Anderson v Morgan Crest Pty Ltd trading as Ray White Benalla
[2024] FedCFamC2G 1145
•6 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Anderson v Morgan Crest Pty Ltd trading as Ray White Benalla [2024] FedCFamC2G 1145
File number(s): MLG 1697 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 6 November 2024 Catchwords: CONSUMER LAW – alleged unconscionable conduct by real estate property manager – conduct alleged not established – finding that conduct was professional and businesslike – application dismissed Legislation: Competition and Consumer Act 2010 (Cth)
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)
Australian Consumer Law and Fair Trading Act 2012 (Vic)
Estate Agents Act 1980 (Vic)
Residential Tenancies Act 1997 (Vic)
Cases cited: Anderson v Sharpe [2024] VSCA 166
Anderson v Sharpe (No 2) [2024] VSC 279
Australian Competition and Consumer Commission v Mazda Australia Pty Limited [2023] FCAFC 45
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479
Sharpe v Anderson (Residential Tenancies) [2023] VCAT 514
Sharpe v Anderson (Residential Tenancies) [2024] VCAT 375
Sharpe v Anderson (Residential Tenancies) [2024] VCAT 381
Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1
Transerve Pte Ltd v Blue Ridge WA Pty Ltd [2015] FCA 953
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of last submission/s: 21 August 2024 Date of hearing: 8 August 2024 Place: Heard in Melbourne, delivered in Hobart The Applicant: In person Counsel for the Respondent: Mr Hibble Solicitors for the Respondent: Gilchrist Connell ORDERS
MLG 1697 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LENA ANNIKA ANDERSON
Applicant
AND: MORGAN CREST PTY LTD T/AS RAY WHITE BENALLA
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.If an application for costs is to be made, the Respondent is to give notice to the Applicant within 7 days of the date of these Orders, particularising the order sought.
3.In the event an application for costs is made by the Respondent, within 7 days of the date of these Orders written submissions in support of the application of no longer than three A4 pages be filed and served.
4.The proceedings be referred to the Chambers of Judge Taglieri no later than 14 days from the date of these Orders to determine if further procedural orders are required in respect of any costs application that may be made.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
By Application and Statement of Claim accepted for filing on 4 October 2023 (“the Statement of Claim”), the applicant seeks various relief purporting to engage the Court’s jurisdiction under Australian Consumer Law.[1] On 10 November 2023, the respondent filed a Defence which among other things pleaded that various paragraphs of the Statement of Claim ought to be struck out.
[1] Pursuant to the Competition and Consumer Act 2010 (Cth) and schedule 2 thereof.
Subsequent to November 2023, the applicant sought to amend her Statement of Claim but the respondent opposed leave being granted in respect of the proposed amended Statement of Claim on grounds that it remained objectionable and an improper pleading.
The parties remained in dispute about the adequacy of the applicant’s pleaded case and eventually Orders were made by consent on 30 April 2024 to ensure the applicant’s claim was determined without ongoing delays and costs. The Orders made by consent included that:
3. For the purposes of these proceedings, the Applicant is confined to relying on the Statement of Claim accepted for filing on 4 October 2023.
4. For the purposes of these proceedings, the Respondent is confined to relying on the defence accepted for filing on 10 November 2023.
In summary, by her Statement of Claim the applicant pleads that the respondent engaged in unconscionable conduct by virtue of the following:
(a)As agent for the owner and landlord of the property at 26 Benson Street, Benalla in Victoria (“the rental property”), for which the applicant entered into a tenancy agreement, the respondent is bound by obligations under the Residential Tenancies Act 1997 (Vic) (“the RTA”), the Estate Agents Act1980 (Vic) (“the EAA”) and the Australian Consumer Law and Fair Trading Act 2012 (Vic) (“the ACLFTA”) and have breached the same and acted unconscionably by:
(i)Failing to have urgent and non-urgent repairs done at the rental property as requested by the applicant on 31 August 2022;
(ii)Issuing an invalid and retaliatory notice to vacate on 22 November 2021;
(iii)Issuing a second invalid and retaliatory notice to vacate on 26 October 2022;
(iv)Issuing a third invalid and retaliatory notice to vacate on 3 March 2023; and
(v)Making false representations to a Victorian Civil and Administrative Tribunal (“VCAT”) hearing and committing offence under s 504 of the RTA with the object of having the applicant evicted.
