Kiriacou v Foale No. Dcadd-03-32
[2003] SADC 85
•29 May 2003
Jack KIRIACOU v Tina FOALE
[2003] SADC 85
Civil - Short Notice List
Judge David Smith
This is an appeal pursuant to s41 of the Residential Tenancies Act, 1995 (“the Act”) by a landlord Jack Kiriacou against an order of the Residential Tenancies Tribunal (“the Tribunal”) made on the 14th January 2003 which required the landlord to repay the tenant Ms Tina Foale the sum of $586.84, which was her bond of $600 less a charge of $13.16 for excess water.
The grounds of appeal – procedural fairness
The Notice of Appeal contended that the landlord was not accorded procedural fairness in the hearing, that the Tribunal’s order should be set aside and that there be a hearing de novo. Upon the appeal counsel for the landlord argued that procedural fairness was not accorded to the landlord as required in three respects, namely that:
·The Tribunal accepted, as evidence corroborating the tenant, a witnessed statement of Mrs Linda Ferricks of Wallaville, Queensland who was the tenant’s mother and who could not be cross-examined by the landlord;
·The Tribunal accepted, as evidence corroborating the tenant, a statutory declaration of Candice Dawn Trainer which contained hearsay statements upon which there could be no cross-examination and a copy of which was not provided to the landlord at the hearing or at any time; and
·The Tribunal accepted, as evidence corroborating the tenant, the oral evidence of the tenant’s boyfriend, one Michael Lowe, who was unknown to the landlord.
In my view, this third contention did not properly raise any point of procedural fairness or natural justice.
The procedural powers of the Tribunal are set out at length in s32 of the Act. Its proceedings “must be conducted with the minimum of formality and in the exercise of its jurisdiction the Tribunal is not bound by evidentiary rules but may inform itself as it thinks appropriate” (s32(2)). Nonetheless the Tribunal is a body whose determinations plainly affect the legal rights and interests of persons appearing before it, and so it is bound to comply with the rules of procedural fairness (see Annetts v McCann (1990) 170 CLR 596; Ainsworth & Ano v Criminal Justice Commission (1991-2) 175 CLR 564). Procedural fairness would require that crucial evidence be the subject of testing by cross-examination or if that not be possible its probative force be recognised as thereby deficient in the sense of having been given by a person who did not appear and was thereby not subjected to the scrutiny of examination and cross-examination on oath. Further, if statements of evidence are received, parties whose interests are thereby affected must be given an opportunity to see and comment on the document. Again the probative force of such evidence must be weighed up bearing in mind that the witness did not appear and was not subjected to the scrutiny of examination and cross-examination on oath.
I hasten to say in this case that I was not convinced that the Tribunal’s decision miscarried because it accepted the statement of Mrs Ferricks and the declaration of Ms Trainer. It seems to me that it was sufficient for the member to rest his decision upon the outcome of the primary contest between the landlord and the tenant. In my view that is what he did. The reception of the two statements was not crucial to the preference of the evidence of the tenant to that of the landlord.
In any event in this matter, persuaded by counsel Mr Longson that his client felt disadvantaged, I decided to embark upon a rehearing which I am empowered to do by s41 of the Act.
Evidence and Findings
The landlord and the tenant gave evidence on oath before me. The tenant called as a witness her sister Ms Laurie Fear who gave evidence about cleaning up the premises at the beginning of the tenancy. It was uncontentious. Further, the tenant’s mother, Mrs Linda Ferricks who is resident in Queensland, gave affirmed evidence by way of telephone link. There was no evidence lead from either Candice Trainer or Michael Lowe, as it turned out neither of them were present at the crucial conversations between the landlord and the tenants as to the termination of the tenancy.
The premises here concerned are a house at 71 Wandana Avenue, Gilles Plains. The landlord lived next door. The tenant, Ms Foale and her two infant children, moved into the house about a fortnight prior to the 4th August 2001. The previous tenant had left the premises untidy and unclean. The landlord agreed that the tenant could occupy the premises free of rent for a fortnight if she cleaned them. With the help of friends and relatives, she did that. The tenancy formally commenced on the 4th August 2001 and was for a period of six months to the 2nd February 2002. The rent was $150 per week and was paid by the tenant by way of a direct debit of her payments of Social Security from Centrepay. The landlord was familiar with this method of paying rent and facilitated it by arranging for the tenant to sign the appropriate document. The bond, namely $600, was guaranteed by the South Australian Housing Trust.
Such were the uncontentious background circumstances. I now turn to the contentious part of the history.
The tenant said in evidence that soon after settling into the house there were a series of break-ins and an assault upon her. She was naturally frightened and fearful. Her sister reported to her mother that she was not coping and accordingly in November 2001 Mrs Ferricks flew down from Queensland to lend a hand. The tenant decided that she and her children should move to Queensland. However, there was the problem of the tenancy which still had a month or so to run. I find, based upon the evidence of the tenant and her mother, that such was the background to Ms Foale’s decision to leave 71 Wandana Avenue. The landlord attempted to play down the significance of these disquieting events.
