Kim v Estate of the late Warwick Rule

[2022] NSWCATCD 196

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Kim & Ors v Estate of the late Warwick Rule [2022] NSWCATCD 196

Hearing dates:

1 September 2022

Date of orders:

11 October 2022

Decision date:

11 October 2022

Jurisdiction:

Consumer and Commercial Division

Before:

G Bassett, General Member

Decision:

(1) The application is dismissed.

Catchwords:

ESTOPPEL — Res judicata — Merger — Whether same cause of action

Legislation Cited:

Residential Tenancies Act 2010, section 187

Cases Cited:

Gleeson v The Owners – Strata Plan No 48226 [2018] NSWCATAP 204

van Brugge v Foresto [2022] NSWCATAP 109

Category:

Principal judgment

Parties:

First Applicant: Esther Kim

Second Applicant: Hoy Kim

Third Applicant: Seung Ching

Respondent: Estate of the late Warwick Rule

Representation:

Applicants: In person

Respondents: Jess Alvial, real estate agent

File Number(s):

RT 22/23442

REASONS FOR DECISION

1. On 26 May 2022, the tenant applicants applied for an order they be paid $14,000 in compensation and that a term of the tenancy agreement be declared void. Also sought were orders in relation to disclosure of tenant information and remedies for payment of rent and excess charges. Only the order in respect of compensation was pressed at hearing.

2. On 7 July 2022, the matter came before the Tribunal for conciliation hearing. When the matter did not settle the usual directions were made for a contested hearing.

3. At the end of the hearing directions were made to allow parties to make submissions in respect of video evidence for the premises that arose during hearing.

Jurisdiction

4. The landlord claims the matter ought to be dismissed under the doctrine of res judicata. The member presiding also asked the parties to address these issues.

Issue for determination

5. To maintain the efficient use of Tribunal processes, the Tribunal heard the substantive cases in this matter. However, as a preliminary issue, it must be determined whether the matter ought to be dismissed under the doctrine of res judicata before proceeding to substantive issues if not so dismissed.

Evidence of the parties

6. Parties provided documents for hearing on 5 different occasions. All of these were considered in coming to this decision. Parties also gave oral evidence and made oral submissions.

7. At hearing the tenants indicated they were seeking compensation as over the years the landlord had not carried out repairs. Plumbing issues in relation to a septic tank arose in January 2020. This was not fixed till July 2020. A spray for a grass area was not working. A new septic system set off an alarm in October 2020. It triggered intermittently and was never rectified. Tenants also alleged they were not given proper notice for access when repairs were done. They said a plumber verbally harassed them and filmed them. The plumber alleged the drain was blocked by body wipes being disposed there. Landlord issued tenants a $1,000.00 repair bill. Tenants said they were allowed to run a commercial café. Tenants referred to a video that had been considered in an earlier hearing for a decision of which they appealed.

8. The landlord alleged these matters relating to plumbing, wipes and the septic has already been determined in Matter RT 21/17438. Despite this, the landlord’s agent gave evidence about the issue. Plumbing issues arose because the tenants had used the premises as a World Mission Centre and had scores of people in attendance. The plumbing system could not handle such numbers.

9. Tenants said they had emailed the landlord to raise further issues with the septic tank in August 2021. They also said there was a problem with the driveway entrance which was raised before tenancy began. Rain flooded the driveway. The issue was fixed on 12 February 2020.

10. Tenants also alleged an incident involving police on 31 May, 2021. There was no event number in relation to this allegation. A sister of a tenant was said to have been filmed.

11. Tenants also said the landlord would not extend the vacant possession date end they had to vacate one month early. However, in RT 22/20418 tenants were ordered to give vacant possession by 10 June 2022. A warrant for possession had to be issued when they did not comply. The written reasons for the Tribunal decision indicated the end of the fixed term was 9 May 2022. Tenants had disputed termination due to unavoidable circumstances and they alleged they could find no other property.

12. A tenant alleged that on 7 May 2022 the tenant was sworn at by an old lady purporting to be the mother of the real estate agent. Tenants provided an event number for this complaint but no further supporting documents. The landlord’s agent denied having been visited by police and was unaware of this claim until the hearing.

