COSTANZO and LARIA & WATSON (Residential Tenancies)

[2010] ACAT 79

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ANNA COSTANZO & ROSS LARIA v LUKE WATSON (Residential Tenancies) [2010] ACAT 79

RT 616 of 2010

Catchwords:             Implied tenancy where no documentation- Invalid Notice to Terminate - Breaches of Residential Tenancies Act 1997 and Standard Residential Tenancy Terms - Compensation

ACT Civil and Administrative Tribunal Act 2008 s. 12(a)

Residential Tenancies Act 1997

sections. 6A, 9, 29, 71

Schedule 1, Standard Residential Tenancy Terms

clauses 13, 21, 29, 30, 42, 52, 54, 83, 94, 96

Sheridan and Ors v Griffith (NSW RTT 99/2594374)

Skea v Linley (ACTRTT 13/2005)

Beetham v Repetylo (NSW RTT 98/35513).

Tribunal:                  Ms Jennifer David, Senior Member

Date of Orders:  12 November 2010

Date of Reasons for Decision:         12 November 2010

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 616 of 2010

BETWEEN:

ANNA COSTANZO & ROSS LARIA

Applicants/Lessors

AND:

LUKE WATSON

Respondent/Tenant

TRIBUNAL:            Ms Jennifer David, Senior Member

DATE:  12 November 2010   

ORDERS

1.The Applicants are to pay the Respondent the sum of $30 for the removal of three boxes of rubbish to the tip.

2.The Applicants are to refund to the Respondent the sum of $200 he paid for electricity consumption.

3.The Applicants are to pay to the Respondent the sum of $4,500 as compensation for their various breaches of the Act and Standard Terms.

4.The Respondent is to pay the Applicants the sum of $2,800 for rental arrears from 10 June to 5 August 2010.  This sum is to be deducted from the above amounts the Applicants are to pay to the Respondent.

………………………………..

Ms Jennifer David

Senior Member

REASONS FOR DECISION

BACKGROUND

1. This matter is a prime example of the difficulties that arise from an informal arrangement which did not comply with the provisions of the Residential Tenancies Act 1997 ('the Act') nor with the Standard Residential Tenancy Terms, Schedule 1 to the Act ('the Standard Terms'). It would have all been a lot simpler if a formal written arrangement had been made between the parties from the start."  [Senior Member Anforth, Frank Eden v John McKay [2010] ACAT 52, para 31] I would add that the terms of every tenancy need to be articulated and written down with the provisions of the Act and the Standard Terms understood and observed by all parties.

2. Initially the Applicants sought to have Mr Watson evicted for non-payment of rent amounting to $3,200.00 and because they claimed he was not looking after the property. Mr Watson sought to lodge a cross-claim. The matter came for hearing on 28 July 2010 and was adjourned to allow the Applicants to lodge submissions and particulars supporting their allegations and to issue a Notice to Remedy and a Notice to Vacate as neither document had been given to Mr Watson as required under the Act. Also, Mr Watson was given time to lodge and serve his cross-claim for compensation together with particulars.

3. Mr Watson's Response to the Application disputed that rent was owed from 27 May 2010, alleging that the last payment of rent was made on 11 July 2010 in advance for 2 weeks. He also claimed that the initial Notice to Vacate was unlawful and disputed that Mr Laria, the owner of the property, intended to move back into the property. Mr Watson made a counter-claim for compensation of $9,600 under section 83(c) and (d) of the Act calculated as follows:

   ·Compensation for breaches of the terms of the Standard Residential Tenancy Terms, Schedule 1 to the Act ('the Standard Terms') by the Lessors $2,700

   ·Breach of peaceful quiet enjoyment of the property $5,000

   ·Refund of $200 for electricity invoice not capable of consumption calculation

   ·Removal of rubbish from the property $100

   ·Damages for early unlawful termination $1,800.

