Watts v Denis Kiternas, Ranko Kiternas and Nada Kiternas

Case •

[2006] ACTRTT 17

•

15 June 2006

WATTS v Denis KITERNAS, Ranko KITERNAS and Nada KITERNAS
[2006] ACTRTT 17 (15 June 2006)

CATCHWORDS

Anshun estoppel
Distress and inconvenience
Hungerford principle
Res judicata
Tort

LEGISLATION

Residential Tenancies Act 1997 (ACT)
Section: 12, 36, 71H, 73, 104(1)(d), 121
Prescribed term: 9,10, 63.

ISSUES

Whether res judicata and Anshun estoppel apply to previous proceedings in the Tribunal.
Whether the Tribunal has the power to order compensation to a landlord for distress and inconvenience pursuant to section 104(1)(d) arising from a tenants failure to pay rent.
Whether the Tribunal may award damages to a landlord for loss of use of money withheld by tenants
Whether damages can be awarded for distress and inconvenience to persons not parties to the lease
Whether a duty of good faith is implied in a residential tenancy agreement
Whether the Tribunal has any jurisdiction in actions in tort
Whether damages can be awarded to a landlord for economic loss arising from a tenants failure to vacate in response to a Notice of Termination.
Whether damages can be awarded to a landlord for a tenants failure to execute a written residential tenancy agreement and lodge a bond.

CASES CITED

The Progressive Mailing House P/L v Tabali P/L (1985) 157 CLR 17;
The Estate of Tanya Humphries v The Commissioner for Housing in the ACT [2003] ACTSC 40;
Baltic Shipping Co v Dillon 1993 176 CLR 344;
Northern Sandblasting P/L v Harrison 1997 188 CLR 313);
Hadley v Baxendale 1854 9 ex 341; 
Zavodnyik v Alex Constructions P/L [2005] NSWCA 438;
Glover Gibbs P/L t/as Balfours NSW P/L v Lybutt [2004] NSWCA 45;
Gygiel v Baine [2005] NSWCA 218;
Owners Corporation SP51652 v Consumer Trader and Tenancy Tribunal [2003] NSWSC 739
Hungerford v Walker (1989) 171 CLR 125;

Cheshire and Fifoot Law of Contracts 8th ed Seddon and Ellinghaus at [10.43-10.46] Residential Tenancies Law and Practice in NSW 2003 Anforth, Thawley & Christensen [1.5]

CASE REFERENCE NUMBER:   RT 06/1857

RE: Premises at 10 Sulman Place, SWINGER HILL  ACT  2903

INTERIM ORDERS

  1. For the reasons set out below, the Tribunal determines that independently of the Anshun estoppel issue, it has no jurisdiction to hear the following parts of the landlord’s claims:

    a)The landlord’s losses stemming from the tenants failure to vacate in response to the Notice of Termination (paragraph 5(e))

    b)The claims relating to the distress caused to the landlord and his family (paragraphs 5(h) and 5(i))

  2. The Tribunal finds that it has already heard and determined claims 5(b) (except to the limited extent of the Hungerford claim) and 5(d) and will not further hear these claims.

  3. In terms of the Anshun estoppel issue the Tribunal declines to further hear the claim for water charges (claim 5(g)).

  4. The Registrar is to relisted the matter for directions only for disposition of the balance of the matter, namely claims 5(a), 5(b) (limited to the Hungerford claim), 5(c), 5(f), 5(g) and 5(j).

  5. The Registrar is to relist the matter for directions only for disposition of the claim in its entirety against the First Respondent. The matter is listed for a directions hearing on Thursday, 27 July 2006 at 10:00am.

  6. The landlord is asked to note the various comments and caveats expressed by the Tribunal in relation to each of the matters which are to proceed, and to take those comments and caveats seriously. A failure to do so will be relevant to any costs application which may be made in this matter.

Member:         A. Anforth

Date:              15 June, 2006

INTERIM DECISION

  1. On 8 February 2006 the landlord lodged an application with the Tribunal seeking damages against the tenants for rent arrears and non-economic loss.

  1. This application follows several previous decisions of the Tribunal between the landlord and the Second and Third respondents as tenants. The previous decisions of the Tribunal were those of Kiternas v Watts[2005] ACTRTT 11 and Kiternas v Watts[2006] ACTRTT 4.

  1. In the decision of [2005] ACTRTT 11 the Tribunal found that the Second and Third Respondents as tenants were indebted to the landlord in the sum of $5042.35 for rent arrears and found that the landlord was indebted to the tenant in the sum of $4160.00 for breaches relating to the landlord’s failure to repair the premises by way of retrospective rent reduction.

  1. In the decision of [2006] ACTRTT 4 the Tribunal ordered a further rent reduction in favour of the Second and Third Respondents tenants for the period of 12 months from Febraury 2002 in the sum of $4160.00. As a consequence of this order the tenants had overpaid rent and the Tribunal ordered the landlords to pay the tenants that sum.

  1. In the present application the landlord alleges the following breaches of the residential tenancy agreement by the tenants:

(a)   The tenants failed to “normalize” their status as tenants by completing a written tenancy agreement after taking up residence in February 2002.

(b)   The tenants were constantly in rent arrears causing the landlord to divert other funds to the payment of the outgoings for the premises. The landlord claims $2,000.00 for the loss of use of the money diverted from other uses.

(c)   The landlord made a claim for a bond not lodged by the tenants in the sum of $800.00.

(d)   The landlords incurred cleaning of $330.00 for commercial cleaners, $500.00 for capital depreciation of the carpets due to animals in the house, damage to the oven at $150.00 and repair costs of $320.00 (for keys not returned, a lost smoke detector and two lost remote controls for the garage) at the end of the tenancy.

(e)   The tenants failure to vacate the premise on 3 December 2004 in accordance with an 8 week Notice to Terminate served on 7 October 2004 caused the landlord delay in listing the premises for sale. The tenants in fact vacated the premises on 17 December 2004. The landlords alleged that further delay resulted from the need to clean and repair the premises. These delays caused a delay in the sale of the premises which in turn caused the landlord to obtain bridging finance for the purchase of a new house in Perth. The landlord claimed $2,000.00 in additional interest payments on the Perth loan.

(f)    Four adults living in the premises constituted a breach of the tenancy agreement and imposed additional wear and tear on the premises. The landlord claimed $80pw additional rent over the period of the tenancy residence of 148 weeks, giving a total of $11,480.00.

(g)   The tenants failed to pay water consumption costs incurred during the tenancy of the tenants and during the period of the immediately preceding tenancy of the tenants son and partner. The landlord said that he did not originally intend to claim water consumption from the tenants but has decided to do so on the basis that the additional consumption probably arose from the additional persons living on the premises. The landlord claims $550.92.

