Monro and MILOJEVIC v Cabot
[2007] ACTRTT 19
•13 July 2007
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES TRIBUNAL
CITATION:MONRO & MILOJEVIC V CABOT [2007] ACTRTT 19 (13 July 2007)
RT 40 of 2007
Catchwords: Residential Tenancies Act 1997 (ACT)
Abuse of the Tribunal’s processes
Abandonment of premises in the fixed term
Tribunal: Mr A Anforth, Member
Date: 13 July 2007
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 40 of 2007
RE: BILJANA MILOJEVIC MONRO,
MILUTIN MILOJEVIC
& BRANKA MILOJEVIC
(Applicant/tenants)
AND: SANDRA CABOT
(Respondent/landlord)
DECISION
Tribunal : Mr A Anforth, Member
Date : 13 July 2007
Decision :
That the Applicant/tenants claims are dismissed.
That the Applicant/tenants are to pay the Respondent/landlord the sum of $5524.00 immediately.
That the Applicant/tenants are to pay the Respondent/landlord’s costs of the whole of the proceedings, to be agreed or taxed.
…………………………….
Member
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 40 of 2007
RE: BILJANA MILOJEVIC MONRO,
MILUTIN MILOJEVIC
& BRANKA MILOJEVIC
(Applicant/tenants)
AND: SANDRA CABOT
(Respondent/landlord)
REASONS FOR DECISION
13 July 2007 Mr A Anforth, Member
The tenancy related to premises at 42 Gillespie Street, Weetangera in the ACT in the name of the above parties. The rent was $310.00 per week payable on the first day of each month at the rate of $1347.00. The bond was $1240.00. The period of the tenancy was 1 February 2006 to 1 February 2007.
The lease contained a clause prohibiting the keeping of animals on the premises.
The relationship between the parties was never a happy one with disputes from the beginning of the tenancy concerning rent arrears, payment of the bond, the state of the premise and the right of the landlord’s agent to carry out inspections. On 28 March 2006 the landlord lodged an application with the Tribunal (RT 06/1970) seeking an order for the termination of the tenancy on the grounds of rent arrears, refusal to permit routine inspections, threats made by the tenant to the landlord and her representatives and the presence of a dog on the premises.
A statement from J Hennessy filed on behalf of the tenants in the RT 06/1970 gives some flavour of the poor relationship and aggression between the parties:
“On Thursday 16th March 2006,1 was standing in the living room of my friends house and I heard the door bell ring and a knock at the door. Billie went to answer it and as she was walking down the hall, she called out "Who is it?"
There was no reply and then she walked into Bob's room and walked outside through the sliding door of the room, and then I heard Billie yelling at someone. She was saying things such as:
"What are you doing here?, and You have no right to come in by force and no right to be here now"....
Then I looked in the hallway from Bob's room, and saw Billie was now at the front door arguing with a large lady who was wearing a suit and holding a pair of keys. I heard a lot of yelling and as I quickly walked down to lounge room and then Billie came down the corridor.
She was crying and very upset and explained that the lady was a Real Estate agent, and they had tried to get in using their spare keys. Billie then walked back up the corridor, and she began telling them, that she had called the Police. We followed her, and we saw a 4WD, driving out their driveway. We all returned to the living room after relocking both of the front doors. Then Billie saw the same 4WD driving around behind the house. She went straight out and yelled at the lady to leave. The car drove off.
We (Bob, Chris and I) went outside to the front, where we waited (Billie was giving us all a lift to school). At this point, we saw a male speeding in, and parking his car across from the driveway. He got out and started having a 'go' at us. He said:
"I hear you boys have been abusing some of my female staff! (implying he was the boss).
My friend Bob replied:
"I don't know what you are talking about?"
Then, he said:
"Don't be a smart arse, you know what I'm talking about!"
Bob, replied to this:
"Actually, I don't!"
Then he, (the big guy) replied:
"Well if you want to pick with my female staff, you can pick with me!..."
