GANDHI v PHAM (Residential Tenancies) - [2021] ACAT 10

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GANDHI v PHAM (Residential Tenancies) [2021] ACAT 10

RT 92/2020
Catchwords: RESIDENTIAL TENANCIES – misleading data on a tenant database – misleading questions posed by database proforma – retaliatory reporting of actions taken by tenants against lessors – listing before the end of the tenancy – compensation orders against database and listing agent

Legislation cited: Residential Tenancies Act 1997 ss 91, 92, 93, 94, 95, 96, 97, 98, 99, 100

Cases cited:Faulder v Tran [2018] ACAT 80

List of

Texts/Papers cited: Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (Report No 108, May 2008)

Tribunal: Senior Member A Anforth

Date of Orders:  12 February 2021
Date of Reasons for Decision:         12 February 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 92/2020

BETWEEN:
AMIT GANDHI
Applicant/Tenant

AND:
XUAN TRANG PHAM
Respondent/Lessor

TRIBUNAL: Senior Member A Anforth

DATE:12 February 2021

ORDER

The Tribunal orders that:

Snug Technologies Pty Ltd ABN 82 616 484 292 is to immediately remove from its database all references to the applicant, Amit Gandhi, in relation to the premises in Watson.
The respondent is to pay the applicant $175.50 on or before 8 March 2021.
Snug Technologies Pty Ltd ABN 82 616 484 292 is to pay the applicant the sum of $3,750 on or before 8 March 2021.
Kaylee Wang, real estate agent, is to pay the applicant the sum of $1,250 on or before 8 March 2021.

………………………………..
Senior Member A Anforth

REASONS FOR DECISION

This matter concerns a residential tenancy in Canberra that commenced on 6 February 2019 for a period of 12 months at rent of $430 per week. The tenancy ended when the applicant/tenant vacated the premises on 18 January 2021.
At the end of the fixed term the respondent offered the applicant a further fixed term tenancy at a small rent increase. The applicant declined the offer and indicated his intention to oppose the rent increase. The respondent then served the applicant with a six month ‘no cause’ termination notice.
During the tenancy the applicant demanded that the respondent carry out certain repairs, mostly of a trivial nature. The respondent was slow to do so.
The applicant commenced proceedings in the tribunal to compel the respondent to carry out the repairs and for compensation. He sought orders setting aside the rent increase notice.
During the proceedings in the tribunal the respondent indicated that he would be seeking to enforce his right to possession if the applicant did not move, albeit that the respondent had not yet filed any such application with the tribunal. The applicant said that he had not been able to find a new place to rent for his family and himself because the respondent’s agent had provided an adverse report to a particular tenant database, called Snug.com (Snug) and owned by Snug Technologies Pty Ltd (ABN 82 616 484 292), which it seems is commonly used by real estate agents in Canberra. This state of affairs had led to a stalemate.
The Snug database proforma was used by the respondent’s agent, for the applicant’s tenancy in Watson. On or shortly after 8 November 2020, it contained the following question:
Were any breach notices issued or did the tenancy present at Tribunal?
To which the agent answered ‘yes’[1]
[1] Extract from the applicant’s Snug profile dated 16 February 2019 – 8 November 2020
It was common ground between the parties that the applicant had not committed any breach of the residential tenancy agreement, that the only notice issued was that of the applicant and the only tribunal proceedings were those issued by the applicant against the respondent.
The way the Snug reference read suggests that the applicant in breach and/or the respondent brought the proceedings in the tribunal against the applicant. This is factually wrong and is misleading. It appeared to the Tribunal, for reasons set out below, that the Snug reference, as it read, was probably in breach of sections 91, 92, 93 and 94 of the Residential Tenancies Act 1997 (RTA). Equally concerning was the apparent retaliatory nature of the reference which allows users of Snug to post misleading information about tenants who exercise their rights against their lessors.
To the Tribunal, the obvious immediate solution was for the tenant to succeed in finding a new place to rent and to move, but the stalemate prevented this. Again, the obvious solution was to remove the stalemate, and so the Tribunal suggested that the respondent contact Snug and have the offending reference removed. The agent did so. Unfortunately, Snug refused to remove the reference.
The Tribunal then determined to use its powers contained in sections 96, 98, 99 and 100 of the RTA to force the removal of the reference by Snug. The applicant filed an interim application to this effect. Snug was informed of the proceedings but took no steps to be joined as a party.
It transpired that the lessor personally had no knowledge of the use of Snug by his real estate agent. The agents alleged that they were innocent parties in the sense that it was Snug who framed the questions in the reference and the agent only provided accurate answers. There was debate in the Tribunal concerning whether the questions drafted by Snug were ambiguous or not, and whether the agent’s responses were in fact accurate. It was the agent that listed the reference on Snug before the end of the tenancy.
Before the Snug issue could be resolved, or be the subject of the present decision, the agent used its connections to find the applicant an alternative suitable premises and the applicant moved. The fact that the applicant moved premises does not resolve the issue of whether Snug’s reference and the agent’s answers, both constituted a breach of the law. It is a matter of concern to the Tribunal that other tenants may be caught in this same stalemate by illegal and retaliatory content in Snug references.
The applicant also pressed his application for compensation for failure to conduct repairs. The Tribunal has read the materials and listened to the parties on this issue and is largely in agreement with the respondent that the items of repair are trivial, and some are the applicant’s responsibility i.e. providing/replacing light bulbs. Assuming that the respondent was in breach in failing to carry out the repairs in a proper time frame, it is hard to see that the applicant or his family suffered much inconvenience. The bulk of the inconvenience seems to have arisen from the refusal of the respondent’s agent to provide a second set of keys for the applicant’s parents. But the respondent is under no contractual duty to do this and so their actions do not constitute a breach. At best the applicant would be entitled to nominal damages for the breaches.

