Ranko and Nada Kiternas v John and Christine Peios
[2008] ACTRTT 24
•10 December 2008
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES TRIBUNAL
CITATION:Ranko and Nada KITERNAS v John and Christine PEIOS [2008] ACTRTT (24)
RT 490of 2008
CATCHWORDS
Compensation – Damages – Notice to Vacate – Issue Estopple
LEGISLATION
Residential Tenancies Act 1997 (ACT)
Sections 71, 104(d) and 104(l)
Standard terms 55 and 57
CASE LAW
Henderson v Henderson (1843) 3 Hare at 0155 (67 ER at p319)
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Samuel v Sebel Furniture Limited [2006] WCCNSWPD 141
Lambidis v Commissioner of Police (1995) 37 NSWLR at 322
Worrall v Commissioner for Housing [2002} FCAFC 127
Tribunal: J.A. David, Member
Date: 10 December 2008
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 490 of 2008
RE:Ranko and Nada KITERNAS
(Applicants/Tenants)
AND: John and Christine PEIOS
(Respondents/Lessors)
DECISION
Tribunal : J. A. David, Member
Date : 30 October 2008
Decision :
That all of the tenants’ claims are dismissed.
…………………………….
J.A. David –Member
10 December 2008
IN THE RESIDENTIAL ) RT 490 of 2008
TENANCIES TRIBUNAL )
OF THE AUSTRALIAN )
CAPITAL TERRITORY )
APPLICANT: Ranko and Nada Kiternas
(Tenants)
RESPONDENTS: John and Christine Peios
(Lessors)
STATEMENT OF REASONS
BACKGROUND
Mr and Mrs Peios (as lessors) and Mr and Mrs Kiternas (as tenants) entered into a residential tenancy agreement in respect of premises at 6 Manu Place, Waramanga in the ACT for a fixed term of 12 months from 30 May 2006 to 29 May 2007. The agreement continued as a periodic tenancy until the tenants vacated on 9 April 2008.
The tenants vacated as a result of an order of the Tribunal in proceedings RT192 /08 terminating the tenancy for breach by the tenants of the tenancy agreement, constituted by a failure to pay rent in the amount of $769.00. The tenants were ordered to give vacant possession to the lessors on 9 April 2008, which they did.
The relationships between the tenants, the lessors’ Property Managers, Ian McPhee and Partners Pty Ltd, and the lessors gradually deteriorated to the extent that the tenancy has been the subject of a number of proceedings in the Tribunal between the lessors and the tenants: RT07/509, RT08/192, and RT 08/377 together with these proceedings RT08/490.
On 10 June 2008 the tenants, Mr and Mrs Kiternas, brought these proceedings, RT08/490, claiming compensation from the lessors, Mr and Mrs Peios, in the sum of $39,480 for “lack of maintenance” and for “bullying and retaliation by the agents”. Mr and Mrs Kiternas claimed compensation in the following terms:
- Rental reduction
Refusal to repair kitchen tiles $14,500
First reported 1/5/07 (50 weeks @ $290)
- Personal hardship $10,000
Mrs Kiternas had two unrelated accidents when heard
a promised new lease was refused $5,000
Mr Kiternas suffered a stroke to which Property Managers’
actions strongly contributed $5,000
A Notice to Vacate was issued as intimidation not
- Moving to new premises $ 2,500
to engage the Tribunal
- Rent Difference $ 7,280
Forced to move to more expensive premises for
2 years (104 weeks @ $70)
Lived in Weston/Woden area for 32 years; now live
- Travel cost difference $ 5,200
in Gilmore (104 weeks @ $50)
On 9th July 2008 the matter came before the Tribunal: Mr and Mrs Peios were represented at the hearing, Mr and Mrs Kiternas did not attend. As the claim was for more than $25,000 (the limit of the Tribunal’s jurisdiction without the parties’ consent) and as Mr and Mrs Peios did not consent to the additional jurisdiction, the Tribunal dismissed the Application.
On 22 July 2008 Mr Kiternas advised the Tribunal that the tenants had not received any notice of the hearing date and requested that the order dismissing the application be set aside. The order was set aside by consent on 25 August 2008 and the tenants filed an amended application reducing their claim to $25,000. The lessors’ Property Managers filed a response on behalf of the lessors denying liability for the claimed compensation and /or damages. The Tribunal notes that the allegations by the tenants repeat to a significant extent allegations made by the tenants in other proceedings before the Tribunal.