At this point, Billie walked out again. She had been inside talking to the Police again. The male was standing in the driveway and immediately started to yell and argue with Billie. He was standing over her so close and abusing her. He was obviously trying to intimidate her (Billie) by standing over her and yelling as loud as he could. After this, he stormed off towards his car still yelling, and waited inside. Then the other 4WD arrived again and they waited in the car park for about fifteen minutes and then drove off.
Billie locked the house up and drove us to school.”
Application RT 1970 of 2006 was listed for hearing before a differently constituted Tribunal on 18 April 2006. Ms Munro appeared in person for the tenants and the landlord appeared with Ms Groenveld, real estate agent. The Tribunal found that the tenants had breached the residential tenancy agreement in having failed to pay rent on time. The tenants were ordered to pay rent regularly in accordance with the residential tenancy agreement. In addition an order was made permitting the landlord to carry out an inspection of the premises on 1 May 2006 between 10am and 12noon. The order permitted the landlord to access the premises in the absence of the tenants if necessary. The above orders were made in the form of a conditional termination order.
On 2 May 2006 the agent for the landlord, Ms Groenveld, requested the Registrar to issue a warrant for possession based on the tenants, alleged failure to comply with the above conditional orders. This application was listed before the same member of the Tribunal on 11 May 2006. Ms Munro appeared in person for the tenants and the landlord appeared through her agent, Ms Groenveld.
The tenants filed a document entitled “Brief History of Dispute…”. In that document the tenants said that they actually took possession on 2 February 2006 whereas the lease nominates the starting day as 1 February 2006. Upon this basis the tenants then conclude:
“it is obvious that this was an intentional act by Ms David (agent for the landlord) intended to mislead us from the beginning.”
The same statement from the tenant recounts her first meeting of Ms Munro with Ms Groenveld on 6 March 2006 when Ms Groenveld is said to have attended the premises to deliver a letter advising she had been appointed as the landlord agents. The statement recounts how Ms Munro directly informed the agent that her presence constituted an invasion of the tenants’ privacy and that the agents presence was not appreciated. The statement says that Ms Munro then closed the door on the agent. The statement recounts that a similar aggressive encounter occurred on 13 March 2006 when the agent is said to arrived for a periodic inspection without notice.
In proceedings RT 1970 of 2006, the tenants filed a second document entitled “Grounds of Defence”. The document is largely incoherent but is replete with claims of dishonesty by the landlord and her agents, miscarriages of justice by the Tribunal and a chronology of political representations the tenant claims to have made concerning the conduct of the landlord and her agent. The document curiously states that the tenants had established a relationship of “genuine goodwill” with Ms Groenveld, at least since the hearing before the Tribunal on 13 April 2006.
10. The orders of the on 11 May 2006 records that the orders were made by consent. Those orders record a finding that the tenants had breached the tenancy agreement in failing to rent on time and that rent arrears of $1347.00 had accumulated. A further conditional order was made to the effect that the tenants rectify the rent arrears and then pay rent on time.
11. Things did not go well at Weetangera and the tenants vacated the premises on 20 December 2006 which is within the fixed term. There was no notice of termination served by the landlord. The tenants asserted that there was an agreement reached with Ms Groenveld for an early termination of the lease without penalty.
12. A dispute now has arisen over the early termination of the lease, the bond and the state in which the premises were left by the tenants. The landlord’s agent denies that there was any agreement to any earlier release of the tenants from the lease. The landlord’s agent further alleges a wide range of damage to the property.
13. The tenants filed an application with the Tribunal on 6 January 2007 seeking a refund of their bond the modest sum of $26,639.00 in compensation for the cost of removals and the distress caused to each tenant.
14. The tenants filed a further document entitled “Statement of Particulars”. The tenants allege that agreement had been reached with Ms Groenveld for the early termination of the lease.
