O'Shaughnessy v Lanton Superannuation Pty Ltd
[2014] ACAT 25
•1 May 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
O’SHAUGHNESSY v LANTON SUPERANNUATION PTY LTD
(Appeal) [2014] ACAT 25
AA 13/42
Catchwords:
APPEAL - RESIDENTIAL TENANCIES - questions of law
– questions of fact – a decision appealed against cannot be
disturbed merely because the appeal tribunal disagrees with the
decision - condition report and its consideration– inhabitability
or uninhabitability of premises - whether proper weight was
given to tenant’s evidence – whether tribunal informed itself in
accordance with section 26 of the ACT Civil and Administrative
Tribunal Act 2008 – interpretation of tribunal informing itself
by “relying on previous experience in relation to the matter” –
whether claim that the respondent and their agent engaged in
misleading and deceptive conduct and breached Australian
Consumer Law was given consideration – procedural fairness
and natural justice – tenant’s duty to mitigate loss: whether
tribunal gave consideration to extraneous matters – difference
between defects and maintenance issues – consideration of
compensation in residential tenancy matters - whether the
decision appealed against is so unreasonable that no reasonable
authority would ever consider imposing it
Legislation: ACT Civil and Administrative Tribunal Act 2008, ss 7, 26 and
82
Residential Tenancies Act 1997, ss 12, 29, 30, 38, 71 and 83
Cases: Chakravarty & Commissioner for ACT Revenue
[2013] ACAT 11
Chief Psychiatrist and A (Mental Health) [2011] ACAT 21
Commissioner for Taxation (Cth) v Cainero
(1988) 15 ALD 368Corkery v Commissioner for Social Housing [2013] ACAT 2
Das v A & A Airconditioning (Civil Disputes) [2011] ACAT 52
Hilyard & Mainore Pty Ltd [2013] ACAT 16
Levet and Levet & Dalla (Appeal) [2013] ACAT 52
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] 185 CLR 259
Thornwaite and Commissioner for Social Housing
[2012] ACAT 11Vetter v Lake Macquarie City Council(2001) 202 CLR 439
Watson v Gaudion [2009] ACAT 15
Winder v Grehan [2013] NSWCTTT 247
Texts/Papers: Butterworths LexisNexis Concise Australian Legal Dictionary
(3rd ed., 2004)
Appeal Tribunal: Ms E. Symons – Presidential Member
Date of Orders: 1 May 2014
Date of Reasons for Decision: 1 May 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL AA 13/42
BETWEEN: BERNADINE O’SHAUGHNESSY
Appellant
AND:LANTON SUPERANNUATION PTY LTD
Respondent
APPEAL TRIBUNAL: Ms E. Symons Presidential Member
DATE: 1 May 2014
ORDER
The Tribunal Orders that:
1.The decision under review is confirmed.
………………………………..
Ms E. Symons
Presidential Member
REASONS FOR DECISION
Background
The appellant tenant entered into a residential tenancy agreement with the respondent lessor for the lease of the residential premises (‘the premises’) commencing on 22 February 2013. The appellant has lived in the premises since that time.
On 30 April 2013, the appellant filed an application for resolution of tenancy dispute with the tribunal in which she sought orders for the lessor to complete all repairs as soon as possible; for the landlord (i.e. lessor) to pay compensation for their breaches of the Act and for rent reduction until the repairs are completed. The respondent opposed the application.
The application was heard on 14 August 2013. At the conclusion of the hearing the tribunal ordered that the lessor pay the tenant $1,229.00 being $1,102.00 as compensation and $127.00 for the filing fee. The sum of $1,102.00 was calculated as follows:
·From 22 February 2013 – 1 May 2013, a period of 9 weeks, the weekly rental of $580.00 was reduced by 20% for compensation and then by a further 5% for the appellant’s failure to mitigate her loss, which totalled $783.00; and
·From 2 May 2013 to mid-July 2013, a period of 11 weeks, the weekly rental of $580.00 was reduced by 10% for compensation and then by a further 5% for the appellant’s failure to mitigate her loss which totaled $319.00.
·$783.00 plus $319.00 totalled $1,102.00.
The appellant sought and was granted an extension of time in which to file an application for appeal.
On 22 October 2013, the appellant filed an application for appeal from the decision made on 14 August 2013. The Tribunal sets out the grounds for appeal in full:
NATURE OF CASE
The case relates to the state of repair of 55 Rollston Avenue, Amaroo when leased resulting in 57 tradesmen visits to bring the property up to standard with 23 in the first month, 9 in the second month and 10 in the third month and further repairs done over a further 2 months.
There were significant issues with the property prior to taking up the lease of which the Agent had clear evidence spanning some 6 years?(sic) Therefore the owner/agent were in breach of s. 29 of the Residential Tenancies Act 1997 if they did not provide a truthful depiction of the issues.
QUESTIONS OF LAW
1. S.12 of the Residential Tenancies Act 1997 - energy rating?
2. S.29 of the Residential Tenancies Act 1997 - condition report of the premises must be given to the tenant by the agent upon taking up residence that accurately represents all the defects in the property.
3. S.38 of the Residential Tenancies Act - the chair erred by suggesting that the tenant could have mitigated the stress by spacing tradesmen out say at once a week! This could have amounted to the works taking more than 5 months and elongating the stress.