In the lessors’ response, the lessors’ Property Managers stated that it had:
“… recently been brought to Ian McNamee & Partners attention that we in fact gave Mr and Mrs Kiternas 25 weeks and 4 days notice to vacate and not the required 26 weeks, and was (sic) in fact in breach of the act (sic). This was an inadvertent administrative error on our behalf. However, Ranko and Nada Kiternas did not vacate the property until 9th April 2008, some 31 weeks after the notice was issued. The issued notice, for 3 days short of the requirement, has been previously overlooked by the Tribunal, and Mr and Mrs Kiternas, we apologise for this error however we strenuously deny that this has provided any additional inconvenience to the applicant.”
Based on that statement the Tribunal has considered whether the so called “administrative error” in the Notice to Vacate dated 4 September 2007 which results in the Notice being invalid, entitled the tenants to any compensation.
At the hearing, the tenant, Mr Kiternas, raised a number of issues raised in earlier proceedings before the Tribunal in relation to the claim for compensation in the Application:
a. The alleged retaliatory nature of the Notice to Vacate Without Cause, dated 4 September 2007, which was the subject of RT07/509: In those proceedings the tenants asked the Tribunal to declare invalid the Notice to Vacate without Cause on the basis it was motivated by the tenants’ threat to go to the Tribunal. The Tribunal, after detailing the sequence of events surrounding the issuing of the Notice to Vacate without Cause, held that the issuing of that Notice was not a retaliatory action under section 57 of the Residential Tenancies Act 1997 (the Act) as there was no application by the lessors for a termination and possession order. Section 57 only applies to give a defence to tenants in proceedings in which lessors have applied for a termination and possession order.
b. The Tribunal also found in RT07/509 that the Notice to Vacate without Cause was not issued to forestall or in retaliation for, any anticipated application by the tenants to the Tribunal. The tenants sought withdrawal of the Notice to Vacate without Cause and at the hearing on 26 September 2008 the Tribunal refused to so order on the basis that the lessors (in fact, any lessors) are entitled to issue a Notice to Vacate without Cause as long as the lessors give the tenants 26 weeks notice to vacate.
c. The alleged “bad” references given by the Property Managers to other agents for properties the tenants were seeking to rent, which the tenant alleged led to hardship for them for the 6 months during which they sought other premises: This allegation was also dealt with in RT07/509. The Tribunal found that the tenants had not produced evidence of false or misleading references being given by the Property Managers to other agents in relation to the tenants.
d. The rental increase of December 2006 (which had been disallowed by the Tribunal in RT07/509 on 26 September 2008), Notices to Remedy and Notice to Vacate based on that rental increase: As stated, this rental increase was the subject of proceedings in RT08/509 in which the Tribunal disallowed this rental increase and ordered the lessors to repay the amount of rent the tenants had paid up to that date based on the increase.
e. The rental increase of approximately 13 December 2007 and Notice to Vacate based on non-payment by the tenants as a consequence of that increase: That Notice to Vacate was upheld in RT08/192 and the termination and possession order under which the tenants finally vacated on 9 April 2008 was issued in those proceedings. The Tribunal ordered on 3 May 2008 that the tenancy agreement had been breached, that the residential tenancy agreement was terminated and that vacant possession of the premises was to be given to the lessors on 9 April 2008. The tenants were ordered to pay rental arrears of $769 on or before 9 April 2008.
f. The Rental Bond Board referred to the tribunal a dispute between the parties in relation to the balance of the bond in respect of the tenancy agreement; those proceedings were RT08/337 concerning the amount of $100. The issue was payment for ‘tidying up the lawns’ at the premises at the end of the tenancy. The Tribunal decided the issue in favour of the tenants at the hearing on 30 October 2008 and ordered the lessors to pay the tenants the amount of $100 being part of the bond that had been released to the lessors that should have been released to the tenants.
10.Taking into account the above background of proceedings between the parties, the Tribunal will deal with each of the tenants’ claims in turn.
Rental reduction
11.The tenants claimed a rental reduction of $14,500 (being 50 weeks at $290 per week from 1 May 2007 to the date of vacation 9 April 2008) for the lessors’ alleged refusal to repair missing tiles in the kitchen. Section 71 of the Act provides:
(1)On application by a tenant, the tribunal shall 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)…
(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)….
(2) A reduction in the rental rate ordered under subsection (1) shall -
(a) take effect from the day on which the tenant’s use or enjoyment of the premises diminished or such later date as the tribunal specifies; and
(b) remain in force for such period, not exceeding 12 months, as is specified by the tribunal.