15. The Statement of Particulars recounts the events of the 20 December 2006 at which a final inspection was to be carried out by the landlord’s agent. The tenants contend that Ms Groenveld found nothing amiss in the premises and promised to return the bond the next day.
16. The tenants state that they paid Ms Groenveld the outstanding rent of $627.00 in cash and were not provided with a receipt. The tenants contend that Ms Groenveld stole this money and that the issue has been taken up with the police.
17. The tenants contended that Ms Groenveld had told them that her husband was a police officer and would ensure that nothing happened concerning any complaints about her. The tenants assert that Ms Groenveld was in the habit of threatening, harassing and intimidating tenants with the status of her husband.
18. The tenants then accused Ms Groenveld and her son of “interrogating minors and other members of the family”,” engaging in threatening and menacing behaviour” and “bullying”..
19. The tenants recounted the earlier history dealt with by the previous Tribunal hearing concerning the attempted inspection of the house with was said to have amounted to an attempted “home invasion”.
20. The tenants contended that the application for possession taken by the landlord in RT 1970 of 2006 was “vexatious” and “illegal”. The tenants claim that the landlord’s agent “tried to subvert the natural course of justice at the previous hearing with the tenancies tribunal by omitting facts and blatantly lying…”
21. The tenants alleged that the landlord’s previous agent, Nancy David, had paid 10 unauthorised visits to the house in the period 8 June 2006-25 October 2006.
22. The tenants claimed that the house suffered various defects which the landlord failed to repair including power problems, a water leak, the dishwasher, range hood and electrical outlets which were said not to have worked, and problems with caterpillars. The power problem was said to have resulted in a large electricity bill for which the tenants had sought some contribution from the landlord.
23. The tenants concluded by informing the Tribunal they had referred “the serious problems experienced with this tenure” to the Australian Federal Police, the ACT Department of Fair Trading, the Real Estate Institute of Australia, the Attorney General’s Department.
24. On 9 February 2007 the landlord filed a response to the tenants claim which included a cross claim in the sum of $4284.00 for:
(a) Carpet cleaning $176.00
(b) Repair/repaint doors and wall and clean carport $4389.00
(c) Supply and fit new light fittings $190.00
(d) Removal of rubbish and abandoned goods $132.00
(e) New window treatings to lounge/dinning $478.00
(f) New shower screen $TBA
(g) Replacing 4 flyscreens $280.00
(h) Replace new carpet to main bedroom $1040.00
(i) Cost of carpet to rest of house minus 10% depreciation $4284.00
25. The landlords response was accompanied by the following documents:
(a) A statutory Declaration from Nancy David to the effect that the premises had been newly painted and the carpets professionally cleaned at the commencement of the tenants lease.
(b) A request dated 6 May 2006 from the landlord’s agent to an electrician to check the range hood
(c) A request dated 29 June 2006 from the landlord’s agent to an electrician to check problems with the power supply
(d) A request dated 3 October 2006 from the landlord’s agent to a plumber to check leaking taps.
(e) A report from Michael Riches, carpet layers, dated 15 January 2007 to the effect that the carpet in the house will need to the replace. The carpet was said to be affected by dog smells urine. The total cost would be $5800.00.
(f) An invoice from Jims Moving for $144.00 for disposing of abandoned goods.
(g) A quote from Knights Curtains for $478.00 to supply and fit new vertical blinds.
(h) A quote from JHB, carpenters, for $4389.00, to repaint cedar doors, supply and install new door handles and lock to bedroom two, clean the carport and repair and repaint damage caused by picture hooks to all affected internal cement rendered walls.
(i) A copy of the tenants rent ledger showing, among other things, the entry for $627.00 for cash paid on 21 December 2006.
(j) The tenancy agreement
(k) Various rent receipts.
(l) The Ingoing Condition Report from the start of the tenancy which had not been signed by the tenants. This report noted that the premises had been newly painted. The carpets were noted as being in fair condition.
