Bonke v Hennock & Anor (Appeal) - [2023] ACAT 67

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BONKE v HENNOCK & ANOR (Appeal) [2023] ACAT 67

AA 24/2022, AA 4/2023 (RT 53/2022)

Catchwords: APPEAL – residential tenancies – application for leave to adduce further evidence – application for confidentiality order – compensation for breach of quiet enjoyment – consideration of whether a claim for breach of quiet enjoyment was properly raised at hearing of original application – documents taken into evidence but not allocated exhibit number – compensation for sundry defects – no error established – appeal dismissed
Legislation cited: ACT Civil and Administrative TribunalAct 2008 ss 7, 38, 39, 82, 92
Residential Tenancies Act 1997 s 15, schedule 1 cl 52

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91

Cases cited:Bonke v Hennock & Anor [2022] ACAT 93
Enna Investments Pty Ltd v McNamara [2016] ACAT 63
Integrity Car Care v Godber [2023] ACAT 23
James v Icon Retail Investments Ltd and Anor [2023] ACAT 41
Martins v Zhang [2014] ACAT 48
McMillan v Su and Anor [2023] ACAT 30
Qin and Ors v He [2020] ACAT 116
Your Local Plumbing Group Pty Ltd v Hirsch [2022] ACAT 83

List of

Texts/Papers cited: Anforth, Christensen and Adkins, Residential Tenancies Law and Practice in NSW (The Federation Press, 8th ed, 2022)

Tribunal:Presidential Member G McCarthy
Senior Member A Anforth AM

Date of Orders:  31 October 2023
Date of Reasons for Decision:      31 October 2023
Date of Publication:  3 November 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 24/2022
AA 4/2023

BETWEEN:

JUANITA BONKE
Appellant/Lessor

AND:

SHANE FREDRICK HENNOCK
First Respondent/Tenant

KELSEY BETTS
Second Respondent/Tenant

APPEAL TRIBUNAL: Presidential Member G McCarthy
Senior Member A Anforth AM

DATE:31 October 2023

ORDER

The Tribunal orders:

Appeal dismissed.
The tenants pay the lessor $1,805.74 within four weeks from the date of this decision.
………………………………..