Procedural history in the tribunal

On 4 February 2020 the applicant filed an application with the tribunal. The application sought an order for repairs to be done and to declare a rent increase notice invalid.
The application nominated 12 items of repairs:
(a)Storage door lock in the basement not working.
(b)A leaking tap in bathroom 1 and exhaust not clean.
(c)A noisy exhaust in bathroom 2.
(d)Failure to provide a spare set of keys for visiting parents.
(e)Light bulb in the living room missing.
(f)The kitchen sink needed re-grouting.
(g)Bathroom taps need replacement.
(h)Tiles in the kitchen are cracked.
(i)The kitchen cabinet planks are coming off.
(j)The screen doors all over the house are broken and one falls down in the wind.
(k)The light globe in the front balcony is broken and the back balcony light globe covering is missing.
(l)The premises were not clean on handover.
The rent increase was never pressed by the respondent/lessor and does not need to be addressed in these reasons.
On 6 April 2020 the respondent filed the following:
(a)A narrative of the history of the matter, in which the respondent asserted that the repairs listed by the applicant were trivial, except for the leaking tap in the bathroom, which was fixed on 25 March 2020. The other items did not affect the applicant’s use of the premises.[2]
(b)A 22 page chronology of events.[3]
(c)A schedule of repairs carried out, by reference to the applicant’s list of repairs. The list shows that the other repairs were carried out between 10 February and 14 February 2020.
(d)An assertion that the applicant was uncooperative with giving access for the repairs.
(e)An assertion that some of the repairs related to damage caused by the applicant.
(f)An inspection report for 16 September 2019 together with 27 pages of photographs. The report described the premises as in good order, as was shown in the photographs.[4]
(g)An inspection report for 10 March 2020 together with over 10 pages of photographs. The report described the premises to be in good order, as was shown in the photographs.[5]
(h)Invoice and photographs from the people who carried out the repairs.[6]
(i)Correspondence relating to the rent increase.[7]
[2] Exhibits R2 and R7
[3] Exhibit R3
[4] Exhibit R1
[5] Exhibit R4
[6] Exhibit R5
[7] Exhibit R6
On 3 May 2020 the applicant filed:
(a)A copy of the tenancy agreement dated 6 February 2019 for a period of 12 months at rent of $430 per week in the standard terms with some irrelevant additional terms, and a bond of $1,720.
(b)The ingoing condition report.[8]
(c)An email of 7 January 2020 to the applicant in which the respondent offered a further fixed term tenancy but with a rent increase.
(d)A notice to remedy issued by the applicant to the respondent on 15 January 2020 for failure on the lessor’s part to carry out maintenance and repairs. There were 11 items of repair listed and copies of emails requesting repairs were annexed, including emails to the applicant from the agent of 14 January 2020, saying that the work would be done.
(e)A ‘no cause’ notice to vacate dated 28 February 2020 for possession on 28 August 2020.
(f)A 19 page timeline of the events setting out the correspondence regarding the repairs.[9]
(g)Approximately 100 pages of email correspondence between the parties on the repair issues.[10]
(h)Twelve photographs of chips in the kitchen tiles and 11 photographs of other items in the repair list.[11]
[8] Exhibit A2
[9] Exhibit A3
[10] Exhibit A5
[11] Exhibit A4
On 8 June 2020 the respondent filed a response which repeated the content of Exhibit R2 and Exhibit R7 and sought that the applicant’s application be dismissed as frivolous.[12] The response annexed:
(a)Exhibit R3 re-exhibited as Exhibit R14;