- The effect of section 71 was considered by the Full Federal Court in Worrall v. Commissioner for Housing [2002] FCAFC 127 at paragraph 54 where the Court cited, with approval, paragraph 486 of the Community Law Reform Committee Report (the Report) and stated that s. 71 carried into effect the intention expressed in the Report, making clear that the Tribunal should have the ability to impose a rent reduction which spans the entire period of the breach, from the lessors’ initial failure to make repairs until the lessors have fully met their obligations.
13.In RT08/192, the tenants produced photographs of the tiles in the kitchen about which they are complaining in these proceedings; the photographs showed approximately 9 tiles missing and no holes in the gyprock where the tiles had been. The parts where the tiles were missing were unsightly but did not appear likely to cause a hazard to the tenants’ health.
14.In the lessors’ response, the Property Managers stated that the tenants had not raised the repair of the kitchen tiles in any of the previous Tribunal hearings even though the tenants had raised the lack of repairs to vertical blinds and fly screens at the hearing on 26 September 2007 (RT07/509). The lessors had been ordered to carry out those repairs and both the tenants and the lessors had agreed that the lessors had completed those repairs by the hearing before the Tribunal on 26 November 2007. The lessors submitted that, had the tenants requested repairs to the kitchen tiles be undertaken, the tenants would have raised those repairs at the hearing on 26 September 2007 or, at least, at the hearing on 26 November 2007 when the tenants agreed the repairs they had requested had been completed.
15.The claim that the tenants had notified the Property Managers of the needed repairs to the tiles on 1 May 2007 was not supported by any evidence other than Mr Kiternas’ statement to the Tribunal at the hearing that he did so. Given that the tenants did not raise the need for the repairs to the kitchen at any of the hearings before the Tribunal between September and November 2007, the Tribunal is not convinced on the balance of possibilities that the need for the repairs was notified to the lessors prior to 13 December 2007. The repairs to the tiles were not urgent repairs under Clause 60 of the Standard Residential Tenancy Terms in Schedule 1 of the Act; they were minor repairs. In their response, the lessors stated they inspected the kitchen tiles and made a decision that the tiles would all be replaced at the end of the tenancy.
16.Having considered the photographs and the submissions by both parties, the Tribunal dismissed this part of the tenant’s claim for these reasons:
a.Under section 71 (1) set out above, the Tribunal can impose a rental reduction if it considers that the tenant’s use or enjoyment of the premises has “diminished significantly”. The Tribunal finds that the photographs of the nine missing tiles (tendered by the tenants at the hearing in RT08/192), do not constitute evidence that the tenants’ use or enjoyment of the premises had “diminished significantly”.
b.On the balance of possibilities, the Tribunal finds that there was no evidence that the tenants had raised the need for repairs to the kitchen tiles prior to an email Mr Kiternas sent to the Property Managers on 13 December 2007 which was about 4 months prior to vacating.
c.The repairs were minor repairs.
d.The tenants had not raised the need for the repairs to the tiles at any previous hearings before the Tribunal.
e.The lessors knew in December 2007 that the tenants were to vacate in early 2008 and made a decision to postpone the repairs until all the tiles could be replaced at the end of the tenancy.
f.The rental reduction claimed was for the whole of the weekly rent for 50 weeks, which was outside any reasonable claim for a rental reduction and is in breach of the tenants’ obligation to mitigate their damages under section 38 of the Act.
Compensation for Lessors’ Failure to Repair
17.As the tenants were unrepresented at the hearing, the Tribunal has considered whether the tenants are entitled to compensation under section 104(d) of the Act for any breach by the lessors of their duty to repair under Standard Terms 54-57 of the Act. Section 104(d) provides that the Tribunal may order the payment of compensation for “any other loss caused by the breach of a residential tenancy agreement”. The relevant Standard Terms provide:
55. (1) The lessor shall maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the Tenancy Agreement. The tenant shall notify the lessor of any need for repairs.
57. Subject to clause 55, the lessor shall make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).
18.These provisions impose a mandatory duty on the lessors to maintain the premises during the tenancy in a reasonable state of repair, having regard to their condition at the commencement of the tenancy. The lessors’ duty to repair arises only when the tenants put the lessors on notice of the need for the repairs. (Anforth, Thawley and Christensen Residential Tenancies Law and Practice in NSW at [2.47.0]).
19.Given the reasoning above in relation to the claimed rental reduction, the Tribunal does not consider that the lessors’ breach warrants an award of compensation for not undertaking the minor repairs during the approximately 4 months from the date the tenants notified the need for the repairs to the date the tenants vacated. The lessors’ breach of their obligation under Clause 57, to make the repairs within 4 weeks of being notified by the tenants, was not sufficiently serious to warrant an order for compensation.