Presidential Member G McCarthy
For and on behalf of the Tribunal

REASONS FOR DECISION

Presidential Member G McCarthy

This appeal arose from a decision of the Tribunal (the original tribunal) in response to a residential tenancy dispute between the parties. The original tribunal ordered Mr Hennock and Ms Betts (the tenants) to pay Ms Bonke (the lessor) the sum of $1,805.74 within four weeks, as a net amount owed by the tenants to the lessor after allowing for amounts owed by each to the other.
The history of the dispute is summarised by the original tribunal in its reasons for decision as follows:
Ms Juanita Bonke the applicant, owns a house in Page. In November 2015, she advertised her house as available for rent. Ms Kelsey Betts and Mr Shane Hennock, the respondents, looked at the house and expressed interest in it. Ms Bonke lives in Queensland, and for that reason and because of family commitments, she was absent from Canberra from mid-December 2015 until mid-January 2016. In mid-December 2015, the respondents moved into Ms Bonke s property. When Ms Bonke returned, there was a falling out between her and the respondents. Mr Hennock and Ms Betts advised Ms Bonke that they would vacate the premises on 22 February 2016. They left the premises, and Ms Bonke asserts that they paid her no rent, did not undertake the painting they had promised to do at the house, and left the premises damaged, dirty and unkempt. She applied to this Tribunal for compensation, claiming $6,209.02 in unpaid rent and utilities, in future rent foregone, in cost of cleaning and repairs, and for her filing fee. The respondents contest these claims but have agreed to pay for a damaged window and for water consumption.[1]
[1] Bonke v Hennock & Anor [2022] ACAT 93 at [1]
The original tribunal recorded the history of the matter which was attended by high levels of hostility including police involvement that resulted in mutual apprehended violence orders[2] and other procedural problems.
[2] [2022] ACAT 93 at [62]
The original tribunal determined the agreement between the parties constituted a residential tenancy agreement in standard form for the purpose of the Residential Tenancies Act 1997 (the RT Act). This finding was made notwithstanding the lessor’s claimed understanding that the agreement was a contractual licence for house sitting and that she was expecting to occupy one of the bedrooms in the house when she returned to Canberra from Queensland.[3] The consequential issues before the original tribunal related to the terms of the agreement; whether there had been any breach of those terms; and if so, the amounts of compensation to be ordered.[4]
[3] [2022] ACAT 93 at [31]
[4] [2022] ACAT 93 at [34]
Rent was agreed at $390 per week commencing on 12 December 2015, which the original tribunal found had been reduced from $410 per week by reason that the leased premises were in need of painting and some repairs.[5] The lessor asserted an agreement with the tenants that they would paint the premises in return for the reduced rent. The tenants did some painting. The original tribunal found this agreement to paint was uncertain and therefore void pursuant to section 15 of the RT Act.[6]
[5] [2022] ACAT 93 at [38]-[41]
[6] [2022] ACAT 93 at [45]-[49]
The premises were found to be in need of repair including repairs to the oven, cooktop and carpet, and a lack of curtains, about which the tenants had complained.[7]
[7] [2022] ACAT 93 at [74]
The original tribunal found that on 18 or 19 January 2016, the lessor returned to Canberra and used her own key to enter the premises in the tenants’ absence. Shortly after, both tenants returned to the premises and a physical confrontation occurred between the tenants and the lessor. The lessor rang the police who attended.[8] The original tribunal found this event to constitute “an extraordinary breach of the tenants’ right to peace, comfort and privacy” (or quiet enjoyment) in breach of standard term 52 of the standard residential tenancy terms set out in schedule 1 to the RT Act.[9]
[8] [2022] ACAT 93 at [63]
[9] [2022] ACAT 93 at [66]
The tenancy came to an end on 22 February 2016 following a notice to vacate given by the tenants which specified this date.[10] The premises was relet by the lessor on 4 March 2016.[11]
[10] [2022] ACAT 93 at [42]
[11] [2022] ACAT 93 at [96]; Statement of Juanita Bonke dated 30 March 2022 at [30]
During the period of the tenancy, the tenants paid no rent at all.[12] This was a period of ten weeks and three days at $390/week giving a total of $4,067.14 which the original tribunal found to be owing to the lessor.[13]
[12] [2022] ACAT 93 at [54]
[13] [2022] ACAT 93 at [55]
In her original application to the Tribunal, the lessor claimed compensation for:
(a)     rental arrears ($4,275.71);
(b)     ten days of rent foregone (because the house needed cleaning and repairs) ($585.71);
(c)     cleaning expenses – ($725);
(d)     work on the garden ($175), plus hire of a lawn mower ($35);
(e)     replacement of broken window ($198);
(f)     unpaid water consumption ($80.60); and
(g)     the tribunal filing fee ($169).[14]
[14] [2022] ACAT 93 at [94]
The tenants denied any obligation to pay rent but admitted to $200 for damage to a window and $80.60 for water usage.[15]
[15] [2022] ACAT 93 at [91]
The original tribunal recorded a passage pivotal to this appeal, namely its finding that a claim for breach of quiet enjoyment by the tenants was to be implied from the manner in which they conducted their case:
…The respondents did not lodge a counterclaim seeking compensation for breach of a tenancy agreement. Since their principal line of argument was that no tenancy agreement was entered into – an argument that I have not accepted for the reasons set out above – it seems likely to me that they have held back from making any claim for compensation for fear of appearing to concede on their principal argument. As self-represented applicants, they may be unaware of the practice of parties before courts and tribunals adopting alternative lines of argument, so that although one line may not be accepted, another may be. Nevertheless, the respondents went to some lengths to pursue issues that can only be relevant in the context of a compensation claim, in particular regarding the confrontation of 18 or 19 January 2016, for which they sought a subpoena in order to access the police report of the events and applied for the same material under freedom of information legislation. In my view, a claim for compensation is implicit in the way they presented their case, and I have proceeded accordingly.[16]
[16] [2022] ACAT 93 at [87]
The original tribunal went on to consider comparable verdicts for breach of quiet enjoyment and ordered the lessor to pay compensation of $1,500 to each tenant.[17] It also awarded the tenants $250 for the non-functioning oven and $125 for the lack of curtains.
[17] [2022] ACAT 93 at [94]
The original tribunal also found that at the end of the tenancy, the tenants had left the premises in an unclean and damaged state relative to the state at the commencement of the tenancy and ordered them to pay $1,113.60 to the lessor in compensation.[18] The lessor claimed for 10 days lost rent during the period when the cleaning and repairs were carried out after termination of the tenancy, but the original tribunal dismissed that claim.[19]
[18] [2022] ACAT 93 at [94]-[95]
[19] [2022] ACAT 93 at [96]
The net outcome of the awards of compensation payable by the lessor to the tenants and vice versa was $1,805.74 owed by the tenants to the lessor.
On 5 December 2022, the lessor lodged an appeal to the tribunal[20] and listed a series of orders sought which were, in essence:
(a)the original orders be set aside, and the tenants pay the lessor $5,792.74; and
(b)an interim order that publication of the original tribunal’s decision and other information which might identify her be prohibited.
[20] AA 24/2022
The lessor also raised two grounds of alleged denial of procedural fairness:
(a)The original tribunal erred by taking into account the content of police documents produced under subpoena, which the lessor asserted were not taken into evidence.
(b)The original tribunal erred by implying a claim for compensation by the tenants for breach of quiet enjoyment where, she said, such a claim had not been made.
On 11 January 2023, the Appeal Tribunal heard and dismissed the lessor’s application for interim orders that the original tribunal’s decision not be published and the details identifying her be prohibited. The Appeal Tribunal also ordered the tenants file a cross-appeal in support of the order for compensation for breach of quiet enjoyment made in their favour.
The Appeal Tribunal ordered the appeal proceed as a review of the original decision pursuant to section 82(1)(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). Orders were made for the parties to file and serve any further evidence they sought to rely on.
Pursuant to the Appeal Tribunal’s order, on 23 January 2023, the tenants lodged their appeal.[21] The tenants did not specify what orders they were seeking but stated their agreement with the original tribunal’s finding of compensation payable to them for breach of quiet enjoyment. At the hearing of their appeal on 20 April 2023, the tenants said they were seeking orders to the effect that the lessor’s appeal be dismissed, and that the decision of the original tribunal be confirmed.
[21] AA 4/2023
On 9 February 2023, the lessor filed the following in support of her appeal:
(a)Submissions on:
(i)      The tenants’ implied claim for breach of quiet enjoyment and, if the claim was implied, the amount of compensation ordered for the breach.
(ii)     Compensation for the costs of gardening and maintenance.
(iii)   The refusal of the original tribunal to order lost rent during the 10- day period of cleaning and repairs.
(iv)   Whether the subpoenaed police documents had been taken into evidence.
(v)     The compensation awarded for the defective oven and the lack of curtains.
(b)A list of the alleged errors of fact and law or discretionary errors relating to the above.
(c)A list of orders sought.
On 3 March 2023, the Appeal Tribunal ordered both appeals be heard together.
On 16 March 2023, the lessor filed a Response to the tenants’ appeal which materially repeated her submissions in her own appeal.
On 29 March 2023, the lessor lodged an interim application for leave to file further evidence in the form of transcripts from prior interlocutory hearings in the appeal proceedings that were said to relate to the police report.
On 5 April 2023, the lessor filed a further Response and a list of authorities together with copies of the authorities listed.
On 6 April 2023, the tenants filed their Submissions in Reply.
The appeal was heard on 20 April 2023. Both parties appeared in person. The Appeal Tribunal comprised (then) President Neate AM and Senior Member Anforth AM. The Appeal Tribunal reserved its decision.
Unfortunately, the Appeal Tribunal as constituted was not able to determine the appeal before President Neate was no longer able to do so. For that reason, pursuant to section 92 of the ACAT Act, (then) Temporary President McCarthy allocated himself to replace President Neate for the purpose of completing the appeal.
On 19 July 2023, the Appeal Tribunal informed the parties of the reconstituted Appeal Tribunal and its proposal to determine the appeal based on the evidence and submissions that were before it without conducting a further hearing. The lessor responded by requesting leave to refer to some recent decisions that, she said, “would shed additional light on the points under appeal”. The tenants disagreed, submitting the lessor had had ample opportunity to make submissions.
Where the appellant was seeking only to draw the Appeal Tribunal’s attention to recent decisions relevant, she said, to the outcome of the appeal according to law, the Appeal Tribunal concluded a further hearing should be held. On 28 August 2023, the Appeal Tribunal held the further hearing at which time the lessor referred to and relied on three recent decisions of the Tribunal[22] in support of her claim that the original tribunal erred by implying a claim for compensation by the tenants for breach of quiet enjoyment. We have read those decisions and taken them into account.