(h)   Malicious and threatening emails from the tenants to the landlord’s personal email caused emotional disturbance to the landlord’s wife and daughter who read the emails. The landlord claimed $6,000.00 non-economic loss for the injury to the feelings of his wife and daughter.

(i)     The tenants rent default caused the landlord financial hardship resulting in cancelled holidays and general distress. The landlord claimed $5,000.00 for this loss.

(j)     The tenants wrongly advised the landlord of alleged fraud by the landlord’s agent causing the landlord to spend time investigating the allegation. The landlord claimed $269.80 for five hours of his time.

  1. The matter was listed before the Tribunal for directions on 9 March 2006. Ms Reece, solicitor appeared for the landlord and Ms Dalley, solicitors appeared for the tenants. At that hearing the Tribunal raised for consideration whether there were any jurisdictional impediments to the Tribunal arising from all or any part of the landlords claim. In particular the Tribunal raised the issue of any estoppels arising out of the previous proceedings between the landlord and the Second and Third Respondents as tenants and any lack of jurisdiction to award damages for injury or inconvenience to third parties (i.e. person who were neither the landlord nor the tenant e.g. the landlords family members). Ms Dalley for the tenants indicated that she intended to raise such objections.

  1. The Tribunal made procedural orders for the tenants to file their submissions on these points by 23 March 2006 and for the landlord to file his submissions in reply by 6 April 2006.

  1. On 3 April 2006 the tenants filed the following submissions:

The second respondent makes the following submissions regarding the Residential Tenancies Tribunal's jurisdiction to hear the above application:

Section 115 Residential Tenancies Act 1 997

1. The second respondent submits that the Residential Tenancies Tribunal ('Tribunal') does not have jurisdiction to hearths application under section 115 of the Residential Tenancies Act 1997 (the Act).

2. Section 115 (2) of the RTA states that the Tribunal 'does not have jurisdiction to make an order for the payment of an amount, or for work of a value, exceeding $10,000.'

3. In summary, the application states that the applicant seeks compensation of $29,760.72, calculated as follows:

(a)Water consumption  $ 550.92

(b)Property not returned  $ 320.00

(c)Cleaning and damage  $ 980,00

(d)Emotional suffering  $ 6,000.00

(e)Lost interest and use of savings        $ 5,000.00

(f)Wasted time  $ 269.80

Total claimed  $29,760.72

4. Given that the applicant seeks an order for payment of an amount almost three times the jurisdictional limit, the second respondent submits that the Tribunal does not have jurisdiction to make the order requested by the applicant in this matter and should therefore decline to entertain the application.

Anshun Doctrine

5. In the alternative, the second respondent submits that the application is an abuse of process, and as such, the application should not be entertained by the Tribunal:

a. in its entirety; or
b. as separate claims for compensation,

under the principle known as the Anshun doctrine enunciated in the decision of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147CLR 589 ('Anshun Doctrine').

6. The Anshun Doctrine states that a person may be estopped from raising a claim or defence which could have been raised in previous proceedings but was not, where it was unreasonable for the person not to have raised the claim in the previous proceedings,

7. The tenancies which are the subject of this application were the subject of two previous decisions known as Kiternas  and Kiternas v Watts and Watts ACTRTT 11 [2005] and Kiternas and Kiternas v Watts and Watts ACTRTT4 [2006] (hereinafter referred to as the 'First Decision' and 'Second Decision' respectively).

8. In the First Decision, the Tribunal considered the application of the present second and third respondents for compensation arising from a breach of the tenancy agreement. During the course of proceedings, it was decided that the compensation to the tenants would be offset against amounts owing to the lessor. The Tribunal decided to adopt this course of action without requiring the lessor to submit an application seeking the sums owed. In making the decision to consider the position of each party in the absence of a formal application, it appears that the Tribunal was attempting to bring the dispute between the parties to a final conclusion in as efficient and timely manner as possible by seeking to determine

'...the final balance between the parties arising from any retrospective rent reduction... '.
(at paragraph 20)

9. It is clear from the submissions made to the Tribunal by the current applicant in the earlier proceedings that the matters set out in the current application were within the knowledge of the current applicant at the time of the previous proceedings. None of the present claims arise from facts which were unknown at the time of the previous proceedings. Indeed, the substance of many of them is mentioned in the submissions recorded in paragraph 53 of the First Decision. There is no reason why the applicant could not have made the present claims in the context of the previous proceedings.

10. The second respondent submits that the applicant could and should have raised the matters contained in the current application during the prior proceedings, as they were relevant to determining the final position between the parties. The claims made in the current application were so relevant to the overall subject matter of the First Decision (being a consideration of the amounts owed to each party and leading to a process of set off) that it is unreasonable for the applicant to raise them in subsequent litigation. This is particularly so given that the Tribunal had made particular efforts to provide a final resolution to the whole dispute in the First and Second Decisions, to the extent of waiving procedural requirements for the lessor in order to permit a full examination of the dispute in as efficient a manner as possible.

11. To permit the current application is, in the second respondent's submission, to frustrate the principles that 'there should be finality in litigation and ... a party should not be vexed twice in the same mailer”(Henderson v Henderson 147 CLR 589 at 602-3).

12. In the alternative, the second respondent makes the following submissions regarding the Residential Tenancies Tribunal's ability to entertain the various elements of the present application.

Claim for compensation for late rent payments

13. The applicant seeks the sum of $2,000 in compensation as 'a penalty for continued late [rent] payments in breach of section 26' (Application (Issues in Dispute), page 2)

14. In its First Decision, the Tribunal noted that it had considered 'the landlord's complaint of rent arrears notwithstanding that no formal application had been lodged by the landlords setting out that complaint (Kiternas and Kiternas v Watts and Watts ACTRTT11 [2005] at para 20).

15. After considering evidence regarding the rent arrears owed, the Tribunal found that 'the rent arrears payable by the tenants to the landlords at the termination of their lease was $5,042.35 (Kiternas and Kiternas v Watts and Watts ACTRTT11 [2005] al para 77)

16. Under section 104(g) of the RTA, a lessor has the power to seek an order from the Tribunal that the tenant pay any rent arrears. However, there is no provision in the RTA for a penalty for late payment of rent. The RTA prescribes a process to be carried out by the lessor where rent is not paid on lime, A penalty for late payment is not a part of this process and is not provided for in any other par: of the RTA. Consequently, the second respondent asks the Tribunal to find that it does not have the power to award such a penalty.

