if the ultimate decision of the Tribunal were unsupported by any evidence logically probative of the underlying facts. It may also be accepted that such a decision may be characterised as manifestly unreasonable. There is, however, a clear distinction between those grounds and stating that the Tribunal took into account a matter which it was prohibited from considering. However, what the plaintiff appeared to be saying was that the finding that the legal error was immaterial was wrong, because it contributed to the refusal (as the plaintiff contended) to award her compensation for the breach of the right to quiet enjoyment of the lawn. (Whether the Tribunal made such a finding will be addressed below.)
32. Further, care must be taken in treating a negative finding, namely that there was no breach of a right of quiet enjoyment, as capable of challenge on the basis that there was no evidence to support it. The plaintiff bore the burden of establishing breach of the right by the defendant.^[15] If she failed to satisfy that burden, she cannot rely on a no evidence ground.
33. The reasoning of the plaintiff in support of such a claim relied upon what was said to be a finding of the Tribunal, contrary to the assumption which appeared to underlie the proceedings before the Appeal Panel, namely that the Tribunal had found a breach of the right of quiet enjoyment. This reasoning cannot be supported.
34. This was not, on any view, a case in which it could be said there was “no evidence” to support a particular finding. The Tribunal had set out the evidence and the claims made by the plaintiff in the following terms:

“[8] The tenant provided documents that a drain in the common area would flood and this caused flooding to the pathway and blocked her access to the carpark and the flooding and trees caused the lawn to deteriorate. There are photographs of the lawns before and after and a video of the drain flooding. The tenant states that she has suffered the inconvenience of the south-west path to the carpark. The flooding has occurred during heaving rainfall and the use of the path due to the stormwater drain being blocked and making passage impossible.
[9] The second claim is for failure to repair the stormwater drain and the loss of the lawn caused a reduction or withdrawal of the facility. The tenant states that she has a deep love of nature and a unique outlook on the word as a visual artist and that access to the lawns were denied by the deterioration of the lawns. The tenant enjoyed the simple act of raking leaves and that was not possible due to the poor state of the lawns.”

35. The defendant called evidence before the Tribunal as to the work which had been done to resolve the stormwater problem, which apparently involved the repair of a damaged grate to a stormwater pit at the end of the parking lot. With respect to the damage to the lawn, the defendant acknowledged that the grass was not in good condition, but was advised that overhanging trees needed to be trimmed before there was any point in laying new turf.
36. The Tribunal understood that a claim had been made for breach of the right of quiet enjoyment based on the fact that the applicant was required to use an alternative route to the car park during heavy rain. The Tribunal concluded in that regard, after considering the evidence:

“[25] I find that the tenant did suffer some inconvenience by taking an alternative route to avoid the flooding of the path, however, that does not amount to a substantial interference with the enjoyment of the property. ... The claim is dismissed.”

37. The Tribunal then considered a second claim, namely loss of a “facility”, being access to and use of the lawn as a recreational area. Although it had not been clearly pleaded, the Tribunal treated that aspect of the claim as a claim for a reduction in rent pursuant to s 44 of the Residential Tenancies Act on the basis that there had been a “reduction or withdrawal by the landlord of ... facilities provided with the residential premises”: s 44(1)(b). A rent reduction for a period was allowed by application of that provision. The Tribunal made the following findings:

“[32] The respondent has suffered a reduction in the use of the lawn in the common area near [sic] from 2015 and again 15 March 2019.
...
[34] The flooding of the stormwater drain was not cleared of a choke in the line until 21 October [2019]. The flooding and overhanging of the trees have substantially interfered with the tenant in enjoying the lawn area. I am satisfied that from 15 March, 2019 ... there was a reduction of goods, services or facilities in the residential premises by the respondent.”

38. The Tribunal allowed and calculated a reduction of rent under s 44. It then concluded:

“[36] By the last hearing on 8 November 2019 the respondent had cleared the choke in the stormwater drain and was obtaining Council approval to prune the trees and then re-landscape where the lawn ... had deteriorated. In my view, the respondent was attending to those matters and no further order is required.”