4. S.26 of the ACT Civil and Administrative Tribunal Act 2008 - whilst the tribunal is not bound by the rules of evidence s. 26 in which it may inform itself in a way it considers appropriate in the circumstances. The ‘Act’ provides an example that it may rely on previous experience in relation to the matter. Therefore the tribunal should have looked at the evidence of the previous tenant to determine the extent of the pre-existing damage and problems with the property. The tribunal must also familiarise themselves with the letter from the tenant’s Boss where he demonstrated that the tenant/employee required an exorbitant amount of time off to facilitate repairs not to mention the stress and illness that was experienced by the tenant in the process.
QUESTIONS OF FACT
1. The Tribunal is able to inform itself in a manner that it sees fit in the circumstances. Another way by which it can do that is again provided in an example at s. 26 which states that it can ask an assessor for expert advice. Why then did the tribunal not ask for an independent assessment of the property or a medical professional opinion on the effect the matter had on the tenant?
2. S.30(3) of the Residential Tenancies Act 1997 - although a condition report was provided many of the defects in the property were not recorded and therefore any evidence that the tenant offered to the tribunal as to the state of the premises upon inhabitation must be accepted as fact.
ADDITIONAL EVIDENCE
The availability of the previous tenant for cross examination.
REASONS WHY THE APPEAL SHOULD PROCEED
1. The hearing ruling did not consider the full range of issues with the property and the severity of the impact upon the tenant both financially and emotionally.
2. There was no procedural fairness or appropriate natural justice shown in the decision as per s.7 of the ACT Civil and Administrative Tribunal Act 2008.
THE REMEDY SOUGHT
1. Appropriate and adequate compensation for the misrepresentation of the leased property and for the impact on my personal and professional life.
2. A finding of misleading and deceptive conduct by the owner and the agent.
On 8 November 2013, the Tribunal ordered, pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (“ACAT Act”), that the appeal proceed as a review of the original decision dated 14 August 2013. The parties informed the Tribunal that the condition report had not been filed in the original proceedings and agreed that the condition report should be in evidence before the Tribunal. The Tribunal made directions for the filing of material, which included the condition report for the premises, by the appellant and the respondent. These directions were subsequently amended, at the request of the appellant, on 15 November 2013, to provide a new timetable for the parties to file their material. The appellant filed her submissions on 20 December 2013; the respondent filed its submissions on 4 February 2014; and the appellant filed her response on18 February 2014. On 21 February 2014, the appellant filed her list of authorities.
The appeal was heard on 24 March 2014. The appellant represented herself. Ms Chivers, an officer of the real estate agency managing the rental of the premises, appeared for the respondent. The appellant informed the Tribunal that she was not relying on the first ground of appeal - that “the tribunal had erred in not considering section 12 of the Residential Tenancies Act 1997 (RT Act) - energy rating”.
Each party provided a copy of the condition report and the Tribunal heard evidence in relation to that report from the appellant and from Ms Chivers and Ms Badenoch, one of the principals of the real estate agency managing the rental of the premises, on behalf of the respondent. Apart from this evidence the matter proceeded on the basis of the submissions filed and verbal argument on the notice of appeal. The issues in the appeal were well ventilated in the evidence in relation to the condition report, the oral argument and the written submissions. At the conclusion of the hearing the Tribunal reserved the decision.
Consideration
Acting President Chenoweth stated in Das v A & A Airconditioning (Civil Disputes)[1]:
The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision; if that were so there would be no point in the original hearing …
[1] [2011] ACAT 52
An appellant cannot merely request the re-exercise of the discretion exercised by the original tribunal. The appellant must identify in the grounds of appeal a question of fact or law that enables an appeal Tribunal to consider whether the original tribunal made an error as to the law or the facts raised in those questions. Such a decision does not involve the Tribunal coming to a conclusion, having considered the weight of the evidence, that it might take a different view from the original tribunal hearing the matter. It involves the Tribunal determining whether the decision of the original tribunal, having regard to the evidence, was so unreasonable that no reasonable decision maker could have come to that conclusion[2].
[2] Levet and Levet & Dalla (Appeal) [2013] ACAT 52 at [37]
In Chakravarty & Commissioner for ACT Revenue[3] the Tribunal, in its appellate jurisdiction, stated:
42. The Appeal Tribunal noted that it is well recognised that an appellate tribunal should not disturb a discretionary decision as there is a presumption that the discretion was exercised correctly and should therefore be affirmed unless clearly wrong. It is not sufficient to set aside a discretionary decision simply because another view could have been taken or a different decision reached.
Natural Justice
[3] [2013] ACAT 11
In the reasons why the appeal should proceed, the appellant stated that there was no procedural fairness or appropriate natural justice shown in the decision as per section 7 of the ACT Civil and Administrative Tribunal Act 2008 (“ACAT Act”). Section 7 of the ACAT Act sets out the principles applying to the Act and states:
7Principles applying to Act
In exercising its functions under this Act, the tribunal must—
(a)ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(b)observe natural justice and procedural fairness.