17. The second respondent also submits that the claim for compensation for late rent payments falls within the Anshun Doctrine, as the current claim was relevant to this Tribunal's First Decision regarding the amounts owed to the lessor by the tenants as a result of the rent breaches. There is no reason why the applicant could not have made the present claims in the context of the previous proceedings and the failure to do so is unreasonable given that the Tribunal had made particular efforts to provide a final resolution to the dispute in the First and Second Decisions, to the extent of waiving procedural requirements in order to permit a full examination of the dispute.

Failure to properly complete a tenancy agreement

18. The applicant claims compensation of $800.00 for the second and third respondents' 'failure to properly complete a tenancy agreement' (Application (Issues in dispute), page 3)

19. The applicant has not indicated which section of the RTA or which clause of the prescribed terms has been breached by the second and third respondents such as to give rise to the compensation claimed. Under the RTA it is not compulsory for the parties to enter into a tenancy agreement in the absence of a written agreement. Nor is it compulsory for a lessor to seek (or for the tenant to provide) a bond.

20. Under section 104(d) of the RTA, the Tribunal has the power to make 'an order requiring the payment of compensation for loss of rent or any other loss caused by the breach of a residential tenancy agreement or occupancy agreement' (emphasis added). This power is expressed to be 'in addition to any other order [the Tribunal] is empowered to make'. While there are additional powers in the RTA which enable the Tribunal to provide restitution to an applicant who has suffered loss due to a breach of the RTA, there is no power under section 104 and no additional power elsewhere in the RTA which would enable the Tribunal to make an order of compensation in the absence of a breach of either the RTA or the tenancy agreement.

21. The second respondent submits that the applicant has failed to base this claim for compensation on a breach of either the RTA or the tenancy agreement, and thus cannot bring such a claim before the Tribunal.

Delays in vacating the premises

22. The applicant claims compensation of $2,000.00 for the second and third respondents' alleged delay in vacating the premises.

23. The applicant has not indicated which section of the RTA or which clause of the tenancy agreement has been breached by the second and third respondents such as to give rise to the compensation claimed. The second respondent contends that a failure to vacate a property in the absence of an order under section 47, 48 or 49 of the RTA is not a breach of the RTA or the tenancy agreement. The RTA prescribes a process for terminating a tenancy and obtaining vacant possession of a property in part 4 of the RTA. There is no scope under the RTA for obtaining vacant possession in a manner other than that set out in part 4. Section 36 states that 'despite anything to the contrary in a Territory law, a residential tenancy agreement must not be terminated other than in the following circumstances.' The section then lists the permissible circumstances, which do not include a simple issuing of a notice to vacate in the absence of a subsequent termination and possession order of the Tribunal.

24. The second respondent notes that an order terminating the tenancy and granting vacant possession to the applicant on 7 December 2004 was made by the Tribunal in accordance with the RTA. The second and third respondents complied with this order.

25. The second respondent submits that the applicant has failed to base this claim for compensation on a breach of either the RTA or the tenancy agreement and thus cannot bring such a claim before the Tribunal.

Residence of unauthorized persons

26. The applicant claims compensation of $11,840.00 for the alleged presence of 'additional unauthorised adults (Application (Issues in dispute), page 4) in the property.

27. The applicant has not indicated which section of the RTA or which clause of the tenancy agreement has been breached by the second and third respondents such as to give rise to the compensation claimed. The second respondent contends that a tenant's failure to notify the lessor of the presence of adults in the properly is not a breach of any term of the RTA or the tenancy agreement and the Tribunal therefore cannot entertain a claim for compensation based on this ground.

Water consumption, property not returned and cleaning and damage

28. The second respondent submits that the claims for water consumption, property not returned and cleaning and damage fall within the Anshun Doctrine, as the current claims would have been relevant to this Tribunal's First Decision regarding the amounts owed to the lessor by the tenants and the release of the bond lodged on behalf of the first respondent.

29. In particular, the issue of water consumption would have been relevant to the calculation of the rent reduction owed to the second and third respondents as one of the breaches complained of in the First Decision was the failure to fix toilets which 'leaked constantly, causing a large water bill (First Decision at paragraph 64). Prior to the current application, it was not known that the applicant intended to pass the water charges on to the tenant. If this had been known at the time of the First Decision, the additional cost to the tenants as a result of the leaking toilets may have affected the calculation of the rent reduction.

30. There is no reason why the applicant could not have made the present claims in the context of the previous proceedings and the failure to do so is unreasonable given that the Tribunal had made particular efforts to provide a final resolution to the dispute in the First and Second Decisions, to the extent of waiving procedural requirements in order to permit a full examination of the dispute.

Pain and suffering

31. The applicant claims compensation of $6,000 for pain and suffering experienced by the applicant, his wife and his daughter.

32. In the Tribunal's Second Decision, the Member found that  'the proper construction of section 104(1)(d) permits the Tribunal to award compensation provided for by the common law for breaches by the landlord...' (emphasis added)(Kiternas and Kiternas v Wads and Watts ACTRTT4 [2006] at para 73). The Tribunal found at paragraphs 46 to 49 that this power arose from the fact that the tenancy agreement is a contract for the right to quiet enjoyment of the premises, and thus falls into the class of cases described in the Baltic Shipping case (Baltic Shipping Co v Dillon (no2) 1 ALR 289).

33. A tenancy agreement gives no right of quiet enjoyment or similar right to the lessor, which means that there can be no corresponding right of compensation to a lessor for a breach of quiet enjoyment or other right of 'enjoyment, relaxation and freedom from molestation' (Second Decision at paragraph 46). The second respondent submits that the Tribunal was correct in expressing the power to award general damages for pain and suffering as limited to compensation for breaches by the lessor and says that it is clear that the Tribunal does not have the power to make an award of general damages for pain and suffering to a lessor.

34. Further, the second respondent says that, even if the alleged actions of the second respondent constituted a breach of the RTA or the tenancy agreement, the Tribunal does not have the jurisdiction to award damages to individuals who are neither parties to the application, nor parties to the tenancy agreement. The applicant admits that 'neither my -wife nor my daughter are parties to the tenancy agreement (Application (Issues in dispute), page 6). Given that the power to award compensation under section 104(l)(d) of the RTA is limited to compensation flowing from a breach of the RTA or the tenancy agreement, it follows that compensation can only be claimed by a party to that contractual arrangement. The applicant has not demonstrated why the doctrine of privity of contract should be waived to permit third parties to claim a right of compensation for breach of that contract.