Personal hardship
20.The tenants claimed compensation of $10,000 for “personal hardship”, detailing two factors to support this part of their claim:
·“Mrs Kiternas had two unrelated accidents when she heard
a promised new lease was refused $5,000
·Mr Kiternas suffered a stroke to which the Property Managers
actions strongly contributed $5,000”
21.The tenants did not present medical evidence in support of this part of their claim, nor did they give evidence of any causal connection between the tenancy and the two alleged accidents and the stroke, other than the statement in the Application and the oral statement by the tenant Mr Kiternas at the hearing, in support of this part of their claim.
22.The Tribunal has assumed that the tenants are claiming compensation under section 104 (l) which provides that the Tribunal may, in addition to any other order it is empowered to make, make “any other order the Tribunal considers appropriate”. In view of the lack of any medical evidence to connect the events in the tenancy to the two claimed accidents and the stroke, and the lack of any evidence, other than Mr Kiternas’ statements in his Application and orally at the hearing, that the accidents and the stroke occurred, this part of the tenants’ claim was dismissed.
Rent Difference
23.The tenants claimed they were “forced to move to more expensive premises for 2 years” and calculated the compensation/damages they claimed as 104 weeks at $70 per week (the difference between the rent they were paying to the lessors and the rent they are now paying under a new tenancy agreement) totalling $7,280.
24.Again, the Tribunal has assumed that the tenants are claiming compensation either under section 104 (l) of the Act which provides that the Tribunal may, in addition to any other order it is empowered to make, make “any other order the tribunal considers appropriate” or under section 104(d) of the Act which provides that the Tribunal may order the payment of compensation for “any other loss caused by the breach of a residential tenancy agreement”.
25.There was no evidence, other than Mr Kiternas’ statements in his Application and orally at the hearing, to prove this occurred as a direct result of any action of the lessors or the lessors’ Property Managers in relation to the tenancy agreement. The choice of new premises was unconnected with the “old” tenancy agreement. The choice of the location of the new premises was that of the tenants alone. As a result the Tribunal dismissed this part of the tenants’ claim.
Travel cost difference
26.The tenants also claimed compensation/damages of $5,200 on the basis of “travel cost difference” as they claimed they had lived in Weston/Woden area for 32 years and now live in Gilmore”. The tenants calculated the amount claimed as 104 weeks at $50 per week.
27.Again, the Tribunal has assumed that the tenants are claiming compensation under sub-sections 104 (d) and/or 104(l) of the Act. Again, there was no evidence that this occurred as a direct result of any action of the lessors or the lessors’ Property Managers in relation to the tenancy agreement. The choice of location of the new premises was unconnected with the “old” tenancy agreement. The choice of the location of the new premises was that of the tenants alone. As a result the Tribunal dismissed this part of the tenants’ claim.
Moving to new premises
28.The tenants claimed $2,500 compensation/damages on the basis that the Notice to Vacate without Cause was issued as intimidation not to engage the Tribunal. The tenant Mr Kiternas alleged that there had been an attempt by the Property Managers to steal from the tenants: that in August 2007 the Property Managers had issued two Notices to Remedy claiming that $640 and $462 was owed by the tenants in rental arrears. At the hearing the tenants argued that the Notice to Vacate was a retaliatory action by the Property Managers and/or the lessors because the tenants had then threatened to “go to the Tribunal”.
29.These allegations by the tenant were the subject of a determination by the Tribunal on 26 November 2007 in RT08/509 in which Tribunal gave written reasons on 9 January 2008, stating at paragraph 15 (page 4 of the Reasons):
“… after perusing the file relating to the hearing by a differently constituted Tribunal, considering the evidence and having had the benefit of hearing from and observing the tenants and the lessors’ agent, the Residential Tenancies Tribunal is satisfied that the Notice to Vacate was not issued to forestall, or in any retaliation for, any anticipated application by the tenants to the Residential Tenancies tribunal.”
30.Although the matters raised by the tenant have been the subject of a prior determination by the Tribunal, the Tribunal listened to all that the tenant, Mr Kiternas, had to say in relation to the above allegations and heard his sworn evidence. The Tribunal also had the benefit of Mr Nemeth of Ian McNamee & Partners, the Property Managers, giving sworn evidence that corroborated the sequence of events set out by the Tribunal in its written reasons in RT07/509 (see para. 12 above).
