NT Supreme Court case establishes right to humane housing for residents of Santa Teresa community
Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59
Summary
The Northern Territory Civil and Administrative Tribunal (the Tribunal) initially examined the cases of Jasmine Cavanagh, Enid Young, Robert Conway and Clayton Smith in Various Applications from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7. The case involved Aboriginal residents of the remote community of Ltyentye Apurte (also known as Santa Teresa) challenging the poor housing conditions they were subjected to. A summary of that case is available here.
Two of the people involved in that case – Enid Young and Robert Conway (the appellants) – appealed that decision to the Northern Territory Supreme Court. The respondent was the Chief Executive Officer (Housing), a body corporate created under the Housing Act 1982 (NT) for the purpose of entering into public housing tenancy agreements.
The Northern Territory Supreme Court ruled in favour of Ms Young and the late Mr Conway on two grounds in their appeal and established a precedent that remote community tenants must be provided with housing that meets contemporary standards of ‘humaneness, suitability and reasonable comfort’.
Background
In the initial case at the Tribunal, Ms Young submitted evidence that her house was not habitable because of the following:
showerhead and drain leaking for 2117 days;
toilet having poor flush which did not clear waste for 534 days;
leaking under the kitchen sink for 477 days;
absence of a back door for 2090 days;
perimeter fence bent to the ground for 2328 days;
light and fan removed and circuit breaker turned off for 58 days;
wires left exposed and dangling from the ceiling the 58 days; and
left without an air conditioner for 2121 days.
Mr Conway put forward evidence that his house was not habitable because of the following:
air-conditioner leaking water into the bedroom when it was used, which caused him to sleep in the kitchen for 1989 nights;
shower leaking for 1991 days, when part of the shower wall was left without tiles; and
house being infested by insects for 1035 days.
Both Ms Young and Mr Conway sought orders for the repair of their respective premises’ in the Santa Teresa community, pursuant to section 63 of the Residential Tenancies Act (NT) 1999 (RTA) which enables the Tribunal to order a landlord to ensure specified repairs to a rental premise are made.
Ms Young also sought compensation under section 122 of the RTA for the loss of amenity arising from the respondent’s failure to maintain the rental premises in a habitable condition (pursuant to section 48 of the RTA).
The appeal
Despite winning in the Tribunal, Ms Young and Mr Conway went on to appeal the Tribunal’s decision in the Northern Territory Supreme Court. Justice Blokland of the Supreme Court considered the points raised in the appeal as follows:
Whether the Tribunal failed to evaluate and apply the principles from Amadio
The appellants had put forward an argument at the Tribunal that their tenancy agreements were void on the grounds of being unconscionable dealings according to the principles in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447. The Amadio case establishes precedent that lack of knowledge, education or an imbalance in bargaining power can give rise to unconscionable dealing.
The Amadio claim was raised late by the appellants because important documents were only produced by the respondent just prior to the hearing’s commencement. The respondent then sought an adjournment to properly address the claim, which was rejected by the Tribunal. The Tribunal went on to find that the Amadio claim fell outside of the pleadings.
In the Supreme Court, the appellants argued that the failure of the Tribunal to consider the merits of this claim constituted an error of law, and Justice Blokland decided that the Tribunal erred in not applying the principles in Amadio.
Justice Blokland found that although the issue was not raised directly on the pleadings, the Tribunal was not relieved of the burden of dealing with the Amadio question. As a result, it was in the interests of justice that the Amadio issue be tried. The decision of the Tribunal not to deal with the question based on the principles in Amadio was therefore set aside. In the case of Ms Young, the matter was remitted to the Tribunal. In the case of the late Mr Conway, should his estate file appropriate proofs of its participation in any further proceedings, the matter was also remitted to the Tribunal.
Whether the tenancy agreement was void for uncertainty
Rent is an essential term of a tenancy agreement and if there is neither an agreed rent nor an agreed mechanism for determining the rent, the tenancy agreement is void for uncertainty and is unenforceable. As a result, the Tribunal concluded the tenancy agreements for both appellants, for different reasons, were invalid or inoperative because of non-compliance with the RTA.
As a result, the Tribunal concluded the operative tenancy agreement was the default statutory agreement provided in Schedule 2 of the Residential Tenancy Regulations. The appellants argued, contrary to the ruling of the Tribunal, that the statutory agreement provided in Schedule 2 of Regulation 10 in their circumstances was void for uncertainty.
This was because the amount of rent was not agreed at the beginning of the tenancy. Ms Young’s tenancy agreement included a rent amount, however, it was not made at the beginning of the tenancy but came over 17 months later. With respect to Mr Conway, the tenancy agreement was not signed by or on behalf of the landlord at any time and therefore there was no ‘agreed’ rent amount.