26. Ms Groenveld has a very different story to tell concerning the events at the house on 20 December 2006 and the next day. She said that the tenants had delayed the inspection to late afternoon (6.30pm). On inspection the house was not empty and the place smelt of dog. Ms Groenveld said she told the tenants that the landlord did not agree to pay any part of the electricity account. She admits that she took the $627.00 cash for rent and said that a receipt was written for it the next day and posted to the tenants.
27. On 21 December 2007 the tenant, Ms Munro, rang Ms Groenveld to ask about the bond. The tenant was told that the landlord would not be signing the form to release the bond because of the state of the property. Ms Groenveld said that the tenant then called her “you fucking bitch” and said “I knew you would do this , you had it planned all along, you fucking bitch I am going to get you, I am going to get you good, I will have your license for this you are fucked”.
28. Ms Groenveld said she has not received any calls from the police or from any other regulatory agency concerning any such allegation.
29. The response from Ms Groenveld denied the various allegations from the tenants and set out the history of the repairs to the range hood, the leaking shower and other minor repairs.
30. The matter was listed before the presently constituted Tribunal on 12 February 2007. Ms Munro for the tenants appeared by telephone and Ms Groenveld appeared in person. The Tribunal made procedural orders for the filing of photographs, conditions reports and other documents relied upon by the parties.
31. On 12 March 2007 the tenants filed in the Tribunal and served on the landlord a document entitled “Case Summary-Statement of Claim”. This document contains the following allegations:
(a) For the first time the tenants now assert that they have in fact overpaid rent of $2693.00
(b) That the landlords former agent, Ms David, made false representations to them in that the tenants claim they were not informed that rent was payable monthly.
(c) The tenants were promised that the ensuite would be extensively repaired before they moved in
(d) A hot water leak occurred on 1 March 2006 and took 9 hours to fix.
(e) The power problem referred to above
(f) Some leaking taps.
(g) That “on at least 19 separate occasions the parties have come to the residence announced, sent other people without warning, tried to evict us, instigated false proceedings in the RT…and repeatedly beleaguered and threatened my family”
(h) That Ms Groenveld “has intentionally altered the details she filled in on the final inspection. She cut and pasted blank paper in each section thereby causing all the details previously completed in front of us at the last inspection.
(i) That the proceedings in the Tribunal on 18 April 2006 and the orders made were “not made in strict adherence to the ACT Human Rights Act of 1998”.
32. On 15 March 2007 the tenants forwarded further submissions to the Tribunal. The tenants had by this time apparently received the photos of the premises from the landlord’s agent. The tenants asserted that the photos relating to the state of the premises at 20 December 2006 were not in fact taken until a few weeks after that date. The tenants alleged that “these people could have done anything to the premises after we moved out of the residence and then proceeded to blame us. It is clear to us that the Respondents are simply after our bond monies and would do anything to get the money, including lying to the RT and all concerned.”. the tenants asserted “we left the premises in immaculate condition given its poor pre-existing condition”.
33. The tenants’ submission is replete with allegations of dishonest on the part of all concerned and protestations of being innocent victims of a “greedy” and “deceitful” landlord and her agents.
34. The photos were in two groups, the first group purport to relate to the state of the premises on 1 May 2006 and the second set purported to be of the premises on 20 December 2006.
35. The photos of 1 May 2006 showed a heavy scratched cedar door, consistent with dog scratches.
36. The photos alleged to have been taken on 20 December 2006 showed:
(a) heavily stained carpets
(b) liquid stains to the carpets
(c) rubbish in cupboards
(d) heavily scratches cedar doors
(e) holes in screen mesh at near ground level
(f) a broken screen door
(g) a dishwasher which did not appear to have been cleaned
(h) a bathroom door which heavy scratching
(i) a bedroom door off its hinges
(k) a broken lock on a bedroom door
(l) an oil stained floor to the carport
(k) various rubbish left in the back yard including a lounge chair and bed
(l) various shots of the house said to show a lack of cleaning
37. The matter came before the Tribunal on 16 March 2007. There was no appearance of the tenants and Ms Groenveld appeared for the landlord. There was no communication from the tenants and nothing on the Tribunal file to indicate that a telephone hearing had been arranged with the parties. The landlord’s agent complained that they had only just received the tenants’ submissions of 12 March 2007 and 15 March 2007 on the night before the hearing and sought an opportunity to respond. No evidence was taken on this occasion and the Tribunal made procedural orders allowing the landlord 2 weeks to file her submissions in response with the tenant to file any submissions in reply within a further week, after which the Tribunal would proceed to issue a decision in writing.
