Lochrin v Jaiswal
[2019] ACAT 23
•11 February 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LOCHRIN v JAISWAL (Residential Tenancies) [2019] ACAT 23
RT 327/2018
CatchwordsRESIDENTIAL TENANCIES DISPUTE – occupancy agreement – terms of occupancy agreement – notice required to terminate occupancy agreement – reasonable notice – repudiation of occupancy agreement – need for Tribunal order to terminate occupancy agreement – unlawful eviction of occupant
Legislation cited: Residential Tenancies Act 1997 sections 5A, 36, 37, 38, 71C, 71E, 73, 76, 79, 83, 128; standard terms 52, 53, 72, 73
Cases cited:Canberra Fathers and Children Services Inc & Michael Watson [2010] ACAT 74
Commissioner for Social Housing in ACT v Cotsell [2015] ACAT 1
Croucher v Cachia [2016] NSW 132
Lochrin v Jaiswal [2018] ACAT 78
List of
Texts/Papers cited: Explanatory Statement, Residential Tenancies Amendment Bill 2004
Tribunal:Senior Member A Anforth
Date of Orders: 11 February 2019
Date of Reasons for Decision: 11 February 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 327/2018
BETWEEN:
JANE LOCHRIN
Applicant
AND:
VANDANA JAISWAL
Respondent
TRIBUNAL:Senior Member A Anforth
DATE:11 February 2019
ORDER
The Tribunal orders that:
1.The respondent is to pay the applicant the sum of $500 on or before 1 April 2019.
2.The respondent’s counter-claim is dismissed.
3.These orders are in full and final satisfaction of all claims and counter‑claims arising from the occupancy agreement.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
Summary
1.This matter concerns a dispute between the respondent as the tenant of a two bedroom residential premises in the Australian Capital Territory and the applicant who was an occupant or boarder living in one of the bedrooms at those premises.
2.Part of the history of the dispute is set out in the decision of Lochrin v Jaiswal [2018] ACAT 78 in which a differently constituted Tribunal held that the applicant was an ‘occupant’ under an occupancy agreement within the meaning of Part 5A of the Residential Tenancies Act 1997 (RTA) and not a sub-tenant of the respondent. This decision was not subject to an appeal and so constitutes a starting point for the determination of the remainder of the dispute between the parties.
3.The occupancy arrangement commenced on 27 December 2017. The agreement annexed the standard terms of a residential tenancy agreement, which has proven a source of difficulty in making sense of the agreement between the parties. This issue is addressed below.
4.Prior to the commencement of the occupancy agreement the respondent informed the applicant that her parents from India would visiting for a period and would be living in the unit with them. The applicant agreed to this arrangement. The parents actually arrived about a week after the commencement of the occupancy of the applicant.
5.The unit was crowded and conflict soon arose over the use of the shared facilities. The conflict was largely between the applicant and the respondent’s father who was a frequent user of the kitchen. The parties attempted to reach an agreement on the mode and timing of the use of shared facilities but the arrangements did not work and the tensions continued to rise.
6.On 13 March 2018 the respondent gave the applicant two weeks’ notice to vacate which was later extended to 4 April 2018. The applicant asserted she was a sub‑tenant and not a mere occupant and refused to leave. The applicant commenced proceedings in the tribunal seeking a declaration that she was in fact a sub-tenant of the respondent.
7.On 27 April 2018 the applicant’s application for a declaration that she was a sub‑tenant was before the Tribunal for directions. In the course of those proceedings the Tribunal expressed a view that the arrangement were more likely to be an occupancy agreement but the matter was listed for argument on the point. The Tribunal informed the respondent that she should not move to evict until this issue was finally resolved. This issue was subsequently determined by a differently constituted Tribunal in Lochrin v Jaiswal [2018] ACAT 78 to the effect that the applicant was only an occupant and not a sub-tenant.
8.On the evening of 27 April 2018 violence erupted in the unit. There are different versions of events. The police were involved. The applicant’s version is contained in her email of 30 April 2018.[1] The applicant vacated the unit and did not return other than to collect her goods.
[1] Exhibit 5
9.The applicant has now amended her claim to one for general and special damages for wrongful eviction and assault particularised in the manner set out below. The respondent has counter-claimed for rent arrears, cleaning costs, general damages, and legal and other costs particularised below.
10.The case raises issues of law concerning the permissible methods of terminating an occupancy agreement, whether the respondent’s actions on the night of 27 April 2018 constituted an eviction, and whether that eviction was lawful or unlawful.
11.The case also raises the issue of whether the applicant’s refusal to vacate after being given notice, and thereby exposing herself to an eviction at short notice, constituted a failure on her part to mitigate her damages.
12.The Tribunal finds that:
(a)each party committed a tortious assault on the other;
(b)the applicant was the provocateur;
(c)the respondent had unlawfully evicted the applicant; and
(d)the applicant had failed to mitigate her losses by not vacating in response to the prior valid notices and exposing herself to the risk of forced eviction at short notice.
