Van and Biega v Trieu (Residential Tenancies)
[2009] ACAT 49
•2 July 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
VAN & BIEGA v TRIEU (Residential Tenancies) [2009] ACAT 49
RT 455 of 2009
Catchwords: RESIDENTIAL TENANCIES – no issue of principle
Tribunal: Mr P Thompson Member
Date of Orders: 2 July 2009
Date of Reasons for Decision: 8 December 2009
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 455 of 2009
BETWEEN: CHRISTINE VAN & AJ BIEGA
Applicant/Tenant
AND:
JANIE TRIEU
Respondent/Lessor
Tribunal:Mr P Thompson, Member
Date: 2 July 2009
ORDER
1. It is ordered that the Applicants, Christine Van & Aj Biega vacate the premises at […] Holt on or before 31st July 2009.
2. I also order that rent payments be suspended in full until that date and that no further rent be payable.
3. Applicants to allow L J Hooker fair and reasonable access on proper notice.
4. Landlord to use best endeavours to fix hot water service.
5. Keys to be returned to L J Hooker.
6. Liberty to apply to either party on 7 days notice.
………..……………………………..
Mr P Thompson
MemberREASONS FOR DECISION
1.On 23 June 2009, Christine Van and Aj Biega filed an Application for the Resolution of a Tenancy dispute in the Tribunal.
2.It would appear from pursuing the document that originally the applicants intended to name as respondents to their application Janie Trieu, Andy Minh Trieu, Hugh Trieu and a person named Gary. The name Andy Minh Trieu has been crossed out.
3.Other documents filed by the applicants describe a person named Gary as Mrs. Janie Trieu’s financial advisor. His name has not been included or recorded as a party in any of the Tribunal’s formal records nor was the issue pressed by the applicants In any event, I can find no justification for determining that this person was in any way a legitimate party to these proceedings
3.The decision not to include the person named Andy Minh Trieu is another matter entirely, and probably a grave mistake on the part of the applicants. The documents filed by the applicants and the evidence subsequently given by them was sufficient for me to find that there was intended to be a binding agreement between the applicants and Mr. Andy Trieu, and that two sums of money were paid into his bank account, pursuant to that agreement.
4.The failure to name him as a party to these proceedings and to subsequently furnish him with notice of the applicants’ claims therefore precluded me from making any orders against him, should I have chosen to do so.
5.The Application itself contained a detailed Statement of Particulars. The list of issues included the following:
(i) threatened eviction;
(ii) no hot water for three weeks;
(iii) inadequate heating for one and a half months;
(iv) electricity cut outs and faults for the same period;
(v) no reimbursement for the cost of repairs made by the tenants;
(vi)other numerous problems with the house, including mice in the walls and ceiling, items left in the house belonging to the owners, and wasps.
6.The relief sought by the applicants, in addition to the termination of the lease, included the following:
(i) immediate repairs to identified problems with the house;
(ii)the resolution to the issue of the legality of the lease document, with the tenants upholding the current agreement until alternative accommodation had been organised;
(iii) Compensation and/or damages.
7.The Application was signed by Ms Christine Van, and was accompanied by a number of documents in support of the applicants’ claims.
8.No documents in response were filed by either respondent.
9.The matter came on for hearing before me on 2 July, 2007 with both applicants appearing in person. Mrs. Janie Trieu also appeared accompanied by Mr. Ajay Mehta from LJ Hooker who had been engaged by Mrs. Trieu to sell her Canberra property. Mr. Mehta stated that he was a friend of the family and that Mrs. Trieu’s English wasn’t very good.
10.There was no appearance by Mr. Hugh Trieu and according to Mr. Mehta, Hugh had nothing to do with this matter, as Mrs. Trieu was the ‘landlord of the house.’ Hugh and Andy Trieu were her sons, but whether or not they were acting as agents for their mother with her permission, was in dispute.
11.In a document filed by the applicants and subsequently confirmed by them during the hearing, the applicants alleged that a lease agreement was created on 30 April 2009 when they, together with their daughter, Chloe, moved into the premises at […] Holt, with the permission of Andy Trieu and his family.
12.Further, it was also alleged that it was agreed verbally with the said Andy Trieu, described as an agent acting on behalf of the landlord, Janine Trieu, for the tenants to rent two rooms with usage of the full house facilities, except one other bedroom, for $250 per week. A bond of $1000 would also be paid.
13.The applicants claimed that the house was not satisfactory, with the electricity cutting out three times on the first day. When Andy was contacted he could only suggest that they (the tenants) adjust the outside switchboard.