(b)Exhibit 5 re-exhibited as Exhibit R9; and
(c)email correspondence between the parties relating to the repairs.[13]
[12] Exhibit R8
[13] Exhibits R10 and R11
On or around 8 October 2020 the agent, Ms Wang, completed and lodged a reference on the applicant with Snug.
On 4 November 2020 the respondent refiled the documents already exhibited above.
On 11 November 2020 the Tribunal made orders that the parties file their correspondence with Snug. The Tribunal ordered that if Snug wished to be joined as a party, it must do so by 14 December 2020 and that the respondent provide Snug with a copy of those orders. The orders contained a note setting out the allegation against Snug.
The parties were ordered to file and serve any further evidence and submissions on the issue of the lessor breach. The matter was adjourned to a directions hearing on 15 December 2020.
On 2 December 2020 the applicant filed an interim application to have his name removed from the Snug records. He referred to the inconvenience the listing had caused him and sought orders under sections 91-100 of the RTA.
The applicant also filed five photographs of the hot plates showing two minor burn spots on the adjacent bench. The photographs contained an annotation to the effect that the hotplate was not secured to the surface of the bench and when moved revealed further burn marks. Two photographs of the air filters in the kitchen showed them to be darkly stained.
On 3 December 2020 the respondent forwarded a copy of the tribunal orders to Snug. On the same day the Registrar send a copy of the interim application to Snug, plus the orders of 11 November 2020.
On 4 December 2020 Snug replied to the applicant saying that it could not amend or edit its records concerning him. Snug wrote to the respondent’s agent in the same terms.
On 16 December 2020 the respondent advised the Registrar that he did not intend to take any action against Snug.
On 17 December 2020 the applicant filed his correspondence with Snug.
On 12 January 2021 the applicant said he did not wish to be further heard on the issue of the lessor’s breach.
On 15 January 2021 the respondent advised that he did not wish to join Snug in the proceedings but did wish to be further heard on the compensation issue. The respondent filed the following:
(a)An email from the applicant dated 18 November 2020 in which the applicant said that he was not looking for a new place until the tribunal matter was completed.
(b)An email from Snug dated 3 December 2010 in which Snug advised that it could not edit the reference to the applicant, although a new reference could be added. The documents said that Snug had over 250,000 members and that over 6,000 property managers use Snug.
(c)A statement from the lessor dated 10 December 2020 in which the respondent said that he did not authorise his agent to upload the applicant’s data to Snug and did not know of it until the matter was raised by the Tribunal. He said that there were no breaches alleged on the applicant’s part.

Consideration of the failure to repair issue

The lessor has a duty to hand over the premises in a reasonable state of repair and to maintain it in that condition. The law of this point was set out in the appeal tribunal decision in Faulder v Tran[14] and is adopted here without repeating it. It is not clear whether the items such as the leaking taps or broken security doors were present at the start of the tenancy or not. In any event, the documents produced by both parties show that the respondent was slow to carry out some of the repairs and was annoyed by the request.
[14] [2018] ACAT 80
There is little evidence of any significant inconvenience to the applicant. The Tribunal allows nominal damages of $100 plus a refund of the filing of $75.50.