The tribunal, sitting in its appeal jurisdiction, considered the rules of natural justice in the decision in Hilyard & Mainore Pty Ltd[4] and stated:
The tribunal is required to conduct its hearing in accordance with the rules of natural justice. Natural justice, or its alternative name of procedural fairness, is a rule of law that addresses the procedures to be adopted by a tribunal where it makes a decision having an effect on the rights or obligations of a party. It has two basic elements (or “twin pillars”). These are firstly, the right of a person to be properly heard in any proceedings (including administrative actions) where a person’s legal rights are adversely affected, and secondly, the right to a decision maker whose mind is open to persuasion and is free from bias. (See generally JRS Forbes, Justice in Tribunals, (3rd ed, 2010, The Federation Press), at page 105, and following.)
[4] [2013] ACAT 16 at [22]
Butterworth’s Concise Australian Legal Dictionary[5] describes natural justice as:
The right to be given a fair hearing and the opportunity to present one’s case, the right to have a decision made by an unbiased or disinterested decision-maker, and the right to have that decision based on logically probative evidence.
[5] Butterworths LexisNexis (3rd ed. 2004)
In her oral submissions the appellant submitted that the original tribunal denied her natural justice as it did not consider all of the evidence before it; it did not apply proper weight to the evidence before it, it did not consider section 26 of the ACAT Act and it did not consider her claim that the agent and the respondent had engaged in misleading and deceptive conduct and breached Australian Consumer Law.
The Tribunal will deal with these submissions sequentially.
The Tribunal did not consider all of the evidence.
The Tribunal did not apply proper weight to the evidence before it
The appellant submitted that the tribunal failed to consider or to give proper weight to the evidence she had provided both from the previous tenant, Superintendent Doug Witschi, of the ‘pre-existing damage and problems with the property’ and from her boss who had written a letter demonstrating that the appellant required an exorbitant amount of time off work to facilitate repairs.
The Tribunal has had the benefit of the transcript of the proceedings before the original tribunal in informing itself of the matters before the original tribunal. The Tribunal accepts that transcripts of proceedings are meant to inform and not be scrutinized on review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed[6].
[6] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259, per Brennan CJ, and Toohey, McHugh and Gummow JJ
It is apparent from the transcript that the statement from the previous tenant, Superintendent Witschi, which the Tribunal notes was filed on the day of the hearing, 14 August, 2013, well after the time provided by the Orders dated 19 June 2013 for the appellant to file her documents, and the Superintendent’s emails to the Agency which managed the rental of the premises, were in evidence. Nevertheless, the original tribunal permitted the appellant to file this statement. The appellant gave evidence about the matters in the statement. The Tribunal asked Ms Chivers questions about this evidence. The Tribunal stated[7], when adjourning to consider the evidence, “I’ll go and look through the documents again.” In the decision the Tribunal referred to the evidence about the leaking eaves before the appellant’s tenancy and the fact that some work had been done then and it became apparent during the appellant’s tenancy that the work had not been 100% effective. It was clear that Superintendent Witschi’s evidence was considered by the original tribunal.
[7] Transcript, page78 line 41 [The transcript is of the proceedings of 14/8/2013]
The Tribunal also dealt with the appellant’s claim for compensation based on the value of the days she had to take off from work and set out why it was unsuccessful. The evidence from her boss related to the appellant’s time off work and the reasons why. The appellant told the original tribunal that she had not suffered a financial loss in taking time off work; she had undertaken her work in her own time. There was no medical or other credible evidence before the original tribunal of the ‘impact on the tenant emotionally’. The appellant told the Tribunal she had not provided a medical report as she did want these details public.
The Tribunal is not satisfied that the original tribunal did not either consider the evidence as submitted or give proper weight to it. There is no requirement for a tribunal or other administrative decision maker, in making a decision, to isolate every issue of fact and record a specific finding in respect of each of them. It is sufficient if the substantial or material issues are considered and that, on examining the decision maker’s reasons, the decision maker has kept those issues in mind and not ignored them.[8]
[8] Commissioner for Taxation (Cth) v Cainero (1988) 15 ALD 368
The original tribunal clearly stated, when delivering the oral decision, that it was not going to go in detail through all of the particular maintenance aspects because that had already happened during the hearing. The Tribunal said it was going to give the parties its conclusions.[9] The Tribunal is satisfied that the original tribunal did keep the substantial issues in mind.
[9] Transcript, page 79 lines 27, 28 and 29
There is no merit in this submission.
The Tribunal did not consider section 26 of the ACAT Act
Section 26 of the ACAT Act states:
26Tribunal may inform itself
The tribunal may inform itself in any way it considers appropriate in the circumstances.
Examples
1 asking an assessor for expert advice on a matter
2 relying on previous experience in relation to the matter
Note 1The tribunal must observe natural justice and procedural fairness (see s 7).
Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
The appellant submitted that the tribunal should have asked for an independent assessment of the property or a medical professional opinion of the effect that the matter had on her health and well being.
Consent Orders were made on 19 June 2013 which required the appellant, by 10 July 2013, to give the tribunal three copies of a number of documents including a statement of any witness on whose evidence the applicant relies, a copy of any expert’s report on which the applicant relies and any further evidence the applicant intends to rely upon.
The appellant had not provided the original tribunal with any medical evidence. When asked why not, the appellant told the Tribunal she had not provided a medical report as she did not want these details public. She said she was deteriorating all the time, but being in the military although sick, she still had to go to work. There was no independent medical evidence to corroborate the appellant’s claim.
It was not up to the tribunal to run the case for the appellant before the original tribunal.
