Kiternas v Peios
[2008] ACTRTT 1
•9 January 2008
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES TRIBUNAL
CITATION:KITERNAS V PEIOS [2008] ACTRTT 1
RT 509of 2007
Catchwords: Notice to vacate without cause.
Retaliatory conduct.
Tribunal:Ms J Lennard, Member
Date: 9 January 2008
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 509 of 2007
RE: Ranko KITERNAS & Nada KITERNAS
(Applicants/Tenants)
AND: John PEIOS & Christine PEIOS
(Respondents/Lessors)
DECISION
Tribunal : Ms J Lennard, Member
Hearing : 26 November 2007
Decision : 9 January 2008
Decision
The applicant, having failed to make out his case, the application is dismissed.
No further applications based on the same facts are to be accepted.
…………………………….
Jann Lennard
Member
9 January 2008
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 509 of 2007
RE:Ranko KITERNAS & Nada KITERNAS
(Applicants/Tenants)
AND: John PEIOS & Christine PEIOS
(Respondents/Lessors)
REASONS FOR DECISION
Ms J Lennard, Member
9 January 2008
Re: Premises at 6 Manu Place, WARAMANGA. A.C.T.
REASONS FOR DECISION.
The applicant tenants and the respondent lessors are parties to a residential tenancy agreement in relation to premises at 6 Manu Place Waramanga. The agreement commenced 30 May 2006 for a fixed term of 12 months. Since 30 May 2007 the agreement has continued as a periodic tenancy.
On 10 September the tenants made an application to the Residential Tenancies Tribunal seeking a rent reduction of $95 per week ‘for lack of maintenance and lack of Quiet Enjoyment of the premises’; assessment of the validity of a previous rental increase and withdrawal of a 26 weeks notice to vacate.
On 26 September 2007 and differently constituted Tribunal found:
1.that the rental increase from 22 May 2007 was set aside because the lessor, through their agent had failed to comply with the notice requirements as provided in clause 38 of the residential tenancy agreement;
2.that the tenant was not liable for payment of excess water rates because a high percentage of the volume of water usage could be attributed to leaking taps which the lessor had failed to repair.
The Residential Tenancies Tribunal on 26 September 2007 noted that the lessors’ agent had issued a notice to vacate without cause and the notice period would expire on 1 March 2008. The applicant tenant had asserted in the written application that this notice to vacate had been issued by the agent without instruction from the lessor. The evidence before the Residential Tenancies Tribunal reveals that the lessor gave written instruction to the agent to issue the notice on 3 September 2007 and the notice was issued on 4 September 2007.
The Residential Tenancies Tribunal made the following orders:
1.That the rental increase and excess water bills are not to be paid by the tenant.
2.That the lessor is to pay the tenants the over payment of [rent of] $1066.60 within 14 days.
3.That the lessor is to repair all the leaking taps and the fly screens to the reasonable satisfaction of the tenant within fourteen days.
4.That the lessor from now on is to give the tenant seven days written notice of any visit or inspection he intends to make to the property.
On 11 October 2007 the applicant tenant applied to the Residential Tenancies Tribunal to restore the matter to the list. The grounds given for this application were that the lessor had not complied with the order to repair. Mr Kiternas appeared at the hearing of this application before the presently constituted tribunal. There was no appearance by or for the lessor. Mr Kiternas stated that while repairmen had visited the house to ascertain what repairs were needed, they had not returned within the period specified by the Residential Tenancies Tribunal and repairs to the flyscreens remained not done. Mr Kiternas also stated that he ‘now had a 26 weeks notice to vacate’. The Residential Tenancies Tribunal explained to Mr Kiternas that retaliatory actions were not permitted under the Resident Tenancies Act and Mr Kiternas asserted that he was being evicted because he had approached the Residential Tenancies Tribunal. The Tribunal explained to Mr Kiternas that he would have to establish this not merely assert it and asked him to make a full written submission by 19 November 2007. The matter was set down for hearing on 26 November 2007.
The tenants filed their submissions on 18 November 2007. In large part these submissions did not address the issue of the notice to vacate being retaliation for making an application to the Tribunal but repeated matters and made requests for remedies relating to issues which had been finally dealt with by a differently constituted Tribunal on 26 September 2007.
Mr Kiternas appeared at the hearing on 26 November and Tamara Trenka of Ian McNamee and Partners, Real Estate Agents represented the lessors. There were two issues for the tribunal at this hearing: the alleged failure by the lessor to comply with the orders of 26 September and the alleged retaliatory action by the agent in issuing the notice to vacate.
Ms Trenka gave evidence that she had believed it unnecessary to attend the hearing on 25 October because she had arranged for workmen to effect the repairs, Mr Kiternas was aware of this and she believed that all repairs would have been completed by the 25 October. The evidence as to when the repairs were completed was confusing, but both parties agreed at the hearing on 26 November that the repairs were complete.