4. Mr Watson  alleged breaches of the following the Terms by the Lessors:

   a) Clause 13 - The Lessors did not provide Mr Watson with a copy of the information booklet at any time, thus he agreed to terms he did not know he could refuse.

   b) Clause 21 - No condition report was provided to Mr Watson

   c) Clause 29 - No receipts were provided for rent paid by Mr Watson

   d) Clause 42 - The electricity service was not transferred into Mr Watson's name yet at the request of the Lessors he paid $200 towards electricity only 3 weeks after the commencement of the tenancy.

   e) Clause 52 - on 18 July 2010 Mr Costanzo (the co-Applicant's husband) and Mr Sergi (the Owner's son-in-law) came to the property and a physical altercation occurred which was attended by the AFP.   A DVO has been issued against both Mr Costanzo and Mr Sergi.  Mr Sergi was charged with assault occasioning actual bodily harm.  Mr Watson claimed $5000 compensation citing Sheridan and Ors v Griffith (NSW RTT 99/2594374), Skea v Linley (ACTRTT 13/2005) and Beetham v Repetylo (NSW RTT 98/35513).

   f) Clause 54 - Lessors did not hand over the property in reasonably clean condition and Mr Watson had to remove rubbish from the outside of the property as his own cost of $100.

   g) Clause 83 - The Lessors did not issue a valid Notice to Vacate.

   h)   Clause 94 - The Lessors sought to terminate the tenancy without the required notice.  Mr Watson alleged he vacated on 5 August 2010 as a result of the above breaches which had rendered living in the property impossible for him and his two children.  Mr Watson sought damages of $1800 associated with packing, removal and moving to another property when he had made such payments only 3 months previously to move to the rented premises.

5. Mr Watson also sought compensation under section 12(a) of the Human Rights Act 2004 alleging that the Lessors had interfered with his home unlawfully and arbitrarily by leasing the property in March 2010 and "then deciding to terminate the lease arbitrarily in June 2010 without any regard for the laws of residential tenancy, human rights or his family life, rights and natural justice".

6. The matter came for hearing before the Tribunal on 28 July 2010 and 18 August 2010 when I further adjourned the hearing for the parties to file documentation supporting their claims.  The parties subsequently filed the further documentation and made written submissions, the last of which I received on 19 October 2010.   The following reasons and orders are based on careful consideration of the all the oral evidence and submissions, the written claims and cross-claim and all the documentary evidence and written submissions made by the parties.

FINDINGS AND REASONING

Terms of the tenancy

1. In March 2010 Mr Watson was looking for rental accommodation for himself and his two teenage children, who stayed with him every second weekend and attend school near the leased property.  The parties differed widely on the terms of the tenancy that were agreed, particularly on the period of the lease.  There being no written documentation concerning the terms of the lease, I have to construe the terms from the evidence and submissions of the parties.

2. After his wife died in December 2009, Mr Laria, the owner of the property had been living alternate months with his daughters.  In an Affidavit dated 6 August 2010, Mr Laria stated that in about early April 2010 his daughters became aware that a friend of their cousin needed temporary accommodation.  Mr Laria stated he consented to Mr Watson moving into the property and paying rent of $350 per week and caring for the property.   In an Affidavit dated 5 August 2010, Mrs Costanzo, a daughter of Mr Laria and the co-Applicant, stated she agreed with the above statements by her father.

3. In his Affidavit dated 17 August 2010, Mr Watson stated that he had understood the lease was for at least one year as he would only have moved into the property if he could provide a stable home for his children close to their school.  He had been renting two bedrooms in a 3 bedroom house for $150 per week and was not in need of temporary accommodation.  He stated he was in need of a long term stable tenancy for his family.

4. Mr Watson submitted that a mutual acquaintance, Mr Joe Carbone a 'friend of a friend', introduced him to the owners and that Mr Carbone knew the lease was for a long term.   In his Affidavit dated 17 August 2010 Mr Carbone stated that, in about the last week of March 2010, both the owners and Mr Watson each told him that they had reached agreement for Mr Watson to rent the property.  Mr Carbone stated that "it was my understanding that this tenancy is a long term tenancy for at least one year or even more".

5. Mr Watson lodged a document entitled Case Summary from the Australian Federal Police relating to an incident at the property on 18 July 2010 ('the Case Summary').  In that document it is stated that Mr Watson was offered the opportunity to move into the property by a 'long time friend' whose cousins had asked if the friend knew of anyone interested in renting. 

6. The Case Summary also set out the following: during a meeting to inspect the property Mr Watson was told by "the Defendant [the owner's son-in-law Mr Sergi was later charged] … and their partners" that the following conditions would apply:

   -     He would have no lease nor would he be named in a lease.

   -     He would not have any utilities in his name but would have to pay for the bills.

   -     Rent was to be in cash to the amount of $350 per week.