13.Any damages that might otherwise be awarded to the applicant have to be reduced to take account of the failure to mitigate, her actions in stirring the conflict, and the absence of evidence to support the need to stay in a hotel for the next month. These issues are discussed below.
14.Any damages that might otherwise be awarded to the respondent have to be reduced to take account of the fact that these losses were the direct consequence of her own unlawful action in the wrongful eviction. These issues are discussed below.
15.Both parties were to blame for what happened and it is not realistic to attempt to apportion the collective out of pocket losses. The parties will have to bear their own losses.
16.The applicant is entitled to general damages for the wrongful eviction, again reduced to take account of her very substantial failure to mitigate. The Tribunal allows a nominal sum of $500 in recognition of the fact of the unlawful eviction and its traumatic nature.
History of proceedings in the tribunal
17.On 16 April 2018 the applicant lodged her application with the tribunal seeking a declaration that she was a lawful sub-tenant of the respondent. Exhibit 1 (a copy of the respondent’s advertisement on Flatmates.com.au) and Exhibit 2 (a copy of email correspondence from the lessor’s agent, LJ Hooker Dickson, to the applicant and respondent, dated 4 April 2018) were annexed to the application.
18.On 27 April 2018 the tribunal listed the matter for urgent hearing and made directions for the filing of evidence and submissions.
19.On 7 May 2018 the respondent filed her submissions.[2]
[2] Exhibit 4
20.On 7 May 2018 the applicant filed her submissions with attachments[3] which relevantly included:
(a)Exhibit 6 — an email dated 13 March 2018 from the respondent to the applicant stating that the arrangements are not working and giving the applicant two weeks’ notice to vacate;
(b)Exhibit 7 — an email dated 28 March 2018 from the applicant to the respondent in which the applicant said that she was looking to buy a property and could not give a date for vacating;
(c)Exhibits 8 and 9 — emails dated 29 March 2018 from the respondent to the applicant stating that her tenure would not be extended beyond 4 April 2018, and from the lessor’s agent, LJ Hooker Dickson, repeating the respondent’s advice;
(d)Exhibit 10 — an email dated 3 April 2018 from the applicant to the respondent stating that she was a tenant and was not moving;
(e)Exhibit 13 — an email dated 10 April 2018 from the applicant to LJ Hooker Dickson advising that she is a tenant and would resist any eviction;
(f)Exhibit 15 — an email dated 11 April 2018 from the applicant to the respondent asserting she is a sub-tenant and will resist any attempted eviction;
(g)Exhibit 16 — an email dated 14 April 2018 from the respondent to the applicant stating: that the applicant is an occupant and has received the appropriate notice to vacate; and that the respondent may have to seek the assistance of the police to evict the applicant; and
(h)Exhibit 5 — an email dated 30 April 2018 from the applicant to her solicitor at that date, setting out her account of an alleged assault on her by the respondent and the respondent’s father on the evening of 27 April 2018.
[3] Exhibits 5-16
21.On 15 May 2018 the differently constituted Tribunal heard the applicant’s application for a declaration and reserved its decision. That decision, which was delivered on 1 August 2018, found that no sub-tenancy existed.
22.On 18 May 2018 the respondent advised the tribunal that the applicant had vacated.
23.The matter was next before the Tribunal on 10 August 2018. Mr Christensen appeared for the applicant and the respondent appeared in person. Mr Christensen sought an adjournment on the basis that the applicant was considering an appeal from the decision of 1 August 2018. The matter was adjourned to 7 September 2018 for directions.
24.On 6 September 2018 the respondent lodged a cross-claim for rent arrears in the sum of $868.57 (calculated to 18 May 2018). The application annexed a rent ledger and a history of SMS communications relating to final termination of the occupancy.[4]
[4] Exhibit 17
25.On 7 September 2018 Mr Christensen appeared for the applicant and the respondent appeared in person. There was not to be an appeal in respect of the decision of 1 August 2018. Mr Christensen advised that the applicant’s claim would be enlarged to include an assault and wrongful eviction alleged to have occurred on 27 April 2018. The Tribunal made orders for both parties to file and serve a statement of their present claims, evidence relied upon and submissions.
26.Subpoenas were issued to the Australian Federal Police and to the New South Wales Police Commissioner.
27.On 26 September 2018 the applicant filed her amended grounds and submissions[5] which were:
(a)that the applicant as an occupant was wrongfully evicted;
(b)that the applicant was assaulted by the respondent’s father;
(c)a claim for general damages;
(d)a claim for special damages for the costs of urgent accommodation, being $6,850.14; and
(e)a declaration that no rent was payable by the applicant after 18 May 2018.
