Lee v Guo
[2017] ACAT 60
•14 August 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LEE v GUO (Residential Tenancies) [2017] ACAT 60
RT 166/2017
Catchwords: RESIDENTIAL TENANCIES – compensation – whether there was a breach of peace, comfort and privacy – whether the tenant needs to establish a ‘significant’ interference with the use of the premises – what ‘significant’ means in the context of section 71 of the RT Act – when considering whether there has been a significant interference with her reasonable peace, comfort or privacy in the use of the premises the incidents can be viewed cumulatively
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 48
Residential Tenancies Act 1997 ss 8, 71, 83, standard terms 2, 3, 52, 53, 55, 75, 76, 77, 78, 82
Cases cited: Baltic Shipping Company v Dillon (1993) 176 CLR 344
Bangura & Fan [2013] ACAT 38
Bills v Trustees for Paul Sevier Practice Super [2016] ACAT 67
CIC Australia Ltd v Australian Capital Territory Planning and Land Authority & Ors (2013) 277 FLR 26
Commonwealth v Amann Aviation Pty Ltd (1992) 174 CLR 64
Constanzo and Laria & Watson [2010] ACAT 79
Hadley v Baxendale 156 ER 145
Hay v Medanic [2010] NSWCTTT 309
Hay v Medanic [2011] NSWCTTT 17
Dangar & Anor v Mansour & Anor [2016] ACAT 61
Huskisson and Roper [2011] ACAT 41
Mansour v Dangar [2017] ACAT 49
Minion and Mann [2011] ACAT 7
Rowling, Neale v Sneesby [2012] NSWCTTT 289
Robinson v Harman [1848] 154 ER 363
Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9
Worrall v Commissioner for Housing in the ACT [2001] ACTSC 72
Worrall v Commissioner for Housing for the Australia Capital Territory [2002] FCAFC 127Shkolar and Anor v Thomson [2015] ACAT 21
List of
Texts/Papers cited: Anforth et al Residential Tenancies Law and Practice: New South Wales (6th edition)
Explanatory Memorandum to the Residential Tenancies Bill 1997
Supplementary Explanatory Memorandum to the Residential Tenancies Bill 1997
Tribunal: Senior Member H Robinson
Date of Orders: 14 August 2017
Date of Reasons for Decision: 14 August 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 166/2017
BETWEEN:
SEONG EUN (ALSO KNOWN AS JENNY) LEE
Applicant
AND:
LIN HAI GUO ALSO KNOWN AS LARRY GUO
Respondent
TRIBUNAL:Senior Member H Robinson
DATE:14 August 2017
ORDER
The Tribunal orders that:
1.Judgment for the applicant in the amount of $1,645.00 being $1,500 in compensation for breach of clause 52 of the Standard Terms in the residential tenancy agreement and $145.00 for the filing fee.
………………………………..
Senior Member H Robinson
REASONS FOR DECISION
1.This is an application for compensation for an alleged breach of a residential tenancy agreement by the lessor. The allegations relate to a series of minor breaches, which the tenant argues should be viewed cumulatively as a breach of her right to reasonable peace, comfort and privacy, or ‘quiet enjoyment’ of the premises.
Hearing process
2.The application was heard on 29 May 2017 and 29 June 2017. The applicant tenant represented herself, supported by her partner, Mr Wang. The respondent lessor was represented by a legal practitioner, Mr Tiirikainen. The lessor, the tenant and Mr Wang gave evidence and were questioned by the other party and the Tribunal. The proceedings were conducted informally, having regard to the objects of the Tribunal to be as simple, quick, inexpensive and informal as is consistent with achieving justice and procedural fairness.[1]
[1] ACT Civil and Administrative Tribunal Act 2008 section 7
3.There was a great deal of evidence submitted by both parties, both orally and in documentary form. There was some degree of acrimony between the parties, but with only a few exceptions, their factual assertions did not differ substantially. My findings on the evidence, contested and uncontested, are set out below.
Findings of Fact
4.The parties entered into a residential tenancy agreement on 9 June 2016 (the agreement). The tenancy commenced on 19 June 2016. The agreement was in the standard form.
5.The Residential Tenancies Act 1997 (RT Act) governs residential tenancy agreements in the ACT. Section 8 of the RT Act requires residential tenancy agreements to contain the standard terms set out in Schedule 1 of the RT Act (Standard Terms). By signing a residential tenancy agreement, the parties agreed to be bound by its terms.[2] Parties to a residential tenancy agreement cannot contract out of the Standard Terms except as provided for by the RT Act.[3]
[2] Standard Terms, clause 2
[3] Standard Terms, clause 3
6.The premises (the premises) in issue is an apartment in the National complex in Barton (the complex). The premises have a large, enclosed private courtyard that opens onto the common area courtyard of the complex (common courtyard). The common courtyard is accessed through locked doors that require swipe card security access. Both the tenant and the lessor have swipe cards.
7.The tenancy apparently did not include access to a letterbox that was located in an entry area at the front of the complex. The parties gave slightly contrary evidence as to the reason why the tenant did not have access to the letterbox, but on either account, the tenant was aware of the issue at the commencement of the tenancy and was not given the keys.
8.The tenant’s application for breach of the residential tenancy agreement is founded on a number of distinct events that occurred over the course of the tenancy.