   -     He would receive no receipts for rent and could not apply for rent assistance.

   -     If asked he was the 'caretaker' of the residence.

   -     He had no access to the mailbox, cellar, garage or rear shed of the property.

   The Case Summary further stated that "being desperate for affordable and safe accommodation Mr Watson accepted the conditions and moved in". 

7. The Case Summary was dated 18 July 2010, which is prior to the current matter being commenced and thus was based on information gained by the police before the parties sought to establish, each to their own benefit, what were the terms of the tenancy for the claims before the Tribunal. The terms are against the interests of the Applicants as the terms include a number of breaches of the Act and the Standard Terms. Because it is an independent account made as a result of an investigation into the possibility of laying criminal charges, on the balance of probabilities I have accepted the Case Summary as an accurate account of the transactions between the parties concerning the terms of the tenancy. Applying section 6A of the Act, I find that the parties intended to create a residential tenancy for an unspecified period on the above terms (noting that some of the above terms are in breach of the Act or inconsistent with the Act and/or the Standard Terms and were not endorsed under section 9 of the Act).

8. The agreed rent was $350 per week.  Mr Watson said that he paid by instalments of $700 and Mrs Costanzo produced written evidence (hand written by Mrs Sergi on one page of a 2009 diary) that Mr Watson paid rent fortnightly based on amounts of $700.  Based on that payment history I find that there was an implied fortnightly periodic tenancy.

   Validity of Telephone Request to Leave

9. At the hearing on 28 July 2010, Mrs Costanzo said she rang the tenant on 22 June 2010 and asked him to leave the property when he had found some where else to live as her father wanted to move back into the property.  After three days, when the rent was due she phoned the tenant again and he yelled at her.  Mrs Costanzo admitted no written notice had been given to the tenant and no specific date to vacate was given. 

10. Mr Watson submitted that the Notice was invalid under Clause 83 of the Standard Terms which provides that a notice to vacate must be in writing in the form required by the Act, and must include the information there set out. The telephone advice of 28 July 2010 obviously did not satisfy the requirements of Clause 83.

11. As I have found the tenancy is an implied periodic tenancy, under both Clause 92 (termination for non-payment of rent) and Clause 93 (termination for other breaches of the tenancy by the tenant) the Act the tenant was entitled to a written notice to remedy giving him the legislatively provided period to remedy the specified breach and, after the specified period if the breach had not been remedied, a written notice to vacate. The Applicants did not comply with either of these Clauses.

12. Also, a tenant in a periodic tenancy is entitled to be given 4 weeks notice to vacate under clause 96 of the Standard Terms if the lessor genuinely intends to live in the premises. Whilst I accept that Mr Laria intended to return to his home when the tenant moved out (as stated in his Affidavit), contrary to Clauses 83 and 96(1) of the Standard Terms, the required formal notice to vacate was not given and the period of 4 weeks was not specified.

13. For the above reasons I find that the initial phone notice to vacate given by Mrs Costanzo was invalid and of no legal effect.    

14. For the above reasons I refuse the Applicant's request to remove the tenant from the property.  I note also that Mr Watson subsequently left the premises on 5 August 2010.

Rental arrears

1. The Applicants claimed various amounts for rental arrears owning by Mr Watson.  At the hearing on 18 July 2010 the Applicants stated rent was owed from 11 June 3020 to 12 August 2010, which is 8 weeks and 6 days at $350 per week, totalling $3,100.00.   

2. The Applicants produced a page headed '2009 Cash Account in Month Of' from a 2009 diary which Mrs Sergi, another daughter of Mr Laria, said she prepared from the 2009 diary, pages of which she produced in relation to the payments made by Mr Watson.  The hand written dairy pages noted payments of $700 on 18 March 2010, 22 March 2010, 5 April 2010, 21 April 2010 and 13 May 2010 and of $1400 on 2 June 2010.  The hand written amounts and dates on the '2009 Cash Account in Month of" noted somewhat different dates and payments received:

   1-4-10    Rent (Paid)              $700
   15-4-20  Rent (Paid)              $700