Issues on appeal and nature of appeal

[22] Integrity Car Care v Godber [2023] ACAT 23; James v Icon Retail Investments Ltd and Anor [2023] ACAT 41; McMillan v Su and Anor [2023] ACAT 30

In summary, the issues in the appeals were:
(a)whether the lessor should be granted leave to file the transcripts as further evidence on which she sought to rely;
(b)whether the original tribunal erred in fact or law, by having regard to subpoenaed police documents;
(c)whether the confidentiality order sought by the lessor should be made;
(d)whether the original tribunal erred in fact or law by awarding compensation to the tenants for breach of quiet enjoyment; and
(e)whether the original tribunal erred in fact or law in making other orders for compensation.

Application for leave to provide further evidence

Rule 91(c) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (the ACAT Rules) provides:
For an appeal within the tribunal, the appeal tribunal –
…
(c) may, if leave is granted, receive further evidence about questions of fact, either orally or in a hearing, by written statement or in another way; …
In her application of 5 December 2022 in AA 24/2022, the lessor stated “No additional evidence” would be called by her. However, in her “Application for Interim or Other Orders” lodged on 29 March 2023 in relation to the tenants’ cross-appeal, the lessor wrote:
The [lessor] asks the Appeal Tribunal for leave to be granted so that the [lessor] may submit additional evidence which would have been filed and served had the [lessor] known that the [tenants] had an implied claim or that the [original tribunal] was going to search for evidence after the 25 July 2022 hearing had concluded.
The lessor provided, as attachments to that application, audio recordings of the original tribunal’s hearing on 6 May 2022 and of the preliminary hearing in AA 24/2022 on 11 January 2023. At the hearing, the parties made submissions about admitting these audio recordings into evidence.
At the hearing on 20 April 2023, the Appeal Tribunal dismissed the lessor’s application for leave to provide the further evidence because the recordings were not further evidence. Rather, they were (and are) recordings of public hearings which each party attended and which the Appeal Tribunal had or could readily obtain. To the extent that they contain evidence, it was evidence already before the Appeal Tribunal not further evidence. The Appeal Tribunal determined it would refer to one or both of the recordings only if necessary to help resolve a substantive issue raised in an appeal. In the event, it did not need to do so.

Whether the original tribunal erred in accepting a subpoenaed police report in evidence and relying upon it

In the original proceeding, the tenants obtained access under the Freedom of Information Act (the FOI Act) to a police report relating to the attendance of police at the premises on 18 or 19 January 2016. These documents contained a redaction of the names of those involved.
The tenants also caused the original tribunal to issue a subpoena directed to the Australian Federal Police (the AFP) for production of the same police report. The AFP produced its unredacted report in compliance with the subpoena. The lessor objected to release of the report to the tenants. On 10 June 2022, the original tribunal heard and rejected the objection, following which it ordered the report (in its unredacted form) be made available to the tenants and the lessor. On appeal, the parties agreed the only difference between the police report provided under the FOI Act and the copy produced under subpoena was the redactions.[23]
[23] Transcript of proceeding 20 April 2023, page 30, line 18 and page 45, lines 40 - 46
The original tribunal had regard to the subpoenaed copy of the police report and the copy produced under the FOI Act. At the hearing before the original tribunal, the lessor protested that the police report was partially in error. She gave her own detailed accounts of what she said occurred, 6 years previously. The original tribunal noted the parties’ account of events was contested and relied mainly on the account given in the contemporaneous police report together with the oral evidence of the parties where they were in accord with each other.[24]
[24] [2022] ACAT 93 at [63]
The original tribunal’s reliance on the police report was implicit and understood by all concerned. The tenants repeatedly referred to it.[25] When the lessor was cross-examined in relation to the attendance of the police officers, and the lessor was seeking to inject her views about what happened, the following exchange occurred between the lessor and the original tribunal:
SENIOR MEMBER: Ms Bonke, I don't need to take further evidence from you about what happened on that particular day. I have the contemporaneous police material on which I can rely. You can talk to me - well, you can talk to me in submissions about how that came about, I suppose, but at the moment you're being cross-examined. You've raised the question or relevance. I think I've answered it, and I think probably you need to respond to more questions from Ms Betts.
MS BONKE: Okay, cool. I just didn't think it was relevant or it hadn't been put into evidence yet.
SENIOR MEMBER: Yes, I haven't formally taken it into evidence yet, but I dare say at some point I'm going to, and I'm reasonably - I'm going to allow a certain amount of leeway in dealing with these sorts of issues, because clearly the parties here are not legally trained and are not going to go through things in the way that counsel would if they were in the room. Okay?[26]
[25] Transcript of original proceeding, 25 July 2022, pages 27, 30,
[26] Transcript of original proceeding, 25 July 2022, pages 31, lines 15 - 34