35. On this basis, the second respondent submits that the claim for compensation for pain and suffering by the applicant cannot be entertained by the Tribunal as it is a claim for orders which are outside the jurisdiction of the Tribunal and, in part, outside the rules of the common law relating to contracts.

Lost interest and use of savings

36. The second respondent submits that the Anshun Doctrine applies to this claim and refers to the submissions made in paragraphs 27 and 29 above.

Wasted time

37. The applicant claims compensation of $269.80 for time spent investigating a claim of fraud alleged to have been made by the tenant.

38. The applicant has not indicated which section of the RTA or which clause of the tenancy agreement has been breached by the second respondent such as to give rise to the compensation claimed. The second respondent contends that an allegation of wrong doing by the lessor's agents made by the tenant is not a breach of any term of the RTA or the tenancy agreement and the Tribunal therefore cannot entertain a claim for compensation based on this ground.

39. For the purposes of these preliminary submissions, the second respondent notes that he makes no admissions regarding the matters alleged in the application. In the event that all or part of the application continues to hearing, the second respondent will file and serve a defence to the application which will address the allegations in detail.

  1. The matter was next listed before the Tribunal on 21 April 2006. Due to some misunderstanding between the parties and the Tribunal registry, neither party appeared. The Tribunal ordered the landlord to file his submissions by 4 May 2006. The Tribunal further ordered that unless either party requested a further opportunity for oral submissions, the jurisdictional issue would be determined on the basis of the submissions filed. No request for further oral hearing was received from either party.

10.  On 16 May 2006 the landlord filed its submissions which read:

The Applicant makes the following submissions regarding the Residential Tenancies Tribunal's jurisdiction to hear the application:

Section 115 Residential Tenancies Act 1997

1. The applicant submits that the Residential Tenancies Tribunal does have jurisdiction to entertain the application pursuant to section 115 of the Residential Tenancies Act (ACT) ('RTA')

2. Section 115 (2) of the RTA provides that the Tribunal ''does not have jurisdiction to make an order for the payment of an amount, or for work of a value, exceeding $10,000' (emphasis added). That section does not, as submitted by the second respondent preclude the hearing of an application which seeks a sum greater than $10,000 it merely precludes the making of an order for an amount or valued exceeding $10,000.

3. It is relevant to note that in the decision of Kiternas and Kiternas v Watts and Watts [2005] ACTRTT 11 the applicant claimed damages for reduction of rent at $80.00 per week for 148 weeks from February 2002 to December 2004. The Tribunal did not decline to hear that application which, if fully awarded, would have been for the sum of $11,840.00 which is clearly over the jurisdictional limit provided for in section 115(2).

4. The applicant understands that an order for an amount over the sum of $10,000 cannot be made and seeks an order in the sum of $10,000 having forgiven the remaining $19,760.72 claimed.

The Application

5. It is useful to note that there are number of matters the subject of the current application.

6. As against the 1st Respondent, Denis Kiternas, claims are made for;

• Water consumption
• Outstanding property
• Cleaning and damage

7. As against the 2nd and 3rd Respondents, Ranko and Nada Kiternas respectively, claims are made for:

•  Financial hardship
•  Delays in vacating the premises
•  Residence of unauthorised persons
•  Water consumption
•  Outstanding property
• Cleaning and Damage
•  Emotional Suffering
•  Malicious allegation

8. The Second Respondent is represented by Welfare and Legal Rights. The First and Third Respondents have not appeared or made submissions in relation to the matter.

Anshun Doctrine

9.  The Second Respondent submits that the Anshun Doctrine applies to the application in its entirety or as separate claims for compensation on the basis that it was unreasonable for the Applicant not to have raised the matters subject of the current application in prior proceedings before the Tribunal.

10. The Second Respondent points to the two decisions of the Tribunal Kiternas and Kiternas v Watts and Watts ACTRTT 11 [2005] ("the First Decision") and Kiternas and Kiternas v Watts and Watts ACTRTT 4 [2006] (the Second Decision") and submits that the Tribunal was striving to reach finality in those proceedings attempting to dispose of all issues between the parties. In support of that contention it is said that the representatives of the landlord, who it is noted were Real Estate Agents not lawyers, were allowed to raise what was, in effect, a cross-claim for unpaid rent and offset it against the claim for rental reduction made by the tenant/applicants.

11. The history of the matter before the Tribunal is relevant in that respect. The hearing that led to the First Decision was an application by the tenants against the landlord for rent reduction pursuant to section 71 of the RTA.

12. On the first date for hearing of the matter the Tribunal "explained to the parties that it proposed to consider the landlords complaint of rent arrears notwithstanding that no formal application had been lodged by the landlords setting out that complaint"(para 20) The matter was then adjourned to 3 December 2004 with a number of directions being made to each of the parties in relation to rental payments and repairs to the property. The matter was adjourned until 21 January 2005 when it was ordered that the tenant was indebted to the landlord in the sum of $5042.35 for rent. Having disposed of the issue of outstanding rent to owing to the landlord a further series of directions were made in relation to compensation to the tenants for the lessors failure to repair the premises. The matter was then relisted for determination of those issues and on 4 March 2005 the Tribunal went through the tenant's list of defects one by one and determined that the sum of $4160 should be awarded to the tenant and set off against the sum owing to the Landlord. This entire series of events is hereafter referred to as "the First Hearing")

13. In each case hearing dates and issues appear to have been restricted to rent outstanding and rental reduction in relation to failure to repair the premises. It is notable that neither the Applicant, Mr Watts, or his current representatives were in the Tribunal on that day so reliance of events must be placed on the written first decision of the Tribunal.

14. The applicant submits that in a circumstances in which:

(a) an application was made by the tenants against the landlord for rent reduction; and
(b) the tribunal determined to hear the landlords complaint specifically of rent arrears notwithstanding no formal application having been lodged; and
(c) the series of directions made on various dates restricted to the issue of outstanding rent and rental reduction; and
(d) the fact that the landlord was not, at that time legally represented, nor able to be present in court at the hearing;

it was not unreasonable for the Applicant to have understood, and in fact did understand, that the application before the Tribunal was restricted to the issue of outstanding rent and rental reduction alone,

15. The Second Respondent points out that a number of the matters subject of the current application were within the knowledge of the Applicant at the time of the first hearing. The Applicant does not quarrel with that. The submissions served on the Tribunal by the Landlord on 17 February 2005 squarely raised a number of concerns relevant to the current application before the tribunal. In particular reference was made to:

• not paying rent,
• lateness of rental payments,
• failure to complete a Tenancy Application,
• failure of Denis Kiternas to advise of his departure so an inspection could be arranged,
• the presence of an animal without approval.,
• damage to the oven during cleaning with Caustic Soda,
• dog urine destroying the carpets,
• failure to return remote controllers for the garage door (a sum of $240.00 was paid by the landlord for new remote controls),
• failure to return all keys signed for (a sum of $330.00 was paid by the landlord to obtain new keys),
• the failure of the Kiternas' to obey the Tribunal order to pay rent,
• cleaning, and
concerns in relation, to malicious emails being sent to the landlords wife and daughter.