Notably, the alleged particulars relied upon to make out the claim for unconscionable conduct all relate to alleged breach of provisions of the RTA and although the ACLFTA is mentioned in the Statement of Claim, no coherent pleading is made about it. The Statement of Claim at [13] alleges that particularised conduct constitutes unconscionable conduct in connection with the provision of goods and services in breach of the provisions in schedule 2 of the Competition and Consumer Act 2010 (Cth) (“the Act”).
Finally, by [14] of her Statement of Claim, the applicant seeks compensation for loss and damage pursuant to s 236 of schedule 2 of the Act, said to be in the sum of $43,426.00, for which particulars are provided.
The Defence filed by the respondent denies each allegation of unconscionable conduct and breaches of the RTA, EAA or ACLFTA, including damages pursuant to the Act.
THE FINAL HEARING
The proceedings were listed for defended hearing on 8 and 9 August 2024. At the commencement of the hearing, as had been foreshadowed in an email of 31 July 2024, the applicant made an oral application to adjourn the final hearing. The respondent, represented by counsel, opposed the adjournment. I heard evidence and submissions in relation to the question of adjournment and stood down to consider the adjournment application.
When I resumed the hearing, the applicant had left the Court having shortly earlier indicated to my associate that she would not be remaining for the balance of the hearing, irrespective of whether her adjournment was granted or not.
I proceeded to give extensive oral reasons for not being satisfied that the adjournment should be granted. Counsel for the respondent submitted that in the circumstances, the Court should dismiss the application or alternatively proceed to hear the proceedings in the absence of the applicant.
As the applicant was a self-represented litigant, had filed affidavit material in contemplation of the hearing and initially appeared for the hearing but was unwilling to remain, I determined it in the interests of justice to hear the proceedings in her absence, rather than dismiss her claim.
EVIDENCE AND SUBMISSIONS BEFORE THE COURT
I proposed that the Court would read as evidence, to the extent it was admissible, the affidavit filed by the applicant pursuant to trial directions that had been made.[2] This course was not opposed by counsel for the respondent.
[2] On 31 January 2024.
In the applicant’s case, the Court read her affidavit filed 12 June 2024 and marked it as Exhibit A2.[3] The affidavit of Sharni Symes filed 17 July 2024 was relied upon by the respondent and was taken as read and marked as Exhibit R1.
[3] Noting that the applicant’s affidavit filed 31 July 2024 had been marked as Exhibit A1 at the commencement of the hearing when the Court considered the request for an adjournment.
The respondent had filed written submissions in compliance with Order 7 made by the Court on 31 January 2024. I have considered those,[4] and the brief oral submissions made by counsel for the respondent at the hearing on 8 August 2024.
[4] Written submissions filed 1 August 2024.
To give the applicant every opportunity to put her case at its highest despite her leaving the hearing, I made an Order granting her leave to file and serve written submissions in closing to permit her to address the respondent’s written submissions.[5] The applicant filed her written submissions on 21 August 2024.
[5] Order 1(c) made 8 August 2024.
THE COURT’S JURISDICTION
Because the respondent has submitted that the Court has no jurisdiction to hear the applicant’s claim,[6] I deal with that contention from the outset.
[6] Respondent’s written submissions filed 1 August 2024 at [6] to [17].
It is uncontroversial that this Court has jurisdiction over disputes arising under the Act, including the provisions of schedule 2.[7]
[7] Section 138A of the Act and s 213 of Schedule 2 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth).
I accept the submission that this Court cannot make findings about breaches of the RTA, EAA or ACLFTA because they are all Victorian State based legislation and this Court only exercises jurisdiction under Federal legislation. However, that does not automatically mean that the Court has no jurisdiction to determine the claim the applicant seeks to assert in her Statement of Claim, bearing in mind the salient guidance given in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 about the challenges and obligations of a judge hearing and determining a claim prosecuted by a self-litigant.
If, based on the evidence before the Court, I make findings of fact as distinct from findings of whether any provision of Victorian legislation has been breached and those findings of fact persuade me that the conduct of the respondent was unconscionable pursuant to the Act, the applicant may succeed. That is, without considering whether the conduct found to have occurred constitutes a breach of the Victorian legislation, it may amount to unconscionable conduct contrary to the Act.