9.The first incident occurred on 27 June 2016 (the first inspection incident). The lessor emailed the tenant requesting a “quick visit” on 29, 30 or 31 June 2016. The lessor did not specify a reason for the visit, and the email did not give the minimum seven days notice as required for an inspection pursuant to clause 77 or 78 of the Standard Terms. The lessor submitted to the Tribunal that this was not a formal inspection for the Standard Terms, but rather an informal meeting to follow up on necessary documentation and make sure the tenant was happy.[4] Whatever the purpose of the inspection, and despite the lack of formality, the tenant gave her consent to the inspection taking place and the parties agreed a time.
[4] Respondent’s submissions received on 18 May 2017, attachment ‘N’
10.The lessor apparently failed to complete an ingoing inspection report during this visit, or indeed at all.
11.The second incident occurred on 28 July 2016 (the second inspection incident). The lessor attended the premises without prior notice. He had with him a woman and a young child who had recently arrived from overseas. The lessor explained to the Tribunal that the pair had only recently arrived in Canberra, that the daughter was to attend Forrest Primary, and that he was helping them to find accommodation in the area. The lessor said that he took the pair to see some apartments, and then advised the mother that he owned an apartment in the area. She asked if they could inspect his apartment, to see what it was like, and he said that they could if the tenant gave permission. The lessor and his companions then attended the premises, unannounced. The tenant was not home, but her partner, Mr Wang, was. There were some discrepancies between the lessor’s and Mr Wang’s evidence as to what exactly happened during this meeting, but it was common ground that Mr Wang denied the lessor and his companions entry to the premises, and all three left.
12.The tenant asked that I view this incident in light of traditional practices in Shanghai, China. She submitted that there was a practice in Shanghai that a lessor could view a tenanted property largely at will. She accused the lessor of trying to impose that condition on the tenancy agreement, submitting that the lessor had assumed that Mr Wang was from Shanghai because of his accent. For his part, the lessor denied in his oral evidence that assumptions about Mr Wang’s background played any part in his actions, although he conceded in his written submissions that he had “some hope of being admitted based on the understanding ... they are country-fellows from China...” [5]
[5] Respondent’s submissions received 7 April 2017, page 39
13.The tenant’s evidence was that when Mr Wang told her of the second inspection incident, she was left disconcerted and worried, because it gave her cause for concern that the lessor would not respect her rights under the RT Act.
14.In late July and early August, the tenant became concerned that a person had accessed the premises without her approval. During her evidence in the Tribunal, she conceded that it was more a ‘feeling’ that someone had been in the premises than anything concrete, but she believed things had been touched or moved. Following this incident, on 12 August 2016, the tenant asked the lessor whether all previous tenants had returned their keys and swipe cards needed to access to the premises. In that conversation the lessor confirmed that, to the best of his knowledge, all the keys and swipe cards had been returned. He also mentioned that he had casually ‘passed by’ to check the premises. He advised the tenant that the building had CCTV cameras (the unauthorised entry allegation). Neither party submitted any footage from the cameras to the Tribunal.
15.The lessor again confirmed during questioning at the hearing that all keys had been returned. When expressly questioned by the tenant as to whether he had entered the premises he denied doing so, although he agreed that he regularly passed through the common courtyard and could see the exterior of the premises when he did.
16.In the circumstances, there is no evidence upon which the Tribunal could conclude that an unauthorised person accessed the premises during the tenancy. Clearly, however, the lessor accessed the complex’s common property.
17.Following this incident, the tenant advised the lessor that she would seek to install CCTV cameras within her unit. As the camera was not attached to the premises, the lessor’s permission was not needed. The tenant submits, however, that the lessor should nonetheless pay for the camera as it was necessary to assure her peace of mind about the security of the premises (the camera request).
18.The next incidents of note concern photographs of the exterior of the premises taken while the tenant was in residence (the photographs). The photographs show the external courtyard of the premises. Some were provided to the tenant prior to the commencement of these proceedings, and others were provided to the Tribunal, and the tenant, by the lessor as part of these proceedings. The providence of these photographs is not in doubt. They were taken by the lessor on 30 August 2016 and on several other occasions, including early January 2017. That the photographs were taken over many months is evident from the changing foliage on a prominent tree varies from picture to picture. The lessor frankly stated that he took them while standing in the common area of the complex.
19.The lessor provided a detailed explanation to the Tribunal as to how and why he took the photographs. He explained that he regularly passed through the common area of the complex, as he used it as a convenient means of traversing from his vehicle, which he parked at a nearby hotel, to his place of work. On each occasion, he entered the complex using a swipe card on one of the doors, usually the one near the mail area. He detailed how he often checked the mailbox area on his way through because there was regularly rubbish lying around. He would, he said, pick up any rubbish so as keep the complex looking tidy (this action has some relevance in relation to another aspect of this claim). The lessor further said that after checking the mail area, he would then walk across the common property to the far side of the complex, where he would exit through a different gate. While there were several routes through the common area, he frequently took one that went directly past the premises. He passed by the premises at least once a week and often more.
20.In relation to the photographs, the lessor explained that he is a botanist, and that he is interested in the impressive tree in the common courtyard. The photographs, he said, were not intended to be photographs of the premises, but rather of that tree. That the private courtyard and the premises were pictured in the photographs was, on his evidence, an unavoidable coincidence.
21.I found the lessor’s evidence on the purpose of photographs of the tree to be somewhat unconvincing, but for the reasons set out below, his motivations for taking the photographs of the courtyard area are of no real consequence for these proceedings. A further photograph of the internal area of the premises courtyard is discussed below.
22.I note that no issue was made during the hearing of the fact that the lessor entered the common courtyard, or the complex itself, while not a resident of the complex. There are some serious questions to be asked as to the appropriateness of a non-resident lessor accessing the common area of a unit complex on near daily basis, but as no argument about this issue was advanced during the hearing, I have not considered it in this decision.