The appellant represented herself; the respondent landlord was represented by officer from the agency which had managed this property for some 16 years. The original tribunal correctly identified that as the application before it was the tenant’s application, the onus was on the appellant to demonstrate that there was a breach by the lessor of the terms of the agreement or of the legislation such that she was entitled to the compensation claimed[10].
[10] Transcript, page 79 lines 13, 14 and 15
The applicant did not provide medical evidence and she did not seek an order under section 26 of the ACAT Act. The onus was on her to obtain and provide that evidence if she intended relying on the impact on her health and wellbeing as part of her compensation claim.
The appellant could have herself obtained independent evidence from a property manager or an appropriately qualified assessor and put such evidence to the tribunal in a witness statement. She did not do this. The Tribunal’s comments in relation to the lack of provision of expert medical evidence equally apply to the appellant’s failure to provide independent expert evidence from a property manager or any other expert.
The Tribunal is not satisfied that there is any merit in this submission.
The Tribunal did not consider her claim that the agent and the respondent had engaged in misleading and deceptive conduct and breached Australian Consumer Law
From a perusal of the original application and the transcript, it is clear that the appellant raised the allegation that the agency had engaged in misleading and deceptive conduct[11] before the original tribunal. The agency was not a party to the original proceedings. The parties were, correctly for a residential tenancy application, the tenant and the lessor. A claim against the agent was not a matter that required determination by the original tribunal.
[11] Transcript, page 77, lines 11 and 12. Applicant’s Statement of Particulars, under Remedy Sought at:
“9. For ACAT to acknowledge that Badenoch Real Estate Agent has deliberately set out to mislead and deceive me into renting the property at … knowing the condition of the premises.”
However the Tribunal noted, at the end of its decision, the original tribunal stated[12]:
I should also note I don’t find that there was any misleading statements (sic) by the agency. I don’t make any findings either way in relation allegations of breach of privacy [another allegation raised by the appellant at the original hearing] or improper conduct by the agent. These are matters, as I discussed before that are for investigation by the appropriate authorities. [words in square brackets added]
[12] Transcript, page 83 lines 22 - 26
It was not apparent where the appellant had claimed that the respondent had engaged in misleading and deceptive conduct and/or that the respondent had breached Australian Consumer Law. There was no such claim identified in the material before the original tribunal. While there was such a claim against the agency, the original tribunal dealt with that claim as set out in the preceding paragraph.
The Tribunal noted that the original tribunal clearly invited the parties to “tell me what law you think I should apply to that (evidence) which presumably is going to be the Residential Tenancies Act, …”(word within brackets added)[13]. While the appellant submitted to the original tribunal that the respondent “had breached almost every Act there is or every clause, as far as I’m concerned, in the Act” in her final submissions it appears that the appellant did not tell the original tribunal that she was claiming that the respondent had breached Australian Consumer Law as well as breaching the RT Act. Again, the onus was on the appellant, not the tribunal, to present her case.
[13] Transcript page 10 lines 17 and 18
There is no merit in this submission.
Conclusion
For the above reasons, the Tribunal is satisfied that the appellant was accorded procedural fairness and natural justice in the proceedings before the original tribunal.
Questions of Law
The appellant asserted that the original tribunal erred in its approach to the legal issues identified in the first to fourth grounds of appeal and, in general terms, that the errors made a difference to the ultimate result.
First ground of appeal
The first ground of appeal was abandoned by the appellant.
Second ground of appeal.
This ground of appeal alleged a question of law and stated:
S.29 of the Residential Tenancies Act 1997 - condition report of the premises must be given to the tenant by the agent upon taking up residence that accurately represents all the defects in the property.
As this ground of appeal and the sixth ground of appeal, which raises a question of fact in relation to the accuracy of the condition report, significantly overlap the Tribunal will return to this ground when considering ground six.
Third ground of appeal
This ground of appeal alleged a question of law and stated:
S38 of the Residential Tenancies Act - the chair erred by suggesting that the tenant could have mitigated the stress by spacing tradesmen out say at once a week! This could have amounted to the works taking more than 5 months and elongating the stress.
Section 38 of the RT Act states:
38General duty to mitigate
A person who, apart from this section, would be entitled to compensation under this Act is not entitled to the compensation, or part of it, if the loss, or part of the loss, to be compensated could have been reasonably avoided.
The appellant submitted that the original tribunal gave weight to extraneous matter in considering section 38 of the RT Act by finding that she did not do everything possible to mitigate the number of tradesmen’s visit and failed to give proper weight to the effort the appellant had to go to in order to facilitate access for repairs.
The original tribunal referred[14] to section 38 of the RT Act and, in this case, to the appellant’s duty to mitigate a loss that she has suffered. The original tribunal set out some steps the appellant might have taken to mitigate her loss.
[14] Transcript, page 80 lines 30 - 33
In this matter, the appellant had refused to have the respondent attend the premises after 4 March 2013 to supervise and inspect the repairs. She had taken over the responsibility for organising the workmen, notwithstanding that the agency had offered to arrange the repairs and to attend at her home and remain there for the duration of the repair work. This resulted in 57 attendances of workmen on 27 days.
In the High Court case of Vetter v Lake Macquarie City Council[15] Kirby J, citing Edwards (Inspector of Taxes) v Bairstow[16], accepted that a view of the facts taken by a primary decision-maker will be an error of law if no reasonable decision-maker could have come to it.
