Basnet v Ahmad

[2020] ACAT 14

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BASNET & ANOR v AHMAD (Residential Tenancies) [2020] ACAT 14

RT 922/2018

Catchwords:               RESIDENTIAL TENANCIES – unpaid rent – forcible eviction accompanied by assault – compensation for breach of quiet enjoyment

Legislation cited:        Residential Tenancies Act 1997 s 83, standard term 52

Cases cited:Baltic Shipping v Dillon (1993) 111 ALR 289

Hadley v Baxendale (1854) 9 Exch 341

Jarvis v Swan Tours [1973] 1 All ER 71

Robinson v Harman (1848) 1 Exch 850

Shkolar v Thomson [2015] ACAT 21
Xia v Wang & Bian [2009] ACAT 21

Tribunal:  Senior Member J Lennard

Date of Orders:  24 February 2020

Date of Reasons for Decision:         24 February 2020

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 992/2018

BETWEEN:

ASHOK BASNET

First Applicant

TULASA ARCHARYA

Second Applicant

AND:

JUNAID AHMAD

Respondent

TRIBUNAL:     Senior Member J Lennard

DATE:24 February 2020

ORDER

The Tribunal orders that:

1.The tenant is liable to the lessors for rent to 30 October 2018 in the amount of $3,303.22.

2.The lessors are liable to pay to the tenant $10,969 being $969 for the cost of ambulance transport, and $10,000 compensation for breach of the tenancy agreement.

3.ACT Rental Bonds on behalf of the Territory is directed to release the bond to the tenant.

4.The lessors shall pay to the tenant an amount of $7,665.78, within seven days of the date of these orders.

………………………………..

Senior Member J Lennard

REASONS FOR DECISION

Background facts

1.The parties entered into a residential tenancy agreement dated 22 May 2017. That residential tenancy agreement was for a fixed term commencing 1 June 2017, and ending 30 May 2018. The parties to that residential tenancy agreement were Tulasa Acharya and Ashok Basnet as lessors and Junaid Ahmad as the tenant. The rent was expressed to be $550 per week.

2.The residential tenancy agreement is contained in two pages, each page is signed by all parties, but containing several terms which would be not valid because they are inconsistent with the residential tenancy standard terms contained in schedule 1 to the Residential Tenancies Act 1997. No ingoing condition report was provided by the lessors at the commencement of the tenancy. I note however that clause J of the residential tenancy agreement states “CONDITION REPORT: Brand New Apartment and no comments”.

3.The residential tenancy agreement also required the payment by the tenant of a rental security of $2,200 upon the signing of the agreement. The evidence before the Tribunal was that the tenant had, at the commencement of the tenancy, paid to the lessors, the amount of $2,200 as rental bond, but the lessors had failed to lodge the bond until ordered to do so by this Tribunal on 21 February 2019.

4.Text messages in evidence before the Tribunal indicate that there had been discussions between the lessors and the tenant from about September 2018 as to when the tenancy would end. On 8 October 2018 at 9:19pm the tenant sent the following message to the lessors:

Hi Ashok, I’ve talked with the other guys [housemates] and we have decided to go with the initial plan as both of them have found places to move. So, according to my previous conversation I’ll vacate the apartment by the end of this month. Thanks.

This was acknowledged by the lessor. This message would constitute the giving of three weeks notice by the tenant of termination of a periodic tenancy. The lessors have acknowledged that this message was received. Evidence before the Tribunal establishes that the lessors and the tenant expected that the tenant would vacate the premises on 30 October 2018.

The correspondence between the parties prior to 23 October 2018

5.On 15 October 2018 the lessor texted the tenant in the following terms:

Our lawyer will send you court letter with his legal fee due to not paying rent and case is carried out due to your negligence and I hv forward agreement and bank account for the transaction you made.

We donot have any bad intention but you hv shown so. I found you very very dishonest person and I am so sad with you behaviour and I am in a stress and tortured by your activities

We donot have single bad intention about you but u always u hv.