[5] Exhibit 19
28.Mr Christensen submitted that the RTA contained a statutory implication that section 37 would apply to regulate evictions under occupancy agreements (as well as residential tenancy agreements) such that it was necessary to obtain an order of the Tribunal to end an occupancy agreement against the will of the occupant. Section 37 relevantly provides:
(1) A person must not enter premises or any part of premises of which someone else has prescribed possession for the purpose of recovering possession of the premises or part except in accordance with a warrant issued by the registrar, an order or a warrant of the ACAT or an order or judgment of the Supreme Court.
(2) Subject to subsection (3), if a person enters premises in contravention of subsection (1) (the offender), the ACAT must, on application, order the offender to pay to the person who had prescribed possession of the premises the compensation that the ACAT considers appropriate.
…
(5) For this section, the following possession is prescribed:
(a)possession under a residential tenancy agreement;
(b)possession as a former tenant continuing to reside in the premises.
29.Mr Christensen said in the alternative that the implication can be found in section 83(i), which provides:
Without limiting the orders the ACAT may make, the ACAT may make the following orders in relation to an application about a tenancy dispute or occupancy dispute:
…
(i)an order terminating a residential tenancy agreement or occupancy agreement and granting vacant possession of the relevant premises to the applicant for the order;
30.Mr Christensen cited an extract from the Explanatory Statement to the 2004 amendments that inserted Part 5A of the RTA, relating to occupancy agreements (the Residential Tenancies Amendment Act 2004). In particular he noted that the amendment inserted section 71E, which contains the ‘occupancy principles’:
71E(1)In considering a matter, or making a decision, under this Act in relation to an occupancy agreement for premises, a person must have regard to the following principles (the occupancy principles):
…
(d) an occupant is entitled to quiet enjoyment of the premises;
…
(g) an occupant is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction;
(h) an occupant must not be evicted without reasonable notice;
(i) a grantor and occupant should try to resolve disputes using reasonable dispute resolution processes.
31.Mr Christensen argued that the assault by the respondent and her father constituted a constructive eviction without the existence of any order of the tribunal.
32.Mr Christensen argued that the wrongful eviction occurred in aggravated circumstances and particularly that it occurred the evening of a tribunal hearing at which the respondent was cautioned not to engage in any eviction. The applicant had to move immediately and seek urgent alternative accommodation. The respondent had retained her phone.
33.The applicant’s submissions appended:
(a)a statement from the applicant concerning the events of 27 April 2018 and her search for alternative accommodation;
(b)a set of email and text communications between the parties;
(c)a set of the standard terms of a residential tenancy agreement that the respondent provided to the applicant;
(d)a set of still photographs from the applicant’s phone camera showing the face of the respondent and her father in different shots;[6]
(e)a timeline of alternative accommodation obtained and invoices for that accommodation; and
(f)a video taken from the applicant’s phone camera.[7]
[6] Exhibits 20 and 21
[7] Exhibit 22
34.On 9 October 2018 the respondent filed her submissions.[8] The respondent asserted that the applicant had attempted to hit her and it was then that her father intervened to restrain the applicant.
[8] Exhibit 18
35.The respondent drew attention to two decisions of the former NSW Consumer, Trader and Tenancy Tribunal which involved the applicant in similar proceedings making similar claims to exclusive use of shared areas and claiming the status of a tenant.
36.The respondent detailed her counter-claim for rent arrears and cleaning in the sum of $998.57, non-economic loss for distress and inconvenience in the sum of $1,600, the cost of legal advice ($660) and the cost of serving subpoenas ($113.60).
37.The respondent’s submissions annexed:
(a)copies of emails in which she gave notice to the applicant to leave;
(b)a photograph of an injury to her father’s hand;
(c)a statement from her father: in this statement, the father said that the applicant lunged at the respondent to stop her filming and he intervened to prevent an assault; and
(d)a statement from Major Adam Fardy, the next door neighbour, who described the events of 27 April 2018 when the applicant came to his unit to complain that she had been assaulted. He described the applicant’s behaviour as “unusual and not what I would consider reasonable given the circumstances”.[9]
[9] Witness Statement of Major Adam Fardy 4 October [2018]
38.The matter was heard on 23 October 2018. Mr Christensen appeared for the applicant and the respondent appeared in person.
39.There was a return of the material produced by the New South Wales Police Commissioner relating to disputes concerning the applicant in similar circumstances in New South Wales. After hearing from the parties the Tribunal disallowed the tender of those records for reasons set out in the transcript of proceedings.[10]
[10] Transcript of proceedings 23 October 2018 pages 11-13
40.The video was played. It extended for 3 minutes. It was a video taken by the applicant, showing the respondent filming the applicant. The applicant was insisting that there was an agreement that gave her exclusive use of the kitchen from 7.30pm to 9pm and shared use outside this time. The applicant was criticising the kitchen habits of the respondent’s father and pointed to some small spillage on the kitchen bench. The applicant was using a tone that the Tribunal describes as demanding and authoritarian, telling the respondent that she paid rent and had rights that the respondent was not respecting.
41.The respondent was agitated and demanding that the applicant leave. The respondent said that she did not want any more rent and just wanted the applicant to leave. The applicant said she would leave if the respondent paid for a hotel for her.