14.On questioning at the hearing, the applicants substantiated that the electricity could be reconnected by switching back on the tripped switch. Evidently the circuit was being overloaded for some reason. A subsequent quote obtained from an electrician confirmed there was a problem and proposed splitting the existing circuit as a solution. That was never done.
15.Another perceived stated problem was that the Trieu family’s personal items and furniture were crammed into the living and dining areas of the house, leaving only a small space to walk through On the first night the applicants claim to have heard rats scratching in the room and the following day brought their concerns to Andy Trieu’s attention.
16.An agreement was subsequently drafted by Andy Trieu and signed by him, Christine Van and AJ Biega on 5 May 2009. A condition of the agreement was that the parties “…work together to make a suitable living condition for both parties.”
17.According to the applicants, nothing was done to fix any of the stated problems, so on 26 May 2009 Christine Van emailed a proposed amended contract agreement to Andy Trieu which provided that the bond of $1000.00 would not be payable until the premises were fixed to a reasonable living standard. An attachment listed the proposed duties of both the landlords and tenants.
18.Later that day, Christine claimed to have telephoned Andy who confirmed that he had received the e-mail. That evening Christine printed off copies of the documents with a view to discussing them with Andy and getting the parties to sign off on the proposed amendments.
19.However, Andy evidently suggested that he needed to consult with his father first and then left the house with all three copies of the amendments. He did however, according to the applicants, verbally agree to talk to his family about fixing the problems with the house.
20.Evidently Andy did not return to the home that evening or discuss further about the proposed amended contract agreement. It was never signed and the only written agreement between the applicants and Andy Trieu was the original one signed by them on 5 May 2009.
21.That agreement describes Andy Trieu as the occupier of the premises at […] Holt and Christine Van and Aj Biega as the occupants, with the occupier conferring upon the occupants the right to non exclusive occupation of the Property and the use of the “Room” for residential purposes, in exchange for rent fees and subject to the house shared rules.
22.The Agreement described the ‘Room’ as ‘Bedroom 2 + 1 extra (in future), unfurnished.’
23.The agreement was initially intended to confer upon the applicants the right to occupy for a period of twelve months, and that the living conditions were to be of a cooperative type, with the parties working together to solve issues and sharing utilities fees. The use of Garage storage facilities was non specific, with the parties agreeing that the rights in this area might alter for both parties, depending on a final decision to be made by the Trieu family.
24.Rent was fixed at $250.00 per week payable from the date of the Agreement, that is, from 5 May 2009. The proposed payment schedule was as follows:
‘From the date of this agreement, Rent is payable by direct debit four weeks in advance for the first four payments, and two weeks in advance fortnightly thereafter, until the Occupant vacates the property.’
25.The direct debit details provided that the rent payments be paid into Andy Trieu’s St George bank account. There is no written reference to the payment of a bond although the applicants concede that there was a verbal agreement to pay $1000.00 by way of a bond.
26.It should be noted that according to the terms of the Agreement, the following rent payments should have been made prior to the matter coming before the Tribunal:
5 May 2009 $1,000.00
5 June 2009 $1,000.00
27. A further payment of $1,000.00 was due on 5 July 2009.
28.According to the applicants, they in fact made the following payments, on the dates indicated.
3 June2009 $1,000.00
26 June 2009 $ 750.00
29.At the start of the hearing, the applicants confirmed that they were seeking the return of all rent monies paid by them. As a result of the sub standard living conditions, the electricity problems, and the fact that they had had no hot water for the past four weeks nor any heating from the start of the lease.
30.The applicants also confirmed that they wanted to be released from their fixed term agreement/contract, but wanted formal notice and a fixed date to vacate the premises. On questioning, they stated that they had not been given formal notice to vacate, and that the date given kept changing. They also advised me that they had nowhere else to go
31.One of the documents filed by the applicants in this matter detailed events occurring on 1 June, 2009. That document had the following heading:
NOTE 4 Monday 1st June 2009 First eviction notice and unannounced inspection of Janie Trieu and Gary.
32.In that note, it is stated that Janie Trieu called Christine Van on a mobile phone at around 7 am on that date, informing her that she was coming to visit that afternoon but would call again on arrival. It was further stated that Janie did not advise that it was for the purpose of carrying out an inspection and implied that it was a friendly social visit.
33.Subsequently an inspection was carried out in the presence of the applicant Aj Biega.
34.Relations were not cordial with the person named Gary telling Aj that he and Christine were living on the premises illegally and must be immediately evicted. On questioning by Aj, “Gary” stated that he was ‘representing the bank.’
35.The document goes on to state that the next day, Janie Trieu called Christine informing her that they had two weeks from 1 June 2009 to vacate the premises.