Kind Regards,

Teresa (errors in the original)

6.This message was apparently an attempt by the lessors to force the tenant to pay rent due on 1 October 2018 and 15 October 2018. In reply the tenant stated that he was aware of the fact that the lessors had failed to lodge the bond in the amount of $2,200 and that he was adjusting the rental payments to take into account that the lessors had retained the bond money in their own funds; the tenant stated “due to this, unprofessional and dishonest behaviour of yours has forced me to adjust the bond paid in the rental payments for the property” (errors in the original).

7.On 16 October 2018 the tenant received a phone call from the lessor. A portion of that phone call was recorded by the tenant. Both the lessor, Ashok Basnet, and the tenant gave evidence in relation to the content of that phone call. A video recording, made on the tenant’s computer, of that phone call was in evidence before the Tribunal. Telephone records in evidence before the Tribunal established that the phone call was made from the phone belonging to Ashok Basnet.

8.The evidence before the Tribunal established that the lessor’s phone was used to make the call; that the lessor and at least one other person spoke in that phone call and that the phone call was used to threaten and harass the tenant. A male voice can be heard saying loudly and agitatedly, “I will fuck you up” and “You have big trouble”. The second male heard in the phone call was one of the persons present at the visit to the premises on 23 October 2018.

9.Ashok Basnet gave the following oral evidence before the hearing:

(a)That he made a phone call on 15 October 2018 to arrange an inspection of the premises prior to the end of the tenancy. There was no evidence before the Tribunal to establish that such a phone call was made, and Ashok Basnet’s evidence in this area was confused and inconsistent.[1]

(b)That he had made a phone call to the tenant on 16 October 2018 at about 9:36pm and the phone call had lasted for five minutes.

[1] Transcript of proceedings 4 September 2019 page 27

10.On 17 October 2018 the lessor sent the following text message to the tenant:

Dear Junaid,

Hope you are doing good. This is legal notice. I kindly request you to pay rent, which was due on October 1 and next one was on October 15, which is already due, is good for you and form me. If you don’t pay rent until Friday Evening, we will come with police and replace main access door lock and deactivate remote. In addition, security deposit cannot be used for rent payment, only used for damage and un-cleaned of property. If everything is good, there is no doubt we will refund fully based on our agreement. Commercial Cleaning must be done by Morgan group which is acceptable.

Note: please remember that last day to eviction of property is on October 30, 2018. (errors in the original)

11.In the message set out above where the rent is stated as needing to be paid by Friday, which the lessor clarified in his oral evidence to say it referred to Friday 19 October, makes little sense if it was agreed that there would be a final inspection on 23 October 2018.

The visit of the lessor to the premises on 23 October 2018

12.The parties agree that the lessor, Ashok Basnet, visited the premises at approximately 7:00pm on the night of 23 October 2018. The parties also agree that the lessor was accompanied by two male persons.

13.The evidence of the lessor is summarised as follows:

(a)He rang the buzzer for unit 57, but there was no answer. He then pushed the buzzer for unit 58 and the occupant of unit 58 let him in. He went up in the lift to unit 57 and knocked on the door. When there was no answer from the tenant, he used the spare key to gain access. The lessor gave evidence that in a phone call with the tenant, on or about 15 October, he was given permission by the tenant to enter the premises using the key, if the tenant was absent.[2]

[2] Transcript of proceedings 4 September 2019 pages 33-35

(b)On 4 September 2018, the lessor gave evidence that he was accompanied by ‘two witnesses’ and later stated “One – two friends. One is my friends and then another one is not my friends. Just hire a friend. He’s not from my side. He’s not – one I know the friend who lives with me before. Okay. And then his friend was there”.[3] The lessor did not, at the hearing on 4 September 2019, provide the names of the two persons who accompanied him to the premises on 23 October 2018.