23.The next incident occurred on 9 October 2016, when the lessor parked his car in the tenant’s car parking space (parking incident). The tenant’s evidence was that she and her partner arrived home to find the lessor’s car in their parking spot, but that the lessor left quickly without acknowledging them. The lessor replied that he attended the premises only very briefly in order to remove a disassembled shed from the rear of the carparking space. The tenant denied ever seeing a disassembled shed in the car park. It seems very strange that the tenant did not notice such an item, were it indeed there for any length of time. Still, I do not need to decide whether the shed was or was not there. It is apparent that the lessor parked his vehicle, albeit temporarily, in the tenant’s car parking space, without the tenant’s consent. The tenant’s evidence was that this increased her concern about the lessor’s activities at the premises, and caused her to wonder what he was doing there, and whether he respected her right to reasonable privacy and quiet enjoyment. I accept that evidence.
24.On 10 October 2016 the tenant purchased and installed a camera in the premises. As the camera was not attached to the premises, she did not need the lessor’s consent.
25.In November 2016, the tenant and lessor had a conversation about the renewal of the lease. The tenant wished to remain in the premises, notwithstanding her concerns about the lessor’s conduct. She contended that this was easier and cheaper than moving, particularly given that she did not know whether she was staying in the ACT long term.
26.At this meeting in November 2016, the lessor enquired about the tenant’s Christmas plans. She told him she would be in Canberra over Christmas. She conceded at the hearing that this was not true, as she had made plans to visit family interstate. She explained that she was not honest with the lessor because she did not want him to know that she would be absent from the premises. She was fearful that he may enter the premises while she was absent.
27.In his evidence, the lessor explained that he was only about the tenant’s holiday plans because he was trying to make conversation and be friendly.
28.On 4 January 2017 the tenant received from the lessor an email asking when she would be returning from holiday (the holiday incident). The email had a photo of a rose plant owned by the tenant, which was located in the private courtyard. In the email, the lessor advised that he would be happy to water the plant while she was away.
29.The tenant’s evidence to the Tribunal was that, because she did not tell the lessor that she was going on holiday during this period, she was upset and disturbed when the lessor enquired about her being away. When questioned during the hearing about how he knew the tenant was away, the lessor frankly and openly explained that he had spoken to a neighbour, who advised him that the tenant had not been at her property for some time. He said he did not make specific enquiries of the neighbour, but that he was friendly and talkative and sometimes other residents talked to him as he walked through the complex. The lessor’s evidence to the Tribunal was that on the basis of the neighbour’s information, and his knowledge that the tenant came from interstate, he simply surmised that she was away on holiday. Accordingly, when he saw the plants in the courtyard were looking worse for wear, he decided to email the tenant and offer to assist with the watering. The lessor honestly conceded during the hearing that he had raised his camera above the railing around the private courtyard to take a photograph of the rose tree, so that he could show the tenant what was happening to her plants.
30.On 16 January 2017 the lessor, while traversing the common courtyard, initiated a conversation with Mr Wang, who was watering the plants in the private courtyard (the courtyard incident). The exact words spoken are a matter of some dispute, but I am satisfied that the lessor said words that were to the effect of the following:
you need to tell the neighbours that you are going on a holiday so they can look after your plants. Normally with other tenants if they are going to be away for more than one week they will always let me know.
31.The substance of the conversation is also reflected in an email from the lessor to the tenant of 18 January 2017, which reads: “In the past… when they [previous tenants] are away for more than a week they advised me beforehand.”
32.I note here that, while I do not doubt the truth of the lessor’s assertion in this email about what other tenants did, the Standard Terms only require a tenant to advise a lessor if the property will be vacant for more than three weeks.[6]
[6] See Standard Terms clause 71
33.The tenant’s evidence is that after these events, she began to grow even more concerned that the lessor was watching her movements. She began to do things like keep the blinds closed.
34.On 13 February 2017 the lessor emailed the tenant requesting an inspection on 16 or 17 February 2017. The request gave a notice period of only three to four days, rather than the seven days required by the Standard Terms. Nonetheless the tenant consented and an inspection was scheduled for 17 February 2017.
35.On 17 February 2017 the lessor attended the premises for the scheduled inspection (the third inspection incident). With him were two adults he introduced as “friends”. Mr Wang was in attendance, but the tenant was not. Mr Wang allowed the lessor to enter, but denied entry to his two companions, who remained outside. What happened during this inspection was again the subject of some dispute. It was common ground that the lessor entered the premises, undertook a cursory view of the bedroom, and then sat on the tenant’s lounge for around 15 seconds before Mr Wang said to him words to the effect of “if you are not here to do an inspection, please leave”. Thereafter there was an acrimonious exchange between the lessor and Mr Wang. Mr Wang’s evidence was that the lessor told him: “This is my property, I have the keys to the property and I can do whatever I want.” The lessor vehemently denied saying this. Whatever was actually said, the interaction between the men then escalated quickly, with Mr Wang eventually telling the lessor that if he did not leave, he would call the police. The lessor’s evidence is that he felt threatened, and accordingly he left. At no stage during this inspection did the lessor complete any part of an inspection report.
36.Mr Wang’s evidence was that after the third inspection incident he began to share the tenant’s concerns about the privacy and security of the premises, and he “lost sleep on many nights” as he would wake up and check that the doors and windows were locked.