36.At this point, it should be noted that prior to Janie Trieu’s visit, the applicants had not paid the bond or any rent monies, and were technically in breach of their Agreement.
37.According to a further document headed NOTE 7 Phone contact with Hugh Trieu June 10-18 2009, contact then began with Hugh Trieu, as he had been nominated as the person with whom they should be liaising. According to the applicants, he acted as a mediator between the parties, which did not include Andy Trieu.
38.Hugh, whilst apologizing for the situation, advised the applicants that basically the Agreement had a doubtful legal standing, as Andy did not have any legal title to the property. He also advised the applicants that it was his mother only with the power to fix the house, as he had no such authority. He also informed Christine on several occasions that his mother had no intention of fixing the house and wanted them to vacate the premises immediately. He did, however, agree verbally to reduce the rent of the premises to $150.00 per week. This however was never confirmed in writing despite such a request.
39.Basically, it could be inferred from statements made by the various parties, as recorded and recounted by the applicants, that by the time the matter came before the Tribunal, the applicants were well aware that the property belonged to Mrs. Janie Trieu and that the two sons were not joint owners with their mother of the property, and therefore had no rights to let or sublet the property, without their mother’s agreement.
40.I also found it extremely difficult to reconcile the statements made in this document with the subsequent claim made by Christine Van at the hearing that Hugh told her that he had legal title to the house and that he negotiate and mediate the rent payments on behalf of his mother.
41.From the contents of Notes 8 and 9, it can be ascertained that the date given for the applicants to vacate the premise was extended on several occasions, and finally on 25 June, 2009, Mr. Mehta made an offer to the applicants to allow them to remain in the premises until 20 July 2009. The applicants agreed to consider this offer.
42.Having regard to the history of this matter and for reasons set out below, the applicants could not be criticized for their actions, or for seeking a proper determination from the Tribunal.
43.I also believe that the reason given for not providing the applicants with a formal notice to vacate was because Mrs. Trieu’s advisers believed that there was no proper lease or tenancy agreement and that therefore such notice was not necessary in the circumstances. That however only added to the uncertainty and stress occasioned to the applicants.
44.According to statements made to me by Mr. Mehta on behalf of Mrs. Trieu Andy was not on the title and the rent money paid to him by the applicants was not being on forwarded to Mrs. Trieu. Basically she didn’t know what was going on, and at some point she had decided to sell the house. Whether she made this decision before or after she had learned her son had sublet her premises I am unable to say, although Mr. Mehta claimed that she made this decision after inspecting the state of the house.
45.On the other hand Mrs. Trieu gave evidence that her son Andy told her that he would help her sell the house later, but as they would sell the house slowly, he would stay there in the meantime. Or at least that is what I believed her to say.
46.Mr. Mehta also informed me that he got a phone call from Hugh, who lives in Melbourne, stating that Andy had disappeared, and that his mother was living in Sydney. Also, that there were people living in his mother’s house and he didn’t want them there. Mr. Mehta then went to the house where the applicants stated to him that they were there for twelve months and didn’t want to leave. They showed him their Agreement, whereupon he told them it was not a legally valid lease agreement. Obviously, by the time the matter came before me, the applicants had changed their minds about wishing to remain in the premises.
47.The applicants did however maintain that they were living in the house with Mrs. Trieu’s knowledge and approval, that they had a verbal agreement with her to do so, and that her son Andy was her authorized agent, and was forwarding the rent monies on to her.
48.Christine Van further claimed to be a long term family friend known to Mrs. Trieu. Mr. Biega backed Christine’s claim that Mrs. Trieu was receiving rent, and therefore she was happy for them to be living in the house. That fact was denied by Mrs. Trieu.
49.Christine Van further stated that she had received phone calls from Janine Trieu about coming to visit and about receiving rent monies in early June. Ms Van also informed me that she had informed Mrs. Trieu that if she gave her her banking details, she was more than happy to pay the rent into Mrs. Trieu’s account. Those details were not provided, however I consider it unfortunate that the applicants subsequently paid monies into Andy’s bank account. I would have thought warning bells would have been sounding well before then.
50.Because of the discrepancies between the parties’ evidence, I decided to take sworn evidence from Mrs. Trieu on this issue. Mrs. Trieu’s evidence was that she was the sole owner of the property at 7 Higgerson Street, Holt, and that neither son had legal title to the property.
51.Also according to her, her son had a good female friend, who had nowhere to stay and who was allowed by her son to stay at their house for a short time. Mrs. Trieu could not however say if that person was Christine Van. Asked when she was told about the friend, she replied that she was told by her son that as she did not have any money to pay the bank, he would live in the house. He also told her as previously stated that he would help her with the mortgage, and help her sell the house at a later date.