In response to debate between the tenants and the lessor about what occurred when the police attended, the original tribunal said:
She's saying one thing, you're saying another, as it were. But I've got the written material before me. I'm looking at that police report as we speak. So I've got that material too, and I will draw my own conclusions.[27]
[27] Transcript of original proceeding, 25 July 2022, pages 34, lines 16 - 18
It is also clear the lessor understood the police report was a document to be taken into account by the original tribunal: the lessor relied on it in her cross-examination of one of the tenants, Mr Hennock. For example, when disputing Mr Hennock’s claim about how the lessor gained entry to the house, the following exchange occurred between the lessor and Mr Hennock:
MR HENNOCK: Yes, that's what you stated to us. Yes, only because that's what you told us. Actually, sorry, I'll refrain on that. That's what you told the police and I overheard you telling them.
MS BONKE: Can you refer me to that in the police document?[28]
[28] Transcript of original proceeding, 25 July 2022, pages 74, lines 15 - 19
As another example, when disputing Mr Hennock’s claim about a key, the following exchange occurred:
MR HENNOCK: And I wouldn't need to break into the house because you gave us a key, Juanita. You gave us the key to the back door. It was an old mortice skeleton key.
MS BONKE: Okay. Mr Hennock, then why did the police say on the third page – sorry, why did you have to arrange with Mr ...(Inaudible)... to give him a key to the property then?[29]
[29] Transcript of original proceeding, 25 July 2022, pages 109, lines 31 - 37
And as another example:
MS BONKE: Sorry. Mr Hennock, can you go to the police report on page 3?
MR HENNOCK: What does it say?
MS BONKE: Could you go to that page, please?
MR HENNOCK: I don't have it in front of me. What does it say, Juanita?
MS BONKE: 'The complainant agreed to make a front door key available to Bonke's estate agent for the purpose of showing prospective new tenants through the property.' It states that it's a front door key, Mr Hennock. It's not a back door key.
MR HENNOCK: I didn't have a front door key to give him. I only had a back door key to give him, as you requested. You requested - - -
MS BONKE: But this is what – this is what the police have said, Mr Hennock, okay?
MR HENNOCK: Okay, that's fine.[30]
[30] Transcript of original proceeding, 25 July 2022, pages 111, lines 1 - 21
During the hearing before the original tribunal, the lessor repeatedly relied upon the police report in support of her claims about what occurred when the police attended the premises.[31] In her closing oral submissions, with reference to the police report, the lessor said, “However, in the police report it states on page 2 of the tendered documents.”[32]
[31] Transcript of original proceeding, 25 July 2022, pages 112, lines 1 – 14; page 143, lines 44-45; page 144, lines 8-20.
[32] Transcript of original proceeding, 25 July 2022, pages 144, line 8
On appeal, the lessor argued the subpoenaed police report was never taken into evidence and allocated an exhibit number, notwithstanding the original tribunal stating in its decision that the report obtained under subpoena was “taken into evidence and identified as Exhibit R3”.[33] She submitted that where the police report was not taken into evidence it was wrong of the original tribunal to have had regard to it.[34]
[33] [2022] ACAT 93 at [2]
[34] Transcript of proceeding 20 April 2023, page 30, lines 6 – 9 and page 40, lines 31-41
On appeal, the lessor was asked what prejudice she asserted arose from the original tribunal’s failure to allocate an exhibit number to the police report. She said she “would have asked probably further questions” but could not identify any at the time.[35]
[35] Transcript of proceeding 20 April 2023, page 33, lines 45-46
The lessor had the opportunity earlier in these appeal proceedings to file and serve any new evidence, which could have included evidence relating to the police report. She did not do so, citing legal advice to the effect that she should just argue that the subpoenaed material should not have been accepted as evidence and “not to then have an argument about what else I would have put in”.[36]
[36] Transcript of proceeding 20 April 2023, page 48, lines 21 - 25
We were not persuaded the lessor would have done anything different regarding the police report, irrespective of it not receiving an exhibit number. As explained above, she referred to and relied on the police report in many ways during the original hearing. Both parties proceeded on the basis that it was part of the evidence. All that can be said is that the original tribunal overlooked allocating an exhibit number to the report as an identifier, despite describing it in its reasons as Exhibit R3, which was no more than a clerical oversight. It caused no confusion and no prejudice. Everyone, in particular the lessor, understood the police report formed part of the evidence. There was no error on the part of the original tribunal by taking it into account. Indeed, it would have erred had it not, in circumstances where all parties relied on the report. This ground of appeal fails.