10.As to the Notice to Vacate, Mr Kiternas gave evidence that Mr Damien Nemeth, an employee of Ian McNamee, had, in response to the tenants’ threat to bring an action before the Residential Tenancies Tribunal in relation to alleged arrears and failure by the lessor to repair the premises, stated “ If that is the path you want to take we will make your life hell”. Mr Kiternas alleged that this statement was made at a meeting on 3 September 2007. However, copies of email correspondence provided by Mr Nemeth to the Tribunal show that Mr Kiternas is mistaken and that the meeting took place on the morning of 4 September 2007.
11.Mr Kiternas also alleged that the lessors’ agent was providing unfavourable references to other agents and as a consequence the tenants were experiencing difficulty in obtaining other rental accommodation. This will make it difficult to comply with the Notice to Vacate. The tenants asked the Tribunal to order the agent to give truthful and honest references in the future. The only evidence before the Tribunal as to the content of the references was that the tenants had been described as “extremely unpleasant and difficult people to deal with”.
12.The lessors’ agent denied that the 26 weeks Notice to Vacate was retaliatory in nature, and provided a written statement from Mr Damien Nemeth, an employee of Ian McNamee and Partners, which contradicts the evidence of Mr Kiternas. Unfortunately Mr Nemeth was not available to be questioned by either the Tribunal or the tenants. Copies of email correspondence between Mr Nemeth and Mr Kiternas and between the lessors and their agents establish the following chronology of events:
1.On 3 September 2007 the lessor gave written instructions to their agent to issue a Notice to vacate without cause;
2.At 9 am on 4 September 2007 the meeting between Mr Kiternas and Mr Nemeth took place. Mr Kiternas alleges that it was at this meeting that he threatened to bring the matter before the Residential Tenancies Tribunal and Mr Nemeth replied that he would ’make their life hell’.
3.On 4 September 2007 the agents issued the Notice to Vacate giving the required 26 weeks notice;
4.On 5, 10 and 12 September email correspondence concerning repairs to the property were exchanged between Mr Kiternas and Mr Nemeth, the emails appear to be without rancour from either party and do not refer to any argument or threat from either party. Email correspondence relating to rental payments and arrears are in a similar vein.
5.The tenants’ application to the Residential Tenancies Tribunal was lodged on 10 September 2007.
13.Section 57 of the Residential Tenancies Act provides that if a lessor has applied for a termination and possession order and the tenant provides evidence that the tenant has taken action to secure or enforce their rights (including making an application to the Residential Tenancies Tribunal), then the Residential Tenancies Tribunal must refuse to make the termination and possession order if satisfied that those circumstances exist and that the lessor was retaliating against the tenant.
14.It is the opinion of the Tribunal that the relationship between the parties has descended into continual conflict as a result of:
1.tenants, who have limited understanding of their rights or the terms of the tenancy, demanding improvements to the property which the lessor was not prepared to make, and taking an aggressive stance in relation to the property manager. The tone of the correspondence and the conduct of Mr Kiternas before the Tribunal support the agent’s assertion that he has been difficult to deal with.
2.Sloppy work on the part of the Ian McNamee and Partners in relation to the rental increase. The original notice of rental increase was not valid as it sought to increase the rent during a fixed term. It appears that the tenants never received this notice and subsequent correspondence from the agent was incompetent in its attempts to communicate the basis for the claims for rental arrears. The Residential Tenancies Tribunal regrets that 10 years after the Residential Tenancies Act came into force, some real estate agents still exhibit a marked ignorance of its content or the correct procedures to be followed.
15.Mr Kiternas asks the Residential Tenancies Tribunal to declare the Notice to Vacate without cause invalid on the basis that it is motivated by the threat to apply to the Residential Tenancies Tribunal. The relief sought by the tenants goes beyond the terms and application of section 57, as there is no application for a termination and possession order before the Tribunal. Nevertheless, after perusing the file relating to the hearing by a differently constituted Tribunal, considering the evidence and having had the benefit of hearing from and observing the tenants and the lessors’ agent, the Residential Tenancies Tribunal is satisfied that the Notice to Vacate was not issued to forestall, or in retaliation for, any anticipated application by the tenants to the Residential Tenancies Tribunal.
16.On several occasions Mr Kiternas attempted to reargue matters already concluded. It is evident to the Residential Tenancies Tribunal that the tenants were not satisfied with the decision of the differently constituted Tribunal made on 26 September 2007. At the first hearing before this Tribunal Mr Kiternas had given the Residential Tenancies Tribunal to understand that the notice to vacate without cause was issued after the hearing on 26 September. However at the subsequent hearing it and upon a thorough examination of the file this was clarified. The Residential Tenancies Tribunal has explained to Mr Kiternas that he has rights of appeal, but the Tribunal does not rehear matters because one party is not satisfied with its decisions.
17.The Residential Tenancies Tribunal has no evidence that the agents have given false or misleading references to other agents in relation to the tenants. The Residential Tenancies Tribunal does not have the power to order an agent to give a favourable reference. Although Mr Kiternas made reference to being ‘blacklisted’ he produced no evidence that this was so and indeed seemed only to have asserted it because it was discussed in the matter immediately preceding his on the day.
18.Thus, the applicant having failed to make out his case, the application is dismissed. No further applications based on the same facts are to be accepted.
JANN LENNARD
MEMBER
9 JANUARY 2008.
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