16. The Applicant would submit in light of those matters having been raised by the Landlord in submissions that Anshun Estoppel cannot apply as the matters were in fact raised at the first hearing but were not, it seems, determined.

17. In addition it is not apparent from the First Decision that the landlord was provided the opportunity to adduce evidence and be heard in relation to those matters. At that stage the Tribunal had dealt with the issue of rent owing to the landlord (determination having occurred on 21 January 2005) and was considering solely, it seems? the issue of rent reduction because of failure to repair.

18. If the Tribunal was striving to reach finality in the proceedings, as the Second Respondent submits, the landlord should have been provided the opportunity to ventilate every issue of concern. To deny the Applicant that opportunity in the current application would ignore the principles of natural justice that allowing each party to be heard.

19. In relation to the current claims against the First Respondent, Denis Kiternas, the Applicant submits that Anshun Estoppel cannot apply as he was not a party to the prior judgment. The applicant has not had any opportunity to redeem those amounts and is yet to be heard in relation to those matters.

Claim for Compensation for Late Rent Payments

20. Compensation for late rent payments is claimed pursuant to section 104(d) of the RTA.

21. The Applicant submits that compensation in general may be claimed pursuant to that section by a party to a Tenancy Agreement. The section was the subject of a prior decision of the tribunal in this matter in respect of a claim for compensation by the Tenant against the Landlord. The issue of whether section 104(d) allows for compensation to be provided to the Landlord against the Tenant is yet to be determined. The Applicant submits that the words of the section are clear and unambiguous and that compensation under section 104(d) is clearly contemplated by the legislature to apply equally to the both parties.

22. In relation to the assertion by the Second Respondent that this claim falls within the Anshun Doctrine the Applicant relies on its submissions above.

Failure to properly complete a tenancy agreement

23. In relation to this claim the Applicant relies on the general compensatory provision provided in section 104(d).

24. The applicant submits that a written agreement and bond clearly were sought from the tenant and because of the apparent refusal by the tenant to provide or enter into such an agreement loss brought about by damage to the property occasioned by the tenant has not been compensated.

Delays in vacating the premises

25. In relation to this claim the Applicant relies on the general compensatory provision in section 104(d) and its submissions above.

Residence of Unauthorised Persons.

26. In relation to this claim the Applicant relies on the general compensatory provision in section 104(d) and its submissions above.

Water Consumption, property not returned and cleaning and damage.

27.    In relation to this claim the Applicants rely on its submissions above in relation to Anshun Estoppel and says that an opportunity should be provided to be heard pursuant to the principles of natural justice.

Pain and Suffering

28. The Second Respondent submits that the Tribunal's second decision provides that compensation under section 104(d) is only available for breaches by the landlord.

29. The applicant submits that the issue as to whether the Tribunal can provide compensation to Landlord against the Tenant is yet to be determined. The Applicant submits that the words of the section are clear and unambiguous and that compensation under section 104(d) is clearly contemplated by the legislature to apply equally to the both parties.

Loss of interest and use of savings.

30. The applicant relies on its submissions above in relation to the application of the Anshun Doctrine and says that an opportunity should be provided, pursuant to the principles of Natural Justice, for the landlord to be heard and have his case determined.

Wasted Time.

31 . The applicant relies on section 104(d) in relation to this claim and its submissions above. The applicant would be pleased to make further oral submissions on any of the points raised above.

11.  On 26 May 2006 the tenants filed the following submission in reply:

The second respondent makes the following submissions in response to the submissions filed by the applicant on 16 May 2006 ('Applicant's Submissions'):

1. With reference to paragraph 4 of the Applicant's Submissions, the second respondent requests that the applicant provide details of the damages claimed in respect of each element of his claim and details of the method used to calculate those damages.

2. In paragraph 14 of the Applicant's Submissions, the applicant asserts that he understood the previous proceedings to be limited to issues regarding rent and rent reduction and thus did not raise the issues which are the subject of the current proceedings. In paragraph 15, the Applicant notes a number of issues which were raised during the previous proceedings and says that these issues were not determined by the Tribunal.

3. The second respondent submits that the fact that the applicant felt able to raise the issues described in paragraph 15 indicates that there was no expectation that the previous proceedings were limited to rent and rent reduction. This view is consistent with the Tribunal's approach to the previous proceedings, which went beyond the issues of rent and rent reduction to consider and reject an apparent claim on the bond paid by Denis Kiternas in paragraph 50 of the decision in Kiternas and Kiternas v Watts and Watts ACTRTT 11 [2005] ('First Decision').

4. It is worth noting that a number of the current claims for cleaning and damage, water consumption and outstanding property are the type of claims which are usually dealt with by way of a claim upon a bond. It is not reasonable for the applicant to assert that he felt unable to make claims for cleaning etc in the previous proceedings and yet clearly did feel able to make a claim on the bond of Denis Kiternas, as evidenced by the Tribunal's consideration and rejection of such a claim.

5. In response to paragraph 18 of the applicant's submissions, the second respondent notes that the matters raised in this paragraph are properly the subject for an appeal of the First Decision, rather than grounds for fresh proceedings.

6. In relation to paragraphs 21, 23, 25, 26, 28 and 29 of the applicant's submissions, the second respondent notes that section 104(d) of the Residential Tenancies Act 1997 ('RTA') only operates to give the Tribunal the power to make an award of compensation once a finding has been made that a breach of either the RTA or the Residential Tenancies Agreement has occurred. The second respondent notes that the applicant has failed to identify the alleged breach in respect of the following claims:

a.          Failure to properly complete a tenancy agreement;
b.          Delays in vacating the premises;
c.          Residence of unauthorized persons;
d.          Pain and suffering; and
e.          Wasted time.

7. The second respondent refers the Tribunal to paragraphs 18 - 21, 23 - 25, 27, 32 - 35 and 38 of its previous submissions in relation to this issue.

12.  The essence of the submissions by the tenants is as follows:

(a)The Tribunal’s monetary jurisdiction is limited to $10,000 and the landlords claim significantly exceeds this limit (section 115(2) Residential Tenancies Act 1997)

(b)The so-called Anshun estoppel applies in the circumstances of this case. The landlord’s claim is an abuse of process in that there is nothing in the landlord’s claim which was not, or could not have been, raised in the previous proceedings between the same parties.