38. On 19 March 2007 the tenants filed further unsolicited submissions. The submissions are largely incoherent. They contains a range of allegations that the Tribunal as presently constituted has engaged in unlawful activities to the disadvantage of the tenants, that the Tribunal has ignored their evidence, taken into account “illegal” evidence from the landlords, deliberate avoided allowing the tenants a hearing and should not have allowed an adjournment for the landlords to respond to the tenants submissions received the night before the scheduled hearing. The tenants demanded to know whether any evidence was taken on the 16 March 2007 and demanded that the Tribunal member give them a personal explanation for his conduct in allowing the adjournment. The tenants indicated their awareness of their right to appeal to the Supreme Court for error of law. Strangely the tenants then say that they agree to the adjournment already granted to the landlord to respond to the tenants’ submissions.
39. The tenants claim that the quotations provided to the Tribunal by the landlord are “fraudulent”. It was said that the landlord had changed the dates on these quotes and that the original quotes related to quotes for repairs in the previous tenancy.
40. The tenants then required that the matter be relisted for further hearing, notwithstanding the terms of the orders of 16 March 2007 that the matter would proceed to a decision in writing once the various submissions were received.
41. The tenants claim costs for all the proceedings in the Tribunal.
42. On the 1 April 2007 the Tribunal received a further unsolicited submission from the tenants. It amounted to an attempt by the tenants to interrogate the landlord in terms of matters previously raised in the tenants’ submissions. The questions asked descend to the level of requiring the landlord to prove she owns the house and wanting to know about the bond relating to the previous tenancy. The tenants then say that they have behaved with “goodwill honesty and professional courtesy at all times” towards the landlord showing “friendly courtesy and kindness”. The tenants alleged that the landlord has behaved in a deceptive and greedy manner engaging in various acts of dishonesty.
43. The landlord filed her submissions on 2 April 2007. The landlord’s submission made the following points:
(a) No rent overpayment had occurred. The rent ledger speaks for itself. The issue of rent arrears had twice been before a differently constituted Tribunal and on neither occasions had the tenants raised this allegation.
(b) The tenants’ duty to pay rent monthly was plainly set out on the lease and the tenants had also been told this.
(c) The plumber had fixed the water leak as soon as practicable, namely 7.35am the morning after the reports being made the night before.
(d) The tenant, Ms Munro on a number of occasions used aggressive, obscene and threatening language when talking with the landlord’s agent.
(e) The carpet in the master bedroom had been newly laid before the present tenancy.
(f) The landlord’s agent had been unable to obtain professional cleaners and carpet layers to repair the property over Christmas. The repairs could not be effected until the first week of January. The landlord lost 4 weeks rent @ $300.00 per week.
(g) The computer files of the landlord’s agent record all attendances at the premises. There were not 19 visits made let alone 19 unauthorised visits.
(h) The agents computer files record that on 16 March 2006 when the agent and the landlord attended the premises for an inspection the tenant launched in a barrage of abuse saying “I am going to kill you, you stupid bitch”. On the same day the tenant attended the office of the landlord’s agent and made further threats of physical violence in obscene language.
44. On 10 April 2007 the tenants filed further submissions in the nature of a statement of the impact on the members of the tenants’ household of the various alleged acts of dishonesty by the landlord and her agent.