37.After the third inspection incident, the tenant made an application to the Tribunal for resolution of a dispute.
38.On 8 March 2017, after the commencement of these proceedings, the tenant found correspondence from the Tribunal in the premises mailbox. As noted above, she did not have access to this mailbox, but she saw an ACT Government envelope sticking out of the mailbox when walking through the mail area. The mail, she said, had been opened. She reported the incident to the police.
39.The tenant put to the lessor during cross examination that he had opened her mail. He strenuously denied this allegation. In the circumstances, I cannot conclude that it was the lessor who opened the tenant’s mail, although I accept that someone other than the tenant did. I accept that this incident increased the tenant’s feelings of disquiet about being watched, although I cannot conclude that this was through any fault of the lessor.
40.I note here that some evidence was filed with the Tribunal – ironically, by the lessor – that indicates that a child had been enrolled at a local school using the premises as the child’s address. The lessor contended that the child’s family had resided at the premises for a period prior to the present tenancy in order to ensure enrolment at the relevant school. The enrolment form in evidence predated the tenancy, which supported the lessor’s case. However, the internal ACT Government correspondence, referring to the address, bore dates within the tenancy period.
41.On the basis of this evidence, it was put to the lessor at the hearing that he was still using the premises mailbox as a mailing address to enable the child to remained enrolled at the local school. The lessor denied this. The Tribunal asked the lessor if the school had been advised that the child was no longer resident at the premises. The lessor confirmed that it had. In the circumstances, I do not need to consider this issue further. I am satisfied that the tenant was aware at the time of entering into the residential tenancy agreement that she did not have access to the premises mailbox, and as such access to the mailbox is not a matter in contention.
42.The tenancy was still on foot when this matter came before the Tribunal on 7 March 2017, but it had been terminated by the time the hearing recommenced on 29 June 2017.
The legislation
43.Clauses 75 through 79 of Standard Terms provide that:
Lessor cannot enter premises except as provided in tenancy agreement
75__ (1) The lessor must not require access to the premises during the tenancy except as provided by the law, this tenancy agreement, the Residential Tenancies Act, or an order of the tribunal.
(2)The tenant may permit access to the premises by the lessor at any time.
(3) If requested, the lessor or the lessor’s agent must provide identification to the tenant.
76 The lessor must not have access to the premises—
(a) on Sundays; or
(b) on public holidays; or
(c) before 8 am and after 6 pm;
other than—
(d) for the purpose of carrying out urgent repairs or for health or safety reasons in relation to the premises; or(e) with the consent of the tenant.
Access in accordance with tenancy agreement
Routine inspections77 The lessor may inspect the premises twice in each period of 12 months following the commencement of the tenancy.
78 In addition to the inspections provided for in the previous clause, the lessor may make an inspection of the premises—
(a) within 1 month of the commencement of the tenancy; and
(b) in the last month of the tenancy.79 (1) The lessor must give the tenant 1 week written notice of an inspection.
(2) The inspection must take place at a time agreed between the parties with reasonable regard to the work and other commitments both of the tenant and of the lessor (or their agents).
(3) If the parties are unable to agree on an appropriate time, the lessor or the tenant may apply to the tribunal for an order permitting access at a specified time.
44.Clause 52 of the Standard Terms sets out a statutory version of what is known in common law as the tenant’s ‘right of quiet enjoyment’. It states:
52 the lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
45.Clause 52 has effect as a contractual term of the residential tenancy agreement between the parties. Where there is a breach of the term, section 83(d) of the RT Act provides that the ACAT may make:
…an order requiring the payment of compensation for loss of rent or any other loss caused by the breach of a residential tenancy agreement or occupancy agreement;
46.There is a further provision in the RT Act that provides a remedy for interference with quiet enjoyment. Section 71 provides, relevantly, that:
71 Reduction of existing rent
(1) On application by a tenant, the ACAT must order a reduction in the rental rate payable under a residential tenancy agreement if it considers that the tenant’s use or enjoyment of the premises has diminished significantly as a result of any of the following:
...
(c) interference with the tenant’s quiet enjoyment of the premises or the tenant’s ability to use the premises in reasonable peace, comfort and privacy by the lessor or anyone claiming through the lessor or having an interest in, or title to, the premises.
47.Section 71 is located in the body of RT Act, not in the Standard Terms in Schedule 1. As such, it is not a contractual term – rather, it is a statutory right to a rental reduction in certain circumstances. In considering which clause should apply in any given case, President Crebbin observed in Salem & Gizgeez v Abeygunasekara & Jeevanthan [2011] ACAT 9 that:
This tribunal and the former Residential Tenancies Tribunal have taken the approach that compensation should be awarded by way of rent reduction under section 71 of the RTA while the tenancy is still in existence and that lump sum compensation payments under section 83 (d) (previously section 104(1)(d)) should be considered where the tenancy has terminated.
48.In making her application, the tenant relied primarily on a breach of clause 52 of the Standard Terms, and hence on section 83(d). She did not rely upon section 71 of the RT Act. At the time that this application was lodged, the tenancy was on foot, so an application under section 71 may have been more appropriate. However, as the tenancy had terminated prior to the conclusion of the hearing, the appropriate course is to consider whether to award compensation under section 83(d), for a breach of clause 52 of the Standard Terms, which in any case accords with the tenant’s application.