It was argued in both the Tribunal and the Supreme Court that there was no appropriate mechanism for the determination of rent and consequently the tenancy agreement was void and unenforceable.
Section 19(4) of the RTA governs tenancy agreements which are not compliant with certain parts of the RTA. Justice Blokland determined that the tenancy agreement should not be applied in the manner submitted on behalf of the appellants. Her Honour found that section 19(4) of the RTA was applicable and the amount the appellants were paying to the respondent was clear. The appellants lost on this ground.
Whether ‘improvised dwelling’ is means premises ‘with the amenities one would expect to find in public housing in a remote community’?
The appellants argued that the homes they occupied were ‘improvised dwellings’ as defined in the Remote Rent Framework. An ‘improvised dwelling’ was defined as ‘one which does not have the full range of amenities available or is a structure never intended to be a house, e.g. a shed, car body, humpy or iron/tin structures.’ The Department of Housing had a policy that people living in improvised dwellings are not to be charged rent.
The appellants said that if the Tribunal had applied the definition as it should have, it would have led to the Tribunal to consider the full range of features additional to standard features available. It was also argued the Tribunal substituted its own definition by defining an ‘improvised dwelling’ as one that did not have “amenities one would expect to find in public housing in a remote community”.
Justice Blokland upheld the Tribunal’s decision that while there were issues with the homes, they were not ‘improvised dwellings’. The definition ‘improvised dwelling’ provides examples for those who need to draw on the definition: a shed, car body, humpy or iron/tin structures. The definition does not extend to structures which are houses, purposely built as dwellings, even with significant defects and even if in need of repair. While the homes were in poor condition, they did not meet the description ‘improvised’. The appellants lost on this ground.
Whether the term ‘habitable’ extends to injury to health, premises not meeting contemporary standards of one humaneness and reasonable comfort?
The factual context in which the appellants claimed their respective houses were not habitable is set out above. The appellants argued that the Tribunal adopted a too narrow interpretation of ‘habitable’ in limiting it to matters affecting the safety of the tenant in respect of section 48(1)(a) of the RTA.
Justice Blokland concluded that the Tribunal adopted a threshold for ‘habitable’ which was too narrow. Her Honour found that premises are not uninhabitable if any inadequacies only give rise to mere inconvenience or ascetic deficiencies, are trivial, or are a minor irritation. The assessment of whether the premises were habitable should have included not only the health and safety of tenants but an overall assessment of the humaneness, suitability and reasonable comfort of the premises, even if only basic amenities are provided, judged against contemporary standards. The assessment of whether premises were habitable should take into account any proven inadequacies cumulatively.
The appellants won on this ground. In the case of Ms Young, the matter was remitted to the Tribunal for reconsideration. In the case of the late Mr Conway, should his estate file appropriate proofs of its participation in any further proceedings, the matter was also remitted to the Tribunal.
Whether a door is a ‘security device’ or an element of reasonable security?
This ground was relevant to Ms Young only, who appealed the Tribunal’s finding that the installation of a back door was not an ‘emergency repair’ within the meaning of section 63 of the RTA.
While the Tribunal found that the respondent should have acted sooner in installing a back door and was therefore in breach of their duty under section 57(1) of the RTA, the absence of a back door was found not to render a house uninhabitable and could not constitute a breach of the landlord’s duty to take reasonable steps to provide and maintain locks and other security devices under section 49(1).
The Tribunal only compensated Ms Young for the period of six weeks from when she notified the respondent. Nominal damages of $100 were awarded, on the basis that the claim under section 57 pf the RTA was considered a mere repair which should have been attended to earlier.
Justice Blokland disagreed with this finding and found that a door to the premise is the most basic way to ensure security. Her Honour considered at a fundamental level, a landlord who does not provide a backdoor will be in breach of section 49 of the RTA. Her Honour emphasised that Ms Young is an elderly woman who was left vulnerable to potential intruders.
Ms Young won on this ground, with Justice Blokland finding that it was sufficient to award nominal damages for the distress and disappointment associated with such a fundamental breach. Her Honour ordered the respondent to pay $10,200 in compensation to Ms Young under section 122 of the RTA.
Broader implications of the case
The Supreme Court’s ruling in favour of Ms Young and the late Mr Conway significantly increases the standard of housing required in remote communities in the Northern Territory and establishes a precedent for the first time that remote community tenants must be provided with housing that meets contemporary standards of ‘humaneness, suitability and reasonable comfort’.
The case will have implications for people living in remote communities across the Northern Territory who might be entitled to the same legal protection, and could be the circuit breaker for years of inaction on housing policy in the Northern Territory.
The full decision can be read here.
Ruby Jeffrey is a Waiwa Mudena cadet at the Human Rights Law Centre.