[15] (2001) 202 CLR 439 at [77]
[16] [1956] AC 14 at [33]-[34]
For this Tribunal to intervene it would have to come to the conclusion that the original tribunal took into account factors that ought not to have been taken into account or failed to take into account factors that ought to have been taken into account or made a decision that was so unreasonable that no reasonable authority would ever consider imposing it. The Tribunal cannot intervene to overturn the original decision simply because it disagrees with it[17].
[17] Corkery v Commissioner for Social Housing [2013] ACAT 2
While a differently constituted tribunal may have come to a different decision to the original tribunal, the role of this Tribunal is set out in the previous paragraph.
The original tribunal found that the appellant may have been subject to more frequent visits and interruptions than may otherwise have occurred if the repairs were being organized by the agency. The original tribunal found[18] that the appellant was responsible for some of the impact on and the disturbance to her life and had not mitigated some of her loss thus reducing the compensation by 5%. This finding was clearly available on the evidence before the original tribunal. It was a matter for that tribunal to determine the relevant weight to be attached to the evidence before it. The Tribunal is not satisfied that the decision of the original tribunal was a decision that no reasonable decision-maker could have come to.
[18] Transcript, page 80 lines 38 - 39
The Tribunal rejects the claim that there was an obvious error in the original tribunal’s findings. The third ground of appeal is rejected.
Fourth ground of appeal
53. The fourth ground of appeal alleged a question of law and the appellant submitted that Example 2 in section 26, ‘relying on previous experience in relation to the matter’, permitted the tribunal to rely on previous experience and accordingly should have looked at the evidence from Superintendent Witschi, a previous tenant. The Tribunal is not satisfied that the reference to “rely on previous experience” in the example in section 26 means what the appellant claims. A tribunal does not rely on the experience of others; information from the experience of others has to be elicited in evidence.
The Tribunal decision of Chief Psychiatrist and A (Mental Health)[19], is an example of the tribunal relying on its previous experience. Although section 26 of the ACAT Act was not an issue, that tribunal said at [66]:
Section 36J of the MHA [i.e. Mental Health (Treatment and Care) Act 1994] provides that, unless sooner revoked, a PTO has effect for 6 months or any shorter period stated in the order. Based on its knowledge and experience, the Tribunal was satisfied that a 6 month order was necessary to achieve and consolidate an improvement in A’s condition. [words in square brackets added]
[19] [2010] ACAT 23
An example is a guide only. It does not involve a mandatory obligation or discretion. The Tribunal is satisfied that these words ‘relying on previous experience in relation to the matter’, mean that the Tribunal may, in informing itself, rely on its previous experience, whether or not the same members constitute the tribunal.
The Tribunal has already considered above the appellant’s submissions in relation to the evidence of Superintendent Witschi and the evidence from her boss. The Tribunal has also above referred to the lack of evidence from a medical expert such as a medical practitioner and from an assessor or independent expert property manager.
This claim has no merit and is rejected.
Questions of Fact
Fifth ground of appeal
The fifth ground of appeal alleged a question of fact and, essentially reiterated the submissions previously presented in relation to procedural fairness and natural justice and section 26 of the RT Act. The Tribunal has already found that there is no merit in these submissions.
There is no merit in this ground of appeal.
Sixth ground of appeal
The final ground of appeal alleged a question of fact and the appellant submitted that although a condition report was provided many of the defects in the property were not recorded. The Tribunal will consider this ground and ground two.
The second ground of appeal relies on the allegation that the lessor breached section 29 of the RT Act as the condition report was not accurate as it did not include all of the defects identified by the appellant in the days, weeks and months after she commenced the tenancy. The appellant asserted that the managing agent had prior knowledge of these defects, from the emails from the previous tenant, Superintendent Witschi, and they were not included in the report at the commencement of her tenancy. She also submitted that the premises had been empty for approximately five weeks before she entered into the tenancy and the lessor and/or the agency should have thoroughly inspected the property during that period and ensured that the condition report was accurate and the premises were fit for habitation.
‘Fit for habitation’ was considered by the NSW Consumer, Trader and Tenancy Tribunal in Winder v Grehan[20]:
36. ‘Fit for habitation’ means that the premises do not pose a danger to health and safety[21]and be reasonably comfortable by reference to contemporary standards.[22]
[20] [2013] NSWCTTT 247
[21] Morgan v Liverpool Corporation [1927] 2 KB 131, at 145
[22] Proudfoot v Hart (1890) 25 QBD 42
The original tribunal found that the appellant had inspected the premises on 9 February 2013, signed the tenancy agreement between then and her commencing to reside in the premises on 22 February 2013 and had not raised any repair issues with the agent or landlord prior to the tenancy beginning. The Tribunal noted that in the application to rent the premises signed by the appellant on 12 February 2013 she had ticked the box which had asked if she found the property to be reasonably clean and in acceptable condition. Apart from the water penetrating the eaves the appellant only raised minor items three days after she had moved into the premises which were quickly repaired. The appellant told the Tribunal that it was not possible for her to pick up many of the issues with the premises during her five or ten minute inspection of the premises. She had not requested a second inspection before entering into the tenancy agreement stating that she did not realize she could.