42.At the end of the video the respondent was shown approaching the applicant. The video then became blurred and the applicant could be heard exclaiming to the respondent not to take her phone.
43.The applicant gave evidence under affirmation. She said that on the night of 27 April 2018 there was argument between the parties before she went into her bedroom to obtain her phone with its camera “and film what was happening to — just to diffuse the situation, but also as a record and I think it’s at that point Ms Jaiswal herself … picked up her own camera and started to video me filming her”.[11]
[11] Transcript of proceedings 23 October 2018 page 25, line 5
44.The applicant said that the respondent attempted to grab the phone from her hand but failed. The respondent’s father then grabbed her from behind and bashed her hand to release the phone.
45.The applicant said that she was in shock and afraid that the respondent was going to use her phone to access her bank accounts. The absence of the phone prevented the applicant from ringing the police. The applicant left the unit and went to the next door unit where Major Fardy lived. The applicant said she had already spoken to him on a prior occasion to ask whether he could be a witness if any violence or eviction occurred in the unit. The applicant denied that she asked Major Fardy to go into the apartment and retrieve her phone. She said he was very unhelpful and told her to sit down and wait until he finished what he was doing.
46.The applicant then left Major Fardy’s unit, returned to her bedroom and collected her keys. She then went to Hotel Realm from where the police were rung. The police attended and returned her phone. The applicant played the video on her phone to the police. The applicant said that the police were “dismissive” of her complaint[12] and told her not to return to the unit. The applicant said that she asked the police to charge the respondent and her father but they refused.
[12] Transcript of proceedings 23 October 2018 page 28, line 5
47.The applicant collected her property from the unit two days later, except for her bicycle. The applicant then spent the next month at a friend’s place, at the Burbury Hotel, Peppers Hotel and in an Airbnb until she moved into her present tenancy on 25 May 2018.
48.In cross-examination the applicant said she could not remember clearly the sequence of events during the assault. She described how she lunged forward at the respondent whilst the respondent was trying to take her phone. She said she really wanted to hit the respondent but she stopped herself.[13]
[13] Transcript of proceedings 23 October 2018 page 31, line 25
49.The applicant conceded that the respondent had nominated two weeks’ notice for termination of the agreement at their original meeting but the applicant said that she did not agree with this. The applicant was of the view that the law prescribed a fixed period of notice.
50.The applicant said that she had not made any attempt to find alternative accommodation after she was first served with notice because she was not working. She was looking for a place to buy but would find it “impossible” to rent in the meantime.[14]
[14] Transcript of proceedings 23 October 2018 page 34, line 45
51.It was put to the applicant that she swore at the respondent’s father. She denied this.
52.Major Fardy gave evidence under affirmation consistent with his statements filed in the matter.
53.The respondent gave evidence under affirmation. She said that she had spoken with the applicant prior to the commencement of the occupancy agreement and said there would be two weeks’ notice and that her parents were coming for a couple of months. The applicant agreed.
54.The respondent gave examples of the friction that arose after her parents arrived. She said that the applicant was obsessive and demanding about things in the kitchen and other common areas. The applicant complained about cleanliness in the kitchen, the use of the television and dryer, and the father lying around on the lounge, amongst other things.
55.The respondent gave evidence of her father complaining to her that the applicant used offensive language to him (“fucking old man”[15]).
[15] Transcript of proceedings 23 October 2018 page 49, line 37
56.The respondent recounted the events of the assault. She said that the applicant’s action in fetching her phone and filming her were “made me very annoyed”[16] and she advanced towards the applicant and put her hand up to block the camera. It was then that the applicant “grabbed onto”[17] and “lashed out on”[18] the respondent, and the respondent’s father restrained the applicant from behind.
[16] Transcript of proceedings 23 October 2018 page 51, line 12
[17] Transcript of proceedings 23 October 2018 page 51, line 15
[18] Transcript of proceedings 23 October 2018 page 51, line 23
57.The respondent and her father then went to the police station where they reported the incident and gave the police the applicant’s phone.
58.During the course of the cross-examination of the respondent the Tribunal truncated some questioning and advised the parties that it was satisfied that it was the intention of the respondent to evict the applicant on the night of 27 April 2018, after the argument started but before the events got out of hand and the assault occurred. What was not clear was who assaulted whom.[19]
[19] Transcript of proceedings 23 October 2018 page 60, line 10
59.The respondent’s father gave evidence by phone and was affirmed. His command of English was basic. He gave evidence of the events of 27 April 2018. He said he was in the kitchen when the applicant approached him and said “[y]ou follow my rules … [y]ou are an old man … You don’t keep it clean. You don’t follow my rules.”[20]
[20] Transcript of proceedings 23 October 2018 page 65, lines 2-4
60.He said that the applicant attacked the respondent and he restrained the applicant.[21] Later he denied that he restrained the applicant and said that he pulled his daughter away from the applicant.[22]
[21] Transcript of proceedings 23 October 2018 page 66, lines 6-8
[22] Transcript of proceedings 23 October 2018 page 68, lines 35-36
61.At the end of the hearing orders were made for the parties to file and serve their final submissions and a timetable was set, after which the Tribunal would proceed to a decision.