Despite the criticisms of the applicant’s Statement of Claim, I am satisfied that it clumsily and barely asserts unconscionable conduct by virtue of the conduct summarised at [4] of these reasons.
I reject the submission that the Court has no jurisdiction to hear or determine the claim pleaded in the Statement of Claim, subject to the context and proviso discussed above at [19].
IS THE APPLICANT ESTOPPED OR SHOULD THE APPLICANT’S CLAIM BE DISMISSED AS AN ABUSE OF PROCESS
There is force in the respondent’s submission that the conduct alleged to amount to unconscionable conduct in these proceedings arises from the same or similar alleged conduct that has been the subject of the VCAT proceedings in which compensation was also sought.
That is apparent from a review of the allegations in the Statement of Claim and comparison of those to the claims in the VCAT applications in which findings of fact about those claims have been made and/or determined.
In particular, the applicant sought compensation in VCAT for the failure to undertake repairs and participated in proceedings about the landlord improperly seeking possession of the rental property,[8] which claims and proceedings have been determined by VCAT and unsuccessfully challenged on appeal.[9] The conduct of the respondent referred to at [4](a)(v) of these reasons may not directly have been in issue before VCAT, but implicitly they were.
[8] Being the same summarised claims referred to at [4](a)(i)-(v) of these reasons.
[9] VCAT Proceeding R2022/33199; VCAT Proceeding R2023/20091; Sharpe v Anderson (Residential Tenancies) [2023] VCAT 514; Sharpe & Anderson (Residential Tenancies) [2024] VCAT 381; Sharpe v Anderson (Residential Tenancies) [2024] VCAT 375; Anderson v Sharpe (No 2) [2024] VSC 279; and Anderson v Sharpe [2024] VSCA 166.
Accordingly, the proceedings likely ought to be dismissed for the reasons submitted by the respondent, namely because of estoppel principles or because this proceeding is an abuse of process. However, out an abundance of caution I will address the substance of the claims in the Statement of Claim, especially because the allegations in these proceedings are made against the respondent in their own capacity, rather than being allegations against the owner and landlord as was the case in the VCAT proceedings.
UNCONSCIONABLE CONDUCT?
The applicant in these proceedings seeks relief against the respondent as a real estate agent providing property management services.
Unconscionable conduct provisions under the Act and related legal principles
Section 20 of schedule 2 of the Act provides that:
Unconscionable conduct within the meaning of the unwritten law
(1)A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.
…
(2) This section does not apply to conduct that is prohibited by section 21.
Further, s 21 provides:
Unconscionable conduct in connection with goods or services
(1)A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to a person; or
(b) the acquisition or possible acquisition of goods or services from a person;
engage in conduct that is, in all the circumstances, unconscionable.
(2)This section does not apply to conduct that is engaged in only because the person engaging in the conduct:
(a) institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or
(b) refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.
(3) For the purpose of determining whether a person has contravened subsection (1):
(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.
(4) It is the intention of the Parliament that:
(a) this section is not limited by the unwritten law relating to unconscionable conduct; and
(b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and
(c) in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:
(i) the terms of the contract; and
(ii) the manner in which and the extent to which the contract is carried out;
and is not limited to consideration of the circumstances relating to formation of the contract.
Section 22 of schedule 2 of the Act provides for a number of non-exhaustive considerations for the assessment of whether conduct is unconscionable. The provisions of ss 21 and 22 have been the subject of extensive judicial consideration and the reasons for judgment of the Full Court of the Federal Court in Australian Competition and Consumer Commission v Mazda Australia Pty Limited [2023] FCAFC 45 (“Mazda”) at [478] to [488] provide discussion of the relevant principles and approach that should be followed.
The respondent’s submissions set out the relevant test for unconscionable conduct as provided for in s 20 of schedule 2 of the Act,[10] and correctly note that for conduct to be considered unconscionable, serious misconduct, clear unfairness or unethical conduct must be demonstrated.[11]
[10] Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1 at [155].
[11] Transerve Pte Ltd v Blue Ridge WA Pty Ltd [2015] FCA 953 at per Barker J at [247]
Relevantly it is now well-established that unconscionable conduct:
·Is conduct that is contrary to what the law deems to be in good conscience and calls for a remedy;
·Involves a sufficient departure from the norms of acceptable commercial behaviour as to be against conscience or to offend conscience;
·May be established despite there being an absence of exploitation of vulnerability; and
·Extends the reach of the statutory unconscionable conduct prohibition so that it will protect more consumers and small businesses against egregious conduct by corporations.
