Mitropoulos v Urena

[2014] NSWCATCD 230

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Mitropoulos & anor v Urena [2014] NSWCATCD 230
Hearing dates:	18 November 2014
Decision date:	02 December 2014
Jurisdiction:	Consumer and Commercial Division
Before:	B Howe, General Member
Decision:	The application is dismissed
Catchwords:	ELECTRICITY SUPPLY – whether premises separately metered - section 40 of the Residential Tenancies Act 2010
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (the “NCAT Act”) Residential Tenancies Act 2010 (the “RTA”) Strata Schemes Management Act 1996 (the “SSMA”)
Cases Cited:	Slade & anor v Douglas & anor, CTTT 08/47989 (16 December 2008) (unreported)
Category:	Principal judgment
Parties:	Constantine Petropoulos (applicant) Georgia Petropoulos (applicant) Norma Urena (respondent)
Representation:	Constantine Petropoulos, in person assisted by Rita Wilkinson, Southern Sydney Tenants’ Advice & Advocacy Service Georgia Petropoulos, no appearance Alexander Kanevsky, property manager (for the respondent)
File Number(s):	RT 14/35720
Publication restriction:	Unrestricted

reasons for decision

The history of the application

1. The applicants entered into a residential tenancy agreement with the respondent to lease premises, being unit 4 in a strata complex. The tenancy commenced during February 2007.

2. The electricity account was in the name of the tenants and there were no problems with the accounts rendered by the electricity supplier until the bill for the period 12 April to 10 July 2012 was received.

3. This account was higher than that for the same quarter billed a year previously. Bills for the following quarters were also higher than those paid for earlier periods.

4. An investigation found that behind the electricity mains panel, on which the meters for units 4 and 10 were mounted, the cable leading from the meter for unit 10 into that unit had melted the plastic insulation and that wire had fused with the cable leading into unit 4.

5. This meant that unit 4 was probably being charged for the supply of all power, not only to unit 4, but also to unit 10. Whether the meter for unit 10 recorded any consumption, or unit 10 paid the supply authority for any electricity consumed during the periods under review, is unknown.

The Energy & Water Ombudsman of New South Wales (“EWON”)

6. The applicants lodged a complaint with EWON. An investigation was conducted by that officer. The result of that investigation was not in evidence.

7. The applicants complained to EWON about aspects of the investigation.

8. EWON issued a report dated 24 February 2014 setting out the result of the complaint about the earlier investigation.

9. Apparently, EWON’s initial findings had concluded that the fusing of the wiring for unit 10 and unit 4 meant that the electricity usage appears to have been recorded by only the meter of unit 4.

10. EWON suggested that the applicant should raise the issue with the executive committee of the Owners Corporation or with the landlord’s property manager.

11. EWON had concluded that the faulty sub-main wiring was part of the private installation in the building and so the electricity supplier was not responsible for any consumption that may have been incorrectly drawn through the meter as a result of the fault.

12. EWON further concluded that the problem with the private installation which resulted in increased electricity charges was a matter between the complainant and the landlord. The report suggested that if the complainant could find no resolution, a claim should be lodged with the Tribunal.

Jurisdiction of the Tribunal

13. Section 29 of the NCAT Act grants the Tribunal a general jurisdiction to make decisions or exercise other functions specified by legislation in respect of a matter.

14. Part 3 of Schedule 4 of the NCAT Act sets out the functions of the Tribunal. It states that legislation, including the RTA, is to be allocated to the Consumer and Commercial Division of the Tribunal.

15. Part 9 of the RTA confers on the Tribunal powers relating to breaches of that Act.

16. Thus the Tribunal has jurisdiction to determine an alleged breach of the RTA.

The proceedings

17. On 14 July 2014, the applicants lodged a claim with the Tribunal naming Clisdell’s Strata Management (“Clisdells”) as the respondent. An order for the payment of $2,950-64 was sought.

18. The proceedings were first heard on 6 August 2014 when the Member concerned noted that the respondent was to be removed on the next occasion with the applicants to nominate the appropriate respondent(s).

19. In a letter dated 26 August 2014, the Southern Sydney Tenants’ Advice and Advocacy Service (“SSTA&AS”) notified the Tribunal that it would seek leave to represent the applicants, that the claim would now be against the landlord, and that an amendment to the claim would be sought for the determination of three issues: (1) an order pursuant to section 47 of the RTA for the landlord to pay for all of the electricity used; (2) an order extending time to bring the claim; and (3) compensation to be paid to the tenant due to the landlord failing to repair the electricity meter.