(c)At the hearing on 15 November 2019 the lessor gave evidence that Vasim Ahmad and Alex El Manatari had attended the premises along with him on 23 October.

(d)Each of these persons gave statements to the AFP. The police case notes in relation to each of these persons were in evidence before the Tribunal. The case notes are a record created by the AFP of conversations with the persons. Neither of these persons was called to give evidence and so the tenant was not able to test their evidence by way of cross-examination. These persons were suspected to be co-offenders with the lessor. These case records are therefore treated with caution. It is noted that they corroborate some of the evidence of the lessor, but contradict the evidence of the lessor in other areas:

(i)      Alex El Mantari stated that the lessor entered the unit using his own keys and that the tenant had not responded to knocking.

(ii)     Each denies any assault upon the tenant.

(iii)   Each said the lessor asked them to accompany him to the unit as he was afraid of the tenant.

(iv)   Each said that they spoke about the unpaid rent and about the tenant moving out.

(v)     Each said the tenant gave his phone to the lessor as security for the unpaid rent.

(vi)   Alex El Mantari stated that the lessor had requested Vasim Ahmad to come to the unit he owns to request unpaid rent from the tenant and to evict him.

(e)The lessors evidence was that the tenant was in the premises and came out of his bedroom, gave permission for the taking of photos, photos were taken, the tenant returned one key and one swipe card to the lessor, and voluntarily handed to the lessor his mobile phone as guarantee for the rent to be paid the next day. The lessor gave evidence that he had expected to return the next day, and that the tenant would transfer the outstanding rent “in front of me”.[4]

[3] Transcript of proceedings 4 September 2019 page 32, lines 30-35

[4] Transcript of proceedings 4 September 2019 page 38 line 4

14.The lessor provided photographs, said to be taken of the premises on 23 October 2018. These photographs show the premises to be in an unclean state.

15.On 24 October 2018 the lessor sent an email to the tenant in the following terms:

… As we know it was brand-new property but after inspection property yesterday, I am not satisfied as property condition was horrible, damaged paints, carpets, smoking inside the apartments, in toilets and unwanted items and so on. Based on our face-to-face conversation yesterday between you and me, you are agreed to leave the property before 1.00pm on 24/10/2018 and main access door lock will be replaced by 2.00pm.

16.On 24 October 2018 the lessor again entered the premises. He gave evidence that the tenant had left with his personal belongings but there was furniture still in the premises.

17.The tenant gave the following evidence:

(a)That on 16 October he received a phone call from the lessor during which the lessor threatened him and “then suddenly, you know, out of nowhere, another man started speaking from the phone, quite violently”.[5]

(b)In response to the question “Can you tell the tribunal, in your words, and only obviously in relation to the events that are part of these proceedings, what happened on the evening of 23 October 2018?”:

So the whole incident. Okay. So basically I was taking the shower in my bathroom and as soon as I finished the bathroom, like the shower, I came and - to the other side and drying - was drying myself. I had an underwear on myself and then suddenly, I heard you know, two, three bangs on the door and fourth or fight bang, I just suddenly see, you know a person in my room - in my bathroom, which I have never seen in my life, then Mr Ashok came. He was taking pictures, he had a mobile in his hand, then he - he grabbed my left arm, he was twisting it - that guy the - the one who, according to my information is Lebanese, he punched me in the stomach like two or three times. Okay, and then there was the third guy who was a locksmith. He told both of these guys to allow me some time to wear anything. So they allowed me a few seconds, in which I grabbed my short, grabbed a t-shirt and got off - out of the bathroom and their - Mr Ashok’s associate was pushing me into my wardrobe, getting my clothes out of my wardrobe, basically missing - making my sort of the - the room and the apartment, basically my wardrobe. Then I came to my room, I grabbed a set of keys for the apartment. I had my mobile - I had my mobile in the bathroom, they already had - have had taken the mobile from the bathroom. Then they - the guy and Mr Ashok asked me for the keys. They sort of - well, forcefully snatched it from my, my set of keys with the pass. And they were - well, insisting that ‘You should leave the property as of now and start packing the stuff.’ I even prepared two, three bags, like hand carries in which I put my - you know, very, very necessary items like my passport and my laptop and I was getting them to the door and they were of an opinion that ‘you should be leaving right now’ but then I told them, you know whatever you want, I cannot do it today, you know. You need to at least give me a time of at least a day, so that I can wrap up my stuff, so that I can do other - you know, stuff with my belongings and also there are my house mates living with me, I should also tell them to get their stuff before the plan time. And then they all - then they ask me to call one of my house mates, for the second set of keys, because they wanted the second set of keys. So they gave me mobile back, I called my - not the house mate but a friend of mine, I called him. I was trying to convey the message that I’m in a trouble but he could not get it and they – Waseem(?), the guy who was a locksmith, who opened the main door, he asked him, ‘When are you going to come because we’ll be needing the second key’ and the friend would not understand he bluntly said, you know, ‘I’ll be coming tomorrow and you can - we can see then.’ And after that, they took my mobile, with the SIM. They took my house keys and they warned me not to contact anyone, can stay in the apartment, prepare all the stuff, pack your stuff and tomorrow we’ll be coming. ‘ You should be getting out of this’ and you know, ‘then we will be giving your mobile back, otherwise you’re not going to contact anyone.’ Then they left the apartment. I did not even realise like why - what has happened to me as at the - like after 15, 20 minutes, one of my housemates came, he consolidated me, or fed me some water and stuff. I took his mobile, call - you know, my friends who were just living in that building. They came. I called the police. Police attended and the police took my statement. They even recorded my voice - voice statement then they basically took a whole search around the apartment, like I explained them what happened. Then they saw the marks on my ribs, like ribs in essence, like here, they could see that it has been punched. So they said, you know, we - it is suggested that we call am ambulance so that they can check you, and then they call an ambulance. The paramedics came, they observed me, then they took me to the Calvary Hospital within the ambulance and basically I - I were - I was in Calvary Hospital for two, three hours. They looked upon me, they given me the medication, a bit of medications and that’s it for that night.[6]

(c)the tenant provided a copy of the Emergency Department record from Calvary Hospital, letters from the University Medical Centre and a copy of the interim protection order obtained against the lessor.

[5] Transcript of proceedings 4 September 2019 page 77 lines 4-6

[6] Transcript of proceedings 4 September 2019 pages 81-83

18.I am satisfied on the evidence before me that on 23 October 2018, the lessor, in the company of two other male persons, unlawfully entered the premises rented to the tenant. The purpose of this unlawful entry was to threaten and frighten the tenant so that he would pay the rent and vacate the premises. I am satisfied on the balance of probabilities that the tenant had not in previous phone calls agreed to this so-called final inspection of the premises. I am satisfied on the evidence before me, and on the balance of probabilities that the tenant was assaulted by one or both of the male persons accompanying the lessor. I am satisfied that the tenant suffered no more than minor physical injuries as a result of that assault, but was traumatised by the events.

19.After the lessor and the other men left the apartment, the police were called and the tenant was transported to hospital for treatment. The tenant did not return to occupy the premises. The tenant removed all his goods and cleaned the premises by 30 October 2018.

20.The evidence of the lessor was evasive, imprecise, inconsistent, both with his written statement and internally, and differed across the two days of hearing, and was not supported by any corroborative evidence. The lessor did not call either of the persons who attended the premises with him on 23 October to give evidence. The Tribunal can infer that the evidence of those persons would not have assisted the lessors’ case. The Tribunal placed little weight on the police record of interview with those two persons and notes that those statements were self-serving and in at least one instance indicate that the purpose of the visit was to evict the tenant.

21.The tenant gave evidence in a forthright manner, was consistent with his written statement and across the two days of hearing, and not seriously challenged in cross-examination.