39. On one reading, the reasoning in these paragraphs was subsequent to, and did not involve, the right of quiet enjoyment under the lease. Rather, it was a grant of relief under the statute, where a particular facility, being a common area within the curtilage of the residential building, namely the lawn, was not available for enjoyment. However, it is necessary to address three matters which point to a different reading.
40. The first arose from the reference by the Tribunal at [33] to the judgment of Hill J in Hawkesbury Nominees Pty Ltd v Battik Pty Ltd,^[16] which dealt with the test for breach of a covenant for quiet enjoyment. Either the Tribunal was dealing with quiet enjoyment in this section, or this passage was irrelevant in considering relief under s 44 for reduction of a facility and the reference to Hawkesbury Nominees was misplaced in the reasons. There may have been a third possibility, not articulated by the Tribunal, that the same test was to be applied in dealing with the reduction or withdrawal of a facility.
41. The second matter was the language used at [34], where the Tribunal expressed its finding that the flooding and overhanging trees “have substantially interfered with the tenant in enjoying the lawn area.” The plaintiff submitted that this language reflected the test for breach of the right to quiet enjoyment and constituted a finding by the Tribunal as to such a breach with respect to the lawn. However, at least by inference, it is equally plausible that the Tribunal was simply applying the same test.
42. The third matter was the application, at [27]-[28], of s 16 of the Civil Liability Act. Unless the Tribunal was addressing a breach of quiet enjoyment, discussion of damages as opposed to reduction of rent would have been irrelevant. However, the discussion occurred by reference to the Appeal Panel decision in Roberts v NSW Aboriginal Housing Office,^[17] a case where there was no claim for breach of the right to quiet enjoyment, but only for reduction of rent.^[18] Nevertheless, the Tribunal did not refuse a reduction of rent.
43. Each of these considerations carries weight; together they may suggest a level of confusion on the part of the Tribunal and certainly a lack of clarity in the reasons. Nevertheless, reading the Tribunal’s reasons as a whole, the better view is that there was no finding of a breach of the right to quiet enjoyment. Rather, there would have been good reason to refuse relief under s 44, unless the conduct of the respondent was sufficiently serious in its effects to warrant the description of a reduction or withdrawal of a facility, language which does not necessarily involve loss of quiet enjoyment of the premises. The Tribunal adopted a test of substantial interference in achieving that degree of satisfaction, a test which was not challenged before the Appeal Panel as legally erroneous.
44. Three further points should be made in this regard. First, the Appeal Panel identified the first issue raised by the plaintiff in the following terms:^[19]

“(1) That the Tribunal failed to find a breach of the covenant of quiet enjoyment and failed to award compensation for such breach (this encompasses Grounds 2 and 3 in the Notice of Appeal).”

45. Secondly, it is clear from the terms of grounds 2 and 3 before the Appeal Panel, set out at [27] above, that they were limited to the use of the pathway to the car park. Only grounds 5 and 7 dealt with the deterioration of the lawn, and there was, understandably, no challenge to the proposition that they raised questions of fact.^[20]
46. Thirdly, it is of course possible that conduct of a landlord may constitute a breach of the tenant’s right to quiet enjoyment and a reduction or withdrawal of facilities. However, in the present case, where the only loss is non-economic loss, such as inconvenience or loss of amenity, it would be inappropriate to award damages by way of compensation and provide a reduction of rent.^[21] Accordingly, had there been a legal error in failing to provide compensation for breach of quiet enjoyment with respect to the deterioration of the lawn, no further relief would have been appropriate and, accordingly, as a discretionary matter, relief by way of judicial review would have been refused.
47. As the grounds of appeal to the Appeal Panel (other than ground 1) raised factual issues, the Appeal Panel found there was no error of law and no basis for granting leave to challenge the factual findings. The plaintiff did not submit that, apart from the alleged inconsistency in the findings of the Tribunal, there was any error of law on the part of the Appeal Panel in its approach to the issues.

Conclusions

48. It is arguable that there was a degree of confusion arising from the reasons of the Tribunal which supported an appeal to the Appeal Panel. However, there was no presentable error of law on the part of the Appeal Panel in dealing with the grounds raised before it. Had there been an application for leave to appeal under s 83 of the Tribunal Act, it would likely have failed. The amount at stake would also have counted against a grant of leave. It is open to the Court to dismiss the present summons on the basis that, as a matter of discretion, no relief should be provided, the plaintiff having failed, for no justifiable reason, to challenge the decision of the Appeal Panel by way of a timely application for leave to appeal.
49. However, the foregoing reasoning also demonstrates that there was no error of law on the face of the record, where the record includes the reasons of the Appeal Panel, nor was there any arguable case of jurisdictional error. Accordingly, on that basis, the summons should be dismissed without considering discretionary refusal of relief. The orders of the Court are:

(1) Dismiss the summons filed by the plaintiff on 2 October 2020.

(2) Order that the plaintiff pay the costs of the first defendant in this Court.

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^[1] Makowska v St George Community Housing Ltd [2020] NSWCATAP 159 (Dr R Dubler SC and D Robertson).
^[2] Tribunal Act, s 34(1)(c); Post-hearing submission, 23 March 2021, pars 13, 14.
^[3] Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; [2006] WASCA 219 at [129]- [130], [133]-[138] (Martin CJ, Wheeler JA agreeing); Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017) at [17.90].
^[4] (1985) 2 NSWLR 239.
^[5] [2015] NSWSC 416.
^[6] Allen at [7].
^[7] Allen at [56]-[64].
^[8] Allen at [64].
^[9] Post-hearing submission, 23 March 2021, pars 13, 14.
^[10] Court Tcpt, 17/03/21, p 5(5).
^[11] Southwark London Borough Council v Mills [2001] 1 AC 1 at [8].
^[12] Makowska v St George Community Housing Ltd (NSWCATCD, 13 February 2020) at [27]-[28] (G Sutherland).
^[13] [1999] NSWSC 264. (The proper name of the case was Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd, a decision of Austin J in the Equity Division.)
^[14] Summary of arguments for the Plaintiff, filed 17 February 2021, par 25.
^[15] See Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156D-F (Glass JA).
^[16] [2000] FCA 185 at [37].
^[17] [2017] NSWCATAP 9.
^[18] Roberts at [83]-[84], [85].
^[19] Appeal Panel at [25].
^[20] Appeal Panel, at [25(5)] and [39]-[47].
^[21] Roberts at [86].