   29-4-10  Paid $  $700

   30-4-10
   13-5-10  Paid) 24-5-10            $700

   27-5-10  Paid)  $700

3. Contrary to clause 29 of the Standard Terms, the Applicants did not issue receipts for rent paid by Mr Watson; in fact, this appears to have been an agreed term of the tenancy. Rent was paid in cash by Mr Watson to relatives of Mr Laria who came to the property to collect the rent. The Applicants did not produce other documentation of the cash amounts paid by Mr Watson to family members. In the Notice to Remedy dated 4 August 2010 (the day before Mr Watson vacated) the breach to be remedied was the non-payment of rent of $3,600 to 4 August 2010, being 72 days at $50 per day. At the hearing on 18 July 2010 the Applicant Mrs Costanzo stated that the rental arrears from 25 May 2010 to 5 August 2010 were $3580. Thus there is confusion as to the total amount of the rental arrears claimed by the Applicants.

4. In an Affidavit dated 17 August 2010 Mr Watson stated he had made the following payments in cash to Mrs Costanzo's husband, Sam Costanzo though the final payment was made to her son at her request.  Mr Watson's dates and amounts differed from those of the Applicant's though the total amount paid for the period of April, May and June 2010 is the same: 

   22.3.10           $700
              5.4.10             $700
              21.4.10           $700
              3.5.10             $700

   2.6.10             $1400

5. In his Affidavit Mr Watson stated that at the telephone request of Mrs Costanzo, he paid the $1400 on 2 June 2010 to Mrs Costanzo's son.  In his written submissions of 16 September 2010 Mr Watson acknowledged that he was responsible for rent between 10 June 2010 and 18 July 2010, a period of 5 weeks and 4 days, amounting in total to $1950.00.  He stated he did not pay rent from 10 June 2010 to 5 August 2010 when he vacated.   I accept that Mr Watson paid rent in advance to 9 June 2010. 

6. Mr Watson stated he received a phone call from Mrs Costanzo on 22 June 2010 telling him he must move out of the property on the basis that her father wanted to move back into the house. Mr Watson vacated on 5 August 2010. Mr Watson did not make a rental payment after Mrs Costanzo's telephone call. His action of not paying rent after the phone call of 22 June 2010 was contrary to the Act; he should have made an Application to the Tribunal for assistance rather than taking unilateral action.

7. Mr Watson sought a full rebate of the rent from 18 July 2010 to 5 August 2010 on the basis of violence against him at the property when "his teen aged son witnessed the attack on him by agents of the Applicants, the property being rendered uninhabitable since".  Mr Watson submitted that his children had not returned to the property since that date because they are "frightened the agents of the Applicant will return and harm them and their father".

8. The Case Summary (ref. para 12 above) noted that Mr Costanzo and/or Mr Sergi had visited the property previously on 10 July 2010; that one of them said to Mr Watson that "You told my wife you weren't paying the rent".  The person went on to say that "You owe rent and we want you out now."  The Case Study noted that the person went on to state that "If you don't get out we have ways of making you get out".  Then a detailed description of the events on 18 July 2010 was set out.

9. In her Affidavit dated 7 September 2010 the Applicant, Mrs Costanzo, stated she was not aware her husband, Sebastian Costanzo, and brother in law, Tony Sergi, were going to see Mr Watson on 18 July 2010.  She stated she was not aware of the confrontation and assault until after it occurred; she was not present when the alleged assault took place and "Sebastian and Tony did not attend the Respondent's premises with my knowledge, as my agent, or under my direction".  She stated "I am advised and verily believe that the confrontation escalated in a manner that was unforeseeable before the attendance."

10. In an earlier Affidavit dated 5 August 2010 Mrs Costanzo stated that her husband had attempted to phone Mr Watson a number of times after 22 June 2010 and that he attended the property on 18 July 2010 to discuss when Mr Watson would be leaving.  I do not accept that this statement was such that, if an agency could be implied, it would include authorising an assault. 

11. It is significant that neither Mr Costanzo nor Mr Sergi gave evidence or submitted Affidavits setting out their version of the reasons they went to the property on 18 July 2010, who was aware of their intention to visit and if they were given instructions by either of the Applicants.  

12. For these reasons, even noting that Mr Watson had paid rent in cash to Mr Sergi on a number of occasions, on the balance of probabilities I do not accept that there is sufficient evidence to imply an agency between the Applicants and both Mr Costanzo and Mr Sergi in relation to the assaults that occurred on 18 July 2010.  I dismiss Mr Watson's application for a full rebate of the rent from 18 July 2010 to 5 August 2010 based on the allegation of agency in relation to the assaults on that day.  