I agree that in Mazda the Full Court stated that poor commercial conduct had to be more than just immoral to be unconscionable. Nonetheless, the following statements by the Court at [487] and [488] in Mazda are instructive:
Finally, it is to be noted that whilst exploitation of “some form of pre-existing disability, vulnerability or disadvantage” is often a feature of unconscionable conduct, it is not a necessary feature for the impugned conduct to fall within the meaning of s 21 of the ACL: Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; [2021] FCAFC 40 at [78] (Allsop CJ, Besanko and McKerracher JJ).
All of these authorities emphasise that the task is an evaluative one. The conclusions reached may be “contestable” in the sense that reasonable judicial minds may differ, as Allsop CJ observed in Paciocco [v Australia and New Zealand Banking Group Limited [2015] FCAFC 50] at [304].
Findings on the evidence
Contrary to the applicant’s claim, I am not satisfied that the respondent falsely represented to her that the rental property included “wardrobes in the bedrooms and evaporative cooling throughout.”[12]
[12] Applicant’s affidavit filed 12 June 2024 at [5].
The respondent denies the representation and I prefer their evidence as the advertising of the rental property makes no such representations,[13] but instead:
·Refers to free standing robes in a sun room and no other reference to robes.
·Refers to ducted cooling throughout; and
·Warned that the applicant “should make and rely on their own enquiries” in relation to the property.
[13] Applicant’s affidavit filed 12 June 2024 at ‘exhibit 2’.
In relation to the evidence that the landlord represented to the applicant that certain works and repairs would be done, it seems unlikely to be the case. This is because where the landlord had a property manager and communication with the tenant would be expected to be with the property manager as agent of the landlord. The applicant’s evidence about representations made to her by the landlord are not particularised or time specific and I find the evidence lacks reliability. Further, if any representations had been made by the landlord, they were not representations of the respondent.
I am conscious of the compilation of emails within exhibit 7 to the applicant’s affidavit, however they merely evidence the applicant making representations about her own perceptions and do not constitute probative evidence of a representation that it was a condition of her residential tenancy that particular work would be done, let alone within a particular timeframe. The contents of the emails are inadmissible hearsay and I give them no weight. Further, there is no evidence that the respondent had knowledge of the alleged representation by the landlord.
I accept the evidence of Ms Symes that the respondent had no record or knowledge of the landlord giving undertakings to do the wide range of works stated by the applicant in her affidavit at [7].[14] This finding is consistent with the contents of the condition report upon entry to the rental property,[15] which the applicant signed indicating accuracy and accepting the condition of the rental property as reported. The report, in the additional comments section, noted the owner intended to improve part of the porch in the future and replace it, but this did not amount to an undertaking to do that work as a condition of the tenancy agreement.
[14] Affidavit of Sharni Symes filed 17 July 2024 at [105].
[15] Affidavit of Sharni Symes filed 17 July 2024 at pp 31-37 and applicant’s affidavit filed 12 June 2024 at ‘exhibit 6’.
The applicant entered into another six month tenancy on 25 June 2021 and on 15 November 2021, the respondent issued the first notice to vacate. Seven days later, the applicant made requests for repairs by email dated 22 November 2021. In the period preceding the first notice to vacate, as the evidence of the respondent and applicant demonstrates, there were issues about whether rent had been paid when due. This evidence shows and I find that the applicant became frustrated and agitated about automatically generated emails received about rent arrears, which coincided with delays in receipt of covid rent relief payments and requested rent reductions.
The email communications between the applicant and the respondent’s staff between about September and November 2021 clearly demonstrate that the issue of rent arrears messages, electronic recording systems and delays in receiving rent relief payments created a perfect storm which led to conflict and was a source of irritation for the applicant and the respondent’s staff, with each sending less than polite communications.[16]
[16] Affidavit of Sharni Symes filed 17 July 2024 at pp 60-62; applicant’s affidavit filed 12 June 2024 at pp 92-94.
There is no dispute that the first notice to vacate was issued on 15 November 2021, which was in relative proximity to the events and communications referred to in the preceding paragraph and before any request of repairs by the applicant.