The database legislation and issues

Section 91 of the RTA provides:
(1) A lessor, lessor’s agent or database operator must not list personal information about a person in a residential tenancy database unless—
(a)the person was named as a tenant in a residential tenancy agreement that has ended; and
(b)the person has breached the agreement; and
(c)because of the breach, either—
(i)the person owes the lessor an amount that is more than the rental bond for the agreement; or
(ii)a court or the ACAT has made an order terminating the residential tenancy agreement; and
(d)the personal information—
(i)relates only to the breach; and
(ii)is accurate, complete and unambiguous.
(2) Without limiting subsection (1) (d) (ii), the personal information must indicate the nature of the breach.
In the present case the Snug reference was posted before the tenancy had ended contrary to section 91(1)(a), and it was not alleged that the applicant had committed any breach of the tenancy agreement contrary to section 91(1)(b). The reference was posted by the respondent’s agent, Ms Wang, who is therefore in breach of this section along with Snug.
Section 92 of the RTA provides:
(1)     A lessor, lessor’s agent or database operator must not list personal information about a person in a residential tenancy database unless the lessor, agent or operator—
(a)has, without charging a fee—
(i)given the person a copy of the personal information; or
(ii)taken other reasonable steps to disclose the personal information to the person; and
(b)has given the person at least 14 days to review the personal information and make submissions—
(i)objecting to its entry into the database; or
(ii)about its accuracy, completeness and clarity; and
(c)has considered any submissions made.
(2)     Subsection (1) does not apply if the lessor, lessor’s agent or database operator cannot locate the person after making reasonable enquiries.
(3)     Subsection (1) (b) and (c) do not apply—
(a)to information that, at the time of listing, is contained in publicly available court or tribunal records; or
(b)to a listing involving only an amendment of personal information under section 93.
In the present case, neither the agent nor Snug provided the advance notice to the applicant and so are in breach of section 92.
Section 93 of the RTA provides:
(1) This section applies if a lessor, or lessor’s agent, who lists personal information in a residential tenancy database becomes aware that the information is inaccurate, incomplete, ambiguous or out of date.
(2) The lessor, or lessor’s agent, must, within 7 days, give written notice of the following to the database operator:
(a)if the information is inaccurate, incomplete, or ambiguous—
(i)that the information is inaccurate, incomplete, or ambiguous; and
(ii)how the information must be amended so that it is no longer inaccurate, incomplete, or ambiguous;
(b)if the information is out of date—that the information is out of date and must be removed.
In the present case, the information provided by the agent was inaccurate, or at least ambiguous, on its face. On its face, the information implied that the applicant had breached the residential tenancy agreement and the lessor had to bring proceedings in the tribunal. The respondent’s agent took issue with the Tribunal’s reading of the relevant question in the reference, but the Tribunal has no doubt that it is inaccurate, or at least ambiguous, in a manner that would foreseeably cause a lessor reading it to avoid the applicant. The agent is in breach of section 93.
Section 94 of the RTA provides:
(1) This section applies if a lessor, or lessor’s agent, who has listed personal information in a residential tenancy database gives the database operator a written notice stating that the personal information must be—
(a)amended in a stated way to make it accurate, complete and unambiguous; or
(b)removed.
(2) The database operator must amend the personal information in the stated way, or remove the personal information, within 14 days after the operator is given the notice.
The respondent provided a request to Snug to amend its records but Snug refused. This is a breach of section 94 on the part of Snug.
Section 96 of the RTA provides:
(1) This section applies if—
(a)the ACAT makes an order that a person must, in relation to a residential tenancy database—
(i)amend personal information in a stated way; or
(ii)remove all or some personal information about a person; and
(b)the person against whom that order is made (the relevant person ) is not a party to the proceeding.
(2) The ACAT must give a copy of the order to the relevant person, within 14 days after the day the order is made.
The Tribunal put Snug on notice of the proceedings and will provide it with a copy of the present decision and orders.
Section 98 of the RTA provides:
(1)     A person who claims that personal information about the person has been listed in a residential tenancy database in contravention of this part may apply to the ACAT about the listing of the information.
(2)     The application must be made within 6 months after the day the person becomes aware of the listing of the personal information in the residential tenancy database.
(3)     If the ACAT decides there has been a contravention of a provision of this part, it may—
(a)order a person to take stated steps to remedy the contravention; or
(b)make any other order it considers appropriate.
Note If the ACAT makes an order under this part, it may also order compensation under s 101.