(c)The tenants assert that the landlord sought “a penalty” late rent payments which is beyond the power of the Tribunal to order (para 5(b))

(d)The tenants deny the Tribunal has any power to order compensation for the tenants alleged failure to execute a written residential tenancy agreement (para 5(a)).

(e)The tenants deny that there is any contractual term limiting the tenants right to have four adults residing in the house (para 5(f)).

(f)The tenants deny that their failure to vacate the premise in response to the landlords Notice of Termination is a breach of the agreement (para 5(e)).

(g)The landlord’s claim for water consumption and cleaning and repair costs are covered by the Anshun estoppel (para 5(d)).

(h)The tenants deny that the law permits any damages to the landlord for distress and inconvenience arising from a breach by the tenants (para 5(i)).

(i)The tenants deny the Tribunal has any power to award damage to for any injury or loss arising to a third party i.e. to the landlord’s wife and daughter (para 5(h) and 5(i)).

(j)The tenants deny that any time devoted by the landlord to investigating the tenants’ allegation of fraud on the part of the landlord’s agent does not arise from any breach of the residential tenancy agreement and therefore the Tribunal lacks jurisdiction to award any damages (para 5(j)).

13. The landlord for its part relevantly submitted each of the claims presently made were in fact made by the landlord in the context of the earlier proceedings in [2005] ACTRTT 11 but that the Tribunal failed to address these issues in those proceedings. On this premise no Anshun estoppel applied.

14.  The landlord further contends that the Tribunal acted in breach of the rules of procedural fairness (or natural justice) in that it denied the landlord the right to ventilate the issues at paragraph 5 above except the rent arrears issue.

15.  The landlords submissions concerning the losses alleged to have accrued from the late rent payments being the claims at para 5(b) and 5(i) above, are somewhat unclear, but the Tribunal assumes that they raise the “Hungerford principle” (Hungerford v Walker (1989) 171 CLR 125.) and contend that this head of damages is within the ambit of section 104(d) of the Act.

16.  The Hungerford case recognised that awards of interest per se on damages is a creature of statute and is not awardable at common law. There is no relevant statutory provision in the context of the Residential Tenancies Act 1997 which permits interest to be awarded. However the High Court in Hungerford allowed losses arising from the loss of use of monies which need to be diverted from other uses to cover the monies consumed in making good losses from actionable wrongs. The Tribunal is open to argument as to whether this principle applies in the cases in breaches of contract and whether on the facts it is made out in the present case.

17.  The tenants are correct in drawing attention to the financial limit on the Tribunal’s jurisdiction per paragraph 11(a) above . However, the landlord is also correct in noting that the jurisdictional limit applies simply to limit the financial extent of the order which may be made, as opposed to the financial extent of applications which may be entertained by the Tribunal. The Tribunal can hear claims for sums in excess of $10,000 but it cannot make an order exceeding this sum. On this premise the Tribunal is not precluded from hearing and determining the landlords claim.

18. In relation to the Anshun estoppel issue raised at paragraph 11(b), the tenants submission pointed out that the landlord had been permitted to raise a cross claim against the tenants in [2005] ACTRTT 11 and in fact did so. The Tribunal determined the cross claim and set off the sum awarded in the cross claim against the findings in favour of the tenants in those proceedings.

19. The tenants submitted that each of the matters raised by the landlord in the present claim had crystallized and was known to the landlord at the time of the proceedings in [2005] ACTRTT 11. The landlord could have and should have raised these matters in its cross claim in those earlier proceedings.

20. The Tribunal reviewed the decision in [2005] ACTRTT 11. The proceedings occupied part of 4 days of hearing with extensive written submissions on the facts and law. Contrary to the landlords final submissions, the Tribunal records show that the landlord was present by a representative on each occasion. Further, the landlord’s representative was a qualified real estate agent, whereas the tenants appeared in person.

21.  In terms of the landlord’s issues raised at paragraph 5 above, the review of the previous proceedings disclosed the following issues were in fact raised by the landlord in those proceedings, taking the elements of paragraph 5 above in seriatim:

(a)Was raised but not dealt with.

(b)Was raised and dealt with concerning the history of rent arrears by the tenant, but there was no evidence of any claim being raised by the landlord based on the Hungerford principle.

(c)Was raised, to the extent that a provision for a rental bond would have been included in the new and unexecuted residential tenancy agreement.

(d)Was raised and dealt with to the extent of to the stove, carpets, keys and remote control (para 53).

(e)Was raised but not dealt with directly.

(f)Not raised.

(g)Not raised against the tenant. The landlord raised the issue of water charges but not seek to recover them.

(h)Was raised but not dealt with.

(i)Was raised to the extent that the hardship to the landlord per se was alleged but nothing specific about cancelled holidays or the like was raised. It was not dealt with.

(j)Not raised

22.  It is the case, as contended by the landlord, that the previous proceedings were only against the present Second and Third Respondent and not against the First Respondent.

23. The decision in [2005] ACTRTT 11 discloses that the landlord was given several opportunities to raise any cross claim for damages. The landlord raised the rent arrears issue and it was dealt with (para 20). The landlord responded to the tenants claims concerning the landlords failure to carry our repairs which was the basis of the tenants rent reduction claim. In so doing the landlord did not allege that the need for any of the repairs in question were due to any deliberate or negligent damage on the part of the tenants (prescribed term 63(1)(a)). The landlord responded simply on the basis that either the repairs were not necessary or the tenants hindered the carrying out of the repairs (para 23, 48).

24.  It was not until the fourth and last day of the hearing that the landlord made allegations that the tenants had in fact deliberate or negligently damaged the stove, carpets, failed to return the keys and remote control for the garage (para 53). The Tribunal explicitly addressed these issues and found as a fact that there was no evidence to support these allegations and accordingly dismissed these claims (paragraph 78)

25.  The landlord now alleges a breach of natural justice on the Tribunal’s part in failing to permit the landlord to raise some of the issues set out in paragraph 5 above, and also in failing to deal with some of the issues in paragraph 5 above which had been raised. The landlord had 4 separate opportunities to raise his allegations, whether in a formal manner or otherwise. The landlord could have raised them:

(a)In his response to the originating claim made by the tenant

(b)In the responses filed to the procedural directions made on 11 November, 31 December and 21 January 06.