62.On 16 November 2018 the applicant filed her final submissions. Amongst other things, the applicant disputed that two weeks’ notice was adequate notice and that at 27 April 2018 the prior notice had in fact lapsed.
63.On 4 December 2018 the respondent filed her final submissions. The respondent cited Canberra Fathers and Children Services Inc & Michael Watson [2010] ACAT 74 as authority for the proposition that two weeks’ notice is sufficient under the occupancy principles.
64.The respondent raised the issue of the records produced by the New South Wales Police Commissioner. The Tribunal takes no account of this submission.
65.The respondent said that she may have rented out the second bedroom after the applicant left but whilst her parents were still in situ. The applicant’s failure to return the keys deprived her of this opportunity. The respondent paid $649 to change all the locks.
66.The respondent advised that the applicant did not clean her room before going.
67.The respondent claimed $868.57 for outstanding rent, $130 for cleaning, $1,600 for non-economic loss, $1,100 for legal advice and $113.60 for service of an interstate subpoena.
68.On 20 December 2018 the applicant filed her final submissions. The applicant sought to re-argue the issue of whether there was a sub-tenancy. The Tribunal takes no account of the later submissions.
69.The applicant raised the relevance of section 71E(1)(c) of the RTA, which requires that an occupancy agreement be reduced to writing if it continues for longer than six weeks. The applicant submitted that the purported two weeks’ notice period should have been reduced to writing in the original agreement.
70.The applicant submitted that the notices to vacate issued before 27 April 2018 had expired and therefore lapsed, leaving no valid notice as at 27 April 2018.
71.The applicant submitted that the effect of section 128 of the RTA was a source of rights that conferred on her status of a licensee of the premises.
The relevant legislation
72.Relevant excerpts of section 37 of the RTA are set out above, at paragraph 28.
73.Section 71C of the RTA provides:
(1) An agreement is an occupancy agreement if—
(a)a person (the grantor ) gives someone else (the occupant ) a right to occupy stated premises; and
(b)the premises are for the occupant to use as a home (whether or not with other people); and
(c)the right is given for value; and
(d)the agreement is not a residential tenancy agreement.
(2) The agreement may be—
(a)express or implied; or
(b)in writing, oral, or partly in writing and partly oral.
74.Relevant excerpts of section 71E of the RTA are set out above, in paragraph 30.
75.Section 128 of the RTA provides:
(1) The purported assignment or subletting of premises in contravention of the standard residential tenancy terms is unenforceable and a person to whom premises are so assigned or sublet resides in the premises as a licensee only.
(2) Subsection (1) does not apply to the assignment or subletting of premises in accordance with a term of the residential tenancy agreement endorsed by the ACAT.
76.Relevant excerpts of section 83 of the RTA are set out above, at paragraph 29.
77.Section 76(1) of the RTA provides:
(1) The ACAT has exclusive jurisdiction to hear and decide any matter that may be the subject of an application to the ACAT under—
(a) this Act; or
(b) the standard residential tenancy terms; or
(c) the standard occupancy terms.
Consideration of the issues
What were the terms of the occupancy agreement
78.In accordance with the decision in Lochrin v Jaiswal [2018] ACAT 78 the Tribunal starts from the premise that the agreement between the parties was an occupancy agreement and not a sub-tenancy.
79.There is an issue that arises from the fact that the respondent provided the applicant at the start of her occupancy with a copy of the standard residential tenancy terms which contained no modification for the particular circumstances of their case. In particular, the standard terms contained the assertion of a tenancy, the notice periods for the termination of a tenancy, and the mandatory role of the tribunal in evictions.
80.The standard terms dealing with evictions address a range of different alternatives, including eviction in the fixed term for breach on two weeks’ notice, eviction in the periodic phase for breach on two weeks’ notice, and eviction in the periodic phase without breach (‘non-grounds’ eviction) on 26 weeks’ notice. In the present case, there was no fixed term and so at best the occupancy was periodic. The relevant notice for a no-grounds eviction during a periodic tenancy is 26 weeks. The Tribunal finds that there is no way that this was in the contemplation of the respondent at the time of entering the agreement and nor did the applicant suggest that it was her understanding at that time.
81.An occupancy agreement can be oral, or in writing, or partly both.[23] There were oral discussions between the parties prior to the start of the occupation that were inconsistent with the standard residential tenancies terms. In particular, the respondent told the applicant that the notice period was two weeks, there was to be a trial period, and that her parents would be co-habiting. The applicant said that she did not agree to the two weeks’ notice and said that the relevant notice period was that determined by the law. Presumably in her own mind this notice period was that for a periodic tenancy, although this was not articulated. Following the finding that no tenancy agreement existed, the notice period provided in relation to periodic tenancies does not answer the applicant’s description of a notice period ‘prescribed or determined by law’ as there is no prescribed notice period for an occupancy agreement.