The applicant has made the application required by section 98 and the Tribunal has ordered the correction of Snug’s records.
Section 99 of the RTA provides:
(1)     If personal information about a person is listed in a residential tenancy database, the person may apply to the ACAT for an order under this section.
(2)     The ACAT may order a listing person to—
(a)remove stated personal information from the database; or
(b)amend the personal information in the database.
(3)     The ACAT may make the order only if satisfied—
(a)the personal information is inaccurate, incomplete, ambiguous or out-of-date; or
(b)the listing of the personal information is unjust in the circumstances, having regard to—
(i)the reason for the listing of the person’s personal information; and
(ii)the person’s involvement in the acts or omissions giving rise to the listing of the personal information; and
(iii)the adverse consequences suffered, or likely to be suffered, by the person because of the listing of the personal information; and
(iv)any other relevant matter
…
(4)     In this section:
listing person means a lessor, lessor’s agent, database operator or someone else.
The applicant’s interim application names both sections 98 and 99, although it is not immediately apparent to the Tribunal what the difference is in the two provisions. The applicant has suffered prejudice from the Snug listing. The Tribunal is satisfied that the listing was inaccurate and ambiguous.
Section 100 of the RTA provides:
(1)     This section applies if the ACAT makes an order against a person under this part.
(2)     The ACAT may also make an order requiring the person to pay to a stated person, within a stated period, an amount the ACAT considers appropriate as compensation for the loss or damage caused by listing personal information in a residential tenancy database.
(3)     The amount of compensation must not be more than—
(a)$5000; or
(b)if another amount is prescribed by regulation—that amount.
There is no amount prescribed by regulation and so the maximum compensation is $5,000.
Each of the states and territories have similar, if not identical, legislation that derives from the Australian Law Reform Commission Report No 108 (2008),[15] but there are surprisingly few reported cases on the legislation in any of the states or territories, and none that are relevant to the present matter.
[15] Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (Report No 108, May 2008)
In this case the question posed by Snug in its proforma is at least ambiguous and invites the very inaccurate response from the agent. That is what occurred in this matter. In the alternative, the question was deliberately framed by Snug in the present terms so as to invite and allow retaliatory reporting by lessors. When the matter was drawn to its attention by the agent, Snug refused to amend its records.
The Tribunal strongly recommends that Snug amend it proforma and delete the offending question. Snug should ensure that its questions are unambiguous and do not invite unlawful content.
The agent had no right to post the reference until the tenancy had been completed and no right to list anything other than a breach, of which there had been none. For these reasons, the agent’s actions were also a breach of the database provisions.
The Tribunal views the present matter to constitute a serious breach of the database provisions because it has the potential of facilitating retaliatory reporting by lessors, which has in fact occurred in this case. This breach should attract the statutory maximum penalty of $5,000.
This penalty will be apportioned in the ratio of 75% to 25% between Snug Technologies Pty Ltd and the agent personally, Ms Kaylee Wang (as opposed to the respondent lessor) to reflect their different roles in the breach. Snug is to pay the sum of $3,750 and Ms Wang is to pay the sum of $1,250 to the applicant, on or before 8 March 2021.
The Registrar is to serve a copy of these orders on Snug Technologies Pty Ltd ABN 82 616 484 292.
………………………………..
Senior Member A Anforth

Date(s) of hearing

7 October 2020

11 November 2020

15 December 2020

Applicant:

In person

Respondent:

Ms K Wang, authorised representative