26.  The landlord had a fifth opportunity to raise the issues orally at the hearing on 21 January 2006, at which point he did so to the limited extend noted in para 21 above. The Tribunal went through each item of repairs raised by either the tenants or the landlord, one by one (para 61). The Tribunal found no evidence to support the landlord’s claim that the need for the repairs arose out of the deliberate or negligent conduct of the tenants or their invitee. The Tribunal gave a summary of its reasons for this finding at paras 78-80.

27.  The Tribunal could, of its own motion, have further adjourned the matter to provide a sixth opportunity for the landlord to marshal and file evidence in support of its contention that the tenants deliberate or negligently caused some of the need for repair. The adjournment was never asked for. Apart from this fact, there are limits to the number of times a matter can be adjourned. This claim is only for a small sum in the scheme of litigation, and had already consumed part of four days of hearing together with time of the parties consumed in the written submissions. There must be some proportionality between the amount of money in question and the amount of public time and cost (and that of the other litigants) which can be consumed. There must also be some proportionality in the extent to which the Tribunal is required to devote days to drafting reasons for decision for each of the rounds of litigation in this matter.

28.  The issue of proportionality per se in the context of the corresponding NSW Tribunal was addressed by the NSW Court of Appeal in Glover Gibbs P/L t/as Balfours NSW P/L v Lybutt [2004] NSWCA 45 and Gygiel v Baine [2005] NSWCA 218. In Owners Corporation SP51652 v Consumer Trader and Tenancy Tribunal [2003] NSWSC 739 the Master refused to find an error of law on the Tribunal’s part in refusing an adjournment in similar circumstances to the present (not that any adjournment was in fact asked for in the present case). It contains a useful review of authorities. The High Court in Sali v SPC Ltd (1993) 116 ALR 625 affirmed the relevance of court or tribunal resources as a factor in refusing an adjournment.

29.  The Tribunal accepts that the landlord raised his alleged hardship stemming from the tenants rent default, but the landlord did not make any specific claim for recovery of any losses other than the rent arrears itself. It may be that the Tribunal should have inferred a Hungerford type claim was intended, which is dealt with at para 33 below.

30.  The Tribunal does not accept that the landlord was denied a fair opportunity to put his case.

31.  The tenant relies upon the Anshun estoppel principle. To the extent that the landlord now purports to raise issues which had previously been heard and determined by the Tribunal, then a res judicata applies to preclude the matter being raised again. The Anshun principle applies only to those claims which could have been or should have been raised in the previous proceedings and were not. It hinges upon an identity of parties to the earlier and later proceedings and a substantial identity in the issues in dispute. The question then arises as to whether there were any factors which made in reasonable for all the substantially identical issues in dispute not to have been disposed of in the earlier proceedings (Zavodnyik v Alex Constructions P/L [2005] NSWCA 438).

32.  It is common ground between the parties that the Tribunal heard and determined the landlords rent claim. The Tribunal is also of the view, per para 21 above, that in the earlier proceedings it heard and determined the landlords claims for alleged tenant damage to the premises.

33.  As per para 21 above, there were some issues raised by the landlord but not dealt with in the previous proceedings. Plainly no Anshun estoppel applies to these issues, although in most cases there are other reasons set out below why the Tribunal lacks jurisdiction in respect of these claims. Into this class the Tribunal is prepared to admit the claim on the Hungerford principle albeit never specifically raised by the landlord (para 5(b)), on premise the Tribunal perhaps should have inferred that such the claim may have been open to the landlord and should have dealt with that possibility on its merits.

34.  As per para 21 there were some issues now raised by the landlord which were not raised in the previous proceedings to which the Anshun estoppel may apply. These are the landlords claims at para 5(f), 5(g) and 5(j) above.

35.  The water charges issue of para 5(g) is so clearly linked with subject matter of the previous proceedings that it should have been raised. The Anshun estoppel applies. In the case of the water charges (para 5(g)) the landlord actually abandon any claim for water in the previous proceedings and only attempted to resurrect it for the purposes of the present claim.

36.  In the case of the claims para 5(f) and 5(j) fall into the Anshun principle is not so clear and the Tribunal is prepared to give the landlord the benefit of the doubt and further hear these claims.

37.  In so far as the present claim is also against the First Respondent, no Anshun estoppel applies. The First Respondent was not a party to the previous proceedings. For this reason the landlord is entitled to press the claim against the First Respondent. However, there are findings of fact by the Tribunal to the effect that the tenancy of the present tenants commenced on a date in Febraury 2002 and therefore the previous tenancy of the First Respondent must have terminated prior to this date. Any claim by the landlord against the First Respondent must be confined to rent arrears, damage to the property and other alleged breaches which are alleged to have occurred during the tenancy of the First Respondent and not after its termination. Therefore the claim against the First Respondent cannot include claims for rent arrears or damage to property which accrued during the subsequent tenancy of the Second and Third Respondents.

38. In relation to the claim at para 5(a) (and 11(d)) above (i.e. the tenants failure to execute a written tenancy agreement), the landlord submits that the Tribunal has power to order compensation pursuant to the general power in section 104(d). Section 104(d) is conditional on the existence of a breach being proven. It does appear from the evidence in the previous case that the landlord’s agent attempted to have the tenants execute a written lease in accordance with section 12 and prescribed term 9, and the tenants refused to do so in breach of prescribed term 10. But the landlord will need to establish that any loss stems from this breach by the tenants. Section 6A defined a residential tenancy agreement to be one made either in writing or oral. In either case, section 8 of the Act provides that the tenancy agreement is taken to include the prescribed terms. Thus whether the tenants executed the written agreement or not the same contractual terms applies. For this reason it is hard to see where or how the landlord could have suffered any loss from this breach. Notwithstanding this provisional view by the Tribunal, the landlord is entitled to the opportunity to identify any such losses.

39.  In relation to the issue at para 5(c) concerning the failure to lodge a bond per (independently of any claim which may have been made against the bond), there is only a breach if the landlord requires a bond and the tenant does not pay. Assuming for present purposes that the tenants failure to execute the written lease entailed within it a refusal to comply with the landlords request for a bond, then there may be a breach by the tenants. But what is the measure of the landlords loss from this breach. Such a measure of loss has to be ascertained separately from the merits of any antecedent breach which gave rise to a claim on the bond. It is difficult to see how this particular claim by the landlord can give rise to any loss on the landlord’s part. Nevertheless the landlord is free to inform the Tribunal on this issue.

40. In relation to the issue at para 5(f) ( or11(e)) above concerning the number of adults living in the house, the landlord points only to the general compensation provision of section 104(d). The tenants note that the landlord has not pointed to any term of the Act or any other contractual term limiting the right of residency to four adults. Accordingly there has been no breach by the tenants. The Tribunal has no power to award compensation except in the case of a proven breach (section 104(d)). The issue is whether there is any contractual restriction on the number of occupants of the premises which has been breached in this case. The Tribunal is not aware of such provision in the Act or implied by law, but is prepared to hear the landlord further on the issue.

