Byrnes v Wang (Residential Tenancies)

[2020] ACAT 40

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BYRNES v WANG (Residential Tenancies) [2020] ACAT 40

RT 818/2019

Catchwords:               RESIDENTIAL TENANCIES - failure to comply with Tribunal orders – fine imposed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 74

Residential Tenancies Act 1997 s 86 standard term 42

Cases cited:Law Institute of Victoria v Nagle [2005] VSC 47

Xia v Wang & Bian [2009] ACAT 21
Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd & Ors [2003] VSC 201
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483

Tribunal:  Senior Member H Robinson

Date of Orders:           9 June 2020

Date of Reasons for Decision:         9 June 2020

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 818/2019

BETWEEN:

CLARE BYRNES

Applicant

AND:

YIOSIANG WANG

First Respondent

SHESANG BIAN

Second Respondent

TRIBUNAL:     Senior Member H Robinson

DATE:9 June 2020

ORDER

The Tribunal orders that:

1.The first respondent is fined the sum of $750 for failure to comply with a Tribunal order. Payment is to be made to the Tribunal registry.  The first respondent may contact registry to make arrangements to pay.

2.This amount will be paid to the Tribunal within 28 days.

………………………………..

Senior Member H Robinson

REASONS FOR DECISION

1.The first respondent, Mr Yiosiang Wang, is the lessor of a property in Nicholls in the Australian Capital Territory. At the time of these proceedings, he has a fraught relationship with a tenant of that property, Ms Byrnes, who leased the main bedroom. The second respondent is the joint lessor.  The first respondent has advised the Tribunal that the second respondent is currently overseas and that she does not participate in the management of the property the subject of these proceedings.

2.On 16 December 2019, Ms Byrnes lodged an application for resolution of a residential tenancy dispute, seeking orders that a notice to vacate issued by the lessor be declared void. That matter has been separately determined.

3.The first respondent had entered several different leases in respect of individual rooms in the house.  These rooms do not have separate electricity meters, and accordingly it was not possible to determine individual electricity consumption in the premises for the purposes of section 42(c) of the Standard Residential Tenancy Terms[1] .  This means the lessors were not permitted to charge the tenants for electricity.  On or about 15 January 2019 Mr Wang caused the electricity connection to be disconnected in his name and sought to have the tenants collectively enter an arrangement with a utility provider.

[1] Residential Tenancies Act 1997 (ACT), Schedule 1

4.On 15 January 2020, Ms Byrnes lodged an application for urgent interim orders seeking, amongst other things, orders that the respondents:

(a)reconnect the electricity service;

(b)maintain an electricity connection to the property until existing leases at the property have terminated;

(c)accept responsibility for the accrued electricity costs from the disconnection date of 22 November 2019 to reinstatement of the account by the lessor.

5.On 16 January 2020, (the interim hearing) a differently constituted Tribunal made the following order:

The lessors shall, on or before 17 January 2020, cause an account for electricity supply to be activated in their names and the lessors shall be liable for all costs of connection, supply and consumption of electricity to the premises for the remainder of the tenancy. (Order 2)

6.The first respondent was present at the interim hearing, the second respondent was not.

7.Ms Byrnes subsequently advised the Tribunal that the respondents had not complied with Order 2.

8.On 24 January 2020 a Presidential Member of the Tribunal issued a subpoena requiring Mr Wang to attend the Tribunal on 30 January 2020 to show cause why he should not be fined under section 74 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) for failure to comply with an order of the Tribunal.

9.I presided at the hearing on 30 January 2020. I advised Mr Wang that I was contemplating fining him $1000. I invited him to make submissions on why he should not be so fined. Mr Wang made various submissions as set out below. I ordered that he make steps to comply with Order 2 and that he advise the Tribunal of his progress within 24 hours.

10.The Tribunal reserved its position on whether to fine Mr Wang for failing to comply with an order of the Tribunal. The Tribunal offered Mr Wang an opportunity to advise the Tribunal when he had complied with Order 2, and to provide any further submissions on why he should not be fined.

11.Mr Wang’s submissions are set out below.

12.Mr Wang wrote to the Tribunal at 7:11am on 31 January 2020 and confirmed he had complied with Order 2. He made a number of further submissions, including that he was trying to make financial arrangements to comply with other orders made by the Tribunal in this and related matters.