Whether restrictions should be imposed on the publication of the original tribunal’s decision, the Appeal Tribunal’s decision and other matters that might identify the lessor

On appeal, the lessor sought the following orders:
…
2. There is no publication of the decision, dated 8 November 2022.
3. There is to be no public access to the file.
4. The publication or disclosure of the following, that may identify the applicant, is prohibited:
(a) evidence given at any hearing of this matter;
(b) matters contained in the documents filed with the Tribunal; and
(c) matters contained in documents received by the Tribunal.
5. The appellant/lessor is to be referred to as lessor 999.
The lessor also sought an interim or emergency order to “remove the public decision from the ACAT website and all other related databases.”
At a hearing on 11 January 2023, the Appeal Tribunal heard and dismissed the lessor’s application for a confidentiality order, noting that the decision of the original tribunal had already been publicly released. Notwithstanding that decision, at the hearing of the appeal on 20 April 2023, the lessor again pressed for an order that the original tribunal’s decision not be published. The lessor did not identify any reason or prejudice said to justify the order sought.
The starting position under sections 38 and 39 of the ACAT Act is that hearings are to be held in public except in the limited circumstances set out in section 39.
In the present case no reason was advanced for the application of section 39; the decision under appeal had already been published; and the Appeal Tribunal had already heard and dismissed the lessor’s application for a non-publication order. The application for a non-publication order remains dismissed.

Whether the original tribunal erred in awarding compensation to the tenants for breach of quiet enjoyment