Legislation:
45. The termination of a residential tenancy agreement with the fixed term is governed by section 36 Residential Tenancies Act 1997 (the Act) which relevant reads:
36 Notwithstanding anything to the contrary in any law of the Territory, a residential tenancy agreement shall not terminate or be terminated other than in the following circumstances:
(a) where a fixed term agreement expires and the tenant vacates the premises on or after the expiration;
(b) where a tenant notifies the lessor in the prescribed form of the tenant’s intention to terminate and vacates the premises in accordance with the notice;
(c) where the Tribunal terminates an agreement under Division 3 or 4;
(d) where the Tribunal makes a termination and possession order in relation to the premises that are the subject of the agreement under Division 4 or 5;
(e) where the tenant abandons the premises that are the subject of the agreement;
(f) where a person takes action in accordance with section 64;
(g) where the tenant and lessor agree in writing to terminate the agreement and the tenant vacates the premises in accordance with the agreement to terminate;
(h) where the tenant and the lessor are the same person;
(j) where—(i) a party to the agreement repudiates the agreement;
(ii) the other party accepts the repudiation; and
(iii) the tenant vacates the premises.
46. In the present case the tenants allege that an agreed surrender of the fixed term lease occurred and accordingly section 36(g) is applicable.
47. To the extent that the tenant relies upon breaches by the landlord then section 43 is apposite which falls within the scope of section 36(c). Section 43 reads:
43(1) On application by a tenant, the Tribunal may terminate a residential tenancy agreement if satisfied that—
(a) the lessor has breached the prescribed terms;
(b) the breach of the prescribed terms was not in accordance with a term of the residential tenancy agreement endorsed by the Tribunal; and
(c) the breach justifies the termination of the tenancy.
48. In order for the Tribunal to entertain such an application it is necessary for the tenants to service a notice of termination on the landlord pursuant to prescribed terms 84 and 85 of the Act, and then to file an application with the Tribunal for the termination order.
49. The tenants duty of maintain the premises and deliver it over at the end of the lease is contained in prescribed terms 63 to 65 of the Act:
63. During the tenancy, the tenant shall:
(a) not intentionally or negligently damage the premises or permit such damage;
(b) notify the lessor of any damage as soon as possible; and
(c) take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living.64. The tenant shall leave the premises:
(a) in substantially the same state of cleanliness, removing all his or her belongings and any other goods brought onto the premises during the duration of the Tenancy Agreement; and
(b) in substantially the same condition as the premises were in at the commencement of the Tenancy Agreement, fair wear and tear excepted.65. The lessor shall not require the tenant to make alterations, improvements or renovations to the premises.
Consideration of the issues:
50. Section 36(g) requires an agreement in writing between the landlord and the tenants for an agreed early termination of the fixed term lease. There was no assertion by the tenants that any such document existed and the landlord denied that any agreement of any form existed for an early termination.
51. In the absence of any agreement in writing for an early termination, the tenants cannot succeed on this point. In any event for reasons given below, the Tribunal does not find the evidence of the tenants to be credible and prefers the evidence of the landlord’s agent to the effect that no oral agreement for an early termination of the lease was ever reached.
52. On the basis of this finding that part of the tenants’ claims which relate to the removalist costs and to the distress and inconvenience associated with the removal process, must fail.
53. To the extent that the tenants rely on various breaches alleged to have been committed by the landlord, the tenants did not serve any notice of termination on the landlord and did not seek an order for termination by the Tribunal. Accordingly section 43 has no application.
54. The Tribunal can see no basis upon which the tenants’ early termination of the fixed term lease was justified in law and accordingly the tenants’ premature termination of the lease constitutes an abandonment of the lease for the purposes of sections 61-62 of the Act. The landlord is entitled to compensation for the abandonment.
55. The tenants claim compensation for the various alleged breaches by the landlord during the term of the lease. These breaches related to the alleged unauthorised attendances by the landlord and her agents at the premises on some 19 occasions. The other head of damages relates to the landlord’s alleged failure to carry out certain repairs to the premises.