13. As a result I find that Mr Watson owed the Applicants $2800 in rental arrears for the period 10 June to 5 August 2010, calculated as 8 weeks at $350 per week.

Payment for Electricity

1. The agreed terms were for Mr Watson not to have any utilities in his name but he was to pay the electricity bills. This is contrary to clause 42(d) and (e) and clause 48 of the Standard Terms as the evidence was that there was no reading of the meter at the premises either before Mr Watson moved in nor after he vacated. The electricity service remained in Mr Laria's name throughout.

2. The Applicants agreed that Mr Watson had paid $200.00 towards electricity on 15 April 2010. Under clause 42(d) a lessor is responsible for all services up to the time of the measurement or reading at the beginning of the tenancy and under clause 48(1) a lessor is responsible for arranging all readings of services. The Applicants did not arrange for the reading of the meter for the electricity service to the property at the beginning of the tenancy and so are responsible for the service for which they sought and obtained the payment of $200 from Mr Watson. The Applicants are ordered to repay the amount of $200 to the tenant, Mr Watson.

1. The Applicants also sought an order that Mr Watson pay $319.89 for electricity consumption from 7 April 2010 to 9 July 2010 which was the subject of a separate account from ACTEW and was electricity consumed during the period Mr Watson was in residence in the property. However, again clause 42 of the Standard terms a lessor is responsible for services up to the time of measurement or reading at the beginning of the tenancy. Since the Applicant's never arranged for the electricity to be transferred into Mr Watson's name, and in fact it was a term of the tenancy that the services were to remain in Mr Laria's name (see above paragraph 13), the Applicants remained responsible for the cost of services to the premises throughout Mr Watson's residence. I order that the tenant does not have to pay the claimed amount of $319.89 for electricity services to the Applicants and dismiss this part of the Applicants' claim.

Tenant's Cross-Claim

Rubbish Removal

1. In his Counterclaim Mr Watson said that at the commencement of the tenancy there was a significant amount of furnishings, household goods and boxes of rubbish left on the property.   The Applicants when asked said that they had no space to take the goods and Mr Watson could use them if he wished.  The Applicants asked Mr Watson to remove the rubbish and he said personally took three boxes of rubbish to the tip. 

2. Mr Watson claimed that the Applicant's failed to provide the property in a reasonable state in breach of clause 54 of the Standard terms. He also submitted that he was not given keys to the letterbox or the shed. He sought compensation of $100 for the cost of removing rubbish and tidying the yard at the start of the tenancy and for not having access to those two areas.

3. At the hearing on 18 July 2010 Mrs Costanzo said that the whole property had been cleaned in December 2009 after her mother died.  She argued that Mr Watson had inspected the property prior to agreeing to take the tenancy and took the tenancy on the basis that goods would be left behind.  She said her sons and nephew had taken the rubbish away, leaving about 6 boxes.  She said only 3 boxes of rubbish were left in the carport.

4. Mr Watson did not give further evidence in support of the lack keys to the letterbox or the shed.  The Case Summary (see above paragraph 12) noted that a condition of the tenancy was that Mr Watson would have no access to the mailbox, cellar, garage or rear shed of the property. 

5. There is no basis to award compensation for the lack of access and for the goods left in the property on the basis that, prior to moving in, Mr Watson was aware this would occur.  I award him $30 compensation for taking the boxes of rubbish to the tip.

Compensation for Breaches of the Standard Terms by the Lessors

1. Rather than award Mr Watson a rental reduction under section 71 of the Act I have determined to award Mr Watson compensation under Section 83(a) which provides that the Tribunal may make "an order requiring the payment of compensation for ... any … loss caused by the breach of a residential tenancy agreement". I note Justice Allsop of the Federal Court of Australia in Byrnes v Jokona Pty Ltd [2002] FCA 41 where, in relation to the cumulative effect of nine categories of complaints of breaches of the covenant for quiet enjoyment in a commercial lease, His Honour said:

   "104        In dealing with the various breaches I have born in mind that each matter should not just be looked at individually, but also collectively or cumulatively." 

2. I will deal first with the alleged breaches of the Standard Terms by the Applicants in turn and then turn to the assessment of compensation, taking into account the collective and cumulative consequences of the breaches.