So I now turn to the conversations which took place between the landlord and the tenant as to the early termination of the tenancy agreement. First of all, I have no hesitation in accepting that Mrs Ferricks was present at these conversations. To the extent that the landlord denied that she was present, I reject his evidence.
The tenant said that she explained to the landlord that she could no longer stay in the house and wanted to return to Queensland with her mother. She asked if she could terminate the tenancy agreement early. She said that she told him that if it was a problem she would “see out” the tenancy allowing her twins to go to Queensland with her mother. I see nothing implausible in that. According to her, the landlord said she could terminate the tenancy early without penalty provided she cleaned up the place. He said that he could re-let the house effortlessly. Mrs Ferricks confirmed this conversation and added that as a result she contacted her husband in Queensland who drove down to Adelaide with a trailer and brought with him a cleaning machine for the purpose of cleaning the carpets.
The tenant and her family then set about cleaning the house and preparing to leave. Mrs Ferricks described the arduous task of cleaning the carpets. She said that the landlord, who was showing prospective tenants through the house, expressed to her satisfaction with the state of the carpets. Then on the 31st December 2001 the landlord and the tenant Ms Foale spoke again about the tenancy. Mrs Ferricks was again present. The tenant said that the landlord proffered a Security Bond Refund Form to her for signature and said that he would hold the bond monies until the excess water bill came in and then he would deduct the excess water bill and return the balance to the Housing Trust. Because the rent which was fortnightly in advance could not be stopped, the landlord paid to the tenant a cheque for $300.00 to cover the rent which had already been processed by Centrepay. Again, Mrs Ferricks confirmed this conversation.
Accordingly, on the 2nd January 2002 the tenant moved out and together with her family headed off to Queensland. She left some furniture at the premises and indicated that the landlord could sell it or retain it as he pleased. This appeared to suit him.
The landlord disagreed with the thrust of all this. He said that he made no such concession about the rent due for the remaining period of the tenancy. He said he paid the tenant $300 because he and she had agreed that he could take the four weeks rent from the bond. This was notwithstanding that the bond monies were from the South Australian Housing Trust and the appropriation of them by him would create a debt to the tenant. When asked a question about that he indicated that it was not a matter of his concern.
The landlord later claimed and received the bond money. The tenant upon returning to Adelaide some time prior to October 2002 said that she discovered to her dismay when seeking to rent premises again that the South Australian Housing Trust would not guarantee a bond and moreover regarded her as being indebted to them in the sum of $600. Accordingly, on the 31st October 2002 she lodged an application with the Residential Tenancies Tribunal seeking the refund of the bond. In the proceedings the landlord sought to justify the retention of the bond by claiming not only arrears of rent but also a series of expenses such as:
·Water charges, $37.80
·Dump fees $40
·Cleaning $150
·Advertising $10
·Carpet cleaning $60
·Repairs $85.80
·Rent loss $600
In the proceedings before me the landlord abandoned all the above claims save for the rent loss.
I turn to my findings on these contentious issues.
Like the Tribunal, I accept as credible and reliable the evidence of the tenant and what was said by the tenant’s mother, Mrs Ferricks. Mrs Ferricks’ evidence in particular was compelling and articulate. It had a ring of truth about it. True it was that I could not observe her demeanour in the witness box, but I regard that as the least important of the criteria for assessing the credibility and reliability of a witness. In particular, I prefer what Ms Foale and her mother said to that of the landlord. I consider that throughout his dealings with the tenant late in 2001 he has played fast and loose. His explanation for preferring to appropriate the bond, which he well knew was not the tenant’s money, rather than allow the rent payment to come in the usual way from Centrepay was decidedly unconvincing.
I find that he was confident of letting the premises and did agree to the tenant’s early departure. He waived strict compliance with the tenancy agreement. He repaid the rent of $300 which was to come from Centrepay because it could not be stopped. When he obtained the signature of the tenant on the Bond Refund Form he told her in the presence of his mother that he would use the bond money only to recoup the excess water bill. Whether he had decided to appropriate any rent loss from the bond monies then or later does not matter. The probabilities are that he decided to do this later when he was not able to rent the premises so easily.
Conclusion
So I find that it has been clearly established that the landlord waived strict compliance with the tenancy agreement and in accordance with the agreement struck with the tenant he was only entitled to appropriate the excess water bill from the bond monies. There was no suggestion in these proceedings that the excess water bill was other than the sum of $13.16. The tenant kept her part of the bargain in cleaning the premises. Accordingly, I agree with the order made by the Tribunal and to the extent that I have reheard the matter and am required to make a fresh order I do so. Accordingly, I repeat the order of the Tribunal and confirm that pursuant to s110(1)(c) of the Act the landlord is to pay the tenant the sum of $586.84. Further, I order that the appellant pay to the respondent costs in the amount of $50.00.
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