13.

Later that same day, 31 January 2020, the Registrar of the Tribunal wrote to

Mr Wang and requested details of those financial arrangements.

14.Mr Wang responded on 6 February 2020, stating that he was attempting to borrow monies from a friend to pay the tenant some monies. However, the email made a number of assertions about the tenant, and stated:

If [the tenant] is not doing anything on [the tenant’s] part, it is not really worth my effort to put myself in a horrible financial situation.

15.At a subsequent hearing on 20 February 2020, the tenant advised the Tribunal that the electricity remained on and the tenant intended to commence proceedings in the Magistrates Court to enforce the other monetary orders made against Mr Wang.

16.The matter is now complete, and Mr Wang has not sought to appeal the matter pursuant to section 79 of the ACAT Act. At no time did he seek a stay of the orders.

The legislation

17.Section 74 of the ACAT Act sets out the Tribunal’s general power to fine a person who fails to comply with an Order of the tribunal.

74     Failure to comply with order

(1)A party to an application must not, without reasonable excuse, fail to comply with a tribunal order.

(2)If a party contravenes subsection (1), the tribunal may do 1 or more of the following:

(a)order the person to pay to the Territory a stated amount (not more than any amount prescribed by regulation);

(b)if the party is the applicant—strike out the application in relation to the dispute;

(c)if the party is the respondent—make an order in favour of the applicant.

(3)If the tribunal orders a person who is the subject of an application for occupational discipline to pay an amount, the tribunal must tell the person that, if the person does not pay the amount, the person’s licence or registration may be suspended or cancelled under section 76.

(4)Failure to tell a person that the person’s licence or registration may be suspended or cancelled does not affect any action a registrar takes in relation to the person under section 76.

(5)This section does not limit any other power of the tribunal under this Act.

18.A similar, although not identical, provision is found in section 86 of the Residential Tenancies Act 1997 (RT Act), which provides:

86Failure to comply with ACAT orders

(1)A party to a hearing must not fail to comply with an order of the ACAT.

(2)If a person contravenes subsection (1), the ACAT may order the person to pay a stated amount (not more than $5 000) to the Territory.

(3)A person commits an offence if—

(a)the person contravenes subsection (1) (the first contravention); and

(b)the ACAT makes an order under subsection (2) in relation to the first contravention; and

(c)within 1 year immediately after the day the first contravention happens, the person again contravenes subsection (1) (the subsequent contravention); and(d)the first and subsequent contraventions are not against orders arising from the same proceeding. Maximum penalty: 50 penalty units, imprisonment for

6 months or both.

(4)Subsection (3) does not apply if the person has a reasonable excuse for the first or subsequent contravention.

19.Both provisions are in similar terms and provide that the Tribunal may fine a party to a proceeding for failure to comply with a Tribunal order. However, given that Mr Wang has breached the RT Act, it is section 86 of the RT Act, rather than the provision in the ACAT Act, that applies in this case.

20.The question is whether I should impose such a penalty under this section.

Mr Wang’s oral submissions

21.Mr Wang conceded from the outset that he had not complied with Order 2. Over the course of the hearing, Mr Wang set out a number of explanations for this.

22.Mr Wang’s opening position was one of defiance. When asked why he had not connected the electricity in his name he stated that:

...in the lease contract in the law, it doesn't say the landlord has to connect the electricity in their name. And plus [the tenant is] just living by [alone] and there's no reason why I should connect electricity - - -

23.The Tribunal attempted to impress upon Mr Wang that Tribunal orders were not voluntary, and that he was liable to be fined for failure to comply with the orders. Following this, he made several other submissions as to why he had not complied, including that he did not have a fair hearing, that he was still in dispute with the tenant, and that he had personal issues. When questioned on those personal issues, he responded that:

MR WANG: Well just personal. I was a bit sick as well and I think health is more important in this case. Because I've been in contact too with some - at a party with some friends from China, not directly but indirectly, so I was - and I had a bit of coughing, I was a bit scared, so I was worrying about myself first.

SENIOR MEMBER ROBINSON: Have you been to the medical practitioner?

MR WANG: No. But luckily the cough went away in a few days, so I think that was fine.