49.For reasons that will become obvious below, a key issue in this case was whether the tenant needed to establish a ‘significant’ interference with her use of the premises. The language used in clause 52 and section 83(d), on one hand, and section 71, apply somewhat different tests, and only one expressly requires ‘significant’ interference. Briefly:
(a)Section 71(1)(c) requires that the Tribunal order a rent reduction where:
(i) the tenant’s ‘use and enjoyment of the premises’ has been ‘diminished significantly’ as a result of:
(1)interference with the tenant’s ‘quiet enjoyment’ of the premises; or
(2)Interference with the tenant’s “ability to use the premises in reasonable peace, comfort or privacy”[7];
[7] See Worrall v Commissioner for Housing [2001] ACTSC 72 at [15]
(ii)as a result or actions by the lessor or a person acting through the lessor.
(b) On the other hand, section 83(d) and clause 52 permit the Tribunal to award compensation for:
(i)“any .... loss caused”;
(ii)by a breach of the lessor’s obligation in clause 52 “not to cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.”
50.There are two notable differences between these provisions:
(a)There is no express requirement in section 83(d) that the interference that breaches clause 52 be ‘significant’ – although there is a limiting consideration in that the tenant’s requirements for peace, comfort or security must be ‘reasonable’.
(b)Section 71(1)(c) applies to interference with both the tenant’s quiet enjoyment of the premises and the tenant’s “ability to use the premises in reasonable peace, comfort and privacy.” This appears to set out two alternative bases. Clause 52, by contrast, refers only to “reasonable peace, comfort and security.” The term ‘quiet enjoyment’ is not used in clause 52 at all.
51.Is there an intentional difference between the tests in clause 52/section 83(d) and that in section 71?
52.The parties did not address this issue specifically, but Mr Tiirikainen made submissions to the effect that case law establishes generally that compensation should only be awarded for a ‘significant’ breach of quiet enjoyment. He cited a number of authorities in support of this contention[8], but none directly considered the differences between clause 52/section 83(d) and section 71, either in terms of the definition of ‘quiet enjoyment’[9] as opposed to ‘peace, comfort and privacy’, or the requirement for a ‘significant’ interference. Likely, the distinction was not raised before the Tribunal in any of the cases relied upon by Mr Tiirikainen.
[8] Bills v Trustees for Paul Servier Practice Super [2016] ACAT 67; Shklor and Anor v Thomson [2015] ACAT 21; Huskisson and Roper [2011] ACAT 41; Minion and Mann [2011] ACAT 7
[9] Although see Shklor and Anor v Thomson [2015] ACAT 21 at [13], in which Senior Member Lennard observed that “Quiet enjoyment is the legal concept of a tenant being entitled to hold the premises and use them for normal residential purposes without interference. This would encompass the notion of reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises...”; and also Huskisson and Roper [2011] ACAT 41 at [37]-[38]
53.Notwithstanding my concerns, I am satisfied that for present purposes, I do not need to decide whether the use of only the words ‘peace, comfort and privacy’ in clause 52 was intended to pick up common law definition of ‘quiet enjoyment’ or encompass something different. For reasons set out below, I am satisfied that some of the lessor’s alleged actions are an interference with the tenant’s ‘reasonable peace, comfort and privacy’ in any case, and I do not need to consider whether they also or instead constitute a breach of her quiet enjoyment.
54.However, the question of whether a ‘significant’ interference is required to make out a claim for breach of clause 52/ section 83(d) (as opposed to under section 71) is more complicated.
55.The reason for the difference in the language used in clause 52/section 83(d) and section 71 is not immediately evident. Neither the Explanatory Memorandum to the Residential Tenancies Bill 1997[10] nor the Supplementary Explanatory Memorandum shed any light on the issue, although the Explanatory Memorandum does make clear that one of the intentions of section 71 was to enable the Tribunal to make orders that extended for some time so long as the tenancy remained in effect.
[10] see discussion of clause 70 (now section 71) and clause 48 (now clause 52) of the Standard Terms
56.The difference in language may simply be a quirk of the drafting, as there are several differences in the language used in the Standard Terms when compared to the rest of the RT Act. Alternatively, one may speculate that the difference arose because of the compensation under section 83(d) is an award of compensation for breach of contract, and the rules of contractual damage were assumed to apply, while section 71 was a new head of damages that required clearer articulation, including an express requirement for ‘significant’ inference.
57.A useful starting point in this analysis is to consider what ‘significant’ has been held to mean in the context of section 71 of the RT Act. The leading authorities are the decisions of Crispin J of the ACT Supreme Court in Worrall v Commissioner for Housing [2001] ACTSC 72 and, on appeal, the Full Bench of the Federal Court in Worrall v Commissioner for Housing for the Australia Capital Territory [2002] FCAFC 127. At issue in those cases was a claim by a tenant under section 71 for a rent reduction for interference with his quiet enjoyment by constructions works on the common garden. The cases established that a ‘significant’ interference means something “material”[11], of “importance”[12], something “more than ordinary”[13] or something that has an “active adverse effect on the ability of the claimant to lead the sort of life the claimant normally led.”[14] This is a question of fact.[15]
[11] Worrall v Commissioner for Housing for the Australia Capital Territory [2002] FCAFC 127 at [59]
[12] Worrall v Commissioner for Housing [2001] ACTSC 72 at [44]
[13] Ibid
[14] Worrall v Commissioner for Housing for the Australia Capital Territory [2002] FCAFC 127 at [59], citing State Government Insurance Commission v Fiorenti (1991) Aust Torts Reports 81-114 (Full Court of the Supreme Court of South Australia)
[15] Worrall v Commissioner for Housing for the Australia Capital Territory [2002] FCAFC 127 at [59]-[60]
58.Should such a test of ‘significance’ be imposed on clause 52 and section 83(d)? Clause 52 provides that the lessor must not “cause or permit” any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises. The clause uses the word ‘must’ to describe the landlord’s obligation, and thus this contractual obligation requires strict performance.[16] A failure by a lessor to abide by the obligations amounts to a breach of the terms of the residential tenancy agreement ie. a breach of contract.