[23] RTA section 71C(2)
82.The provision of the standard tenancy terms flowed from a misunderstanding on the respondent’s part and cannot be literally applied in this case. The respondent did not have consent to sub-let and any purported sub-tenancy is unenforceable[24] and creates no rights in the applicant other than those of a license in undefined terms.[25]
[24] RTA section 128
[25] RTA section 128 and standard term 72
83.The Tribunal finds that the agreement between the parties was for the applicant to occupy a bedroom as a flatmate in the nature of a boarder or occupant in the unit that was the respondent’s home. This kind of arrangement is common. The terms of the occupancy agreement were those actually discussed by the parties and those arising from the occupancy principles in section 71E of the RTA.
What notice period did the agreement contain?
84.It is the respondent as the lawful tenant who has the legal obligations to the lessor to ensure that rent is paid, the property is not damaged, no illegal conduct occurs on the premises, no nuisance occurs to neighbours, and that the other responsibilities of a tenant are complied with. The respondent is responsible for the actions of those she allows upon the premises, including a boarder or occupant.[26] For this reason it is essential for the respondent to retain the power to remove persons from her unit at short notice. A tenant generally is not obliged to stand by and allow an occupant to cause breaches of the above duties such as then expose the tenant to eviction and damages.
[26] RTA standard term 73
85.The parties were to live in close proximity and share facilities. This kind of arrangement is common and it is common that tensions arise. These tensions may or may not involve an occupant/boarder causing the kind of breaches referred to above. The tensions could be at the personality level such as occurred in the present case.
86.The unit is the respondent’s home. She was locked into a fixed term tenancy with the lessor. If the tensions in the unit become unreasonable or unbearable the tenant is not committed to suffering this situation indefinitely in her own home. She alone is entitled to the quiet enjoyment of the premises.[27] If the respondent were to vacate the unit to escape the tensions then she would be guilty of an actionable abandonment at law at the hands of the lessor.[28]
[27] RTA standard terms 52 and 53
[28] RTA section 36(1)(e)
87.Once it becomes clear that one of the parties will have to vacate the answer is self-evident – it is the boarder or occupant that must go. The boarder has no right to evict the lawful tenant.
88.It is against this background that the occupancy principles of section 71E operate. The principles do not fix any notice period. Section 71E(g) only says “an occupant is entitled to know why and how the occupancy may be terminated including how much notice will be given before eviction.”
89.The amount of notice an occupant is to be given must depend upon what has precipitated the notice. The notice reasonably required in the context of an outbreak of violence or damage to the property is not going to be the same as one motivated by a noise nuisance. For example, a tenant is not reasonably required to give an occupant two or more weeks’ notice for drug dealing from the unit and then sit back and allow the drug dealing to continue for the balance of the notice period.
90.The reasonableness of a notice period is inherently contextual.
91.In the present case the respondent informed the applicant that the notice period was two weeks. This should be taken to be the outer limit and not to abrogate any right of summary eviction depending on the context.
92.The Tribunal finds that a maximum notice period of two weeks was either agreed or is to be implied into the parties’ agreement by force of the occupancy principles.
Did the respondent give a valid notice?
93.The respondent gave the applicant written notice of two weeks on 13 March 2018, which was later extended to 4 April 2018.
94.At all times the applicant denied the validity of the notice and stated unambiguously that she was not moving until it suited her to do so. She based her position on the assumption that she was a sub-tenant. That assumption was wrong in fact and law. It was not open to the applicant as one party to the occupancy agreement to unilaterally adopt the position that the respondent could not lawfully end the occupancy agreement by written notice. The applicant’s erroneous assumption amounted to a repudiation of the occupancy agreement by her.
95.The applicant argued that because 4 April 2018 came and went, without the respondent forcefully evicting the applicant, that the respondent had waived the notice or that the notice had expired. The history of the dealings between the parties up to 27 April 2018 amply demonstrates that the respondent maintained her position that valid notice had been given to the applicant to leave and that the applicant was standing her ground in refusing to vacate on a false factual and legal principle.
96.The Tribunal finds that as at 27 April 2018 the notice given by the respondent to the applicant was valid and extant.
What occurred on the night of 27 April 2018?
97.The events of this night were preceded by two months of rising tension. The cause of the tension was multifactorial but it was in part caused by the sheer unreality of the respondent believing that her aging parents could cohabitate in the unit with the parties without causing interference with the quiet enjoyment of the applicant as an occupant. It is the case that the applicant had prior notice of the parents coming, and agreed, but the impracticality of the arrangement quickly became evident.
98.The applicant was not working and so spent more time in the unit in the company of the respondent’s parents.