The appellant alleged that the property was not fit for habitation based on the toilet, back left hot plate and pests. The appellant did not report the issue with the toilet until 2 April 2013 and the hot plate on 12 April 2013. While the appellant had reported insects in the property on 26 February 2013, four days after she had commenced residing in the premises, the agent had provided photographs taken of the premises on 6 February 2013 which did not show insects. The appellant also provided photos to the original tribunal which showed some silverfish, and this had been attended to. The tribunal noted that there was also a report which stated that there was no silverfish infestation. The original tribunal did not find that the issue of silverfish made the premises unfit for habitation. The original tribunal found that none of the issues relied on by the appellant rendered the premises unfit for habitation. This finding was available on the evidence.
When giving evidence in relation to the condition of the property the appellant was asked why she had not immediately contacted the agent and returned the key if the premises were uninhabitable and why she had not moved in with her family or moved out of the premises. She agreed that she had remained in the premises but persisted in pursuing her claim that the premises were uninhabitable. This claim was strongly opposed by the respondent who referred not only to the appellant’s staying in the premises but also to their photographs of the premises which were in evidence.
The respondent told the original tribunal that the appellant had been offered the opportunity to terminate the tenancy without penalty, yet she has continued to reside in the premises. The appellant said she did not terminate the tenancy as her employer, the Department of Defence, had certain criteria she would have to meet for the department to pay her removal expenses. The original tribunal had evidence that the premises comprised four bedrooms, three of the bedrooms and a bathroom being on the ground floor, and one bedroom being upstairs with an ensuite. The appellant was the only occupant of the premises.
The original tribunal found that the claimed defects were not, apart from the smoke alarms, the water coming from the eaves and the broken latch on the side gate, defects. Rather they were maintenance requests. There was no reason for the respondent to have knowledge, at the time the condition report was provided to the appellant, of the water coming from the eaves as the evidence before the original tribunal was that these defects had been repaired prior to the current tenancy. The evidence was that the respondent became aware that the repairs were not 100% effective after the tenant commenced her tenancy and there was a significant rainfall event. The lessor attempted to carry out the repairs on 4 March 2013 and was then denied further access to the property by the appellant, notwithstanding the tenancy agreement provides for the lessor to have access to inspect repairs.
The original tribunal had the benefit of seeing and hearing the evidence from the witnesses and of considering the documentary evidence which included many photographs taken by the respondent’s managing agent on 6 February 2013, 12 days before the appellant signed the tenancy agreement and many photos taken by the appellant after she commenced her tenancy. The original tribunal’s findings were open to it on the evidence. It was apparent that that tribunal did not regard the condition report as not being accurate. It found that the bulk of the alleged defects were requests, some being for maintenance and others being simply requests that were granted. The original tribunal said:
These were things that were not what I might call urgent repairs or even the premises not being in a suitable state of repair.[23]
[23] Transcript, page 79 lines 23 and 24
The Tribunal concurs with the original tribunal’s findings in this regard and finds that the second ground of appeal is without merit.
The appellant also relied on subsection 30(3) of the RT Act, and submitted that her evidence as to the state of the premises upon inhabitation should have been accepted as fact by the original tribunal.
Section 30 states:
30Evidence of condition of premises
(1)If section 29 (1) and (3) have been complied with, a statement in a report mentioned in section 29 about the state of repair or general condition of the premises, and of any goods leased with the premises, (other than a statement in relation to which the tenant, by endorsement, has indicated disagreement) is evidence of that state of repair or general condition on the day the tenant was given the report.
(2)If only section 29 (1) has been complied with, a statement in a report mentioned in section 29 about the state of repair or general condition of the premises, and of any goods leased with the premises, is evidence of that state of repair or general condition on the day the tenant was given the report.
(3)If section 29 (1) has not been complied with, evidence by the tenant about the state of repair or general condition of the premises, and of any goods leased with the premises, is evidence of that state of repair or general condition on the day the tenant took possession of the premises.
The appellant told the Tribunal that she had failed to provide a copy of the condition report to the original tribunal. However, it became apparent from a perusal of the transcript that the appellant filed a copy of the condition report on the day of the hearing, 14 August 2013, which the original tribunal referred to as ‘the incoming inspection report’. The original tribunal spent a considerable amount of time questioning the appellant about her hand written entries on this report as well as her emails about her maintenance requests before she returned the condition report to the agency. The original tribunal also questioned Ms Chivers about matters relating to the condition report and the appellant’s assertion that it did not include all of the defects that she believed the agency were aware of.
Subsection 29(1) of the RT Act makes it clear that the lessor is to provide two copies of the condition report to the tenant not later than the day after the tenant takes possession. For the reasons set out above the Tribunal is satisfied that the respondent complied with subsection 29(1) of the RT Act.
Pursuant to subsection 29(3) of the RT Act the tenant must, within two weeks after receiving the copies of the condition report, return one copy to the lessor either signed by the tenant or endorsed with a statement signed by the tenant indicating whether the tenant agrees or disagrees with the whole of the report or specified parts of it.
