Qin v He (Residential Tenancies) - [2020] ACAT 116

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

QIN & ORS v HE (Residential Tenancies) [2020] ACAT 116
RT 233/2020
RT 310/2020
Catchwords: RESIDENTIAL TENANCIES – two separate tenancies in one two bedroom unit – the use of ‘house rules’ in tenancies – the extent of lessor control consistent with a tenancy and quiet enjoyment – the use of additional terms to impose ‘house rules’ – the regulation of common areas – regulation of utilities in tenancies akin to boarding houses – holding deposits not allowed – key deposit not allowed – loss of facilities in loss of parking bay, mailbox and air conditioner – eviction for breach of house rules – repayment of unlawfully charged utilities – lessor making threats to the tenants – lessor failure to prepare condition reports – excessive rent in advance

Legislation cited: Residential Tenancies Act 1997 ss 6B, 6C, 6D, 6E, 6F, 9, 10, 15, 18, 23, 36, 44, 71
Standard Terms 3, 15, 21, 22, 23, 23A, 28, 42, 43, 44, 48, 51, 52, 53, 75, 76, 77, 78, 79

Cases cited:Faulder v Tran [2018] ACAT 80

List of

Texts/Papers cited: Anforth, Christensen and Adkins, Residential Tenancies Law and Practice in NSW (The Federation Press, 7^th ed, 2017)

Tribunal: Senior Member A Anforth

Date of Orders:  21 September 2020 and 21 December 2020
Date of Reasons for Decision:         21 December 2020
AUSTRALIAN CAPITAL TERRITORY  RT 233/2020
CIVIL & ADMINISTRATIVE TRIBUNAL
BETWEEN:
XINZHU QIN
First Applicant/Tenant
DAWEI GUO
Second Applicant/Tenant
YILIN FANG
Third Applicant/Tenant
YANG YANG
Fourth Applicant/Tenant

AND:
HONGGUANG HE
Respondent/Lessor

TRIBUNAL: Senior Member A Anforth

DATE:21 September 2020

ORDER

The Tribunal orders that:

The respondent is to pay the applicants a sum of compensation to be determined by the Tribunal.
The matter is listed on 12 October 2020 at 10:00am for determination of the amount of compensation.
The applicants are to file and serve 29 September 2020 particulars of the amount they claim pursuant to the following entitlements:
(a)A return of their bond, the holding deposit, the bond for the keys.
(b)The Tribunal lodgement fee.
(c)A return of the utility charges paid.
(d)Some rent reduction for the lack of parking access, mailbox access and withdrawal of the air conditioning service.
(e)Compensation for the breaches of quiet enjoyment suffered.
(f)Compensation for the inconvenience and costs imposed on them having to move prematurely from the premises.
A draft of the reasons for decision are provided to the parties and their representatives only. The draft reasons for decision are not be given to any other person unless for the purpose of seeking legal advice. When relisted the respondent may make any such application as he chooses concerning the suppression of his identity.
……………Signed………..
Senior Member A Anforth
AUSTRALIAN CAPITAL TERRITORY RT 310/2020
CIVIL & ADMINISTRATIVE TRIBUNAL
BETWEEN:
HONGGUANG HE
Applicant/Lessor
AND:
XINZHU QIN
First Respondent/Tenant
YANG YANG
Second Respondent/Tenant
DAWEI GUO
Third Respondent/Tenant
YILIN FANG
Fourth Respondent/Tenant

TRIBUNAL: Senior Member A Anforth

DATE:21 September 2020

ORDER

The Tribunal orders that:

The application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] ACAT 116
Decision Date: 21 September 2020 and 21 December 2020

CaseChat Overview and Summary

In this matter, the tenants, who were students from China, had entered into sub-tenancy agreements with the lessor for two bedrooms in a residential flat in Canberra. The lessor, who also lived in the adjacent flat, had signed two separate agreements with the students, one for each bedroom, although the agreements referred to the wrong unit number. The tenants brought proceedings against the lessor, claiming compensation for breaches of their rights under the Residential Tenancies Act 1997 (RTA). The primary issue before the Tribunal was whether the lessor had breached the RTA by including void terms in the residential tenancy agreements. The Tribunal was required to determine if the additional terms, which were not endorsed by the Australian Capital Territory Civil and Administrative Tribunal (ACAT), were inconsistent with the RTA and therefore void.

The Tribunal found that several of the additional terms were inconsistent with the RTA and were therefore void. The Tribunal noted that some of these terms were plainly void for inconsistency with the RTA, while others arguably were so. For example, the requirement that the tenants personally reside in the premises, the requirement that the tenants respect the landlord or landlady, and the prohibition of slander or attacks online were inconsistent with the RTA and therefore void. The Tribunal also found that the lessor had breached the RTA by including these void terms in the residential tenancy agreements. The Tribunal concluded that the lessor's actions had caused the tenants to suffer inconvenience and costs, and that they were entitled to compensation for these breaches.