There is unchallenged evidence that the reason for issuing the notice to vacate related to the landlord’s need to take possession to provide accommodation for his intellectually disabled daughter. Although the applicant’s overall case appears to be that this was not a bona fide reason, the statutory declaration about the need to take possession at this time is on oath and I have no reason to find it is untruthful.
Further, the applicant did not adduce any admissible evidence or cross-examine for the purpose of persuading the Court that the contents of the statutory declaration were not true. Instead, the applicant invites the Court to accept her subjective perception, opinion or speculation about the reason for the issuing of the notice to vacate. The applicant’s perception, opinion and speculation constitute inadmissible evidence. On the balance of probabilities, the Court is not persuaded that the reason given by the landlord was false. Nor has the applicant persuaded me that the respondent had knowledge that the contents of the statutory declaration was untrue.
There is no evidence that the respondent issued the notice to vacate contrary to instructions from the landlord or that the reason for issuing it was false. Instead, the respondent acted according to their obligations to the landlord under the property management agreement.
The validity of the first notice to vacate has never been tested as it was not pressed by the landlord, and it is not within my power to determine that issue. It falls to be determined pursuant to provisions of the Victorian state legislation.
Once the applicant made her first formal request for repairs[17] and continued to make them, the detailed evidence of Ms Symes as corroborated by contemporaneous documents and communications annexed to her affidavit, demonstrates and I find, that the respondent acted quickly in actioning work orders, was not dilatory, reckless or negligent in attending to requests for repairs. Ms Symes’ evidence was not challenged because the applicant elected to leave the hearing and did not cross-examine.
[17] Applicant’s affidavit filed 12 June 2024 at [12] and affidavit of Sharni Symes filed 17 July 2024 at pp 84-87.
Further, the messages and demands from the applicant,[18] persuades me that she obstructed the works and repairs unreasonably and I therefore infer that the nature of the work in most cases was not a serious concern to her.
[18] Affidavit of Sharni Symes filed 17 July 2024 at pp 103-106, 122, 124, 132-134 and 150-152.
I consider that the applications to VCAT about the repairs were constructed and an unreasonable response to the interpersonal conflict which arose over the exchanges concerning rent and the bona fide desire of the landlord to take possession of the rental property for a legitimate reason.
I find that three other notices to vacate were issued to the applicant by the respondent on instruction from the landlord because:
·The applicant refused to pay rent while remaining in occupation of the rental property; and
·The rental property was required to accommodate the landlord’s daughter.
In following the landlord’s instructions, the respondent acted as expected of a real estate property agent for the landlord pursuant to obligations under the property management agreement. Further, the documents and communications they sent were mostly expressed in a professional, businesslike manner. While their communications about the automated rent arrears emails were curt and possibly impolite, they were proportionate to the tone and content of the applicant’s communication.
For all the foregoing reasons, I reject the assertion that the respondent’s acted in a retaliatory manner or made false representations as alleged in the Statement of Claim.
To the extent that the applicant relies on alleged conduct of sending the later invalid notices to vacate, I am not satisfied that they were invalid as the factual finding of VCAT create a factual estoppel,[19] and this Court does not have jurisdiction to determine the validity of the notices pursuant to the RTA.
[19] Sharpe v Anderson (Residential Tenancies) [2024] VCAT 375; Sharpe v Anderson (Residential Tenancies) [2024] VCAT 381; Anderson v Sharpe (No 2) [2024] VSC 279; and Anderson v Sharpe [2024] VSCA 166.
Was the respondent’s conduct unconscionable?
The applicant carried the onus of persuading the Court that the respondent’s conduct as pleaded in the Statement of Claim was unconscionable. Her pleaded case is summarised at [4] of these reasons and my findings in relation to the alleged conduct of the respondent are set out above at [33]-[51].
I have not been persuaded that conduct of the respondent was unconscionable. In particular, addressing the applicant’s closing contentions, I reject the submissions at [6] and [7] of her written submissions filed 21 August 2024 (“the applicant’s submissions”) because:
(a)There is no probative evidence about how they departed from a professional standard or contrary to the industry code. Instead, the applicant asks the Court to draw an inference on the evidence but I am not prepared to do so;
(b)I have rejected the implied assertions at [7] of the applicant’s submissions that the respondent acted dishonestly or unfairly, induced breaches of the tenancy agreement, failed to obtain relevant information, and failed or neglected to address repair issues; and
(c)I have found that the respondent acted consistent with their obligations under the property management agreement and in a professional and businesslike manner. To the extent the communication referred to above at [49] may have been curt or impolite, that is insufficient to amount to unconscionability.[20]
[20] See, eg, Australian Competition and Consumer Commission v Mazda Australia Pty Limited [2023] FCAFC 45 at [547] onwards.