20. By letter of 2 September 2014, the registry notified the parties that Clisdells had been removed as a respondent, Norma Urena had been added as a respondent, and that any request for a party to be represented, as well as leave being sought to amend the claim, would be considered at a hearing to be held on 18 September 2014.

21. On 18 September, the Member directed the parties to exchange documents so that the matter could proceed to a formal hearing. The applicant was required to exchange documents by 2 October 2014. That did not occur. So, the landlord filed documents on 14 October. The tenants filed their documents on 15 October, so the landlord filed further documents on 23 October 2014.

22. There is no record that any request for representation or for leave to amend the claim had been dealt with on that date as envisaged by the letter of 26 August 2014.

The filed evidence

23. The documents filed by the tenants included a chronology; a photocopy of the front page of the lease; various emails; a copy of the EWON’s correspondence; a report by Brian Walsh, electrician, dated 10 November 2013; and copies of electricity accounts for the period from 12 July 2012 to 13 January 2014.

24. The landlord filed two sets of documents.

25. The first set consisted of the report by the electrician, Brian Walsh; photographs; emails between the property manager and the strata manager; and a report by Ausgrid, the electricity supplier.

26. Brian Walsh identified the cause of the problem and set out his findings in his report of 10 November 2013.

27. The second set of documents comprised a statutory declaration by Alexander Kanevsky, the property manager; various accounts; emails; and another copy of the same report by Brian Walsh.

28. The statutory declaration by Alexander Kanevsky affirms that there was no communication between him and the tenants between June and November 2013. The declarant states that the male tenant claimed the delay in forwarding any reports was because he was “busy with other things”.

The amended claim

29. At the hearing the male tenant, Constantine Mitropoulos, appeared, accompanied by Rita Wilkinson, Manager – Tenancy and Financial Inclusion Team of SSTA&AS. The landlord was represented by Alexander Kanevsky.

30. At the commencement of the hearing, the Tribunal inquired about the exact terms of the orders sought by the tenants.

31. Ms Wilkinson stated that the tenant was relying solely on section 40 of the RTA. Thus the three proposed orders that were to be sought as foreshadowed in the Service’s letter of 26 August 2014 were abandoned by the statement that the cause of action devolved solely about an alleged breach of section 40 of the RTA.

32. In the event of the breach being proved, Ms Wilkinson claimed that the tenants sought an order for the payment of either $3,952.41, being the electricity accounts paid for the period from April 2012 to June 2014, or in the alternative, payment of $1,300.00, being for the electricity accounts paid from May 2013 to June 2014.

33. Liability was denied and the two orders for the payment of money were opposed by the landlord.

The applicant’s evidence at hearing

34. Mr Mitropoulos gave evidence. He was supported with submission by Ms Wilkinson.

35. The facts giving rise to the application were re-iterated. They are not in dispute.

36. There was an imprecise chronology about when various parties were informed of the problem, when the problem was identified, and the steps taken by the parties, and others, to rectify the problem.

37. The tenant admitted that no application had been lodged with the Tribunal seeking an adjudication that the owners corporation comply with the legislative obligation under section 62 of the SSMA to properly maintain and keep in a state of good and serviceable repair the common property.

38. The tenant was of the opinion that he could not claim against the owners corporation as he was only a tenant, not a lot owner.

39. Chapter 5 of the SSMA allows “an interested person” to lodge a claim with the Tribunal seeking the intervention of an Adjudicator to resolve a dispute or complaint about the exercise of, or failure to exercise, a function conferred or imposed by the SSMA.

40. An approach had been made by the tenants to the occupant of unit 10 to pay for the electricity used by that party but that endeavour had proved fruitless. No action had been initiated by the tenants against that party.

The respondent’s evidence at hearing

41. Mr Kanevsky testified that the issue was about the common property of an Owners Corporation, not the property of the landlord. He was adamant that the landlord had acted in a timely manner throughout this saga and that any delay in resolving the problem had been due to the tenants’ recalcitrance informing the landlord of the real issues.

42. He stated that the landlord would not make any offers to resolve the dispute as the landlord considered the matter was not one involving a dispute between a landlord and a tenant which came under the auspices of the RTA. If there were to be an adverse order made against the landlord, Mr Kanevsky predicted that the landlord would consider an action against the owners corporation to recoup any loss.

The law

43. Ms Wilkinson stated that the cause of action relied on by the tenants was section 40 of the RTA. The relevant portion of that section of the RTA concerning electricity reads –

“40 Payment of rates, taxes and certain utility charges by landlord

(1) A landlord must pay the following charges for the residential premises:

…

(c) all charges for the supply of electricity … to the tenant at the residential premises that are not separately metered,

…

(2) This section is a term of every residential tenancy agreement.”