31.The Tribunal has also carefully perused the files of the four proceedings between the parties in the Tribunal in relation to this tenancy agreement. Taking all the evidence into consideration, the Tribunal can only reiterate the determination already made by the Tribunal in RT07/509 that it is satisfied that the Notice to Vacate without Cause dated 4 September 2007 was not issued to forestall, or in any retaliation for, any anticipated application by the tenants to this Tribunal.
32.In the lessors’ response to these proceedings, the Property Managers raised issue estopple in relation to this part of the tenants’ claim. As a matter of law, this part of the tenants’ claim is the subject of issue estopple in the Tribunal. That issue estopple applies to Tribunals such as this, is illustrated by its application in Samuel v Sebel Furniture Limited [2006] NSW WCCPD 141 (Samuel’s Case), proceedings in the NSW Workers Compensation Commission. In that case, Deputy President Roche stated that “prior ‘adjudications’ can give rise to an issue estopple”. Deputy President Roche cited Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSWWCCPD 43 as authority. As stated in Samuel’s Case (above) a prior adjudication of an issue in a case gives rise to an issue estopple such that the same issue cannot be raised again in later proceedings. As such the issue of retaliatory action by the Property Agents should not have been raised by the tenants in these proceedings, it having been determined by the Tribunal in RT08/590.
33.In RT08/192, the Tribunal terminated the tenancy and ordered the tenants to give vacant possession to the lessors on 9 April 2008, which the tenants did. The tenants gave vacant possession in accordance with the Tribunal’s order, not in accordance with the Notice to Vacate without Cause. Therefore, there is no basis for a claim for compensation by the tenants against the lessors based on the Notice to Vacate without Cause dated 4 September 2007.
34.Also, as noted by the Tribunal in RT08/192, the Notice to Remedy dated 13 February 2008 impliedly repealed the earlier Notice to Vacate without Cause dated 4 September 2007.
35.As a result of all of the above, this part of the tenants’ claim is dismissed.
Invalid Notice to Vacate - 4 September 2007
36.As stated in paragraph 7 above, the lessors’ Property Managers advised the Tribunal that the Novice to Vacate dated 4 September 2008 was invalid due to an “administrative error” as the Notice did not give the full 26 week period provided for under clause 83 of the Standard Terms but in fact was for 25 weeks and 4 days, that is 3 days short of the full period required.
37.Based on that statement the Tribunal has considered whether the so called “administrative error” in the Notice to Vacate without Cause invalidated the Notice and thus entitled the tenants to compensation under the Act.
38.In fact, the tenants vacated under the termination and possession order made by the Tribunal in proceedings RT08/192. In those proceedings, orders were made on 3 May 2008, including that the tenancy agreement had been breached, that the residential tenancy agreement be terminated and that vacant possession of the premises be given to the lessors on 9 April 2008. Therefore, the Tribunal cannot order compensation under section 58(2) (a) of the Act as that section requires that the tenant vacate “in accordance with a termination notice that was not in the form approved”.
39.There is an issue whether the tenants can now raise the issue of the invalidity of the Notice to Vacate without Cause as a basis of a claim for compensation under section 104 of the Act. The question is: Can the tenants make such a claim on the basis that the Notice to Vacate without Cause was invalid because of the inadequate period of notice when the tenants had already challenged the validity of the Notice to Vacate without Cause in RT07/590 on the basis it was a retaliatory action by the lessors? Also, does the so-called principle of “Anshun Estopple” apply? This doctrine was considered by the High Court of Australia in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 597; the Court referred to the very old case of Henderson v Henderson (1843) 67 ER at 319 to express the principle as:
“…where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case.”
40.The NSW Supreme Court considered the principle in Lambidis v Commissioner of Police (1995) 37 NSWLR at 322 where Justice Kirby stated that the principle:
“… prevents a party from later relying upon a claim or defence which it has unreasonably refrained from raising in earlier proceedings which were so closely connected with the later subject matter that it might reasonably have been expected that the claim or defence would have been raised.”
41.Issue estopple was raised by the lessors’ Property Managers in the response to these proceedings. Whilst the principle of the so-called “Anshun Estopple” applies in this jurisdiction, it is not relevant in the determination of this part of the tenant’s claim as the tenants did not vacate in accordance with the Notice to Vacate without Cause dated 4 September 2008 but in accordance with the termination and possession order of the Tribunal in RT08/192.
42.Also, as noted by the Tribunal Member in RT08/192 the Notice to Remedy dated 13 February 2008 impliedly repealed the earlier Notice to Vacate dated 4 September 2007.
43.For all the above reasons, this part of the tenants’ claim is dismissed.
ORDERS
1.That all of the tenants’ claims are dismissed.
Jennifer David
Member
10 December 2008
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