99.It seems that the applicant had taken the view that she should have the exclusive use of the kitchen between 7.30pm and 9pm. She had taken offence with the respondent’s father being in the kitchen in these hours. The father is a man of Indian ethnicity and had his own method of cooking.
100.The applicant was also annoyed at the father’s use of the television, his lying on the lounge and putting dried food on the veranda, and noise. It is alleged that the applicant swore at him.[29]
[29] Transcript of proceedings 23 October 2018 page 49, line 37; page 65, lines 2-4
101.On the 27 April 2018 the respondent came home from work later than usual and her father commenced to cook her dinner. Unfortunately this trespassed into the applicants’ exclusive time zone for use of the kitchen and caused her to become agitated and demand that the respondent and her father vacate the kitchen.
102.An argument ensued between the applicant and the respondent about what was reasonable in the circumstances. The applicant then went into her bedroom and obtained her phone. She came back out to the kitchen and commenced filming the respondent and her father in the kitchen. The recording has the applicant speaking in a manner that the Tribunal finds condescending and provocative.
103.The applicant said in her evidence that she fetched the camera and commenced filming because she thought it would calm things down and because she wanted a record of the event. The actions of the applicant were never going to calm things down and the Tribunal does not accept this explanation. The actions were intended to be, and were, provocative.
104.The respondent then responded in kind by commencing to film on her phone camera. Both recordings show the absurd situation of two women each standing in the kitchen filming and verbally abusing each other. No doubt this was very stressful to all concerned, including the ageing parents who were caught up in this debacle.
105.The video record then becomes blurred. It shows the respondent advancing towards the applicant. The respondent admits that she tried to grab the phone/camera from the applicant’s hand. The applicant admitted that she then grabbed at the respondent and wanted to hit her, but restrained herself.
106.The next part is not recorded and there is a difference in the versions. The applicant says that the respondent’s father grabbed her from behind and knocked the phone out of her hand. The respondent also said that her father grabbed the applicant from behind. The father said that he only grabbed his daughter to pull her away from danger.
Was there a tortious assault?
107.The Tribunal finds that the applicant commenced the argument and the provocative act of filming. The respondent responded in kind. The respondent did attempt to grab the applicant’s phone and this is sufficient to constitute a tortious assault.[30] The applicant did grab the respondent and attempted to hit her until restrained by the father from behind. This is also a tortious assault by the applicant. The restraint imposed by the father was a reasonable and proportionate response to the violence that was unfolding.
[30] There is a tortious assault where the act of a person causes another person reasonably to apprehend a threat of force or violence — Croucher v Cachia [2016] NSW 132 [42]
108.The only physical injury suffered were the scratches on the father’s hands which he said were inflicted by the applicant. The applicant contended they were inflicted accidentally by a bottle top on the kitchen bench.
Was there a constructive eviction on 27 April 2018?
109.Immediately prior to the violence, the respondent was screaming at the applicant to ‘get out’[31] and asserting that the applicant had more than sufficient notice to find somewhere else.
[31] Transcript of proceedings 23 October 2018 page 57, line 27
110.The applicant said was not going anywhere until she could find something suitable, save if the respondent paid for a hotel for her.
111.After the violence, the applicant ran out of the unit to the next door neighbour and then later went to Hotel Realm where she rang the police. In the meantime, the respondent and her father had already attended the police station.
112.The details of these events is set out in the factual history above.
113.The words of the respondent and the ensuing violence could have left no doubt in the applicant’s mind that the crunch time had come and she had to leave immediately. It was these events that brought the occupancy agreement to an end and constitutes the eviction.
114.The Tribunal finds that the respondent actually or constructively evicted the applicant on the evening of 27 April 2018.
Was the mode of eviction unlawful?
115.The finding immediately above raises the issue of whether it was lawfully open to the respondent to evict the applicant by use of force, physical or verbal.
116.It is trite that at common law the person with the right to possession of a property can use reasonable force to evict a trespasser. It is also trite that a person upon another person’s property under license will become a trespasser when that license is revoked.
117.The issue is whether these same principles apply to the statutory occupancy that existed in this case. It is true that an occupant or boarder at common law is a species of contractual license that may attract the above principles. But it is not clear that the statutory occupancy agreement that exists under the RTA stands on the same footing as a contractual license at common law.
118.It is Mr Christensen’s argument for the applicant that there is a legislative intention that the right of a lessor or head-tenant to use reasonable force to evict an occupant has been abrogated and that an order of the Tribunal is required for this purpose.
119.Section 37(1) of the RTA does purport to abrogate the right to self-help evictions in the case of residential tenancies but it does not apply to occupancy agreements.
120.The occupancy principles in section 71E of the RTA require that the parties “should try to resolve disputes using reasonable dispute resolution processes”. It does not refer to processes within the Tribunal.
121.Section 76 of the RTA provides that the Tribunal has exclusive jurisdiction to hear and determine any matter that may be the subject of an application to the Tribunal under the RTA. Section 79(2) of the RTA provides that the parties to an occupancy agreement may apply to the Tribunal for resolution of an “occupancy dispute”.