56. The issue of the repairs can be quickly dispensed with. The landlord’s duty to repair in relation to latent defects arises only upon notice being given to the landlord by the tenants. In the present case the tenants complain of the delay of 9 hours in repairing a hot water leak. The leak occurred in the evening the plumber attended early the next morning. There is nothing unreasonable in this.
57. There is no evidence from the tenants concerning how frequently the power problem arose, when it arose and the effects it caused, other than an allegation of a damaged computer. There is no report from any qualified person concerning the cause of the problem. The landlord had an electrician examine the power supply and no problem was found. The onus is on the tenants to show that a problem existed which the landlord was obligated to remedy, and which the landlord failed to remedy. The fact of a power failure occurring does not, of itself, indicate the cause of the failure. For example the failure could have arisen from overloading of the circuits by the tenants or from external power surges from ACTEWAGL facilities. The Tribunal is not persuaded that any breach by the landlord occurred in relation to the power supply.
58. There were various other complaints by the tenants concerning maintenance issues. The tenants’ dissatisfaction with these issues was only raised by the tenants after the present litigation commenced. The landlord attended to some of these issues. The Tribunal is not persuaded that these minor maintenance issues were of significance during the term of the lease.
59. The major complaint by the tenants concerns the alleged breaches of privacy and “home invasions” by the landlord and her agents during the term of the lease. The tenants’ versions of these events differs markedly from that of the landlord and her agents. It is not really possible to reconcile the two versions.
60. For this reason it is necessary for the Tribunal to deal with the issue of credit of the parties.
61. The Tribunal is generally called upon to resolve disputes between unrepresented litigants. Unrepresented litigants raise problems not generally encountered by courts and tribunals before which there is competent legal representation (Vakautu v Kelly 1989 167 CLR 568 at 571; Galea v Galea (1990) 19 NSWLR 263 at 281-282; Malaxetxebarra v The State of Queensland [2007] QCA 132; APA Life Insurance Ltd v Charles (1981) 2 NSWLR 352; Wright v VCAT (2001) VSC 35; Nippress v Military Rehabilitation and Compensation Commission [2006] FCA 943; Bates v Port Stephens Holiday Park P/L (1996) NSWRT 208).\
62. This problem is more acute where there are strong negative emotions between the unrepresented parties. The problem is even more acute when one of the parties appears only by telephone and the Tribunal is deprived of the opportunity of watching the reaction of the party when giving evidence.
63. In the present case the Tribunal found the tenants written submissions to be highly emotionally charged. The tenants has made a wide range of serious allegation of criminal conduct on the part of Ms Groenveld including, without being limited to:
(a) Stealing the last rent payment. The evidence shows that Ms Groenveld receipted the payment and entered it on the rent ledger. The allegation by the tenants is baseless.
(b) Deliberate withholding from the tenants that the rent was payable months rather than weekly with the intention of deceiving the tenants. A perusal of the lease itself discloses that rent was to be paid monthly.
(c) Deliberate deceiving the tenants by inserting a commencement date for the lease of 1 February 2006 rather than 2 February 2006. This is a trivial issue which the landlord conceded. But in any event Ms Groenveld was not even involved in the management of the property at the time.
(d) Fraudulently altering the form sent to the Office of Rental Bonds. There is no evidence at all to support this allegation.
(e) Fraudulently altering the final inspection report. There is no evidence at all to support this allegation.
(f) Fraudulently representing photographs as those taken on or shortly after the 20 December 2006. Ms Groenveld said that photos were taken on 21 December 2006. The tenants were not even in Canberra at the time and could not know if this were true or not. There is no evidence at all to support the tenants’ allegations.
(g) Fraudulently altering the dates on old quotations to misrepresent those quotes as pertaining to the present end of lease. There is no evidence for this.