24.Eventually, and seemingly only after he realised that he was facing a fine, Mr Wang’s position changed to one of being unable to comply due to financial pressure. I accept this is true.  However, while the explanation may explain why he has failed to comply with other orders made by this Tribunal that require that he pay monies to the tenant, it does not explain his failure to have the electricity connected in his name.

25.Mr Wang is no stranger to the Tribunal[2], both as an applicant and a respondent in residential tenancy matters, most arising from this tenancy.  Accordingly, during the course of the proceedings I asked whether he has ever breached an order before, Mr Wang stated that he had not:

SENIOR MEMBER ROBINSON: Have you ever failed to comply with an order before?

MR WANG: Yes, I always complied. You can look at the history, yes.

[2]Xia v Wang & Bian [2009] ACAT 21

26.Shortly thereafter, Ms Byrne advised that Mr Wang had not complied with an earlier order in proceeding RT 669/2019. When questioned by the Tribunal he admitted this:

MR WANG: I haven't got money to pay really for that. I can maybe make instalments. I don't have that amount.

SENIOR MEMBER ROBINSON: But you just told me that you'd always complied with tribunal orders.

MR WANG: But that is such a large amount. I just can't afford to pay out of my pocket.

27.Mr Wang subsequently assured the Tribunal that he had complied with all the other orders.

The Tribunal’s power to fine for non-compliance

28.It goes without saying that the justice system would cease to operate if participants did not comply with orders made by Courts and tribunals. As was observed by Justice Gillard in Law Institute of Victoria v Nagle [2005] VSC 47

It is vital to the administration of justice in this State that a person bound by an Order obeys it. Disobedience of an order poses a threat to the administration of justice and attacks its very foundation. It threatens the rule of law and its destruction results in anarchy and a return to the law of the jungle. If a person bound by an order wilfully refuses to obey it and is not severely punished for wilful disobedience then parties in litigation will have no confidence in the legal system. Respect for the system must be maintained.[3]

[3] At [5]

29.Justice Gillard was referring to orders made by a court under their power to deal with acts of contempt. The Tribunal has no such power, but the general principle applies to tribunals as well as courts: the rule of law cannot operate if people flout orders made by courts and tribunals. Where a person refuses to comply, steps must be taken to enforce compliance.

30.Where contempt proceedings are available, all courts and tribunals have a similar process, which reflects that in the courts. That is, the party accused of breaching an order is summoned to attend and show cause why they should not be held in contempt. These proceedings before this Tribunal are not proceedings for contempt, and do not carry either the authority of a court nor the moral opprobrium that accompanies the breach of a court order. Yet, the process does result in a financial loss and is therefore in the form of a civil penalty similar to that which may be imposed by a court or a tribunal following a contempt process. That process has been followed in this case, albeit the Tribunal has determined to proceed under a provision of a different Act to the one in the notice.  

31.Turning now to whether an order should be made, it is useful to draw again on the law of contempt.  The tests applicable to proving contempt of a Tribunal order were established by Justice Gillard in Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd & Ors [2003] VSC 201 (Advan Investments). His Honour said:

[31] In order to prove a civil contempt of court involving a breach of an order of the court, the plaintiff has to prove the following:

(i)that an order was made by the court;

(ii)that the terms of the order are clear, unambiguous and capable of compliance;

(iii)that the order was served on the alleged contemnor or excused in the circumstances, or service dispensed with pursuant to the Rules of Court;

(iv)that the alleged contemnor has knowledge of the terms of the order;

(v)that the alleged contemnor has breached the terms of the order.

[32] It is necessary for the plaintiff to prove each element beyond reasonable doubt In accordance with the principles of the criminal law, in proving element (v) it must be proven that the act or omission which constituted the breach of the order was deliberate and voluntary.[4]

[4] [31]-[32]

32.I adopt the principles in paragraph [31] in Advan Investments as an appropriate basis for making an order under section 86 of the RT Act. There is nothing to suggest that section 86 of the RT Act requires the Tribunal to be satisfied of the various elements ‘beyond reasonable doubt’ basis, but I do not need to consider this with any finality, as Mr Wang has conceded that he knew of Order 2, understood its terms, and wilfully breached it. I am also satisfied that Order 2 was clear and unambiguous and was not capable of being construed in more than one way.[5]

[5] cf. Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483

33.I am satisfied that Mr Wang has no reasonable excuse for his failure to comply with Order 2.