The Principles of Res Judicata

13. In Gleeson v The Owners – Strata Plan No 48226 [2018] NSWCATAP 204, the Appeal Panel of the Tribunal considered the legal doctrines of res judicata. That case considered whether the Tribunal is bound to hear a dispute in circumstances where a Tribunal adjudicator had previously determined a similar issue. The Appeal Panel determination cited from Halsbury’s (online) at [190-45] which states:

res judicata is the principle of law which prohibits a party from bringing a further action in respect of a subject matter raised and determined in a prior final judgment before a competent tribunal between the same parties or their privies litigating in the same capacity; if made out, res judicata is a complete bar to the claim;

res judicata is founded on the necessity of avoiding re-agitation of issues and of preventing the raising of issues which could have been and should have been decided in earlier litigation;

res judicata is not restricted to courts of record. It applies to judicial decisions of a final nature of any court or tribunal upon any matter over which it has jurisdiction to give a final judicial decision, including arbitral tribunals and a consumer claims tribunal: Maganja v Arthur [1984] 3 NSWLR 561 at 563;

in order to establish a plea of res judicata, it must be shown that the cause of action in the later proceedings is the same as that which was litigated in the former proceedings. “Cause of action” means (i) the series of facts which the plaintiff must allege and prove to substantiate a right to judgment, (ii) the legal right which has been infringed, and (iii) the substance of the action as distinct from its form: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 610;

res judicata applies where there is an identity of parties. This occurs where the parties are literally the same or there is privity of interest or capacity. The determination of identity between litigants for the purpose of establishing privity is a question of fact. There are three classes of privies, blood, title and interest.

14. In van Brugge v Foresto [2022] NSWCATAP 109 (12 April 2022), the Appeal Panel made more recent comment on res judicata. At [64] it stated:

64 We are satisfied that the principles of res judicata, Anshun estoppel and abuse of process apply so as to prevent the contention of the tenant that his eviction was illegal being determined in this appeal.

65 In Matson v Attorney-General (No 2)[2022] FCA 213 (Matson (No 2)) at [42]-[46] Collier gave the following explanation of the principles of  res judicata , Anshun estoppel and abuse of process:

“[42] Principles of res judicata are well settled in Australia. As Fullagar J explained in Jackson v Goldsmith[1950] HCA 22; (1950) 81  CLR 446 at 466:

... where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa.'"

[43] Justice Fullagar was cited with approval by the plurality of Gibbs CJ and Mason and Aickin JJ in Port of Melbourne Authority v Anshun Proprietary Ltd[1981] HCA 45; (1981) 147 CLR 589 at 597, where their Honours went on to observe:

The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.

Determination

15. After the hearing the member presiding reviewed other files of earlier hearings. On 18 August 2021, the Tribunal made an order in relation to an application by the landlord for the tenants to pay the landlord the sum of $544.50 for “plumber’s investigation and clearage of pipes on 16 October 2020”. In written reasons for the order the Tribunal commented there had been a history of issues with septic system. That matter considered events down to October 2020 as in this case. Those issues are subject of res judicata as an earlier action has been brought and judgment has been entered in that action. These proceedings cannot be maintained on the same cause of action and the same facts and circumstances.

16. Res judicata also applies to any claim for compensation for allegedly being required to vacate early in May 2022. That issue was determined by the Tribunal on an earlier occasion and a termination order made. The tenants did not comply with that order and a warrant had to be issued.

17. In relation to the alleged swearing event on 7 May 2022, the tenant provided no evidence to prove the speaker on the phone was an old lady or the mother of the agent handling the tenancy at that time. The landlord was not apprised of this claim during the tenancy but only once this application was made to the Tribunal. In any event, it is matter relating to apprehended violence and should have been subject of proceedings in a local court. It is not a matter this Tribunal can determine.

18. In relation to the claim for a further septic issue in August 2021, the Tribunal accepts the video evidence shows that the premises were used by a number of people beyond the capacity of the system to cope. The landlord also carried out further repairs to the system. That claim is not allowed. Similarly, driveway flooding claims were out of time. In addition, any issue of flooding ought to have been raised in earlier matters relating to the plumbing.

19. At the end of the hearing the tenants reopened their case to make a claim for $13,000.00 for damage to their goods. In the documents for this hearing no evidence was provided of such damage. The tenants did not discharge their onus to prove the claim on the balance of probabilities with evidence provided to the Tribunal.

Order

20. The Tribunal makes the following order:

1. The application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

07 September 2023 - Formatting amendments.

Decision last updated: 07 September 2023