Qin v He (Residential Tenancies)

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.