22.Where there is a conflict between the evidence of the lessor and the evidence of the tenant, the Tribunal prefers the evidence of the tenant.

Termination of the tenancy

23.The tenant had given three weeks’ notice to the lessor in the text message of 8 October 2018. This message was acknowledged immediately by the lessor and referred to by the lessor in later messages. The Tribunal accepts the evidence of the tenant that he did not return to the unit to live after the incident on 23 October 2018; that he packed up his goods and cleaned to the best of his ability after the lessor was arrested on 1 November 2018 and that he left the keys in the apartment early in the morning of 2 November 2018.

24.The actions of the lessor on 23 October 2018 – an unlawful visit to the premises and assault of the tenant – amounted to an unlawful eviction of the tenant. The tenant was not able to return to the premises to live after the night of 23 October 2018. The tenant was only able to remove his goods after he knew that the lessor was arrested and bailed.

25.The contract of tenancy was unlawfully terminated by the lessor on 23 October 2018.

The claim by the lessors for compensation for rental arrears, and repairs and cleaning of the premises

26.Rental arrears are claimed by the lessors. In a statement filed with the Tribunal on 29 April 2019 the lessor’s claim rental arrears in the amount of $5,506.72. The lessors presented a spreadsheet which showed $4,011.72, a second spreadsheet appears to be an imaginative reconstruction of rental payments, and a copy of their bank statements showing all deposits (including the bond) made by the tenant. The tenant conceded that he owed rent, but could not respond to the claim by the lessors as the amounts claimed varied and the lessors provided no clear explanation of their calculations.

27.The Tribunal has calculated that the rent owed for the period from 1 June 2017 to 23 October 2018 is 72 weeks and five days at $550 per week, being $39,992. The lessors’ bank statements show the tenant paid a total of $35,888.78 in rental payments. Those bank statements also record that two payments of $1,500 were made, one on 29 May 2017 and one on 1 June 2017. Each was named as bond payment. Therefore the tenant made total payments of $38,888.78 to the lessors. $2,200 was belatedly lodged as rental bond. The total allocated to rent is thus $36,688.78. The balance of rent due to 30 October 2018 is $3,303.22.

28.The lessor is not entitled to compensation for lost rent or damages for abandonment.

29.The lessors also claim for the cost of an end of lease clean. As noted above the lessors did not provide an ingoing condition report or an outgoing condition report. The parties agree that the apartment was new in June 2017.

30.The tenant gave evidence that he did not return to the apartment between 23 October 2018 and 1 November 2018 on the advice of the police; the tenant accessed the premises on 1 November 2018, after the lessor had been arrested, and removed most of his goods, cleaned the apartment, left the keys on the kitchen bench and took photos. The tenant has provided photos taken early on 2 November 2018, these show a reasonably clean apartment. I note that the photos provided by the tenant show that the keys were left on the kitchen bench, there is no evident damage to any doors or walls, the carpets are not steam cleaned as there a furniture marks and a few scraps of paper, the vinyl or tiled floors show some minor debris, and there is soap marking on the shower.

31.The lessor was delayed returning to the premises for a number of reasons: his arrest, consulting with a solicitor, engaging an agent to assist him. The lessors supplied an invoice from ‘First Class Cleaning’ for end of lease cleaning and carpet cleaning, dated 28 November 2018 and in the amount of $1,100. There is no detailed description of the cleaning. The lessors did not provide an ingoing condition report; the lessors did not provide a final inspection report. The lessors have provided photos said to be taken in the unit on or about 19 November 2018. These photos are provided in ‘zoomed in’ format and are often too blurry for easy identification of the subject matter. There is no evidence before the Tribunal as to whether any other person may have had access to the unit between 1 November 2018 and 19 November 2018.