[16] Shklor and Anor v Thomson [2015] ACAT 21 at [19]
59.Compensation for a breach of contract is an award of money to place the aggrieved party in the position he or she would have occupied if the contract had been performed in accordance with its terms.[17] Historically, damages for hurt feelings, distress or inconvenience were not available for breach of contract, but that legal position has now changed, and it is well established that compensation for mental distress is available where the prevention of that distress is the aim of the contract. So, for example, damages for mental distress may be awarded where a purpose of the contract was to prevent the distress caused by the breach or where the contract is to provide enjoyment, relaxation or freedom from molestation.[18] A residential tenancy agreement that provides for the protection of reasonable comfort and privacy is clearly one such contract.[19]
[17]Robinson v Harman (1848) 154 ER 363; approved by the High Court in Commonwealth v Amann Aviation Pty Ltd (1992) 174 CLR 64
[18] See for example Baltic Shipping v Dillion (1993) 176 CLR 344 at 17
[19] See for example Shkolar and Anor v Thomson [2015] ACAT 21 at [26]
60.It is also a principle of contractual liability that damage must not be too remote.. The oft-cited rule in Hadley v Baxendale[20] provides that loss caused by a breach of contract is not too remote if it:
…may fairly and reasonably be considered either [as] arising naturally, that is, according to the usual course of things, from such breach of contract itself, or … may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it.
[20] (1854) 9 Exch 341; 156 ER 145 at 151
61.In other words, to be recoverable, the loss and damage, must be seen as arising naturally from the breach, or must have been capable of being reasonably contemplated by the parties as the probable result of a breach at the time when the contract was made.
62.What kind of damage could reasonably be contemplated by the parties in this case? Any person who lives in an urban environment, and particularly in a unit complex, should reasonably anticipate that they will have to endure a number of everyday intrusions and inconveniences. Neighbours traversing and speaking in common areas, passing cars, opening and closing doors, cooking smells, even the routine noise from commercial premises on a ground floor – all these things are predictable and it is unlikely to be within the contemplation of parties to a residential tenancy agreement that occurances would cause a breach of comfort, security or privacy sufficient to cause loss or injury (even if it could be said that the lessor somehow ‘permitted’ them). Something of some greater or out of the ordinary significance would need to happen before a loss could be considered to be the probable result of a breach of contract.
63.Adopting these principles, it appears that, whatever the semantic differences between the tests in clause 52 of the Standard Terms and section 71 of the RT Act, it is unlikely that there is any practical differences between the tests. The question is whether the lesser has done or caused something that interferes with the level and kind of comfort, security and privacy that the tenant should reasonably expect.
64.Was there a breach of clause 52 in this case? To answer this, is it necessary to consider which of the tenant’s allegations are substantiated. I will deal with each of the allegations below.
The unauthorised entry allegation
65.There is no evidence that the lessor, or a person associated with him, entered the tenant’s property without permission, and therefore this allegation is not made out.
The camera request
66.The legal basis for this claim was not clearly articulated. But in any case, as I have not found that the lessor or an associate entered the tenant’s premises without her permission, there are no grounds for a finding that the lessor is liable for the cost of the CCTV camera purchased by the tenant, or any associated costs. This claim is also dismissed.
The mailbox
67.There is no evidence that the lessor opened the tenant’s mail, and therefore no award of damages can be made in relation to this ground. The tenant made no claim for loss of use of the mailbox and in any case no breach of the residential tenancy agreement was made out in relation to the mailbox.
68.That said, the lessor admitted that he retained the key to the mailbox, that he regularly entered the complex through the mail area, and that he stopped to clean up misplaced mail and rubbish on his way through. Although I do not find that he opened the tenant’s mail, I certainly accept that his frequent proximity to the mailroom caused the tenant to grow concerned that he may be using the mailbox for his own purposes, and perhaps also that he may have opened her mail. While not basis for an award of compensation, these actions are certainly ill-conceived and, frankly, foolish. The lessor would be well advised to exercise greater prudence in future when approaching the complex.
The notices for the first and second inspection incidents
69.The next issue to consider is whether the two requests to access the property for inspections, made without giving the requisite notice, amount to a breach of the residential tenancy agreement. The consequences of what happened at the second inspection are considered below.
70.This may be disposed of quickly. The lessor’s two requests to conduct inspections on short notice were, no doubt, annoying. I can appreciate that the tenant felt pressure to agree, that she was reluctant to push back because she did not want to antagonise the lessor, and that she was inconvenienced. Still, she acceded to both requests, and access was therefore permitted by the tenant in accordance with clause 75(2). No breach of the residential agreement is made out on this ground.
71.Again, however, the lessor is advised to comply with the statutory framework, including the minimum notice periods, in future. The process exists to protect both lessors and tenants. The lessor can reduce the risk of future misunderstandings – and potential disputes – by giving appropriate notice of inspections, and generally conducting himself in a more professional manner.
The remaining incidents
72.I have dealt with above those of the tenant’s allegations that were not made out on the evidence. But what of the remaining incidents?