With respect to [7](a), (c), (g) and (h) of the applicant’s submissions, they have no relevance to the pleaded claim, or if they do, the applicant has not shown how that is so.
The submissions at [8] of the applicant’s submissions are without merit because:
(a)The respondent did not put the applicant at financial disadvantage. She inspected the rental property and was aware of its condition before taking the lease. Further, she was warned to make her own enquiries and no false representations have been established.
(b)The applicant has failed to satisfy me that the respondent was required to inform her prior to her tenancy that the rental property would be needed for the landlord’s daughter. Further, the tenancy agreements were only for fixed terms and the date by which vacation was required pursuant to the first notice to vacate was after the expiry of the fixed term.[21]
(c)The respondent did not mislead the applicant into entering the lease and there is no evidence before the Court of her telling the respondent about her special needs at any time before entering the lease.
[21] The period of the fixed term agreement in that period was 26 June 2021 to 25 December 2021.
In respect of [9] of the applicant’s submissions, there is no evidence that the rental property was not clean when the applicant took possession and the condition report adopted by her when she signed it represents otherwise.[22] Although repairs were ordered to be done by VCAT, the respondent made every reasonable attempt to have them done but was obstructed.[23] Further, the earliest evidence about her making a formal request for repairs is 31 August 2022, well after the respondent issued the first notice.
[22] Affidavit of Sharni Symes filed 17 July 2024 at pp 31-37 and applicant’s affidavit filed 12 June 2024 at ‘exhibit 6’.
[23] See above at [45]-[46] of these reasons.
The applicant advised she would be putting her rent payments on hold from 20 January 2023,[24] and VCAT made findings about her liability for unpaid rent.[25]
[24] Affidavit of Sharni Symes filed 17 July 2024 at [62] and p 110, noting the subsequent notice to vacate that issued for non-payment of rent acknowledged rent had been paid up to and including 5 January 2023 with $20 on account: affidavit of Sharni Symes filed 17 July 2024 at p 111.
[25] Sharpe v Anderson (Residential Tenancies) [2023] VCAT 514; and Sharpe v Anderson (Residential Tenancies) [2024] VCAT 375.
Addressing [10] of the applicant’s submissions, the Court does not accept that the respondent continued to threaten the applicant with eviction. I have found that they did not pursue obtaining possession in respect of the first notice to vacate and the automatically generated rental arrears emails did not threaten eviction or proceedings against the applicant, something which is self-evident from their contents.[26]
[26] See, eg, affidavit of Sharni Symes filed 17 July 2024 at p 60 and applicant’s affidavit filed 12 June 2024 at pp 83, 85, 86 and 93.
I am not persuaded that the first notice to vacate issued by the respondent on 22 November 2021 was a reaction or retaliation to the applicant lodging a complaint because I have accepted the truthfulness of the landlord’s statutory declaration. Further, the communications relating to rent arrears had been ongoing for several weeks prior. The respondent invited the applicant to lodge a complaint if she wished,[27] and the applicant’s submissions at [11] are unpersuasive. The submissions involve conjecture and speculation about matters that this Court cannot determine because they relate to State legislation.
[27] Applicant’s affidavit filed 12 June 2024 at pp 102-103.
The applicant’s submissions at [12] to [14] are without merit as the findings I have made simply do not support them.
I reject the submissions that the respondent’s conduct has been deceptive, negligent aggressive or unprofessional. The conduct of the applicant and the terms of her communication are aggressive, threatening and intimidating. Her communications demonstrate a capacity to articulately and fervently pursue in a persistent manner her subjective point of view, which belies being harassed or disempowered and threatened as claimed.
The applicant has failed to satisfy the Court that the respondent acted unconscionably in any way alleged by her.
CONCLUSION
The applicant has failed in her claims and accordingly there is no occasion to consider making compensatory orders for loss and damage.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 6 November 2024
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