32.Given the direct inconsistency of the photographic evidence, the lack of any ingoing or outgoing report, the delay in cleaning and the lack of specificity in the invoice for cleaning, I am not satisfied on the evidence before me that the tenant has breached his obligation to leave the premises in a reasonably clean condition. I take into account the circumstances of the unlawful visit by the lessor, the assault upon the tenant and the tenant’s evidence that he cleaned to the best of his ability at a time when he viewed it safe to return to the premises to do so.

33.The lessors claim compensation for replacement of two key fobs and re-keying the unit. The lessor provided invoices showing that the two key fobs were replaced on 29 November 2018 at a cost of $60 and that the locksmith rekeyed the premises on 30 November 2018 at a cost of $200. The parties agree that the tenant was provided with three sets of keys and fobs, the lessors retained a fourth set. The evidence before the Tribunal establishes that one set of keys was taken by the lessors on 3 October 2018, one set was left in the premises by the tenant on 2 November 2018. The lessor had therefore recovered two of the three sets given to the tenant at the commencement of the tenancy, yet claimed for the cost of replacing a further two fobs. The tenant gave evidence that one set of keys and fob had been taken by the police on the night of 23 October 2018. This evidence was not challenged.

34.The lessors made submissions that if a lessor changes the locks in circumstances where the tenant has failed to return all keys, as a matter of security, the tenant should bear the costs. While it may be sensible for a lessor to take this approach, the Act and/or the terms of the residential tenancy agreement do not so provide. I am satisfied that the tenant failed to return one set of keys to the lessors, but given that the keys were with the police, the lessor could have arranged to collect them.

35.I am not satisfied on the evidence before me that the tenant is liable for the cost of re-keying the premises or the replacement of the fobs.

36.The lessors claim for compensation in the amount of $198 for damage to the premises. They provide an invoice dated 2 December 2018 for repair to the hinge on the ensuite door, replacement of globes, replacement of the battery in the smoke detector, and supply of a sink strainer. The tenant gave evidence that the sink strainer was in the premises when he vacated, and that the damage to the bathroom door occurred during the assault upon himself on 23 October 2018. There is no evidence before the Tribunal to support the lessors’ claim. Given the absence of any ingoing and outgoing report and the delay by the lessors, I am not satisfied that the tenant is liable for these repairs.

The tenant’s claim

37.The tenant is seeking $10,000 compensation for interference by the lessor with the tenant’s quiet enjoyment of the premises.

38.Standard Term 52 of the Residential Tenancies Act 1997 provides that:

The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.

39.Quiet enjoyment is the legal concept of a tenant being entitled to hold the premises and use them for normal residential purposes without interference. It is a right in the tenant to enjoy the premises for all usual purposes free from interference. The Residential Tenancies Act 1997 provides that under a residential tenancy agreement the premises are for the tenant to use as a home. This would encompass the notion of reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises (Standard Term 52), and would include, but is not confined to, the right to prevent others from entering the premises, the right to prevent others from damaging the premises, and the right to use the house and surrounding gardens for relaxation and enjoyment without being abused, threatened or made to feel unsafe.

40.In Xia v Wang & Bian [2009] ACAT 21, the Tribunal made the following comments at paragraphs 193 to 196:

193.  The interference caused to the tenant’s use of the premises must be substantial and not trivial (Worrall v Commissioner for Housing of the ACT [2002] FCAFC127 but it does not have to be so severe as to deprive the tenant of the whole of the benefit of the tenancy (Hawkesbury Nominees P/L v Battik P/L [2000] FCA 185; Byrnes v Jokana P/L [2002] FCA 41).

194.  The right to quiet enjoyment can be breached by the actions of a lessor falling short of an unlawful termination of the tenancy, but an unlawful termination is just the extreme case of a breach of quiet enjoyment, i.e. the whole the quiet enjoyment of the premises has been lost. A loss of quiet enjoyment is a matter of degree.