The original tribunal made an award of compensation in the sum of $1,500 to each tenant for the lessor’s breach of the tenants’ right to quiet enjoyment of the premises, meaning a breach of standard term 52, that occurred on the day of the police related incident. On that day, the lessor let herself into the premises using her own key without permission from the tenants. According to the tenants, which does not appear to be in dispute, the lessor rang one of the tenants and told them that she had resumed possession of the premises and they were not allowed back.[37] The tenants immediately returned to the premises where a confrontation occurred which involved physical assaults. The police attended. The parties obtained mutual apprehended violence orders.
[37] Transcript of proceeding 20 April 2023, page 45, lines 6-12
On appeal, the lessor submitted there had been a breach of procedural fairness. She argued she had not been aware the original tribunal understood the tenants to be making a claim for compensation for breach of quiet enjoyment. Had she known this, she said, she may have led other evidence concerning the events.
At the hearing on 20 April 2023, the lessor was asked what other evidence she would have called. She said she would have led evidence of her belief that she had permission to enter the house and occupy a room. She said she would have made submissions regarding comparable verdicts and would have then proceeded to do so.[38]
[38] Transcript of proceeding 20 April 2023, page 35, line 1 - page 38, line 2
As to the former claim, the lessor had that opportunity. In the original hearing, she stated her belief that she had permission to enter in order to paint, but the original tribunal rejected that claim.[39]
[39] [2022] ACAT 93 at [64]
At the appeal hearing on 20 April 2023, the Appeal Tribunal suggested to the lessor that consequent on the original tribunal’s finding that a residential tenancy agreement existed, the tenants had an obvious claim for breach of quiet enjoyment:
SENIOR MEMBER ANFORTH: Given that he found there was a tenancy agreement that was still extant when you returned from Brisbane or wherever, and you let yourself into the house, which you weren’t denying, and you were there, and a conflict of some kind occurred with what were then your tenants, resulting in the police being called, why wouldn’t , if nothing else was – no other facts were posited-why wouldn’t that constitute an actionable breach of quiet enjoyment.
MS BONKE: I a hundred percent agree. If Senior Member Hyman believed that I had entered the property without permission, even though I believed I did have permission, then, yes, sure, I have breached their quiet enjoyment, but the amount of compensation might have been lessened based on other information I could have provided [on] the day.[40]
[40] Transcript of proceeding 20 April 2023, page 34, line 36 – page 35, line 1
It becomes clear that the suggested further evidence about permission to enter the house was not really about obtaining permission from anyone, in particular the tenants. Rather it was a submission about the lessor believing she was able to enter because, she said, there was no residential tenancy agreement. In this respect, the lessor led her evidence about her belief and pressed that submission at the original hearing. It follows there was no breach of procedural fairness.
At the further appeal hearing on 28 August 2023, the lessor took a slightly different line. She submitted the tenants never made a claim for compensation arising from her alleged breach of the tenants’ right to quiet enjoyment. She submitted the original tribunal implied that claim from the manner in which the tenants presented their case and erred by doing so. The lessor relied on three decisions of the Tribunal, Integrity Car Care v Godber (Integrity Car Care),[41] James v Icon Retail Investments Ltd and Anor (James)[42] and McMillan v Su and Anor (McMillan)[43] as authorities for the proposition that the tribunal must decide disputes by reference to the issues and arguments raised and not inject its own ideas and arguments.
[41] [2023] ACAT [23] at [19]-[20]
[42] [2023] ACAT 41 at [24], 35] and [36]
[43] [2023] ACAT 30 at [47]
Building on that submission, and with reliance on Integrity Car Care, the lessor submitted that where the original tribunal found a breach of quiet enjoyment and then awarded compensation for it in circumstances where the tenants never made such a claim, it was wrong of the original tribunal to inject that claim into the case. She submitted the filing fees for both parties should also therefore be refunded.[44]
[44] Transcript of proceeding, 28 August 2023, page 5, lines 34-37
The lessor’s submission is not consistent with what occurred. Also, the decisions on which she relied do not support error on the part of the original tribunal.
As to the facts, the lessor’s entry to the premises without the knowledge or permission of the tenants, the altercation (particularly the lessor attacking Mr Hennock) and the attendance of police was a central issue for consideration in the proceeding before the original tribunal. The tenants obtained the police report for the purpose of providing an independent account about what occurred. The lessor was aware of the issue from the outset. She presented evidence and put her viewpoint as to what happened when she entered the premises and why she entered the premises. The lessor’s submission that the original tribunal raised the issue or that the lessor was not able to respond to it in a procedurally fair manner is simply not borne out by the way in which the proceeding before the original tribunal was conducted. The parties raised the issue and the parties responded to it.
Turning to the first decision on which the lessor relied, in Integrity Car Care the appeal tribunal considered the circumstances where the original tribunal in that matter raised the proposition that the terms of a warranty were in breach of the Australian Consumer Law (the ACL) where that claim had not been made by the respondent; denied the appellant an opportunity to make submissions as to why the ACL did not apply; and then found a breach of the ACL had occurred. The lessor submitted a similar error occurred in this case.
The decision in Integrity Car Care does not support error on the part of the original tribunal in this case. Rather, it supports the approach of the original tribunal. In Integrity Car Care, when dismissing the appellant’s claim that the original tribunal should not have introduced a possible claim under the ACL, the appeal tribunal noted:
Within limits, the Tribunal may assist litigants - especially self-represented litigants - by drawing on the essential factual components of an argument and assembling them in a manner that articulates the substance of it from a legal viewpoint.[45]
[45] [2023] ACAT 23 at [24]
In substance, that is what the original tribunal did in this matter.
In James, the tribunal considered Mr James’ claim that the respondent utility provider (Icon) inappropriately disconnected the power (electricity) to his premises. By way of a procedural direction, the tribunal ordered Mr James to file and serve an outline of his claim setting out what orders he sought and the evidence on which he relied. Mr James did not do so. Mr James was offered extensions of time to comply with the directions, but still did not do so. His applications for extensions of time made clear he understood the need to do so. The tribunal dismissed Mr James’ application consequent upon his non-compliance with tribunal orders. The tribunal noted it “cannot endlessly offer adjournments or extensions of time to comply with directions for the preparation of a claim”. It noted too the prejudice to Icon by it having “little or no opportunity to prepare a response and martial evidence to answer [Mr James’] application.”[46]
[46] [2023] ACAT 41 at [35]-[39]
The lessor submitted that similarly in this matter she was not informed of any claim for breach of quiet enjoyment; that she was entitled to be informed of the case against her; and that it was unfair to be given little or no opportunity to prepare a response or evidence.
We disagree. The claim is not borne out by the facts. As discussed above, a central issue in the proceeding before the original tribunal was the tenants’ complaint about the lessor entering the premises without their permission and all that then followed. She had ample opportunity to put her point of view about what happened and did so. The facts in James are materially different to the facts in this case.
In McMillan, the tribunal noted that an applicant’s initial indication of their claim in a civil dispute application does not limit the future hearing only to the initial claim and that the tribunal will work with the parties at a conference or directions hearing to identify the real dispute and then make directions to prepare the application for a fair hearing. The tribunal said:
When it is apparent to the Tribunal that the real legal basis of the claim is different to that indicated, or there is an additional legal basis for the relief sought, this is drawn to the parties’ attention and appropriate directions made to prepare the dispute for conference, mediation, or hearing[47]
[47] [2023] ACAT 30 at [47]
With reliance on McMillan, the lessor said that on 9 March 2022 and 6 May 2022 the tenants were ordered to file a response setting out the orders they sought but did not do so. Having not done so, she said, it was not the tribunal’s “obligation” at hearing to make their case or consider a cause of action not raised.[48]
[48] Transcript of proceeding 20 August 2023, page 9, lines 1-3
The submission repeats the lessor’s claim based on James. We repeat our response. We see no error in the original tribunal recognising that the tenants -
[W]ent to some lengths to pursue issues that can only be relevant in the context of a compensation claim … [and that] a claim for compensation is implicit in the way they presented their case.[49]
[49] [2022] ACAT 93 at [87]
We see no error in the original tribunal then considering that claim. Indeed, where the claim was apparent from the manner in which the tenants presented their case and the lessor’s defence of it, the original tribunal would have been wrong not to consider it. Where we see no error in the original tribunal considering and finding a breach of quiet enjoyment, it follows there is no basis for refunding the filing fees paid by either party.
At the hearing on 20 April 2023, in addition to contending that a claim for compensation should not have been implied or addressed, the lessor went on to contend that the amount of compensation might (or should) have been less, based on other information she could have provided.
The lessor argued the original tribunal’s assessment of quantum was excessive. She submitted that the facts in Qin v He,[50] (Qin v He) on which the original tribunal relied, were materially different to the facts in this case.
[50] [2020] ACAT 116
The lessor relied on a decision in Enna Investments Pty Ltd v McNamara[51] (Enna Investments) in which the tribunal ordered the lessor to pay $1,000 to the tenant by way of compensation for non-economic loss for the stress and inconvenience caused by the lessor and its agent attending and entering the property on at least four occasions without prior notice or permission.
[51] [2016] ACAT 63
The lessor suggested an award of $250 for each tenant was an appropriate amount of compensation in this case.[52]
[52] Transcript of proceeding 20 April 2023, page 38, line 31
The original tribunal was required to accord the parties procedural fairness.[53] We recognise that the original tribunal might not have given the lessor sufficient opportunity to make submissions about appropriate compensation consequent upon its finding that she breached the tenants’ right to quiet enjoyment. The issue was whether this possible breach of procedural fairness had any adverse effect on the lessor’s rights and, if so, what was the appropriate course to remedy the breach. In particular, the Appeal Tribunal needed to consider whether to remit the matter to the original tribunal for further determination or to hear from the parties regarding quantum and then determine that issue.
[53] ACT Civil and Administrative Tribunal Act 2008, section 7
On appeal, the Appeal Tribunal has a wide range of powers. Section 82(2) of the ACAT Act provides:
82 Appeal tribunal—general powers
(1) ...
(2) An appeal tribunal—
(a) has all the powers and duties of the tribunal that made the order appealed from; and
(b) may draw inferences of fact; and
(c) may, if leave is granted, receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way; and
(d) may make an order confirming, amending, setting aside or replacing the order of the tribunal appealed from; and
(e) may make any other order it considers appropriate.