(h) Bringing illegal and vexatious proceedings in the Tribunal for possession of the property. The proceedings were lawful brought and the Tribunal found that the landlord had proven her case. A conditional order was made. More to the point the order was made by consent which means that the tenants admitted the breaches at the time. The Tribunal totally rejects the submission that those proceedings were unlawful or in any sense an abuse of process.
(i) Lying to the Tribunal in an endeavour to subvert the course of justice. There is no evidence at all to support this allegation.
(j) Engaging in bullying and intimidating behaviour towards Ms Munro and her children. This may be a matter for individual perception, but there is evidence that Ms Munro herself engaged in aggressive, abusive and obscene language to the landlord and the agent.
64. The Tribunal notes that the tenants had a dog on the premises contrary to the terms of the lease. That dog did serious damages to the carpets, the cedar doors and probably the vertical blinds.
65. Ms Munro has been very free with her allegations against the landlord and Ms Groenveld, almost all of which are shown to be patently false allegations and the remainder are made without any evidence to support them. Her allegations did not finish with the landlord and her agent but extended to the former agent, Ms David, to the previous tribunal member and to the present tribunal member. It seems that everyone involved is guilty of dishonest or illegal conduct in one form or another.
66. Ms Munro asserted that she had raised the issue of the theft of the rent money and various other complaints with a range of public officials including the police, the Office of Fair Trading, the Real Estate Institute etc. There is no evidence of this, but in any event none of those officials has approached Ms Groenveld concerning the matter. The fact that Ms Munro is prepared to make such statements is consistent with the Tribunal’s observation of the irresponsible manner in which she has conducted herself in the present dispute.
67. The Tribunal finds that Ms Munro is a witness of no credibility and is not prepared to believe any of her testimony without the benefit of some reasonably objective corroboration. To the extent that the evidence of Ms Munro and Ms Groenveld conflict, the Tribunal prefers the evidence of Ms Groenveld.
68. Ms Groenveld has given evidence of several unpleasant encounters with Ms Munro in which Ms Munro engaged in obscene and aggressive language, including threats to kill Ms Groenveld. The Tribunal notes that there are two contemporary sources of support for these allegations; first, the application lodged with the Tribunal in March 2006 made these allegations, and secondly, Ms Groenveld’s daily computer log. The Tribunal accepts the evidence of Ms Groenveld on this point. This finding then throws into sharp contrast Ms Munro’s assertion that she had acted with friendliness and curtesy while being met with dishonesty and greed.
69. The Tribunal accepts the evidence of Ms Groenveld that Ms Munro had declared her intention to carry out a form of vendetta against Ms Groenveld and has used the Tribunal process for this purpose.
70. The Tribunal dismisses the whole of the Applicant/tenants claim and orders that the tenants pay the landlord’s costs to be agreed or taxed.
71. This leaves the issue of the landlord’s cross claim. The claim for rent is justified on the basis of the tenants’ abandonment on the eve of Christmas and the condition in which the property was left. The Tribunal allows 4 weeks @ $310.00 per week which is $1240.00.
72. The photographs taken during the lease and at the end of the lease amply demonstrate the major damage to the cedar door done by the dog which should not have been on the premises.
73. The photographs and reports amply demonstrate the destruction of the carpets. The carpets were not new but they were not or no value. In any event the amount sought by the landlord at para 254 above for the carpet replacement is little more than the actual cost of taking up the old carpet and laying the new carpets. When some allowance is made for part of the cost of the new replacement carpet, the amount claimed by the landlord is both reasonable and justified.
74. Each of the other items set out in para 24 is supported by the photographs, the invoices and the testimony of the reports of the relevant tradesperson. The landlord’s agent completed the condition report at the commencement of the lease and provided the tenants with a copy. It is a matter for the tenants that they failed to annotate the report and return it.
75. The Tribunal finds that the landlord’s cross claim in the sum of $4284 as detailed at para 24 is made out. In addition there is rent owed in the sum of $1240.00 giving a total order in favour of the landlord of $5524.00 to be paid immediately.
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