122.Section 73 defines an ‘occupancy dispute’ in general terms, that is, whether it “is about, or relates to, the [occupancy] agreement”.
123.A dispute about the termination of an occupancy agreement “is about, or relates to” the occupancy agreement. This suggests that the tribunal does have jurisdiction to hear and determine such a dispute. This conclusion is reinforced by the terms of section 83(a), (b) and (i) of the RTA which provide the power for the tribunal to make orders restraining breaches, and requiring the performance of, and terminating, occupancy agreement.[32]
[32] Commissioner for Social Housing in ACT v Cotsell [2015] ACAT 1
124.The presence of the power in section 83(i) to order the termination of an occupancy agreement is difficult to reconcile with the common law position that would permit self-help evictions. It does provide support for Mr Christensen’s contention.
125.There are other reasons why the Tribunal finds merit in Mr Christensen’s submission. The first is that it is socially undesirable to permit self-help evictions with their inherent risks of violence and unreasonableness. Secondly, it has proven to be the case that the police are understandably reluctant to become involved in civil disputes of this kind. The police will not go into a premises, decide who has the right to possession and then assist that person to physically evict another person who is contending to the contrary. The police will intervene if there is actual violence, but only for that purpose.
126.The police will assist with evictions if they have a warrant issued by the tribunal to that effect, but this warrant requires a prior order of termination by the tribunal.
127.For the above reasons, the Tribunal accepts Mr Christensen’s submission that it was not open to the respondent to engage in a self-help eviction on the night of 27 April 2018 and her actions on that night constitute a breach of the occupancy agreement.
128.The parties were in the tribunal on the morning of 27 April 2018 concerning the termination of the occupancy agreement and the Tribunal cautioned the respondent about not taking matters into her own hand. She was on notice of the issue concerning her right and power to physically evict the applicant.
129.This raises the issue of what the respondent could have done on the night of 27 April 2018 in the face of the refusal of the applicant to leave in accordance with the notice and the provocation from the applicant. If the common law power were applicable, it may be that these circumstances did justify a summary or immediate eviction. But the Tribunal is not convinced that the common law powers are applicable.
130.Either of the parties could have called the police to address the outbreak of violence, which they did. It is the case that the police told the applicant not to return to the unit that night. The respondent relies upon this fact to deny that she forcefully evicted the applicant. But this ignores the fact that the actual or constructive eviction had already occurred before the police intervention.
131.The respondent could have attempted to calm the situation by acceding to the applicant’s demands concerning the kitchen before the violence erupted, and could have sought an urgent listing before the Tribunal the next morning.
Did the applicant mitigate her losses?
132.There is a general duty on the parties to mitigate any losses which replicates the common law duty to the same effect.[33]
[33] RTA section 38
133.The applicant was wrong:
(a)not to have responded to the original two weeks’ notice;
(b)not to have responded to the extended notice to 4 April 2018;
(c)to have asserted that she had no intention of leaving;
(d)to assert that she was a tenant; and
(e)to have provoked the argument on the night of 27 April 2018 and to have aggravated the situation by commencing filming the events.
134.None of these actions constitutes taking reasonable steps to minimise her losses. As at 27 April 2018 she had had seven weeks of notice to find a new place to live. The applicant said she was not going to move because she was looking to buy and did not want to enter a new lease that could complicate this transaction. The applicant did not buy a new house, and did eventually find a new tenancy on 25 May 2018. The Tribunal has serious reservations about the truth of these assertions from the applicant.
135.The costs incurred by the applicant due to the urgency of the situation were induced by her own wrongful actions set out above.
136.There was no evidence as to why it took the applicant another month to find a new tenancy and why she needed to stay in a hotel for much of the meantime.
137.It is difficult to assess what amount or parts of the applicant’s claim should be allowed given the serious lack of mitigation and the large part of the fault she must bear for what happened.
138.The applicant is entitled to general damages for the fact of the unlawful eviction, reduced by her failure to mitigate and her own role in what happened. It is also appropriate that some penalty be visited on the respondent as a mark of disapproval of her action in wrongfully evicting the applicant. The Tribunal allows $500.
139.Neither party will be awarded damages in relation to their mutual assaults.
140.The respondent has her own counter-claim for rent, cleaning, non-economic loss and legal costs, but the respondent’s action in the wrongful eviction was the immediate cause of these losses.
141.The Tribunal is not prepared to award special damages to either party. The task of dissecting and apportioning the special damages for two claims would be highly artificial and there is insufficient evidence to justify some elements of the claims. These losses should remain where they fall.
………………………………..
Senior Member A Anforth
HEARING DETAILS
FILE NUMBER:
RT 327/2018
PARTIES, APPLICANT:
Jane Lochrin
PARTIES, RESPONDENT:
Vandana Jaiswal
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
P Christenson
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member A Anforth
DATES OF HEARING:
23 October 2018
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