As to what course should be taken, in Your Local Plumbing Group Pty Ltd v Hirsch,[54] (Your Local Plumbing) a differently constituted Appeal Tribunal said:
Where an appeal is allowed, it is necessary either to remit the matter to the tribunal (even if sometimes differently constituted) to determine according to law or for the Appeal Tribunal to rehear the matter entirely or to the extent necessary. Applying the principles set out in section 7 of the ACAT Act, what course to take should be guided by questions of fairness, efficiency and a cost to the parties and the tribunal that is proportionate to the issues in dispute.[55]
[54] [2022] ACAT 83 at [119]
[55] Your Local Plumbing Group Pty Ltd v Hirsch [2022] ACAT 83 at [119]
In this matter, we were satisfied we should determine appropriate quantum rather than remit the matter. Several factors brought us to that conclusion.
First, the lessor in this appeal proceeding made submissions regarding quantum and referred us to authorities by way of comparable verdicts in support of her submission that a lesser amount of compensation should have been awarded. In other words, the arguable breach of procedural fairness by the original tribunal regarding opportunity to comment on quantum was cured.
Second, the tenants made a sensible submission that this dispute should end here.[56] They sought nothing more than confirmation of the original tribunal’s order, meaning they were willing to pay the amounts they were ordered to pay and sought no more from the lessor and what she had been ordered to pay. In our view it would have been counter-productive and unnecessary to oblige the parties to return to the original tribunal simply to make submissions regarding quantum.
[56] Transcript of proceeding 20 April 2023, page 58, lines 36-39
Third, where we perceived no error in the original tribunal’s findings giving rise to the lessor’s breach of the tenants’ quiet enjoyment, we saw no procedural or other reason why we could not determine quantum. Indeed, in our view, that was the preferable course where the original tribunal had already made a pronouncement on what it regarded as an appropriate amount the lessor should pay each tenant.
Turning to the lessor’s submissions on quantum, we considered the Tribunal’s decision in Qin v He on which the original tribunal relied and the Tribunal’s decision in Enna Investments on which the lessor relied.
In Qin v He, the breaches of quiet enjoyment were repeated and intense. The lessor and the tenants lived in adjoining units in a strata complex that necessarily involved them living in close proximity. This should have been respected and yet was abused. The lessor went into the bedroom of the two young female tenants uninvited and told them to vacate the bedroom whilst he inspected it. He moved their property around and opened cupboards. He took unknown persons into the room during the inspection. On a later date, he again entered the tenanted premises against the express instructions of the tenants. The lessor prevented the tenants from accessing their mailbox and opened and checked the tenants’ mail. Following the lessor’s repeated and uninvited entry to their unit, the tenants called the police who detained the lessor. Having regard to the facts, the tribunal awarded $1,500 to each tenant, being $4,500 in total.[57]
[57] Qin and Ors v He [2020] ACAT 116 at [80]
In Enna Investments, the rented premises was a house. As we understood it, the lessor repeatedly entered onto the leased land, conducted a “drive-by” inspection, arranged for tradespeople to come to the property uninvited and took photographs that depicted the tenant’s belongings. However, the lessor did not go inside the house. That is a material difference from the present case. The tribunal awarded $1,000 to the tenant. [58] Relevantly, the decision in Enna Investments was made seven years ago which reduces its value as a comparable verdict.
[58] Enna Investments Pty Ltd v McNamara [2016] ACAT 63 at [268] and [276]
In this matter, we share the original tribunal’s view that the lessor’s conduct was an “extraordinary” breach of the tenants’ quiet enjoyment. Whilst the breach occurred on one occasion, unlike in Qin v He, all the facts and circumstances of the breach must be considered. Not only did the lessor go inside the house, but she did also so in the absence of the tenants. Then, not only did she breach their exclusive right of possession (meaning a right of possession to the exclusion of others including herself), but she also then asserted a right to exclude the tenants from the property. Not only did she assert the right to exclude the tenants, rather than respect their right to exclusive possession, she sought to enforce a claimed right she did not have by calling the police, physically confronting one of the tenants and refusing to leave.
True, the breach occurred on one occasion unlike in Qin v He, but it was in our view a serious breach of the tenants’ right to exclusive possession. We agree with the original tribunal’s characterisation of the breach as “extraordinary”.
At hearing on 20 April 2023, SM Anforth brought to the lessor’s attention the amounts awarded in potentially comparable decisions in the ACT and NSW for breaches of quiet enjoyment, as set out in Anforth et al Residential Tenancies Law and Practice in NSW.[59] SM Anforth commented that some of these earlier decisions suggest that, on the facts and allowing for indexation, an award of $1,500 to each tenant for the lessor’s breach of quiet enjoyment was a modest award.
[59] Anforth, Christensen and Adkins Residential Tenancies Law and Practice in NSW (2022 8th edition) Federation Press at [2.187.7], pages 429-432
The use of awards of compensation in earlier cases as comparative verdicts to be applied in a case at hand should always be approached with caution because the facts and circumstances in each case, and the point in time they were decided, will always be different. To the extent they are used at all, it should only be for the purposes of an indicative range.
In this case, referenced to the manner in which the parties presented their cases, we considered appropriate compensation between $250 per tenant, as the lessor submitted, up to $1500 per tenant being the maximum sought by the tenants. Weighing all the factors to be taken into account, allowing for current monetary values and noting that assessment of appropriate quantum is necessarily subjective, we consider an award of $1,500 to each tenant is appropriate.[60]
[60] SM Anforth considers compensation greater than that amount may have been appropriate, but that option was never raised by or with the parties at the appeal hearing and does not arise on the appeal because it is beyond what the tenants sought
Whilst this award produces total compensation payable of $3,000, that is simply a reflection of the fact that each tenant had a right to exclusive possession and quiet enjoyment of the premises, and the lessor breached each tenant’s right.