52.Mrs. Trieu confirmed that the mortgage was being paid by her and ‘sometimes Hugh and Andy.’ Subsequently Andy finished University and moved to Sydney looking for a job, leaving the house. She did not receive any rent monies from Andy and Andy unfortunately was not called by either party to give evidence or provide any statement.
53.The applicants maintained that there was no mortgage and that they had been told by Andy and his father that Mrs. Trieu paid cash for the house. Mrs. Trieu refuted this suggestion and went as far as saying that she did not speak to Andy’s father. I accept her evidence on this issue.
54.From the evidence before me however, I accept that Mrs. Trieu knew that Andy had allowed someone to stay in the house for at least some period of time, but at a time when he was also staying there.
55.The house was evidently Mrs. Trieu’s normal home or place of residence and that circumstances had forced her to temporally reside in Sydney to care for her aged mother. Hence the reason for the cluttered state of the Holt residence, as complained about by the applicants. They were well aware though that that was the state of the property when they moved in. It was shared accommodation with a permanent resident of the house.
56.Mrs. Trieu was, however, obviously concerned enough about her home to travel to Canberra and visit the premises with a financial advisor, whereupon she was obviously surprised to see the state of the house. I find no fault with Mrs. Trieu’s actions on this occasion, despite assertions that she carried out an unannounced inspection.
57.I also had no difficulty in reconciling the evidence given by Mrs. Trieu about not knowing Ms Van with Ms Van’s evidence about Mrs. Trieu telephoning her several times in relation to a visit and the payment of rent. That happened in early June at a time when the applicants were yet to pay any rent, with the first call being made on the morning of the visit. That does not suggest to me that Mrs. Trieu knew Ms Van personally or that the applicants were residing in the property with her permission.
58.I do however accept that the applicants were friends of Andy Trieu, and that Andy had told his mother that he would help her with the mortgage payments. I was not however prepared to make an order for rent reduction for the whole period or any part of it when the tenants had been residing in the premises, even though I accepted their evidence that conditions were substandard.
59.I simply did not have any evidence before me about what had happened to the rent payments totalling $1750 .00 paid by the applicants into Andy’s bank account. I presumed at the time that Andy had used those payments to pay the mortgage and said so, but in reality that is simply a guess. Mrs. Trieu gave sworn evidence that she did not receive any part of it, and as Andy was not a party to the proceedings, nor aware of them as far as I knew, I was not at liberty to make any order against him
60.The applicants also gave evidence that they had spent $220 in having repairs made to the premises, but against that they had underpaid rent by $250 at the time of the hearing. In my view at the time, one cancelled out the other. I was also not prepared to rule that the Agreement with Andy created a valid lease that the applicants could rely upon to give them the required eight weeks notice to vacate.
61.I did accept the evidence given by the applicants, that they did now want to vacate the premises, but were reluctant to give an answer to Mr. Mehta, because they were receiving mixed messages from the family and trust was an issue.
62.I did not however accept the applicants’ assertions that they were paying full rent for the premises. Mr. Mehta’s assessment was that full rent for a similar sized residence, in good order, would be in the vicinity of $400.00 per week.
63.No one suggested that these premises were in good order and therefore in my view the agreed sum of $250.00 per week sounded fair and reasonable. That of course, would only have been the case if the hot water system was working. It was not.
64.At this point, I wish to acknowledge the offer made by Mr. Mehta to find the applicants new accommodation. I believe that they, along with Mrs. Trieu, were unwitting victims of unfortunate circumstances, and I had no wish to see them homeless.
65.In the end, however, I was able to make a consent order, with the parties agreeing that the applicants could have until 31 July 2009 to vacate the premises and that rent payments would be suspended in full until that date, with no further rent to be payable.
66. I also made the following orders with the consent of both parties:
(i)the applicants were to allow L.J. Hooker fair and reasonable access to the premises on the giving of proper notice;
(ii) the landlord was to use her best endeavors to fix the hot water system;
(iii)The keys were to be returned to L. J .Hooker by the applicants upon vacating the premises
67.Liberty was given to either party to apply to the Tribunal in the case of a dispute on 7 days notice to the other party.
………..……………………………..
Mr Phil Thompson
MemberPUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: RT 09/455
APPLICANT: CHRISTINE VAN & AJ BIEGA
RESPONDENT: JANIE TRIEU & HUGH TRIEU
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT: SELF
RESPONDENT: SELF WITH MEHTA
TRIBUNAL MEMBER/S: MR P THOMPSON MEMBER
DATE/S OF HEARING: 2 JULY 2009 PLACE: CANBERRA
DATE/S OF DECISION: 8 DECEMBER 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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