195.  Thus by way of example in Davies v Cantoni [1998] NSWRT 41 and in Sheridan v Griffith [1999] NSWRT 22 the Residential Tenancies Tribunal in NSW held that unsuccessful endeavours by a lessors to coerce a tenant to vacate the premises were a breach of quiet enjoyment.

196.  The right to quiet enjoyment is an absolute and therefore a breach of that right occurs whether or not the lessors intended to cause the breach (Worrall (supra); Coles Myer ltd v Volley Investments P/L [2003] WASC 254).

41.In Shkolar v Thomson [2015] ACAT 21 the Tribunal noted:

13. The right to quiet enjoyment is a right conferred on the tenant under the residential tenancy agreement and at common law. The common law covenant of quite enjoyment is implied into all residential tenancies agreements by reason of the existence of the landlord and tenant relationship. The basis of the covenant was explained in Kenny v Preen [1962] EWCA Civ 2; [1963] 1 QB 499. The basis is that the landlord, by letting the premises, confers on the tenant the right of possession during the term and impliedly promises not to interfere with the tenant’s exercise and use of the right of possession during the term. The tenant is entitled to have the full benefit of the right of use and possession of the premises.

…

21.    … the conduct of the landlord in serving a retaliatory notice of termination, and the conduct of the landlord’s agent in making the caustic comments described above resulted in an interference with the tenants’ quiet enjoyment of the premises. Their conduct is a form of harassment and harassment has long been recognised as a breach of the covenant of quiet enjoyment.

42.I am satisfied on the evidence before me, on the balance of probabilities, of the following:

(a)The lessors believed the respondent was in arrears of rent and pursued him for payment of those arrears.

(b)The phone calls, text messages and emails from the lessor to the tenant, were in rude and aggressive terms.

(c)The tenant did not agree that the lessor could attend the premises on 23 October 2018 to conduct a routine or final inspection.

(d)The lessor instigated a phone call in which a male person made violent threats to the tenant on 16 October 2018.

(e)The lessor threatened the tenant with forcible eviction on 17 October 2018 in a text message where he said he would “come with police and replace the main access door and deactivate the remote”.

(f)The lessor and the two male persons accompanying him entered the premises on 23 October 2018 unlawfully and with the intention of collecting the rent and evicting the tenant.

(g)The lessor and/or the two male persons accompanying him on 23 October 2018 assaulted the tenant and removed his mobile phone.

(h)The police were called to the premises after the lessor and his accomplices had left. The police recommended to the tenant that he not remain at the premises.

(i)The tenant was transported by ambulance to Calvary Hospital on the evening of 23 October 2018.

(j)The tenant did not return to reside in the premises.

(k)The lessor entered the premises without prior arrangement or consent of the tenant on 24 October 2018, 26 October 2018 and 30 October 2018.

(l)The lessor was arrested on 1 November 2018.

(m)The tenant returned to the premises to remove the remainder of his possessions from the premises after being advised by the police that the lessor had been arrested.

(n)The tenant obtained a personal protection order against the lessor.

43.The tenant gave evidence that he was assaulted by the lessor and his two male accomplices when they attended the premises on 23 October 2018. This is supported by the tenants evidence given to the police, by the medical notes from Calvary Hospital, by the letters from the university medical service stating that the tenant had been affected by the events of 23 October, and by the evidence of both the tenant and the lessor that the lessor removed the tenant’s mobile phone and one set of keys. This is not conduct that would be expected of a lessor conducting a routine inspection.

44.Throughout the tenancy, the lessor has exhibited either a lack of understanding, or a deliberate disregard, of the provisions of the Residential Tenancies Act 1997, his rights and obligations under that Act, or the terms of the standard residential tenancy agreement. The tone of the lessor in various text messages and emails in evidence before the Tribunal is aggressive and threatening. At no stage during the tenancy has the lessor served written notices to remedy the arrears of rent, notices of inspection or notices to terminate on the grounds of the tenant’s breach. The lessor has conducted himself with no regard for the law relating to residential tenancies and has decided to take the law into his own hands and use brute force in an effort to force the tenant to pay the rent and leave the premises.