The remaining miscellaneous compensation orders

The original tribunal ordered the lessor to pay the tenants $25 per week for a period of ten weeks ($250) by way of compensation for the oven that was not working and never worked. On appeal, the lessor relied on evidence about one of the tenants wishing to delay replacement of the oven until the lessor replaced the whole kitchen and the other tenant later stating that if the lessor wanted access, she needed to give two weeks’ notice. She also contended the tenants had a duty to mitigate their loss, and that if they were unhappy with the premises, they could have given three weeks’ notice to vacate and moved out.
The lessor also repeated her argument that the tenants did not regard themselves as tenants and did not claim compensation arising from the non-functioning oven.
The first argument is without merit. Whatever the arrangements, or not, for repairing the oven, the tenants were without an oven in working order through no fault of their own and should be compensated for that defect consequent upon the finding of a tenancy agreement and the tenants’ complaint about an oven that did not work.
The lessor’s second argument fails for the same reason that her argument regarding compensation for breach of quiet enjoyment fails. It is evident from the original tribunal’s reasons for decision[61] that the workability of the oven was in contest and all parties made submissions on the topic. It is disingenuous for the lessor now to claim that no compensation should be paid, irrespective of whether the oven worked, because it was not specifically sought. If that were right, why the debate at the original hearing? We see no error in the original tribunal’s award of compensation for the non-functioning oven.
[61] [2022] ACAT 93 at [75] – [79]
The original tribunal ordered the lessor to pay the tenants $25 per week for a period of five weeks ($125) for the absence of curtains on the grounds that “a house without curtains or other window treatments is doubtfully “fit for habitation” ”.[62] The lessor submitted this order too was in error. She submitted the absence of curtains does not render premises unfit for habitation, and compensation should therefore not have been awarded. The lessor also repeated her argument that the tenants had a duty to mitigate their loss, and that if they did not like the lack of curtains, they could have given notice and vacated the property.
[62] [2022] ACAT 93 at [91]
We see no error in the original tribunal’s finding. The absence of curtains or any window treatment may be a minor basis for finding a house is not fit for habitation, but it is a finding reasonably made. Reasonable internal privacy from viewing through windows is a critical aspect of residential premises. We see no error in the quantum, given the minor nature of the breach. The submission that the tenants had a duty to mitigate their loss and could have vacated if they did not like the absence of curtains is rejected for the same reasons, we reject it in relation to the claim for a non-functioning oven.
The lessor made a claim for $585.71 for ten days’ rent foregone whilst carrying out needed cleaning and repairs. The original tribunal denied this claim on the basis that the premises were in a rundown state at the start of the tenants’ tenancy and the work done by the lessor at the end of that tenancy only brought the premises back to the state in which it could be offered to prospective tenants.[63]
[63] [2022] ACAT 93 at [94]
The lessor contended the original tribunal erred and referred to two authorities in support of her claim: Enna Investments and Martins v Zhang.[64] We are content to proceed by reference to the principles stated in those cases.
[64] [2014] ACAT 48
Both of those cases stand for the proposition that a lessor must prove that future rent was lost consequent upon tenants not leaving rented premises in a fit condition to be re-let at the end of the tenancy. It is not enough simply to show that work needed to be done in order for the premises to be re-let. In particular, it is for the lessor to prove on the balance of probabilities that the premises could and would have been re-let and the date by which that could and would have occurred had the premises been left in a fit condition at the end of the tenancy.[65]
[65] Enna Investments Pty Ltd v McNamara [2016] ACAT 63 at [227] and [236]; Martins v Zhang [2014] ACAT 48 at [18] - [21] and [23]
Also, the lessor must prove it was incumbent on the tenants to do the work needed to re-let the premises and failed to do so. In other words, drawing on Enna Investments,[66] the tenant’s obligation extends only to returning the premises in the condition they received it, save for fair wear and tear.
[66] [2016] ACAT 63 at [228]
Drawing on these principles, we see no error in the original tribunal denying the lessor’s claim for lost rent after 22 February 2016 when the tenancy ended.[67] On the evidence, the premises “was not in a highly rentable state at the start of the tenancy” and was offered “at a discount in recognition of the work needed”.[68] True, the cleaning, rubbish removal and mowing was work done after termination of the tenancy that the tenants should have done and that needed to be done before the property could be re-let, but that work was done or could have been done within a matter of days. The property was not re-let until 4 March 2016.[69]
[67] [2022] ACAT 93 at [42]
[68] [2022] ACAT 93 at [96]
[69] Statement of Juanita Bonke dated 30 March 2022 at [30]
Much of the work done prior to the lessor reletting the property was work done “to bring the house up to a state - better than that of 12 December 2015 [when the tenants’ lease commenced] in which it could be offered to prospective tenants.”[70] For example, at the start of the tenancy, some rooms were unpainted and floor coverings were in need of work. The oven was out of order throughout the tenancy.[71] It was not the tenants’ obligation to address these defects that needed to be addressed in order for the lessor to offer the premises to prospective tenants.

Conclusion

[70] [2022] ACAT 93 at [96]
[71] [2022] ACAT 93 at [79]

In the result, we will order the appeal be dismissed meaning the order of the original tribunal will remain operative. We will also order the tenants to pay the lessor the ordered amount within four weeks from the date of this decision.
………………………………..

Presidential Member G McCarthy
For and on behalf of the Tribunal

Date(s) of hearing:	20 April, 28 August 2023
Appellant:	In person
Respondent:	In person