73.That each of the following actually incidents actually happened was not in contest, although the full circumstances and the actual impact of the incident on the tenant were:
(a)the second inspection incident;
(b)the photographs (albeit the tenant was unaware of many of these until these proceedings);
(c)the parking incident;
(d)the courtyard incident;
(e)the third inspection incident; and
(f)the holiday incident.
74.Additionally, in addition to the above events, the lessor conceded that he regularly passed by the premises, and would sometimes check on the property from the outside.
75.The lessor’s position is that the above incidents are individually insignificant, that none amount to a breach of the Standard Terms, and that even if they are viewed collectively as breaches of clause 52, no compensation should be awarded being of how insignificant they are.
76.For her part, the tenant agrees that, taken individually, the remaining incidents are of a minor nature, but submits that I should consider the incidents cumulatively when considering whether there has been a significant interference with her reasonable peace, comfort or privacy in the use of the premises.
77.I accept the lessor’s argument that each proven incident is, individually, fairly minor. Viewed in isolation, I would be reluctant to find a breach of the agreement for any of the incidents, let alone a breach that sounded in anything but nominal of damages. However, what is established by the evidence is not one isolated incident, but a succession of incidents, of a similar kind, being unannounced attendances or intrusions by the lessor on the premises or at the complex.
78.I am satisfied that the lessor’s unsolicited, unannounced attendance at the premises with two additional guests at the first inspection incident was a minor breach of clause 52, notwithstanding that the lessor did not actually obtain entry to the property.
79.I am satisfied that the lessor’s approach to and conversation with the tenant’s partner while he was watering the garden was also a minor breach of clause 52. While not directly involved, the tenant heard about the incident from her partner, and it caused her concern that the lessor was passing by the premises, and that he would speak with her while she was using the courtyard.
80.More concerning still was the revelation in that conversation, and in the holiday incident, that the lessor was aware that the tenant was absent from the property. I am satisfied that speaking to neighbours about the tenants, and enquiring of the neighbour as to their whereabouts, was a breach of the tenant’s right to privacy – although again, on the basis of the lessor’s (uncontested) version of the conversation, I also accept that the breach was minor.
81.The lessor’s actions in holding a camera over the wall of the premises courtyard and photographing the rose tree within it were likewise a minor breach of the tenant’s privacy, particularly in circumstances where the lessor was aware that the tenant was absent from the property.
82.The lessor’s actions in emailing the photograph to the tenant, along with a suggestion that he could water her plants, was most unwise, and undoubtedly contributed to the tenant’s feelings that she was being monitored.
83.I am also satisfied that the lessor used the tenant’s car parking space on one occasion, and that he had no right to do so. I accept that this incident, although brief, further added to the tenant’s concerns about what the lessor was doing in the complex.
84.An expectation of ‘reasonable privacy’ entails a reasonable expectation that a lessor will conduct him or herself in accordance with the requirements of the RT Act, will attend the premises only in accordance with the provisions of that Act, and will generally allow the tenant to enjoy the use of the premises for ordinary residential purposes without undue scrutiny or attention. I am satisfied that the above incidents each amount to minor breaches of clause 52.
85.It is not in doubt that the lessor was the cause of each of the above breaches.[21]
[21] Bills v Trustees for Paul Sevier Practice Super [2016] ACAT 67
86.I am not satisfied that the mere fact that the lessor took photographs of the courtyard area necessarily, of itself, gives rise to any breach of clause 52. The tenant did not make any submissions to the effect that the lessor’s regular presence on the common property of a complex in which he does not reside was itself problematic, and therefore I have not considered this issue. Still, I observe that in regularly using a security pass to access the secure complex, passing by the premises, and stopping to take photographs of the common courtyard outside it, the lessor has again been, at the very least, foolish. His conduct shows a lack of awareness of the effect he was having on the tenant’s well being, and perhaps also a lack of understanding that he is obliged to afford his tenant an appropriate level of privacy such that she may use the premises as her home. He is advised to consider his actions, and how they may be perceived, more carefully in future.
87.In terms of the requirement that the breaches be ‘significant’, I agree with the lessor that, individually, the breaches were minor. It is unlikely that any individual breach caused the tenant any damage or loss. However, I also accept the tenant’s evidence that the series of events outlined above were annoying, and on occasion disconcerting, and that they cumulatively interfered with her peace and comfort while living at the premises. I further accept her evidence that these incidents, in their totality, led her to change her behaviour, to the detriment of her enjoyment of the premises eg. She started to keep her blinds closed and was reluctant to use the courtyard.
88.There is authority that indicates that circumstances such as this, involving a pattern of behaviour, the Tribunal should consider the cumulative effect of the breaches, rather than looking at each in isolation.[22] I accept and adopt that approach in this case. A tenancy is an ongoing relationship, and it would be nonsensical for a Tribunal to view a succession of incidents that occur in the context of that relationship in isolation.
[22] Costanzo and Laria & Watson [2010] ACAT 79 at [68]
89.Accordingly, I am therefore satisfied that the above breaches, considered cumulatively, amount to a significant interference with the reasonable peace, comfort or privacy of the tenant in the use of the premises.
90.I am also satisfied that it should have been within the reasonable contemplation of the lessor that such significant interferences would lead to the tenant suffering discomfort and distress of the kind that she did. The tests of causation and proximity are therefore satisfied as well.
