Stevens v Linnegar

[2019] NSWCATCD 35

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Stevens v Linnegar [2019] NSWCATCD 35
Hearing dates:	8 March 2019
Date of orders:	12 April 2019
Decision date:	12 April 2019
Jurisdiction:	Consumer and Commercial Division
Before:	G Bassett, General Member
Decision:	1. Laura Linnegar is joined as a respondent.  2. The application is dismissed.
Catchwords:	res judicata, ESTOPPEL - by judgment - Res judicata or cause of action Estoppel, finality
Legislation Cited:	Section 44, 45, 47 Residential Tenancies Act 2010
Cases Cited:	Gleeson v The Owners – Strata Plan No 48226 [2018] NSWCATAP 204
Texts Cited:	Halsburys (online)
Category:	Principal judgment
Parties:	Angela Stevens (Applicant/Tenant) Stephen and Laura Linnegar (Respondents/Landlords)
Representation:	Mr Rolfe (Applicant) Respondent (self-represented) Danny Paris (Real estate agent) (Respondent)
File Number(s):	RT 18/30448
Publication restriction:	Nil

REASONS FOR DECISION

1. The respondent landlords contended that the Tribunal’s decision on 12 July 2018 in RT 18/19391 (”the first proceeding”) gave rise to res judicata or issue estoppel in relation to this second proceeding. The decision in the first proceeding created an issue estoppel and res judicata that operated to preclude the tenant from bringing the proceedings before the Tribunal now the subject of this determination.

2. In this second proceeding, on 5 September 2018 the tenant applicant claimed a rent reduction under section 45 of the Residential Tenancies Act 2010. At a direction hearing she was allowed to amend the claim. On 31 August 2018 the claim was amended to be a claim under section 43 for a rent reduction as the property was no longer lawfully usable as a residence. She also made a claim under section 47 seeking a remedy for the landlord to repay excessive charges.

3. At this second proceeding before me on 8 March 2019, I heard all the evidence as the Tribunal might not accept the landlords’ claim the second application was barred due to res judicata and issue estoppel. This was to ensure efficient use of Tribunal resources.

4. The evidence in this second proceeding centred around a claim for rent reduction due to works done by the landlord under a requirement by Council for compliance with a pool certificate. The tenant said the removal of trees caused her higher electricity bills for air-conditioning and reduced privacy and amenity at the premises as parts of it could not be used.

5. I first turn to determining the issue of res judicata and issue estoppel.

6. In Gleeson v The Owners – Strata Plan No 48226 [2018] NSWCATAP 204, the Appeal Panel of the Tribunal considered the legal doctrines of res judicata and issue estoppel. That particular case considered whether the Tribunal is bound to hear a dispute in circumstances where a Tribunal adjudicator had previously determined a similar issue.

7. The Appeal Panel determination cited from Halsburys (online) at [190-45] which states:

res judicata is the principle of law which prohibits a party from bringing a further action in respect of a subject matter raised and determined in a prior final judgment before a competent tribunal between the same parties or their privies litigating in the same capacity; if made out, res judicata is a complete bar to the claim;

res judicata is founded on the necessity of avoiding re-agitation of issues and of preventing the raising of issues which could have been and should have been decided in earlier litigation;

res judicata is not restricted to courts of record. It applies to judicial decisions of a final nature of any court or tribunal upon any matter over which it has jurisdiction to give a final judicial decision, including arbitral tribunals and a consumer claims tribunal: Maganja v Arthur [1984] 3 NSWLR 561 at 563;

in order to establish a plea of res judicata, it must be shown that the cause of action in the later proceedings is the same as that which was litigated in the former proceedings. “Cause of action” means (i) the series of facts which the plaintiff must allege and prove to substantiate a right to judgment, (ii) the legal right which has been infringed, and (iii) the substance of the action as distinct from its form: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 610;

res judicata applies where there is an identity of parties. This occurs where the parties are literally the same or there is privity of interest or capacity. The determination of identity between litigants for the purpose of establishing privity is a question of fact. There are three classes of privies, blood, title and interest.

8. With regard to issue estoppel Halsburys states it is the principle that “a final judgment by a competent tribunal forever binds the parties and all those who claim through them in respect of any issue of fact or law which was legally indispensable to that decision”. The Appeal Panel said for the doctrine to apply in a second set of proceedings:

1. the same question must have been decided

2. the judicial decision which is said to create the estoppel was final

3. and the parties were the same persons as the parties to the proceedings in which the estoppel is raise.

9. How is res judicata different to issue estoppel? Issue estoppel widens the scope of a claim being disallowed because “the plea of issue estoppel may succeed although the causes of action in the two cases are entirely different (see Halsburys at [190-100]).”

10. In the first proceeding the tenant made a claim against the landlord for payment of her rental bond. The landlord had made a claim for the entire bond to the Bond Services. Many of the issues in this matter had been determined in that first proceeding. At paragraph 33 to 36 of the first proceeding decision the Tribunal specifically refers to issues in relation to swimming pool compliance and the landlord’s removal of vegetation within the premises. The decision states:

33. The landlords evidence is that on 20th September 2017 Northern Beaches Council issued a Notice of Intention to Issue a Direction under the Swimming Pools Act 1992 (SPA) to comply with the SPA requirements. As no action was taken by the landlords Council issued a Direction under the SPA on 2 November 2018 as to non-compliance with SPA regulations as to boundary fences that are swimming pool fences, non-closing gates, non-compliant openings beneath the fences, climbable object within the non-climbable zone and objects within 500mm of the outside barriers.

34. In complying with the Direction, the landlords’ stripped out vegetation within the premises. The vegetation provided shade and privacy to the tenant at throughout the tenancy until it was removed. As a result the tenant sought a rent reduction that the landlords did not agree to. Without the shade of the vegetation, in December 2017 the tenants requested that the landlords install blinds to protect the interior of the premises from the heat of the sun, which the landlords denied to agreed to.

35. …..

36. On 19th February 2018 the tenant issued a Termination Notice under s98 of the Act alleging breaches by the landlord including the removal of trees and vegetation removing and shade and privacy from the premises; the decline by the landlords to install blinds for privacy and shade and giving notice that the tenant would vacate on 6th March 2018.

11. The evidence of the tenant’s representative addressed exactly these same issues at the second hearing. This second proceeding is a further action in respect of subject matter raised and determined in a prior final judgment before this competent tribunal. It is also noteworthy that res judicata applies to issues which could have been (my emphasis) and should have been (my emphasis) decided in earlier litigation. The issue in relation to rent reduction was considered at the first hearing and was a large part of why the landlords did not press a break fee against the tenant. Any claim for rent reduction should have been brought at that first hearing. As well, while I have added a second landlord to this second proceeding, in effect the parties to both proceedings remain the same. It was only during hearing that it became apparent the party added is a landlord named on the lease and should have been a respondent at all proceedings.

12. This second hearing is barred due to res judicata. The application is dismissed. As a result, there is no need to consider the evidence in the substantive proceeding.

13. Neither party applied for costs. If the landlords had done so this is a matter to which special circumstances might well have applied in making a costs order against the tenant.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 02 July 2019