The Tribunal ordered that the lessor pay the tenants a sum of compensation to be determined at a later date. The Tribunal also ordered that the tenants file and serve particulars of the amount they claim for compensation, including a return of their bond, holding deposit, and bond for the keys, as well as compensation for the breaches of quiet enjoyment suffered and the inconvenience and costs imposed on them having to move prematurely from the premises. The matter was listed for a further hearing to determine the amount of compensation to be paid. The Tribunal also provided draft reasons for decision to the parties and their representatives only, and noted that the lessor could make an application to suppress his identity when relisted.

Orders

Orders of the court

The Tribunal orders that:

The respondent is to pay the applicants a sum of compensation to be determined by the Tribunal.

The matter is listed on 12 October 2020 at 10:00am for determination of the amount of compensation.

The applicants are to file and serve 29 September 2020 particulars of the amount they claim pursuant to the following entitlements:

(a) A return of their bond, the holding deposit, the bond for the keys.

(b) The Tribunal lodgement fee.

(d) Some rent reduction for the lack of parking access, mailbox access and withdrawal of the air conditioning service.

(e) Compensation for the breaches of quiet enjoyment suffered.

(f) Compensation for the inconvenience and costs imposed on them having to move prematurely from the premises.

A draft of the reasons for decision are provided to the parties and their representatives only. The draft reasons for decision are not be given to any other person unless for the purpose of seeking legal advice. When relisted the respondent may make any such application as he chooses concerning the suppression of his identity.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The sum of $3,075.25 jointly to Ms Fang and Mr Gao.………………..………..Senior Member A AnforthREASONS FOR DECISION The tenants were students from China studying in Canberra. The lessor was the owner of a two-bedroom residential flat in a strata complex designated as Unit 2. He was also the tenant of the adjacent two-bedroom designated Unit 3. On 1 February 2020 the lessor entered two separate residential sub-tenancy agreements, one for each of the bedrooms in Unit 3, albeit the signed residential tenancy agreements both referred to Unit 2 and not Unit 3. The tenants, Dawei Guo and Yilin Fang formed one set of sub-tenants and occupied one bedroom; the tenants Xinzhu Qin and Yang Yang formed the second set of sub-tenants and occupied the other bedroom in Unit 3. For ease of reference the two sets of sub-tenants are referred to below as the ‘tenants’. The lessor lived in Unit 2. The rent for Dawei Guo and Yilin Fang was $450pw and the bond was $1,800. The rent for Xinzhu Qin and Yang Yang was $440pw and the bond $1,760. On the written agreement the fixed term of the tenancy for Dawei Guo and Yilin Fang was only nine days i.e. from 1 February 2020 to 10 February 2020. The fixed term for Xinzhu Qin and Yang Yang was one year and nine days i.e. 1 February 2020 to 10 February 2021. The parties informed the Tribunal that both the tenancies were thought to be for a year and so the Tribunal is prepared to accept that the reference to ‘10 February 2020’ was a clerical error which should have read ‘10 February 2021’. Both of the written residential tenancy agreements were in the prescribed form of Schedule 1 Residential Tenancies Act 1997 (RTA). Each agreement also contained the same 26 additional terms, none of which were endorsed under section 10 of the RTA. Some of these additional terms are plainly void for inconsistency with section 9 of the RTA and others arguably so:9(1) A term of a residential tenancy agreement is void if—(a) it is inconsistent with a standard residential tenancy term; and(b) it has not been endorsed by the ACAT under section 10.(2) A term of a residential tenancy agreement is void if it is inconsistent with this Act (other than a standard residential tenancy term). The additional terms are referred to as a set of ‘house rules’ and they purported to regulate many aspects of the tenants’ right of occupancy of the premises and their quiet enjoyment. By way of example only:Item 2: required daily cleaning of the kitchens, toilet, dishwasher and shower.Item 3: prohibited pets and parties.Item 6: required the tenant to personally reside in the premises.Item 7: allowed the owner to sell and the tenant to vacate on one months’ notice.Item 8: prohibited “any slandering, or attacking online will be recorded and evidenced for the local police reference”.Item 11: “the tenants are responsible for their own safety”.Item 13: “the tenants have to …respect the landlord or landlady”.Item 15: the tenants are responsible for the connection and payment of their utilities.Item 17: “the tenants have to be WeChat or phone/email communicable”.Item 18: the owner can visit and inspect on 10 hours notice.Item 19: “the owner should not enter the tenants’ room without the tenants’ consent unless the tenants violate these houses rules or laws”.Item 21: “The owner can have up to 8 weeks to repair if it is the owner’s issue”.Item 23: “Violating these items, the owner has the right to evict the tenant by law…”.[1][1] Tenancy Agreement 1 February 2020, page 7

Ratio Decidendi

Legal Principle Established

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