91.The lessor explained his actions by reference to being “friendly” and “helpful” and “available”. The lessor’s solicitor described him as inexperienced but well meaning. Even if I accept this, it does not excuse these breaches. Clearly, the lessor was very proud of the premises. He was concerned to ensure it was well maintained and monitored it accordingly. He wished to show it off to friends and colleagues, and enjoyed viewing it himself on occasion. He cared about the complex as a whole. The lessor claimed, not without supporting evidence, that he had good relationships with all his previous tenants, and that they had all appreciated his more informal way of managing his property. He had hoped to have a similar relationship with this tenant. Unfortunately for all concerned, this tenant did not appreciate his attention, and found it intrusive. It has the tenant’s right, under the RT Act, to enjoy reasonable peace, comfort or privacy, and, whether intentionally or not, the lessor did not afford her that.
92.A lessor, even an inexperienced one, has an obligation to ensure that they are familiar with the requirements of legislation, and that they act in an appropriately professional, commercial and lawful manner. This lessor did not do so, and he must bear the legal consequences of that.
Assessment of damage
93.For the reasons set out above, I am satisfied that the lessor engaged in a series of actions that, viewed cumulatively, significantly interfered with the tenant’s right to quiet enjoyment of the premises. The tenant is entitled to compensation. But how can this compensation be calculated?
94.The assessment of appropriate compensation in a given matter is something about which reasonable minds may differ. While the Tribunal is guided by reference to decisions in comparative cases, it is not bound by such cases and must have regard to the particular circumstances of the case in hand.[23]
[23] See Bangura & Fan [2013] ACAT 38
95.Neither party pointed to any case as an example of what should be awarded.
96.The tenant suggested a rational basis for the assessment of her compensation, being that the compensation should be tied to the loss of the use of the premises courtyard (some 40% of the gross floor area of the premises) for the period 12 August 2016 until 28 May 2017. Her evidence was that she was unable to use the courtyard for this entire period without concern that the lessor was monitoring her.
97.I accept that the tenant felt some trepidation about using the courtyard during the later part of the tenancy, and that this was particularly the case after the holiday incident in January 2017. However, I do not accept that she lost the use of the courtyard area for the entirety of the period claimed. I am also not convinced that this is a matter where a strict mathematical formula is appropriate.
98.In Mansour v Dangar [2017] ACAT 49 at [57], Presidential Member Daniel accepted that the awarding of a ‘global’ sum representing the full circumstances may be appropriate for a breach of quiet enjoyment involving several inconveniences. I intend to adopt that approach here.
99.I have reviewed the awards of compensation for similar cases in Anforth et al Residential Tenancies Law and Practice: New South Wales (6th edition)[24]. The compensation awards featured range from a few hundred dollars for unannounced visits (for example, to conduct repairs)[25], to $2500 in Hay v Medanic [2011] NSWCTTT 17 for a series of intrusions that included a breach of tribunal orders about parking, making unreasonable complaints about the tenant’s children, picking fruit from the tenant’s tree, cutting down a tree on the premises and observing the tenant’s activities.[26]
[24] Particularly pages 344 to 345
[25] Rowling, Neale and Sneesby [2012] NSWCTTT 289
[26] Hay v Medanic [2011] NSWCTTT 17
100.The facts of Hay v Medanic bear some factual similarities to the present one, including a lessor who engaged in “....relatively small examples of intrusive and interfering behaviour, which appear to stem more from over enthusiasm by [the lessor] in maintaining the property and also “keeping an eye on the property”. [27] Those incidents were, however, part of a much more extensive pattern of infringing conduct, over a period of two years. As such, Hay represents the more extreme end of the kind of damages that could reasonably be awarded in this case.
[27] Hay v Medanic [2010] NSWCTTT 309
101.Ultimately, the calculation of damages is a discretionary matter, but having regard to the pattern of minor but intrusive behaviour by the lessor, the distress of the tenant and her concerns about her privacy, and the overall circumstances, I have determined to award the tenant the sum of $1500 compensation.
102.The tenant also claimed costs under section 48 of the ACAT Act, including compensation for her time spent on research and attendance at the Tribunal. The Tribunal has only a very limited power to award costs, and may only in the circumstances set out in section 48(2).[28] The relevant provisions provide:
[28] CIC Australia Ltd v Australian Capital Territory Planning and Land Authority (2013) 277 FLR 26 at [82] per Penfold J
48Costs of proceedings
(1)The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.
(2)However—
(a)if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant––
(i)the filing fee for the application; and
(ii)any other fee incurred by the applicant that the tribunal considers necessary for the application; or
Examples––subpar (ii)
·a fee for a business name or company search
·a filing fee for a subpoena
·hearing fees
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(b)if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or
(c)subject to section 49, if a party to the application contravenes an order of the tribunal—the tribunal may order the party to pay the costs or part of the costs of the application to the other party; or
(d)...
103.The tenant having been successful, the lessor is to pay her the cost of the ACAT lodgement fee of $145.00 pursuant to section 48(2)(a).
104.In relation to the rest of her claim for costs, while I am appreciative of the amount of work that both parties put into preparing for this matter, that alone is not a basis upon which I can award costs. There is nothing about this case, or the conduct of the parties to it, that would warrant an award of costs under any of the other provisions in section 48(2). Accordingly, the tenant’s application for costs, other than the payment of the application fee, is dismissed.
105.For the reasons outlined above, the claim for compensation for the purchase of a CCTV camera set up is also dismissed.
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER:
RT 166/2017
PARTIES, APPLICANT:
Seong Eun (also known as Jenny) Lee
PARTIES, RESPONDENT:
Lin Hai Guo also known as Larry Guo
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
Mr Tiirikainen
TRIBUNAL MEMBERS:
Senior Member H Robinson
DATES OF HEARING:
29 May & 29 June 2017
14
0