44. Section 40 of the RTA is mandatory and has no room for discretion to be exercised. It states that a landlord must, not may, pay all charges for the supply of electricity to the tenant at residential premises that are not separately metered.

Were the premises separately metered?

45. The case law about charges for electricity usually involve tenants who occupy separate accommodation within the same property as others. In those instances there is, in most cases, only one electricity meter. Consequently, these cases are decided on the basis that as the accommodation for the tenant is not separately metered to measure the tenant’s consumption of electricity, section 40 of the RTA has a role to play.

46. In Slade & anor v Douglas & anor, CTTT 08/47989 (16 December 2008) (unreported), the Tribunal had to determine litigation about electricity charges and whether the leased premises were separately metered. In that case, there was a head meter measuring the total electricity consumption for the entire property. A sub meter measured the electricity consumption for one part of the property. The tenant occupied the other part.

47. The tenant’s electricity consumption was calculated by deducting the reading of the sub meter from the reading of the head meter. Presumably, this method of metering enabled the tenant’s consumption of electricity to be calculated.

48. However, the Tribunal found that as the part of the property occupied by the tenant was not separately metered, the landlord had to refund to the tenant the entire sum the landlord had charged the tenant for electricity consumption.

49. It can be seen that previous cases decided by the Tribunal, like Slade, as well as section 40 of the RTA, are concerned about a lack of a meter for only the leased premises.

50. Once the power passes through a tenant’s meter, it may be used by that tenant in any manner thought fit. Usually this is for domestic purposes, such as lighting, cooking, heating, etc. The tenant may even allow a neighbour to plug an extension cord into one of the tenant’s power points and consume the tenant’s electricity in the neighbouring property.

51. In this case, a similar situation occurred. Unit 4 has its own electricity meter. That situation worked well until fate took a hand. By a strange quirk, unforeseen by all parties, a cable on the tenants’ side of the meter fed electricity to unit 10 because that unit’s cable became attached to unit 4’s circuit.

52. In other words, the tenants, unknowingly, have supplied electric power to the neighbour in unit 10.

53. The cables feeding electricity into both units are located on common property, not in any lot. It is not the case, nor has it been shown by the tenants, that the welded cables are on their strata lot, rather than being on common property. That is, the offending cable was part of common property and the maintenance of those cables was beyond the responsibility of the owner of lot 4, the respondent landlord.

54. Consequently, the problem came about, not as a result of any lack of separate metering, but due to the meter of unit 4 recording the electricity consumed by both units 4 and 10.

55. The Tribunal considers that unit 4 was separately metered and so the effect of section 40 of the RTA is displaced.

Quantifying the loss

56. In the event that the Tribunal has erred in finding that section 40 of the RTA has no effect, the Tribunal has undertaken the task of quantifying the tenants’ loss.

57. The tenants have filed seven electricity accounts. Below is a table. The first column states the page number of the applicants’ bundle of documents at which the individual electricity bill is located, the second column shows the period billed, and the final column indicates the charge levied.

58. Although the applicants seek to be reimbursed $3,952.41 for electricity accounts to June 2014, see [32] above, relevant details of the only bills tendered are shown above. Any invoice rendered for a period after 13 January 2014 has not been filed with the Tribunal.

59. Therefore, if the landlord is liable to the tenants, she will be required to refund the tenants the sum of $2,950.64. This is for the electricity the tenants paid from 12 April 2012, the date of the first bill is presumed to come within the parameters of section 40 of the RTA, to 13 January 2014, being the last of the accounts tendered to the Tribunal.

60. The alternate claim by the tenants is to be refunded $1,300.00 for the bills paid for the period May 2013 to June 2014 was faintly pressed. The Tribunal assumes that the claim relates to the period when the tenant informed the property manager of the problem until it was rectified.

61. The evidence from the landlord demonstrates that the tenants sent a text message from an electrician suggesting that the Owners Corporation employ its own electrician to investigate. The property manager emailed this information to the strata manager on 25 May 2013. The strata manager required written proof of the issue. The property manager sought this information from the tenant. All of these emails were forwarded, and responded to, on the same day. However, the tenant did not send a copy of the Ausgrid report about the functioning of the meter until August as he “had other things to do”.

62. If the second claim is to be awarded, it should be only for a sum that is for the last two invoices shown in the Table above. These cover the period from August 2013 to January 2014. That means the alternate amount allowed should only be $778.01.

B Howe

General Member

Civil and Administrative Tribunal of New South Wales

2 December 2014

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

Registrar

Decision last updated: 12 February 2015