Clauses 83 and 94

1. In the written submissions in support of his cross-claim, Mr Watson submitted that the Appellants had breached clauses 83 and 94 of the Standard Terms in failing to issue a proper notice to vacate and in terminating the lease without the required notice. He sought $1800 compensation for the costs he incurred with moving out of the premises within 4½ months of moving into the property, having incurred such costs then. The claim was calculated as follows:

   a)$900 costs of moving his furniture and belongings.  He submitted he had substantial personal belongings as the property was not furnished.  The property only had the 'unwanted furniture' of the Applicants.  No evidence was given of the actual relocation costs paid by Mr Watson.

   b)$900 in lost wages incurred in taking time off work to seek alternative accommodation over 11 weeks from 5 August 2010, during which time he stated he had been "effectively homeless".  No evidence was given of Mr Watson's attempts to find accommodation, nor of when he did.   

2. There was no evidence produced of the employment Mr Watson claimed he left to seek accommodation.  The Case Summary noted that one of the terms was that Mr Watson could not seek rental assistance.  Therefore, I conclude his income, if any, would have been sufficiently low to enable him to seek such assistance.  This is supported by his statement in his Affidavit dated 17 August 2010 that prior to renting the property from the Applicants he was renting two bedrooms in a 3 bedroom house for $150 per week.   The amount of he claimed is for less than $82 per week in lost wages.  In the circumstances of the lack of definitive evidence, on the balance of probabilities I am unable to make a finding of the amount of income, if any, Mr Watson lost as a result of the breaches by the Applicants or their agents.

3. As a matter of common knowledge the Tribunal is aware that the finding of accommodation in Canberra in 2010 has been difficult due to the lack of available rental properties.  Mr Watson's situation of needing lower cost accommodation that would enable his two teenage children to visit every alternate weekend near to their school, would very likely make finding accommodation more difficult than normal. 

4. For the reasons set out above, I have found that the initial telephone notice to vacate given by Mrs Costanzo on 22 June 2010 was invalid and of no legal effect. The Applicants did breach clauses 83 and 94 of the Standard Terms. The calculation of damages I leave till later in these Reasons.

Clause 52

1. Mr Watson claimed damages and/or compensation for breach by the Applicants of his right to peaceful quiet enjoyment of the property, particularly the events of 18 July 2010.    He claimed that Tony Sergi and Sebastian Costanzo (both Mr Laria's sons-in-law) attended the property as agents of the Applicants where they threatened and physically assaulted him as set out in the Case Summary and police photographs in evidence.  Mr Sergi was subsequently charged with assault occasioning actual bodily harm.  Interim Personal Protection Orders were issued against both Mr Costanzo and Mr Sergi on 20 July 2010.  Final Personal Protection Orders were made against both Mr Sergi and Mr Costanzo on 20 August 2010.

2. Mr Watson claimed that as a result of the events of 18 July 2010 both his children were too frightened to return to the property and he lost the opportunity to care for his children on alternative weekends since that date.   He further claimed that as of 18 July 20910 the property effectively became uninhabitable for him and his family.  Given the serious nature of the breach he sought $5,000 compensation.

3. In her Affidavit dated 5 August 2010, Mrs Costanzo said she telephoned Mr Watson on 22 June 2010 to tell him her father wanted to return home and he would have to find alternative accommodation.  She stated that she told Mr Watson he would be given reasonable time to find this accommodation.  The next day she phoned Mr Watson again and they had a verbal altercation about Mr Watson leaving which Mrs Costanzo said Mr Watson started the moment he knew she was the person phoning.  She stated that in the following weeks she was present when her husband unsuccessfully attempted to phone Mr Watson.  Then she stated:

   "6. On or about 18 July 2010 my husband attended my father's property in Page to discuss when Mr Watson would be leaving.  This meeting ended in a physical altercation."

4. In her later Affidavit dated 7 September 2010 Mrs Costanzo said:

   "2.I was not aware that my husband, Sebastian Costanzo, or Tony Sergi were going to see the respondent [Mr Watson] on 18 July 2010.  I was not aware of the confrontation and alleged assault until after it occurred.

   1.I was not present when the alleged assault occurred and had no knowledge of what would transpire between the Respondent, Sebastian or Tony.

   2.Sebastian and Tony did not attend the Respondent's premises with my knowledge, as my agent, or under my direction.