The appellant returned the condition report to the managing agent on 14 March 2013. The agent had agreed to the delay of one week in returning the report. The appellant had listed on the top of the front page of the condition report work that had commenced but not been completed, namely, ‘water damage front and back; tiles (on order) and light back patio’. These items were also included in the body of the condition report. As well as including the following items in the body of the condition report the appellant had also written, as new jobs, on the front page:
· 3 x smoke alarms not functioning
· Downstairs toilet constantly leaking
On page 17 of the condition report the appellant had written -
Note: 3 x smoke alarms are not functioning and are not listed. Locations: Hallway off 1) rumpus/family, 2) bottom of stairs, 3) top of stairs.
Appeal ground six alleged that although a condition report was provided many of the defects in the property were not recorded.
As stated above, the original tribunal considered the evidence in relation to the condition report. The original tribunal found that there were a large number of maintenance requests during the tenancy. The original tribunal found that the smoke alarms, the leaking through the front and back eaves and the broken latch on the side gate (which was noted on the condition report) were necessary repairs and, notwithstanding that some work had been done before the appellant’s tenancy to address the leaking eaves that work was not 100% effective, so technically this amounted to a breach of the lessor’s obligation to provide the premises in a reasonable state of repair.
Apart from the defects referred to in the previous paragraph, it appears that the other maintenance requests, on 25 February 2013, included tiles around the deck and deck stairs, routine maintenance for the garage door, reaffixing breeze seal on garage door and difficulty in closing second drawer in vanity. On 26 February 2013 the appellant provided maintenance requests for balustrades, carpet on 9th step and doorbell not functioning.
The original tribunal found these requests were ‘requests,’ not ‘urgent repairs’ or ‘defects’ and did not cause the premises to be in an unreasonable state of repair at the commencement of the tenancy. Likewise, other requests which arose during the tenancy did not amount to a breach of the obligation to provide the premises in a reasonable state of repair at the commencement of the tenancy.
In Thornwaite and Commissioner for Social Housing[24] (“Thornwaite”), an appeal from a tribunal decision, that tribunal said at [54]:
54. The general rule on appeals is that an appeal court, or an appeal tribunal in this instance, will be reluctant to interfere with the order of a lower court or tribunal unless there is some manifestly obvious error made which, if it was not rectified, will have a substantive bearing - an adverse bearing- on the case - an adverse bearing that would not be in the interests of justice if it were allowed to stand.
[24][2012] ACAT 11
Having considered all of the matters before the Tribunal, it is not satisfied that there is a manifestly obvious error in the original tribunal decision. The Tribunal is satisfied that the original tribunal’s findings were available to it on the evidence. This ground of appeal is rejected.
Compensation
“As a general rule[25] the tribunal tends to utilise section 71 of the RTA and award compensation by way of rent reduction whilst the tenancy is still in existence, and to use section 83(d) to provide for lump sum compensation where the tenancy has terminated.” Copies of sections 71 and 83 are annexed to this decision. To order retrospective rent reduction the tribunal needs to be satisfied that the tenant’s quiet enjoyment has been ‘diminished significantly’.
[25] Watson v Gaudion [2009] ACAT 15, page 17 at [41]
The original tribunal found that there was an excessive number of items requiring repair in the first six months which had an impact on the appellant’s right to quiet enjoyment. Her quiet enjoyment had been diminished significantly. It also found that the lessor had had control of the process to attend to the repairs and maintenance requests after 4 March 2013 taken away by the tenant and that the appellant had an obligation to mitigate her loss, especially as she was responsible for coordinating the tradesmen’s visits, and that she had failed to do so. These were relevant factors for the original tribunal in assessing compensation on the available evidence.
In the original application the appellant had sought rent reduction (50% of calendar rent $2,520 until repairs completed) and compensation (100% of the rent repayable from 22 February 2013 to 30 April 2013, 68 days x $82.85 = $5,633.80).
By 19 June 2013, the appellant’s claim was compensation of $6,959.40 (100% rent for 84 days from 22 February 2013 to16 May 2013), and 50% rent reduction from 17 May 2013 to 30 June 2013, $1,863.90 and compensation for water usage ($100.00), pest control devices ($59.90) and ACAT fee ($127.00), all of which totaled $9,110.20.
Notwithstanding that the original tribunal did not specifically refer to the amount of compensation being sought in its oral reasons, as stated above, that tribunal referred to the documentation, which by inference included the application and other documentary material the appellant relied on.
The original tribunal found that it was appropriate to reduce the appellant’s rent from 22 February 2013 to 1 May 2013, a period of nine weeks, for the impact on her quiet enjoyment of the premises caused by the damaged eaves and the associated repairs by 20% and reduced this to 15% because the appellant did not do everything she could to minimize the impact on herself.
For the period 2 May 2013 to mid- July 2013, a period of 11 weeks, the original tribunal found that it was not necessary for the appellant to be at home for any of the outdoor work or work that did not require access through the house and that it was, therefore, appropriate to reduce the rent by 10%, but reduced it again by 5% for the appellant not minimizing the impact of herself.
The appellant submitted that the decision of the original tribunal did not award her adequate compensation for the breaches of the legislation and for the misrepresentation of the premises and for the impact on her personal and professional life. She submitted that inadequate consideration was given to the rent she had paid for an executive residence and too much weight was given to the appellant’s failure to mitigate the impact on herself.
The Tribunal has considered all of the appellant’s submissions. The Tribunal cannot intervene to overturn an original decision simply because it disagrees with it. The question the Tribunal must ask itself is - ‘Is the decision so unreasonable that no reasonable authority would ever consider imposing it?’
