Chen v He (Civil Dispute) - [2023] ACAT 43

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CHEN & ORS v HE (Civil Dispute) [2023] ACAT 43
XD 391/2022
Catchwords: CIVIL DISPUTE – where tenants claim damages for deceit and breach of contract against lessor’s agent – where agent charged tenants a past due amount for water usage predating the commencement of the tenancy – where agent charged tenants for water usage using fake water bills – where agent charged tenants extra bond and rent without the lessor’s knowledge and authority – where agent agreed for reward to do the end-of-lease cleaning and garden maintenance but failed to do so properly – damages awarded for deceit and breach of contract

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48

Agents Act 2003 ss 8, 8A
Residential Tenancies Act 1997 s 23

Cases cited:Briginshaw v Briginshaw [1938] HCA 34
Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28) [2022] VSC 13
Magill v Magill [2006] HCA 51
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
Wood v Balfour [2011] NSWCA 382

Tribunal: Senior Member M Orlov

Date of Orders:  16 August 2023
Date of Reasons for Decision:      16 August 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 391/2022
BETWEEN:
JIESHAN CHEN
First Applicant
JIAHAO XU
Second Applicant
KEREN HE
Third Applicant
SIMIN ZENG
Fourth Applicant
YUCHEN XIE
Fifth Applicant
HUAHUA LIU
Sixth Applicant

AND:
HONGGUANG HE
Respondent

TRIBUNAL:Senior Member M. Orlov
DATE:16 August 2023

ORDER
The Tribunal orders that:

The respondent is to pay $10,831.40 to the applicants, comprising;
(a)damages for deceit, assessed at $6,258.77 plus interest to the date of order of $2,311.51;
(b)damages for breach of contract, assessed at $1,800.00 plus interest to the date of order of $299.15; and
(c)the ACAT filing fee of $162.00.

………………………………..
Senior Member M Orlov

Contents

ORDER
REASONS FOR DECISION

Introduction

The evidence

The applicants’ evidence
The respondent’s evidence

Standard of proof

Credit findings

Background

Commencement of the tenancy
Mr He denies he was the lessor’s agent
The first water bill Mr He gave the tenants was genuine
The lessor instructed Mr He to charge tenants the full amount due on Icon Water invoices
The lessor received payment in full for the first water bill
The lessor “incentivised” Mr He to not question water bills for her properties
Mr He claims he had no choice but to keep working for the lessor after she reduced his “wages” in August 2018
The second water bill for which Mr He charged the tenants was a fake
The rent increase from February 2019
The third water bill for which Mr He charged the tenants was a fake
The fourth water bill Mr He gave the tenants was an obvious fake
Mr He claims he was given only the front page of the water bills and there was nothing on the back
Mr He claims he “became suspicious” the fourth water bill was photoshopped but did not verify his suspicions with the lessor
Mr He claims…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] ACAT 43
Decision Date: 16 August 2023

CaseChat Overview and Summary

The case of Chen v He (Civil Dispute) involved tenants who sought damages for deceit and breach of contract against the agent of their lessor. The tenants alleged that the agent charged them for a past due amount for water usage predating the commencement of their tenancy, used fake water bills, charged them extra bond and rent without the lessor’s knowledge and authority, and failed to properly complete end-of-lease cleaning and garden maintenance for which they had agreed to pay a reward. The matter was heard by the Civil and Administrative Tribunal of New South Wales.

The primary legal issues in this case were whether the agent had committed deceit and whether there had been a breach of contract. The tenants argued that the agent had intentionally misled them by charging for past due water usage and using fake bills, and by charging extra bond and rent without authority. They also claimed that the agent had failed to perform agreed-upon services. The agent, in turn, argued that he had acted within his authority and had not committed any deceit or breach of contract.

In delivering the decision, the Tribunal found that the agent had indeed committed deceit and breached the contract. The Tribunal accepted the tenants' evidence that the agent had charged them for water usage that predated their tenancy and had used fake bills. The Tribunal also found that the agent had charged extra bond and rent without the lessor’s knowledge and authority, and had failed to properly complete the end-of-lease cleaning and garden maintenance. The Tribunal awarded the tenants damages for deceit and breach of contract, including interest and the ACAT filing fee.

The Tribunal ordered that the agent pay the tenants $10,831.40, which included damages for deceit of $6,258.77 plus interest of $2,311.51, damages for breach of contract of $1,800.00 plus interest of $299.15, and the ACAT filing fee of $162.00.

Orders

Orders of the court

The Tribunal orders that:

1. The respondent is to pay $10,831.40 to the applicants, comprising;

1. (a) damages for deceit, assessed at $6,258.77 plus interest to the date of order of $2,311.51;

1. (b) damages for breach of contract, assessed at $1,800.00 plus interest to the date of order of $299.15; and

1. (c) the ACAT filing fee of $162.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Each of the tenants’ witnesses gave oral evidence and was cross-examined by Mr He. The lessor did not provide a witness statement, but I gave leave for her to give oral evidence and for Mr He to cross-examine her.The respondent’s evidence Mr He’s documents were admitted into evidence as exhibits numbered R1 to R10. Exhibit R1 includes photographs of the premises before and after cleaning;[10] extracts of WeChat conversations, most of which appear to relate to other premises;[11] a spreadsheet prepared by Mr He purporting to show how and when payments he received from Mr Xu were transferred to the lessor with copies of bank statements on which he based the spreadsheet; [12] a receipt showing Mr Xu paid rent directly into the lessor’s bank account on 28 February 2018;[13] extracts from the lessor’s bank records produced in partial answer to a subpoena;[14] and documents and commentary relating to Icon Water invoices.[15][10] Exhibit R1, pages 2-19[11] Exhibit R1, pages 22-30[12] Exhibit R1, pages 31-36, 37-206[13] Exhibit R1, page 207[14] Exhibit R1, pages 208-219[15] Exhibit R1, pages 220-245 Exhibit R2 is a 46-page document titled “Response to XD391/2022 and Witness Statements”, comprising evidence in the form of documents, some of which Mr He annotated by hand, commentary and submissions prepared by Mr He. Exhibit R3 is a bundle of documents that includes a screen shot of an Excel spreadsheet purporting to show that in February 2019 the lessor used rent from incoming tenants to repay the bond to outgoing tenants of other properties;[16] a witness statement by Mr He’s wife, Qian Zhao;[17] a witness statement by Bill Yu relating to alleged cash payments of rent for a different tenancy, which I refused to allow because the evidence was irrelevant to the issues in this case;[18] a printout from the Icon Water website relating to backdating of charges;[19] screenshots of Excel spreadsheets showing rent received and remitted to the lessor in March 2018, August 2018, February 2019, and April/May 2019.[20][16] Exhibit R3, page 225[17] Exhibit R3, page 226[18] Exhibit R3, page 228[19] Exhibit R3, pages 239-240[20] Exhibit R3, pages 241-2 Exhibit R4 comprises translated extracts from WeChat conversations with the lessor and other tenants relating to other premises. Exhibit R5 is a document titled “Response to Li Jiang’s email on Friday, 24 June 2022 4:32 PM Response to XD 404/2022 and RT 95/2022”. Mr He relied on this notwithstanding the email to which he was responding was not in evidence. Exhibit R6 is a timeline with documents, most of which relate to work Mr He did for the lessor in managing her portfolio of properties. Exhibit R7 is a bundle of screenshots showing receipts for rent and payment of water bills for various properties owned by the lessor and her husband. Exhibit R8 is Mr He’s witness statement describing his role in working for the lessor and her husband, in which he claims he was a casual employee working under a sham contracting arrangement and that he was not an unlicensed real estate agent.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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