45.I am satisfied on the following evidence that the tenant was concerned for his safety because:

(a)the tenant recorded threatening phone call received on 16 October 2018; and

(b)the tenant reported this phone call to the police.

46.I am satisfied on the evidence before me, on the balance of probabilities, that the lessor has interfered with the quite enjoyment of the tenant. The harassment and threats prior to 23 October 2018, the unlawful entry into the premises on 23 October 2018, the assault upon the tenant, and the removal of his mobile phone and keys are all taken into account. The forcible eviction and the use of physical violence are breaches of the obligation not to interfere with the quite enjoyment of the tenant at the most serious level.

47.I am satisfied on the evidence before me that the tenant has suffered economic loss in the amount of $969, being the cost of the ambulance transfer from the premises to Calvary Hospital.

48.I am satisfied that the tenant should be compensated for the breach by the lessor.

Compensation

49.Under a residential tenancy agreement premises are leased to the tenant for use as a home. The residential tenancy agreement provides that the lessor must not cause interference with the tenant’s quite enjoyment of the premises. This is fundamental to a primary purpose of the residential tenancy agreement – to provide a home for the tenant. The Tribunal may make an order for compensation for loss caused by the breach of the residential tenancy agreement (section 83 (d)).

50.A party who suffers damage as a result of a breach of contract by another party is entitled to an amount of damages which will, as far as possible, put the injured party in the same position they would have been in had the breach not occurred.[7] The innocent party must establish that the loss complained of was caused by the breach of contract and that the loss was not too remote from the breach. The rule in Hadley v Baxendale (1854) 9 Exch 341 is applied to determine which loss is recoverable. An innocent party may recover damages caused by a breach of contract if they are the types of loss that occurs in the usual course of events, or arise naturally from the breach, or where the loss complained of may be reasonably supposed to have been in the contemplation of the parties at the time they made the contract to be likely to result from the breach. The cost of ambulance transport would fall within the first limb of the rule in Hadley v Baxendale.

[7] Robinson v Harman (1848) 1 Exch 850

51.Damages for personal distress or pain and suffering are not usually awarded for a breach of contract, however recent decisions indicate that such an award is appropriate and proper where the contract itself promised peace, comfort, enjoyment or relaxation. Damages have been awarded for breach of contracts relating to holidays and weddings.[8]

[8] Jarvis v Swan Tours [1973] 1 All ER 71; Baltic Shipping v Dillon (1993) 111 ALR 289

52.In this matter the lessor has breached an express term of the contract, a term which is fundamental to the contract, and the tenant is entitled to compensation for that breach. Physical assault during the course of the forcible eviction is an extreme breach of a fundamental term of the contract. The tenant was forced from his home, put in fear of harm, physically assaulted and suffered interference with his studies. The lessor is to pay an amount of $10,000.00 compensation.

Orders

53.The Tribunal finds that:

1.The tenant is liable to the lessors for rent to 30 October 2018 in the amount of $3,303.22.

2.The lessors are liable to pay to the tenant $10,969 being $969 for the cost of ambulance transport, and $10,000 compensation for breach of the tenancy agreement.

3.ACT Rental Bonds on behalf of the Territory is directed to release the bond to the tenant.

4.The lessors shall pay to the tenant an amount of $7,665.78, within seven days of the date of these orders.

………………………………..

Senior Member J Lennard

HEARING DETAILS

FILE NUMBER:	RT 922/2018
PARTIES, APPLICANT:	Ashok Basnet & Tulasa Archarya
PARTIES, RESPONDENT:	Junaid Ahmad
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	Mr P Christensen
SOLICITORS FOR RESPONDENT	Tenant’s Union ACT
TRIBUNAL MEMBERS:	Senior Member J Lennard
DATES OF HEARING:	4 September 2019; 15 November 2019