From a perusal of the transcript the original tribunal’s findings were clearly available on the evidence before it. The answer to the question posed by the Tribunal in the previous paragraph is that the decision was not so unreasonable that no reasonable authority would ever considering imposing it.
The appellant submitted to the Tribunal hearing the appeal hearing that she should not have to pay rent for the first 12 months, that is for the duration of the tenancy, as she has not had quiet enjoyment of the premises during that period. It was clear from the evidence that the appellant has not had contact from the managing agent during the last six months as the appellant has refused to grant and continues to refuse to grant the agent access to the property. It is unreasonable for the appellant to claim she did not have quiet enjoyment during that six month period. This claim is totally unrealistic. The tribunal’s statement in Watson v Gaudion[26]is apt in the present matter:
I consider the tenant’s claims to be not only ambit in quantum, but opportunistic in nature.
[26] [2009] ACAT 15, page 7 at [2]
There is no merit in this ground of appeal.
Conclusion
The Tribunal’s role is to address the questions of fact and/or law that have been raised and if an error is found which, if not rectified, will have an adverse bearing on the case, the role of the appeal Tribunal is to allow the appeal. If an error is found which will not have an adverse bearing on the case if allowed to stand or if an error is not found then the appeal Tribunal’s role is to confirm the original decision.
The appeal has been wholly unsuccessful for the reasons set out above. The Tribunal will confirm the original decision.
………………………………..
Ms E. Symons - Presidential Member
Residential Tenancy Act 1997
Reduction of existing rent
(1)On application by a tenant, the ACAT must order a reduction in the rental rate payable under a residential tenancy agreement if it considers that the tenant’s use or enjoyment of the premises has diminished significantly as a result of any of the following:
(a)the loss or diminished utility of an appliance, furniture, a facility or a service supplied by the lessor with the premises as a result of—
(i)the withdrawal of the appliance, furniture, facility or service by the lessor; or
(ii)the failure by the lessor to maintain the premises and any appliance, furniture or facility supplied with the premises in a reasonable state of repair, having regard to their condition at the commencement of the residential tenancy agreement; or
(iii)the failure by the lessor to provide and maintain the locks or other security devices necessary to ensure that the premises are reasonably secure;
(b)the loss of the use of all or part of the premises;
(c)interference with the tenant’s quiet enjoyment of the premises or the tenant’s ability to use the premises in reasonable peace, comfort and privacy by the lessor or anyone claiming through the lessor or having an interest in, or title to, the premises.
(2)To remove any doubt and for subsection (1), a tenant’s quiet enjoyment of premises is interfered with if there is substantial interference with, or a significant lessening of freedom in exercising, the tenant’s rights.
(3)A reduction in the rental rate ordered under subsection (1)—
(a)takes effect from the day the tenant’s use or enjoyment of the premises diminished, or the later date that the ACAT specifies; and
(b)remains in force for the period, not longer than 12 months, specified by the ACAT.
(4)The ACAT may order a lessor to pay to the tenant the difference between the rent paid and the rent payable as a result of an order for a rental rate reduction.
(5)Any purported increase in the rental rate in relation to premises for which a reduction order is in force is void and any amount paid above and beyond the reduced rental rate in accordance with a purported increase is a debt owing by the lessor to the tenant.
Orders by ACAT
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:
(a)an order restraining any action in breach of a residential tenancy agreement or occupancy agreement;
(b)an order requiring performance of a residential tenancy agreement or occupancy agreement;
(c)an order requiring the payment of an amount to the Territory or a person;
(d)an order requiring the payment of compensation for loss of rent or any other loss caused by the breach of a residential tenancy agreement or occupancy agreement;
(e)an order stating that an amount (not more than the amount of bond paid into the trust account in relation to the relevant residential tenancy agreement) be paid to the lessor from the trust account;
(f)an order restoring a residential tenancy agreement or occupancy agreement and granting the former tenant or occupant possession of premises—
(i)from which the person was evicted in contravention of this Act; or
(ii)that the person vacated in accordance with a termination notice that was not in the form (if any) approved under section 133 (Approved forms—Minister) for the notice;
(g)an order requiring payment of all or part of the rent payable under the standard residential tenancy terms or standard occupancy terms into the ACAT until the ACAT orders otherwise;
(h)an order directing payment out of any amount paid into the ACAT as appropriate;
(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;
(j)an order declaring the premises were abandoned on a particular day;
(k)an order correcting a defect in a notice or in the service of a notice.
Note 1The ACT Civil and Administrative Tribunal Act 2008, s 56 sets out other orders that the ACAT may make.
Note 2The ACAT may make interim orders (see ACT Civil and Administrative Tribunal Act 2008, s 53).
PUBLICATION DETAILS
FILE NUMBER: | |
PARTIES, APPELLANT: | Bernadine O’Shaughnessy |
PARTIES, RESPONDENT: | Lanton Superannuation Pty Ltd |
COUNSEL APPEARING, APPELLANT | |
COUNSEL APPEARING, RSPONDENT | |
SOLICITORS FOR APPELLANT | |
SOLICITORS FOR RESPONDENT | |
TRIBUNAL MEMBERS: | Ms E. Symons |
DATES OF HEARING: | 24 March 2014 |
PLACE OF HEARING: | Canberra |
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