34.The question therefore turns to whether I should issue a fine, and how to assess what that fine should be.

35.There is little guidance in the RT Act, and no previously reported cases from the Tribunal.

36.Looking at other jurisdictions, section 77 of the Civil and Administrative Tribunal Act 2013 (NSW) provides a useful basis for the kinds of matters that should be considered when determining a fine for a breach of an NCAT order.

(a) the deterrent effect of the imposition of a penalty on the contravener,

(b) the nature and extent of the contravention,

(c) any loss or damage sustained, or gain or benefit obtained, as a result of the contravention,

(d) whether the contravention indicates a pattern of behaviour by the contravener of failing to comply with the orders or processes of the Tribunal,

(e) the length of time during which the contravention occurred,

(f) such other matters as the Tribunal considers relevant.

37.These factors largely reflect the kind of factors developed in common law contempt proceedings, and they provide useful guidance in this case as to the kind of matter that should be considered. Accordingly, I have had regard to the following:

(a)The deterrent effect of the imposition of a penalty – prior to the hearing on 20 February 2020, Mr Wang appeared to have little regard for the seriousness of the Tribunal’s orders, as suggested by his email to the Tribunal of 6 February 2010, in which he suggested that compliance with the Tribunal’s orders is “not really worth my effort”. There is a public interest in insuring that Tribunal orders are treated seriously and complied with, particularly in relation to ensuring that properties are habitable, and the prospect of a financial penalty may encourage other lessors to comply with Tribunal orders.

(b)The nature and extent of the contravention – The contravention had the potential to deny the tenant access to an essential service.  Mr Wang offered no reasonable excuse. His initial comments indicated that his substantive reason for non-compliance was simply that he did not agree with the order. He has not appealed the decision.

(c)However, while I am satisfied that Mr Wang deliberately breached the order, I am also satisfied that he has since remedied the situation. He did so only after been advised that he was liable to be fined for non-compliance, but nonetheless the purpose of section 86 is likely to enforce compliance, more so than to punish.

(d)Any loss or damage sustained, or gain or benefit obtained, as a result of the contravention – it is not apparent that Mr Wang gained any immediate benefit from the contravention, although ultimately his goal appears to be to avoid the contractual requirement in section 42(c) of the Standard Terms, namely that the lessor pay for services that are not separately metered.

(e)The length of time during which the contravention occurred – the contravention occurred between 20 January 2020 and 20 February 2020, from the date order was made until the date of the show cause hearing, and it was remedied the afternoon of that hearing.

(f)Whether the contravention indicates a pattern of behaviour by the contravener of failing to comply with the orders or processes of the Tribunal – Mr Wang has failed to comply with at least one other order of the Tribunal, but that order was for the payment of an amount of money and is subject to an enforcement process in the ACT Magistrates Court.

38.A fine of $5000 amounts to the upper level of fine available. While I am satisfied that Mr Wang deliberately breached the order, I must take his subsequent compliance into account.

39.I note that Mr Wang has failed to comply with the monetary order in RT 669/2019. I am not seeking to impose a penalty for failure to comply with this order. Monetary orders may be enforced through the Magistrates Court, and it would not be appropriate to fine a respondent who does not comply with them when another practical enforcement method is available.

40.Additionally, I am aware that Mr Wang is currently the subject of enforcement proceedings commenced by the applicant tenant, and that he may already have limited funds to meet those liabilities. A crippling fine would serve no purpose.

41.Nonetheless, the Tribunal cannot permit the deliberate flouting of orders that was apparent in this case.

42.In the circumstances, I have determined to fine Mr Wang the sum of $750 for failure to comply with a Tribunal order.

43.This amount should be paid within 28 days.

………………………………..

Senior Member H Robinson

HEARING DETAILS

FILE NUMBER:

RT 818/2019

PARTIES, APPLICANT:

Clare Byrnes

PARTIES, RESPONDENT:

Yiosiang Wang

Shesang Bian

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

N/A

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

N/A

TRIBUNAL MEMBERS:

Senior Member H Robinson

DATES OF HEARING:

30 January 2020