41.  In relation to the issue raised at para 5(e) (or 11(f)) concerning the tenants failure to vacate the premise in response to the Notice to Terminate, the tenants submission is clearly correct. Section 36 of the Act provides that a residential tenancy agreement only terminates if one of the circumstances listed in that section apply. A Notice of Termination does of itself terminate a residential tenancy agreement, it is simply a statutory prerequisite to seeking an order of the Tribunal to terminate the tenancy. A tenant is not required to vacate the premises until such time as the Tribunal makes an order to that effect. Accordingly the tenants’ failure to vacate in accordance with the Notice of Termination is not a breach and therefore the Tribunal has no power to order compensation. Even if the failure to vacate in accordance with the Notice were a breach by the tenants, the claim for damages by the landlord would face the further hurdle of remoteness in accordance with the principle in Hadley v Baxendale 1854 9 ex 341). If it becomes relevant to do so, the Tribunal would find that the landlords alleged losses under this limb of the landlord’s claim would fail for remoteness. This issue will not proceed to hearing in the present matter.

42.  In relation to the issue raised at para 5(i) (or 11(h)), the tenants submitted that no damages for mere distress and inconvenience are awardable in contract except in accordance with the principle in Baltic Shipping Co v Dillon 11 ALR 289. The tenants submit that the Baltic Shipping exception applies to claims by tenants by virtue of the tenants right to quiet enjoyment conferred by the residential tenancy agreement. But there is no corresponding right to quiet enjoyment conferred on the landlord by the residential tenancy agreement and therefore the claim by the landlord for damages for distress and inconvenience is outside the Baltic Shipping exception. The landlord asserts that the right to damages for distress and inconvenience applies to the landlord also without further explication. The Tribunal concurs with the tenants’ submission on this point and will not consider the matter further.

43.  In relation to the issue raised at para 5(h) and 5(i) (or 11(i)) concerning the distress caused to members of the landlords family the Tribunal accepts that residential tenancies agreements are species of contract regulated by the common law of contract as modified by the terms of the Residential Tenancies Act 1997. In so far as the rights of the parties are regulated by the law of contract then the doctrine of privy of contract restricts damages that may be awarded to losses sustained by parties to the tenancy i.e. to the landlord himself and not to his wife and daughter (Northern Sandblasting P/L v Harrison 1997 188 CLR 313).

44. The present claim by the landlord does however raise the issue of whether the Tribunal has jurisdiction to entertain actions in tort on behalf of the landlords wife and daughter, arising out of the tenancy agreement. Section 73 permits a party to a residential tenancy agreement to apply to the Tribunal for resolution of a “tenancy dispute”. Section 71H of the Act defines a “tenancy dispute” to be a dispute “between the parties to a residential tenancy agreement” and “is about, arises from or relates to the agreement”.

45. There is no question concerning the fact that the landlord’s claim for the distress to his wife and daughter ‘arise from” the tenancy agreement within the meaning of section 71H. The issue is whether the claim on behalf of the wife and daughter is a dispute “between the parties” within the meaning of section 71H. Residential tenancy agreements are leases and hence contracts at common law (Progressive Mailing House P/L v Tabali P/L 1985 157 CLR 17; The Estate of Tanya Humphries v The Commissioner for Housing ACT [2003] ACTSC.). Central to the law of contract is the doctrine of privy of contract pursuant to which rights accrue only between the persons who are the actual parties to the agreement. Actions in tort may arise of an incident associated with the performance of a contract and may give rise to rights in third parties. But these are not actions in contract, “between the parties”. The same issue has been considered on a number of occasions by the NSW Tribunal in the context of a similarly worded provision. Those decisions are consistent in finding that the NSW Tribunal lacks jurisdiction to hear action in tort, either between the parties to the lease or on behalf of third parties (Residential Tenancies Law and Practice in NSW 2003 Anforth, Thawley and Christensen at [1.5])

46.  The Tribunal is of the view that until any relevant statutory amendment occurs, it lacks jurisdiction to entertain claims in tort generally and for claims by strangers to the residential tenancy agreement. Accordingly the claims at para 5(h) and 5(i) on behalf of the wife and daughter of the landlord will not be considered further.

47.  In relation to the issue raised at para 5(j) (or 11(j)) the tenants are clearly correct in pointing that such allegations by the tenants do not constitute any breach of any specific term of the residential tenancy agreement. There is however an issue as to whether there is a duty of good faith implied into a residential tenancy agreement and whether the allegations of bad faith on the tenants part in making these allegations, is a breach of this implied term.

48.  Residential tenancy agreements are contracts and a duty of good faith is an incident of all contracts implied by law (Cheshire and Fifoot Law of Contracts 8th ed Seddon and Ellinghaus at [10.43-10.46]) unless expressly excluded. There is no express exclusion of such an implied term in the Act or in any other term of the residential tenancy agreement. The Tribunal cannot see why the landlord’s cannot bring such a claim. In saying this the Tribunal does not purport to comment on the merits of this claim i.e. it is a question of fact yet to be determined whether the tenants have in fact made malicious and false allegations which constitute a breach of the duty of good faith.

49. The landlord submits that irrespective of the outcome of the previous proceedings, in the present matter only the second Respondent, Ranko Kiternas, has appeared and defended the claim. On this premise they are entitled to the equivalent of default judgment against the First and Third Respondent. The Tribunal does not accept this submission. The proceedings [2005] ACTRTT 11 were against the Second and Third Respondents notwithstanding that only the Second Defendant physically appeared in the Tribunal. At no point was the physical absence of Mrs Kiternas ever raised as an issue, and nor as a matter of law was it open to the landlord to make such a compliant except possibly in the evidential context of a Jones v Dunkel application. The orders of the Tribunal in the previous matters were orders in respect of the both the Second and Third Respondent to which any relevant estoppel principle applies.

50.  In the present case the Tribunal never had any doubt that the appearance of M Dalley from the Welfare Rights and Legal Centre was on behalf of each Respondent. At no point did the Applicant ever raise this issue or challenge the extent of Ms Dalley’s appearance. Section 121 of the Act provides that the Tribunal shall proceed with as little informality and technicality as a proper consideration of the case permits. The Tribunal finds as a fact that Ms Dalley appeared on behalf of all respondents to resist the landlord’s claims.

A. Anforth
Member
15 June 2006

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Kiternas v Watts [2006] ACTRTT 4