   3.I am advised and verily believe that the confrontation escalated in a manner that was unforeseeable before the attendance."

5. As set out above in paragraph 28, the Case Summary noted that Mr Costanzo or Mr Sergi had visited the property previously on 10 July 2010; that one of them said to Mr Watson that "You told my wife you weren't paying the rent".  The person went on to say that "You owe rent and we want you out now."  The Case Study noted that the person went on to state that "If you don't get out we have ways of making you get out". 

6. I find on the balance of probabilities that the evidence establishes that there were a series of incidents over a period of a month from 22 June to 18 July 2010 involving phone calls and two visits by either or both Mr Costanzo and Mr Sergi to the property seeking to get Mr Watson to vacate the premises in circumstances where there was no valid notice to vacate issued by the Applicants. 

7. Throughout Mrs Costanzo appears to have acted for her father, Mr Laria, in relation to the tenancy.  Mr Costanzo and/or another family member visited the property on at least 4-5 occasions as her and/or Mr Laris'a agent to collect the rent.   In visiting the property on 10 July and 18 July I am satisfied that Mr Sergi and Mr Costanzo were acting with the knowledge of Mrs Costanzo.  Mrs Costanzo stated she had been present whilst her husband had attempted on numerous occasions to phone Mr Watson between 22 June 20010 and 18 July 2010. 

8. Whilst I accept that Mr Laria and Mrs Costanzo more probably than nor did not authorise or instruct Mr Sergi and Mr Costanzo to physically assault Mr Watson on 18 July 2010, I find that both men were acting as agents of the Applicants in visiting the property to ascertain when Mr Watson was going to move out.  I do not accept Mrs Costanzo's statement that prior to the visit of 18 July 2010 she was not aware that it was to occur.  I accept the submission of behalf of Mr Watson that it is highly unlikely that Mrs Costanzo instructed her husband to phone Mr Watson to find out when he was vacating, and not have knowledge that her husband was going to visit the property to discuss when Mr Watson would be leaving.

9. I find that there were a series of intimidatory actions (telephone calls and visits) between 22 June 2010 and 18 July 2010 of which the Applicant, Mrs Costanzo, was aware. The pressure put on Mr Watson by Mrs Costanzo, Mr Costanzo and Mr Sergi by these actions to get him to move out of the property was such as to constitute a breach by the Applicants of clause 52 of the Standard Terms which provide that a "lessor must not cause or permit any interference with the reasonable peace, comfort and privacy of the tenant in the use by the tenant of the premises".  I have not based this finding on the physical assaults of 18 July 2010 but on the fact of the visit by Mr Costanzo and Mr Sergi to see when Mr Watson was going to move.

10. The calculation of the compensation or damages for this breach I leave till later in these reasons.   

Clauses 13, 21 and 29

1. At the hearing on 18 August 2010 I found that the Applicants had failed to provide the information booklet required under clause 13 of the Standard Terms, failed to provide a condition report as required under section 29 of the Act and clause 21 of the Standard Terms and failed to provide rental receipts as required under Clause 29 and 30 of the Standard terms.

2. Mr Watson submitted that the Applicants' failure to provide the above documents lead to significant detriments in his circumstances.  He claimed the breaches caused him considerable stress, anxiety and forced him to vacate the property.  It was submitted on behalf of Mr Watson that if the Applicants had complied with the obligation to provide the information booklet, had provided a condition report at the commencement of the tenancy and had signed proper lease agreement, both parties would have been aware of their rights and obligations.  Mr Watson sought compensation of $2,700 for stress anxiety and suffering caused by the overarching circumstances of the tenancy.  

3. I find that the Applicants breached all three of the above obligations. My reasons were given orally at the hearing on 18 August 2010. I also find that the Applicants went further and according to the Case Summary breached other clauses of the Standard Terms and sections of the Act in that the Applicants made it a condition of the tenancy that :

   ·there would be no lease (ie no formal written tenancy agreement)

   ·he was not to apply for rental assistance

   ·if he was asked, he was to say he was the caretaker

4. The above conditions of the tenancy demonstrate a lack of openness in the recording of the tenancy.  The result of these conditions was that Mr Watson could not apply for government rental assistance to which I assume he was entitled since that was made a condition of the tenancy.   This would have been an added stress for Mr Watson.

Calculation of Compensation

1. I have thus found that the Applicants failed in their obligations and/or breached their obligations under the Act and the standard Terms as follows:

   · Clause 13- Not providing Mr Watson with a copy of the information booklet

   · Clause 21 - Not providing Mr Watson with a condition report

   · Clause 29 - Not providing Mr Watson with receipts for rent paid by him

   · Clause 42 - The electricity service was not transferred into Mr Watson's name and no separate reading was made at the commencement of the tenancy

   ·   Clause 50 - There was no separate reading of the electricity meter at the within a reasonable time at the end of the tenancy.

   · Clause 54 - Mr Watson had to remove rubbish from the outside of the property

   · Clause 83 - The Lessors did not issue a valid Notice to Vacate.

   ·   Clauses 92, 93 and 96 - The Lessors sought to terminate the tenancy without the required period of notice. 

2. I have ordered that the Applicants repay the amount of $200 paid by Mr Watson to them for electricity consumption and pay the amount of $30 to Mr Watson to as compensation for taking three boxes of rubbish to the tip. I now turn to the calculation of the compensation Mr Watson should be awarded for the major breaches by the Applicants of their obligations under the Act and the Standard Terms.

3. As a result of the above set out breaches the Applicant lost the opportunity of caring for his two children until he found alternative accommodation in which it was suitable for him to care for them.  This took at least 11 weeks since Mr Watson stated he was 'virtually homeless' for that period.  He had to move out of the property after only 4½ months with all the expense and disruption that entails, when he understood the tenancy was to be a long term one. 

4. In summary I find that Mr Watson suffered stress and anxiety over the period of the tenancy, especially after Mrs Costanzo's telephone call requesting him to leave the property, particulars of which are:

   ·    the uncertainly of his position in relation to the terms of the tenancy and the validity of Mrs Costanzo's telephone call asking him to leave as a notice to terminate

   ·    the deception he was requested to carry out when he was told it was a term of the tenancy that he was to say he was the 'caretaker' rather than admit he was the tenant

   ·    the payments he had to make for electricity without any separate reading to enable him to check the amounts he was asked to pay for the service

   ·    the loss of the opportunity to apply for rental assistance

   ·    the lack of the proper notice, or even an adequate period of notice, for him to vacate

   ·    the disruption and expense of looking for and moving into alternative accommodation , especially after only 4½ in the property

   ·    the loss of the opportunity to care for his children

   ·    the actions of the Applicants and members of their family to pressure him to leave the premises, in the sense of the uncertainly of what, if anything, the Applicant Mrs Costanzo and the members of the Applicants' family were going to do next

5. In calculating the amount of compensation I have taken into account that Mr Watson was not completely innocent in all this. He moved into the property without a formal arrangement; he apparently reacted aggressively to Mrs Costanzo the first time she phoned him after 22 June 2010 and he ceased paying rent thereafter. Mr Watson did not take the proper course of seeking assistance from the Tribunal after being given notice by Mrs Costanzo. I note also that a tenant has an obligation to mitigate his losses under section 38 of the Act.

6. Damages or compensation for non-economic loss are assessed on the basis of prevailing standards in the community having regard to the subjective experience of Mr Watson arising out of the breaches. (see O'Brien v Dudson (1965) 30 ALJR 78)

7. Following Justice Allsop in Byrnes v Jokona Pty Ltd [2002] FCA 41) the collective or cumulative effect of the above breaches by the Applicants needs to be taken into account in assessing compensation. He suffered significantly from the Applicants' attitude that they did not need to comply with their legal obligations under the Act and Standard Terms. He also claimed $900 relocating costs.

8. Taking all the above into account and the cases cited by his legal representative in the written submissions dated 16 September 2010 I have assessed the compensation to be paid by the Applicants to Mr Watson as $4,500.

………………………………..
Ms Jennifer David

Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      RT 10/616

APPLICANT:                ANNA COSTANZO & ROSS LARIA
RESPONDENT:            MR LUKE WATSON

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          

RESPONDENT:      

OTHER:  APPLICANT:          Ms Brogan and Ms Kover, Brogan
Prestige Properties

RESPONDENT:      Ms Black

TRIBUNAL MEMBER/S:        Ms Jennifer David

DATE/S OF HEARING: 5, 28, 29 July and 18 August 2010    PLACE: CANBERRA

DATE/S OF DECISION: September 2010  PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: