Xia v Wang & Bian
[2009] ACAT 21
•20 July 2009
AUSTRALIAN CAPITAL TERRITORY
CIVIL AND ADMINISTRATIVE TRIBUNAL
XIA v WANG & BIAN (Residential Tenancies) [2009] ACAT 21
RT 117 of 2009
Catchwords: RESIDENTIAL TENANCIES – Tribunal’s duty to assist unrepresented parties – unlawful eviction – breach of quiet enjoyment – abandonment – unlawful rent increases – rent receipts – tenant guarantors
Residential Tenancies Act 1997 (ACT)
ACT Civil and Administrative Tribunal Act 2008 (ACT)
Spargo v Wang & Bian [2007] ACTRTT 3
Sheridan v Griffith [1999] NSWRT 22
Coles Myer ltd v Volley Investments P/L [2003] WASC 254
Davies v Cantoni[1998] NSWRT 41
Byrnes v Jokana P/L [2002] FCA 41
Hawkesbury Nominees P/L v Battik P/L [2000} FCA 185
Worrall v Commissioner for Housing of the ACT [2002] FCAFC127
Marblecraft & Granite Supplies v Pratezina and ors [2005] NSWCTTT 558
Nippress v Military Rehabiliation and Compensation Commission [2006] FCA 943
Malaxetxebarra v The State of Queensland [2007] QCA 132
Galea v Galea (1990) 19 NSWLR 263
Vakauta v Kelly (1989) 167 CLR 568
APA Life Insurance Ltd v Charles (1981) 2 NSWLR 352
NSW Department of Housing v Szilagy (1997) NSWRT 182
Bates v Port Stephens Holiday Park Pty Ltd (1996) NSWRT 208
Weinstein v Medical Practitioners Board of Victoria (2008) VCA 193
Holden Australia Ltd v Eagleston [2004] NSWSC 779
Tribunal: A. Anforth, Senior Member
Date: 20 July 2009
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) No: RT 117 of 2009
ELENA MENG XIA
(Applicant/tenant)
AND
YAOXIANG WANG and SHEFANG BIAN
(Respondents/Lessors)
DECISION
Tribunal: A. Anforth, Senior Member
Date: 20 July 2009
Decision:
That the Tenant is to pay the Lessor $1714.28 for rent plus $194.50 for advertisements given a total of $1908.78.
That the Lessor is to pay the Tenant $1908.78 for breach of quiet enjoyment.
The lessors has the bond of $2000 from the Office of Rental Bond. The lessor is to pay the bond to the tenant within 14 days.
…………………………….
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) No: RT 117 of 2009
ELENA MENG XIA
(Applicant/tenant)
AND
YAOXIANG WANG and SHEFANG BIAN
(Respondents/Lessors)
REASONS FOR DECISION
BACKGROUND:
This matter relates to a residential tenancy of premises at room 225 Waldorf, 2 Akuna Street, Canberra commencing 15 February 2009 for a period of 42 weeks. The rent was $500 per week with a bond of $2000.00 and otherwise the tenancy was in the prescribed terms of the Schedule to the Residential Tenancies Act 1997 (ACT) (the Act). The tenancy was a troubled one from the start and the tenant vacated the premises on 28 February 2009 i.e. after only 13 days.
The tenant is a young university student of Chinese nationality. Her command of English was adequate for a person whose first language is not English and this affected communications during the proceedings. The lessors are a middle aged couple of Chinese ethnicity. Some of the communications between the parties were in Chinese and in those instances translations were relied upon. The fact that English was neither party’s first language affected the grammatical content of various documents and the mode of oral communication. The Tribunal has not corrected the grammar lest in so doing the Tribunal inadvertently affect the intent of the authors.
The initial directions hearing of this matter occurred on 19 March 2009 and the final hearing occurred on 11 May 2009. On both occasions both lessors were present at the Tribunal and the tenant appeared in person assisted by her father.
There was considerable animosity between the parties and the Tribunal found the conduct of these proceedings difficult to manage, particularly because of the conduct of Ms Bian.
At the directions hearing, the final hearing and in their various written submissions all of which are set out in full below, the lessors made a series of allegations concerning the bias of the Tribunal and made constant unsubstantiated assertions of dishonesty on the part of the tenant and her parents. Throughout the proceedings before the Tribunal the lessors asserted rights at law against the tenant which not only had no foundation in law but were in fact contrary to law. These issues are identified below.
The allegation by the lessors against the Tribunal essentially stems from the lessors assertion that the Tribunal should not assist the tenant to:
(a)understand the legal framework in which the hearing of the claim is to occur;
(b)understand her rights; and
(c)frame her claims in accordance with the evidence she wished to advance.
The tenant was a young lady with no previous experience in tenancy or in the Tribunal. The lessors, throughout the proceedings, argued that the tenant should be left to run her case as best she can without any assistance by the Tribunal. Upon this premise the lessors contended that it was beyond power for the Tribunal to permit an amendment of the tenant’s claim to include grounds not initially raised in her application as filed. For its part the Tribunal rejected the adversarial model of its proceedings advanced by the lessors.
The lessors are experienced lessors and users of the Tribunal process, who have been the subject of strong criticism by another Tribunal member for similar conduct in Spargo v Wang & Bian [2007] ACTRTT 3 in which the member in that case wrote at [87]:
The RTT is of the view that this lessor continues to rent premises in wilful disregard of the provisions of the legislation, with no regard for the rights of the tenants and that his dealing with the tenants who have made application to the RTT have been characterised by bullying and deceit on the lessors' part. In the opinion of the Tribunal both Mr Wang and Ms Bian are witnesses of little credit and their appearance before the Tribunal has been characterised by offensive and insulting behaviour directed at both tenants and Tribunal members.
The lessors’ frequent and unsubstantiated allegations of dishonesty directed at the tenant and her mother led to a serious credit issue in which the Tribunal informed Ms Bian that it could not discern when she was purporting to make serious factual statements and when she were engaging in purely emotional insults of the tenant and her mother.
10. This case demonstrated the difficulty that can attend controlling litigation between uninformed and unrepresented parties where there is a high level of emotional content and little commitment to objectivity on the part of one party to the dispute.
11. The lessors have sought a statement of reasons for the decision given orally immediately after the hearing on 11 May 2009. The lessors have lodged an appeal with the Tribunal pursuant to s79 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) and have requested the present statement of reasons in that context.
12. Given the nature of the allegations made by the lessors before the Tribunal and in their grounds of appeal, the Tribunal has determined to include in this statement of reasons the whole of the evidence and submissions filed with the Tribunal rather than paraphrase or summarise the content and relevance of the documents concerned. The oral evidence before the Tribunal was the subject of sound recording and the Tribunal cites from a transcript of that recording.
THE APPLICATION AS FILED BY THE TENANT:
13. The Applicant/tenant filed an application in the Tribunal on 23 February 2009 seeking an order to terminate the tenancy “…as soon as possible within the 26 weeks commencing on 18 February 2009” together with compensation for various defects in the premises that existed at the commencement of the tenancy.
14. In the application the tenant gave the following history of the dispute with the lessors:
On 15th of February 2009 the applicant and the lessor signed a tenancy agreement. Due to the distance (as I was used to live in Victoria until I had to move to Canberra for university) I was requested to pay $2000 to “secure the apartment” (see email attached. Originally it was a deposit until the lessor changed his mind to make it the bond). This was deposited directly into their account. After the signing the rental agreement, when the lessor was paid by cheque rather than cash, the lessor changed the attitude completely. Subsequently the lessor refused to issue the receipts for neither the deposit (later on the bond) nor the rental for the first 4 weeks (paid on the 15th of February by cheque). After the condition report, I requested for the repairs for the unworkable items, such as the dishwasher, the fax machine, the leaking kettle and the broken door etc. It was agreed and then cancelled (please see the email correspondences for details). On 18th February 2009 the lessor informed me that they wished to terminate the agreement without cause, which was agreed, but then they changed again (please see the attached email correspondence for details).
15. Under the heading “Issues In Dispute” the tenant wrote:
The lessor instructed me to leave the apartment on 28th of February 2009 even without offering to refund the already paid rentals. The lessor also instructed me to increase the rental immediately without my agreement.
16. Under the heading “relief sought” the tenant wrote:
3. Stopping the lessor demanding for rental increase without any ground.
4. Demanding for the receipts for the payment of the bond, which was made through bank deposit on 9th February 2009, and the first four weeks of rental payment which was made in person on 16th of February 2009, according to the standard residential tenancy terms (schedule one of the ACT Residential Tenancies Act 1997).
5. Demanding the lessor providing the address for the service according to the standard residential tenancy terms.
17. Annexed to the application, among other documents, was:
(a)a copy of the tenancy agreement which contained no entry for the bond;
(b)a copy of the in-going condition report signed by both parties on 15 February 2009 containing notations by the tenant relating to a broken fax, broken sofa, broken dishwasher and various notations concerning the lack of cleanliness of the premises; and
(c)a series of emails between the parties which are all set out below.
THE HISTORY OF THE CORRESPONDENCE BETWEEN THE PARTIES
18. On 5 February 2009 the tenant emailed the landlord in the following terms:
I am wondering if your apartment in Waldorf is still available for rent please? Furthermore, what is the price for long stay?
Please give me an answer ASAP.
19. On 6 February 2009 the landlord emailed the tenant in the following terms:
It is still available. It is $520 for long stay (one year) or $550 for short stay. Please ring me on 0410651518 or 02 62057073, as I will not be able to check my email till 3:00pm today.
20. On 6 February 2009 the tenant emailed the landlord in the following terms:
Thanks you for your prompt response. I have seen two ads which were just leased at the same address with exact same type of property at the price of AUD420.00-450.00/w. As a fresh student, I do not have a too high a budget. My parents is willing to cover my rental at this range. So you have a more reliable guarantee from my parents for your rentals. Would you like to strike a deal for 42 weeks at a price of ? this range? pls? [sic] Please forward me the contract if you agree.
Looking forward to hear from you positively.
21. On 6 February 2009 the lessors emailed the tenant in the following terms:
I understand your situation. I can stretch to $500 for you and this is the best price you can ever find in city location and as far as I know, mine is the last one available and it is a much quit apartment. ?The one you've mentioned is a studio which is one small room with everything in it. You can hear fridge running in the evening and the cars on the street. I also have some other people interested also. Please let me know if you want to rent ASAP
22. On 6 February 2009 the tenant emailed the lessors in the following terms:
Thank you for your prompt response.
Would you pls allow me talking to my parent when they come back from work today.
By the way, what is the size of yours pls?
23. On 6 February 2009 the landlords emailed the tenants in the following terms:
the size is around 60m2 and yes you can talk to your parent when they come back to work
Regards
24. On 6 February 2009 the tenant emailed the lessors in the following terms:
I would also like to know what type of room property is it please?
25. On 6 February 2009 the lessors replied and described the apartment as “a 4.5 star hotel, security box. Indoor heated swimming pool; sauna; table tennis and tennis court. Apartment, 1 br, f/f, c/yard”. The tenant replied in a one line email in Chinese which has not been translated. The lessors then email again concerning the court yard saying:
Yes, the little court yard is attached to the apartment and no one else can use it. It is including water bill and others but not the electricity.
26. On 6 February 2009 the lessors emailed back to the tenant in the following terms:
Pls fill in the attached application form to the best of your ability. ?
If you decide to share the apartment with someone else in the future, it will only be $40 extra.
Pls deposit $2000 into our account? to secure the apartment ASAP and let us know when you did the transfer. If you do the transfer today? it will probably show online next Mon or Tue.? Once we have received? your payment,? we will confirm to you by email ASAP.
[Bank account details were included at the end of the email]
27. On 7 February 2009 the tenant emailed the lessors in the following terms:
Because it is the weekend now, all Commonwealth Bank are not open in Victoria.?
Unfortunately, I can't do it over the internet as well, because I cant transfer more than $1000 each day. I will transfer the money first thing on Monday. I? definitely? want the apartment.?
May I please also ask
1. What is the size of the bed?
2. How many sets of linens do you have?
3. How many sets of towels do you have?4. Are the linens and towels new?
I just want to know? approximately? how many sets of linens and towels I will need to bring.?
28. On 7 February 2009 the lessors emailed the tenant with details of the number of towels, linen etc.
29. On 7 February 2009 the tenant emailed the lessors forwarding the completed application form provided by the lessors and stating that “I will send my ID and bank statement in a separate account”.
30. On 7 February 2009 the lessors emailed the tenant in the following terms:
Yes, that’s fine. You may present your IDs when your arrive. Please do a cash deposit first thing on Mon so that it will probably show online on the same day.
31. On 8 February 2009 the tenant emailed as follows:
Thankyou for your response.
Below I have attached a bank statement.
I will give you my IDs when I arrive because it is safer that way.
32. On 9 February 2009 the tenant emailed the lessors advising that the deposit had been lodged into the landlords account and the lessors replied saying “I have already received $2000 deposit”.
33. On 9 February the lessors emailed the tenant in the following terms:
Please advise the time and date of your arrival so that we can negotiate a mutually suitable time to meet on the day.
Please bring with you IDs and proof of income. Please also bring $2000 as $2000 will be the bond and $2000 will be rent in advance.
34. On 9 February 2009 the tenant emailed the lessors in the following terms:
I will be arriving on the 15th of Feb at about 5-6pm. Please give me a time when you will be free so we can organise to meet up.
I will bring my ID photos and proof of income on the day together with $2000. Please provide 2 receipts on the day, I showing the bond and the other with the $2000 for the first month of rent.
I would also like to know if there are the following in your apartment.
1. Kettle
2. Toaster
3. Rice cooker
4. Bowls and plates
5. Cooking utensils.
6. Cutleries.
7. Oven mitts.
8. Microwave.
9. A table in the courtyard.
10. DVD player.
35. On 10 February 2009 the lessors replied in the following terms:
between 5-6pm on Sun 15 Feb is fine, pls ring 0410651518 at least 15 minutes in advance to advise the exact time as I will not be able to wait for one hour. You can ring me when you enter the border of ACT if you come to City via Barton Highway. I will meet you at the reception of Waldorf Apartment Hotel at 2 Akuna St (corner of London Get) Canberra City. pls take a seat in the corner of the reception.
1. Kettle yes
2. Toaster yes
3. Rice cooker yes
4. Bowls and plates yes
5. Cooking utensils yes
6. Cutleries yes
7. Oven mitts yes
8. Microwave yes
9. A table in the courtyard no
10. Dvd player no
36. On 10 February 2009 the tenant emailed back in the following terms:
I will call you on the day, at least 15 min before my arrival to notify you about the approximate time I will arrive at the Waldorf. I will wait at the corner of reception.
Is there a car park please?
The next day the lessors replied informing the tenant of parking arrangements.
37. On 11 February 2009 the tenant emailed the lessors saying:
Would you please bring a photo ID on the day as well as a copy of it for me to keep please (for security reasons).
Am I correct in assuming that the sofa in the hotel can be turned into a sofa bed?
38. On 12 February 2009 the lessors emailed the tenant saying:
As the owner and lessor of the property, I do not need to provide you with a copy of my photo ID and I never have to my tenants.
The sofa cannot be turned into a sofa bed.
39. On 13 February 2009 the tenant emailed the lessors saying “Will you please bring the lease on Sunday”.
40. On 17 February 2009 the tenant emailed the lessors complaining that the kettle did not work and asking for a replacement. The lessors replied saying “It works, just pull the green button up to start”.
41. On 17 February 2009 the tenant emailed the lessors advising the kettle was working but “the water cannot be heated. When you come tomorrow please take it back and bring the inventory sheet so that it can be crossed off”.
42. On 17 February 2009 the lessors emailed the tenant in the following terms:
I will not be able to come at between 18:00 and 18:30 tomorrow Wed 18 Feb. However, I will come at about 9:30 on Sat 21 Feb.
Also, I acknowledge the payment of $2000 on Mon 9 Feb 2009. I cannot acknowledge the payment of $2000 by cheque on Sun 15 Feb 2009 until it is cleared by the bank in a few days time.
In future, if the payment is made by direct deposit through the bank, I am not required to issue any acknowledgement unless payment is made in cash.
43. On 18 February 2009 the tenant emailed the lessors in the following terms:
Thank you for your email advising me that you could not come to fix the door as promised earlier. I however would appreciate it very much if you could keep your promise to have the technician to fix the dishwasher at your earliest convenience.
I certainly understand that you will only issue the receipt for the payment of the already paid first four weeks rentals after the bank clearance of the cheque. Please issue the invoice upon the clearance of the cheque issued to you on 15th of February, 2009 in your presence.
It is my legal right to demand a tax invoice for the payment of the rentals, no matter it was paid in cash, cheque, or direct deposit as per your previous agreement to the method of payment. My understanding is this, it is my obligation to pay the rental on time; whereas, it is the obligation of the landlord providing the invoice to the tenant for the payment. Like last time when I was demanding your photo ID, it was also per the stipulation of the ACT Residential Tenancy Act.
Thank you for your attention to this, as well as your understanding of this.
44. On 18 February 2009 the lessors emailed the tenant in the following terms:
Can you advise which clause in the ACT Residential Tenancy Act states that lessors have to issue tax invoices if the rent is paid by direct deposit and which clause states that the lessors have to provide photo IDs to tenants? Please go and study the Act carefully before making any unlawfully demands not in accordance with the Act.
We had oral agreement with your mum during her stay in Canberra last weekend that we could terminate the lease at any time. We just contacted your mum who is your guarantor and she agreed to terminate the lease on Sat 28 Feb 2009. A final inspection will be carried out at 9:30 on that day. Please contact your mum with regard to the matter ASAP.
In this regard, we hereby cancel the appointment at 9:30 this Sat 21 Feb 2009.
45. The tenant emailed back in the following terms:
Please take note that the Tenancy Agreement signed on 15th of February, 2009 is between your good self and me. I do not understand why you bother my mother for this?
The signed agreement is a fix term tenancy agreement, according to the ACT Residential Tenancies Act, and therefore according to Clause 94 of this Act, The lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate the premises at the end of the notice provided that the notice is for 26 weeks
Which law gives you the right to instructing "terminate the lease on Sat 28 Feb 2009. A final inspection will be carried out at 9:30 on that day."?
In consideration of your request, I would take your last email requesting termination of the agreement we entered into on 15th February, 2009, as the notice served to me. I therefore will look for an appropriate replacement of the apartment, within 26 weeks starting from 18th February, 2009. I shall give you notice as soon as possible upon finding the right one.
I wish to draw your attention to the following;
The Tenancy Agreement between you and me is governed by the ACT Residential Tenancies Act. Whereas this Act stipulates that
Article 13, (1) the lessor must provide to the tenant...... (2)
Have you informed this please?
Article20 (a)
Even at our requests long before we inspect the property. Further, you have broken your promise to bring the receipt to me on 17th of February, 2009.Article 29 and 31
Please be reminded that you have failed your legal obligation to carry out your duty on this.Article 98(1)
I have requested your Photo ID for the correct address according to this article.Please fulfil your legal obligation according to the Residential Tenancies Act in accordance to the Articles 55, 56, 57, and 60. to do the necessary repairs.
46. On 18 February 2009 the tenant received a text message on her mobile sent from 0410651518. The tenant attended Civic Police Station and had Constable Lee read the message and certify a transcription of the message which read:
Lease will terminate on Sat 28 Feb contact your mum asap
Leon
47. On 19 February 2009 the lessors emailed the tenant in the following terms:
I do note the agreement was signed between you and me. I also do not understand why your mother rang me all the time about the apartment and why your mother made the payment to me using her cheque book?
I wish to bring to your attention again that the agreement of $500 PW was reached based on your false and misleading information provided in your email. We reserve the right to demand you to pay the full rate of $550 PW. As you were advised, the agreement is only valid if satisfactory proof of your income and your parents' income, such as tax return, are provided since they are your guarantors to cover your rental payment. You said in your email that you would provide me with the proof of income on the day when we met but you failed. I would like to see your proof of income on Sat 21 Feb.
Since you do not agree to your mother's suggestion to terminate the lease on Sat 28 Feb, you need to stay for 42 weeks as per agreement until both parties reach a new agreement or until I serve you a formal notice to vacate.
I will bring a hard copy of ACT Residential Tenancies Act with me at about 9:15 on Sat 21 Feb to discuss the legal issues raised.
In the meantime, please provide the name and contact details of your family lawyer as you said so that my legal representative and I can get in touch with him/her.
48. On 20 February 2009 the tenant emailed the lessors in the following terms:
As you have cancelled the appointment on Sat 21 Feb. I have other plans. Please make another time.
49. On 20 February 2009 the lessors email the tenant in the following terms:
As you suggested in your email, please provide the name and contact details of your family lawyer ASAP.
Since you claim I have "caused too much inconvenience" to you (although I am carrying out my duties as the owner and lessor of the property in accordance with the Act), as from now on, all my contact and/or correspondence will be forwarded to your family lawyer as you suggested in your email. I would also like to discuss the legal issues you raised with your family lawyer as you suggested in your email. Likewise, if you wish to contact me, please also do so through your family lawyer as you are the one who has really caused too many troubles to me by providing false and misleading information when applying for the apartment as well as by misquoting and misinterpreting the Act and creating rules and stipulations at your own will. Please take note that I will not take your personal calls and/or emails anymore except the name and contact details of your family lawyer. Alternatively, your family lawyer can reach me by phone on 0410651518 or email …at any time.
Since you have other plans and have cancelled the appointment to provide your proof of income, to discuss the legal issues with me, and for me to carry out the repair work this Sat 21 Feb, please instruct your family lawyer to schedule another appointment. With proof of income, please instruct your family lawyer to provide me with certified copies of your notice of assessment of tax return and your parents' notice of assessment of tax return by close of business on Fri 27 Feb. I shall provide your family lawyer with a mailing address as soon as I receive the name and contact details of your family lawyer.
I sought legal advice today and was advised that with regard to your case, the full rate of $550 is payable as from the commencement of the agreement. In my face to face and phone conversation with your mother, she said she had never said "she is willing to cover the rental at this range". Therefore, you need to pay the rent in arrears of $200 immediately. Your next rent payment on or before Sun 1 Mar will be $1100. If you fail to pay the amount by that date or do not instruct your family lawyer to contact me, legal proceedings will be initiated in due course and you will be totally responsible for the costs thus incurred or deemed as appropriate by the court.
I wish to bring to your attention that if you do not provide the name and contact details of your family lawyer or if your family lawyer does not contact me by close of business on Mon 23 Feb, appropriate and relevant actions related to the apartment in question may be taken accordingly without any notice and your knowledge.
50. On 22 February 2009 the lessors emailed the tenant in the following terms:
I don't understand the "Article" you selected from "ACT Residential Tenancies Act" (Is this the story made up by you again?). First of all there are only sections in ACT Residential Tenancies Act not "Article". Second, there is no "Article 98(1)" in the Act. I Pasted and copied the original ACT Residential Tenancies Act in sections compare to your "Articles" as following:
Tenancy Agreement between you and me is governed by the ACT Residential Tenancies Act. Whereas this Act stipulates that
Article 13, (1) the lessor must provide to the tenant...... (2)
Have you informed this please?
13 Tenant's obligations
The tenant must provide the lessor with the tenant's full name. (and there is no.2)Article20 (a)
Even at our requests long before we inspect the property. Further, you have broken your promise to bring the receipt to me on 17th of February, 2009.
20 Maximum amount payable
A lessor may only require or accept as a bond an amount of not more than the first 4 weeks of rent payable under the residential tenancy agreement.Article 29 and 31
Please be reminded that you have failed your legal obligation to carry out your duty on this.
29 Condition reports
A lessor must, not later than the day after the tenant takes possession of the premises, give the tenant 2 copies of a report about the state of repair or general condition of the premises, and of any goods leased with the premises, on the day the tenant is given the report.
A report under subsection (1) must be signed by the lessor.
The tenant must, within 2 weeks after receiving the copies of the report mentioned in subsection (1), return 1 copy to the lessor, either—
(a)signed by the tenant; or
(b)endorsed with a statement, signed by the tenant, indicating whether the tenant agrees or disagrees with the whole of the report or with specified parts of it.
If the tenant returns the copy signed but without further endorsement, the tenant is taken to have agreed with the whole of the report.
31 Deductions from bond
A lessor is entitled to deduct from the bond paid under the residential tenancy agreement any of the following:(a)the cost of repairs to, or the restoration of, the premises or goods leased with the premises as a result of damage (other than fair wear and tear) caused by the tenant;
(b)any rent owing and payable under the residential tenancy agreement at the time the agreement terminates or is terminated;
(c)the cost of replacing any fuel (such as gas, oil or wood) supplied to the premises by the lessor at the commencement or during the course of the tenancy;
(d)any reasonable amount (not greater than the costs incurred) for the cost of legal fees incurred by the lessor in assigning or transferring a tenant's rights under a residential tenancy agreement;
(e)any amount expressed in a term of the agreement to be deductible by the lessor from the bond, if the term is endorsed by the ACAT under section 10.
Article 98(1)
I have requested your Photo ID for the correct address according to this article.
(there is no 98 1 in the Act)Please fulfil your legal obligation according to the Residential Tenancies Act in accordance to the Articles 55, 56, 57, and 60. to do the necessary repairs.
55 Repudiation without vacation
On application by a lessor, the ACAT may make a termination and possession order if—(a)the tenant repudiates the residential tenancy agreement in writing; and
(b)the lessor accepts the repudiation as proposed by the tenant; and
(c)the tenant fails to vacate the premises on or before the date specified for vacation in the notice of repudiation.
56 Compensation to lessor
If a person to whom a termination and possession order is directed fails to vacate the specified premises in accordance with the order, the ACAT may, on application made within 4 weeks after the date when the person was to vacate the premises, order the person to pay to the applicant such of the following as it considers appropriate:(a) an amount equal to the rent that would have been payable to the applicant if the premises had been tenanted during the period for which the person was in possession of the premises after termination of the residential tenancy agreement;
57 Retaliatory applications
This section applies if—
(a)a lessor has applied for a termination and possession order under this part; and
(b)the tenant presents evidence that—
i) the tenant applied to the ACAT for an order in relation to the lessor; or
ii) the tenant complained to a governmental entity in relation to the lessor; or
iii) the tenant took reasonable action to secure or enforce the tenant's rights; or
Examples
1 The tenant sought legal advice.2 The tenant sought mediation.
iv) the ACAT made an order in favour of the tenant against the lessor.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
The ACAT must refuse to make the termination and possession order—
(a)if satisfied that the circumstance mentioned in subsection (1)(b) exists; and
(b)in the absence of proof to the satisfaction of the ACAT that the lessor was not motivated to apply for a termination and possession order by the circumstance.
Subsection (2) applies despite any other provision of this part.
I warn you, it is illegal to make up Laws for any reasons or purpose. I also remained you that your rent is $550. The discounted rent of $500 which you paying now was based on the false information you provided in your email "property at the price of AUD420.00-450.00/w. As a fresh student, I do not have a too high a budget. My parents is willing to cover my rental at this range. So you have a more reliable guarantee from my parents for your rentals". I rang you mum on 17/2/2009 morning and she said she had never told you the budget rang and she can afford to pay you normal rent as your family is quite wealth. We remain our rights to asking you to pay the full rent from the beginning.
You lease is based on your parent as your guarantor. Now your guarantor wants you to move out and suggested us to inform you by email. We can give you an extra week or two to move out. We will still come to check the dishwashers and the other things on this Saturday morning round 9:15 am if it is ok with you. We can have a talk then if there are any questions in regarding of this matter.
51. On 22 February 2009 the lessors emailed the tenant in the following terms:
Probably we both need to cool down. I want to Clearfield some misunderstanding between us. First, I wasn't happy about your dishonesty. You emailed me says you are on budget and your parent only cover on the rang of $420-$450. Even thought there are people willing to pay original of $550. I still let you have the apartment with discounted rats of $500. Second, you attitude is very negative started from the very beginning. This is Australia and this is Waldorf, most of the landlords are high classes and also attack high class tenants. There are strong bond between the tenants and landlords even beyond the law. There is love, faith and trust between them, this is why I gave you the discount without to check your parent's income at the first place, (To be honest this is the first time we've be cheated in Waldorf.) and this is why I tried to get your parent park their car in the car park which was not my responsibility. We did not made it clear in our email to you (the date was wrong as the problem of computer) it is your mum suggested us to email you to move out. I'll rang you mum to find a solution and also, we may need a good talk if you have the intention to sort out the problem. Believe me, We never afraid of the tough one and we always help the weak ones
52. The tenant subsequently filed further correspondence between the parties which are recited directly hereunder for continuity of history.
53. On 23 February 2009 the lessors emailed the tenant’s solicitor, Mr Negro of Brand Partners, in the following terms:
I am Leon Wang, owner and lessor of Room 225 Waldorf Canberra Apartment Hotel.
I have been advised by Elena Xia, who is currently staying at the above mentioned address, that you are her family lawyer. She requests me to contact you as her contact and legal representative,
Please ask your client to supply me with proof of income.
I would like to have certified copies of 2 most recent notices of assessment of tax return of your client and her parents who are her guarantors by close of business on Fri 27 Feb.
My mailing address is
Mr Leon Wang
224 Waldorf Canberra
2 Akuna St
Canberra City ACT 2601
Please advise the date you post the letter.
54. On 24 February 2009 Mr Negro responded and asked Mr Wang for the identity of his solicitor. On the same date the landlord replied by email to send all correspondence direct to him.
55. On 25 February 2009 the tenant’s solicitor emailed the lessors in the following terms:
We are instructed to confirm that our client agrees to your request to vacate the premises on 28 February 2008, subject to your refund of the bond monies ($2000) and the balance of the rent paid for the period 15 February 2009 to 14 March 2009 being $1036.98 (14 days at $74.07 per day). On this basis our client will vacate the premise at 6:00pm on 28 February 2009.
We are also instructed that the address to the premises you have supplied in your email below has been leased to a third party. We request that you supply us with an address to premises in the ACT that is occupied by you.
56. On 26 February 2009 the lessors emailed the tenant’s solicitor stating “Please notify your client that the first inspection of the property will be carried out at 11.00am on Sat 7 Mar”
57. On 26 February 2009 the tenant’s solicitors replied by email which read:
Our client's position is as follows:
1. There is no legal basis for your request for tax assessment notices and they will not be provided to you.
2. Your allegation that our client's parents have guaranteed the residential lease is fanciful. If you possess duly signed personal guarantees executed by Ms Xia's parents, then please supply us with a copy.
3. The emails passing between you and our client on 18 February 2009 which are extracted below constitute an agreement for the termination of the lease on 28 February 2008:
From you to our client:
“We had oral agreement with your mum during her stay in Canberra last weekend that we could terminate the lease at any time. We just contacted your mum who is your guarantor and she agreed to terminate the lease on Sat 28 Feb 2009. A final inspection will be carried out at 9:30 on that day. Please contact your mum with regard to the matter ASAP.”
From our client to you:
"In consideration of your request, I would take your last email requesting termination of the agreement we entered into on 15th February, 2009, as the notice served to me. I therefore will look for an appropriate replacement of the apartment, within 26 weeks starting from 18th February, 2009. I shall give you notice as soon as possible upon finding the right one.”
Our client subsequently gave you notice that she would be vacating on 28 February 2009. Our client therefore re-iterates her demand for repayment of the balance of the rent and the bond in the amount set out in our email to you yesterday by 6:00pm on 28 February 2009, failing which, recovery proceedings will be initiated against you without further notice.
58. The lessors responded as follows:
1. Your client agreed to supply proof of income as part of the agreement on the day of her arrival. Please refer to her email to me at 16:48 on Sat 7 Feb and at 22:48 on Mon 9 Feb.
2. I have a copy of your clients' application with her signature to show that she has nominated her parents as her guarantors. 1 also received a cheque paid to me in the name of her parents. 1 shall present the evidence to the court in due course if necessary.
3. Your client has rejected the suggestion by her mother (which I agreed) to vacate the premises on Sat 28 Feb. I therefore withdrew my agreement to your client's mother's suggestion. Please refer to my email to your client at 6:09 on Thurs 19 Feb.
4. If your client decides to break the fixed term contract, she will be totally responsible for the legal consequences thus incurred. I wish to bring to your attention that your client is legally bound to pay the rent until the lease ends in early December.
59. On 27 February 2009 the tenant’s solicitors emailed the lessors in the following terms:
I refer to and re-iterate our client's position as set out in my email to you yesterday.
I strongly recommend that you consult your solicitor about this matter to gain a better understanding of the legal issues involved and the associated implications. To be clear, our client will be vacating the premises on 28 February 2009 in accordance with the email exchange on 18 February 2009. The concluded agreement as to termination was reached on 18 February 2009. Please return the bond and the balance of the rent paid for the period 15 February to 14 March 2009 by 6:00pm tomorrow following your inspection of the premises, failing which, legal proceedings will be initiated.
We confirm our client's previous advice to you that upon taking possession of the premises on 15 February 2009, our client found the oven, carpet, fridge and bathroom to be in a dirty condition. You have not arranged for those items to be cleaned to date. Our client has also reported to you that the dishwasher, the door to the laundry and the kettle were in a state of disrepair on 15 February 2009. You have not arranged for those items to be repaired.
In respect of your statement as to proof of income, we note that you entered into the tenancy agreement on 15 February and accordingly take it that you were satisfied in this regard. The tenancy agreement does not require the provision of such information and it will not be provided.
Again, in respect of the guarantee position you are asserting, in the absence of a signed guarantee deed, our client's parents have not guaranteed the lease. A nomination by a third party does not amount to a guarantee. Furthermore, payment of the rent by our client's mother is irrelevant to the question of the guarantee.
Again, we urge you to satisfy yourself of the matters put by our clients above by consulting your solicitor
60. On 28 February 2009 the tenant vacated the premises.
61. The matter was listed before the Tribunal on 19 March 2009 and the parties were invited to file any further evidence and submissions by 12 March 2009.
62. On 10 March 2009 the tenant filed a series of emails between her solicitors and the lessors which are set out above. In addition she filed an account dated 25 February 2009 from Brand Partners Commercial Lawyers, addressed to herself, in the sum of $2048.20 for their costs in advising the tenant on the tenancy dispute with the lessors and various correspondence.
63. On 17 March 2009 the lessors filed a Response which was a document that included the text of various emails, set out above, followed by the lessors’ comments on the facts. The document reads in full:
Response to applicant from Yaoxiang Wang and Shefang Bian (Lessor)
We did not receive the notice until 16th March 2009 and, were given additional days to respond. We will also contact our solicitor, Bruce Vincent, who may be our legal representative during the hearing on the 19th March 2009. We have only noticed that the applicant filed her application on 23rd of February – prior told us that she wanted to end the lease, which does not follow the legal processions.
The applicant was "seeking for confirmation by tribunal's judgment on agreeing to lessor's request for termination without cause."
The applicant already moved out of the apartment by 28th February (see attached email from the lawyer of the applicant.), before she lodged this claim, and hence, is no longer valid. (See attached email )
From: Tino Dal Negro [mailto:tino.dalnegro@brand partners.com.au]
Sent: Wednesday, 25 February 2009
To: Yaoxiang Wang
Cc: Elena Xia; David
Subject: RE: Elena XiaDear Leon,
We are instructed to confirm that our client agrees to your request to vacate the premises on 28 February 2008, subject to your refund of the bond monies ($2000) and the balance of the rent paid for the period 15 February 2009 to 14 March 2009 being $1036.98 (14 days at $74 07 per day). On this basis our client will vacate the premise at 6:00pm on 28 February 2009.
We are also instructed that the address to the premises you have supplied in your email below has been leased to a third party. We request that you supply us with an address to premises in the ACT that is occupied by you.
We would like to address the following issues:
1. The 4.5 star hotel-apartment was in its standard condition, as was checked and approved by the applicant before she signed the lease. However, she had issues concerning the operation of the kettle and we emailed her (see her attached email insert 3, page l).We also arranged a time to meet her and show her how to use the dishwasher as well as checking the laundry door after the applicant complained that one of the nine screws seemed to be loose, but the applicant cancelled the appointment. Please refer to the attached email. All of this was arranged within one week
From: [email protected]
To: [email protected]
Subject: RE:
Date: Thu, 25 May 2006 10:25:56 +1000 [sic]Hi Elena
I will not be able to come at between 18:00 and 18:30 tomorrow Wed 18 Feb. However, I will come at about 9:30 on Sat 21 Feb.
Also I acknowledge the payment of $2000 on Mon 9 Feb 2009. I cannot acknowledge the payment of $2000 by cheque on Sun 15 Feb 2009 until it is cleared by the bank in a few days time.
In future, if the payment is made by direct deposit through the bank, I am not required to issue any acknowledgement unless payment is made in cash.
Regards Leon
(Apologies, our computer sometimes has problem with dates. The actual date for this email is 17th of February 2009).
From: Mi Chen [mailto:[email protected]]
Sent: Friday, 20 February 2009 3:37 PM
To: [email protected]
Subject: RE:Hi Leon
As you have canceled the appointment on Sat 21 Feb. I have other plans. Please make another time.
Elena
(The applicant addressed wrong date of Sat 21 Feb which should be 18 Wed)
2. The applicant demanded an invoice for rent payment via bank transfer for every payment, which is explained earlier in the above email.
[A letter from the tenant’s solicitors to the landlords]
Dear Mr. Wang,
I refer to and re-iterate our client's position as set out in my email to you yesterday.
I strongly recommend that you consult your solicitor about this matter to gain a better understanding of the legal issues involved and the associated implications.
To be clear, our client will be vacating the premises on 28 February 2009 in accordance with the email exchange on 18 February 2009. The concluded agreement as to termination was reached on 18 February 2009. Please return the bond and the balance of the rent paid for the period 15 February to 14 March 2009 by 6:00pm tomorrow following your inspection of the premises, failing which, legal proceedings will be initiated.
We confirm our client's previous advice to you that upon taking possession of the premises on 15 February 2009, our client found the oven, carpet, fridge and bathroom to be in a dirty condition. You have not arranged for those items to be cleaned to date. Our client has also reported to you that the dishwasher, the door to the laundry and the kettle were in a state of disrepair on 15 February 2009. You have not arranged for those items to be repaired
In respect of your statement as to proof of income, we note that you entered into the tenancy agreement on 15 February and accordingly take it that you were satisfied in this regard. The tenancy agreement does not require the provision of such information and it will not be provided.
Again, in respect of the guarantee position you are asserting, in the absence of a signed guarantee deed, our client's parents have not guaranteed the lease. A nomination by a third party does not amount to a guarantee. Furthermore, payment of the rent by our client's mother is irrelevant to the question of the guarantee.
Again, we urge you to satisfy yourself of the matters put by our clients above by consulting your solicitor.
From: Yaoxiang Wang [mailto:[email protected]]
Sent: Thursday, 26 February 2009 7:11 PM
To: Tino Dal Negro
Subject: RE: Elena XiaMr Negro
1. Your client agreed to supply proof of income as part of the agreement on the day of her arrival. Please refer to her email to me at 16:48 on Sat 7 Feb and at 22:48 on Mon 9 Feb.
2. I have a copy of your clients' application with her signature to show that she has nominated her parents as her guarantors. I also received a cheque paid to me in the name of her parents. I shall present the evidence to the court in due course if necessary.
3. Your client has rejected the suggestion by her mother (which I agreed) to vacate the premises on Sat 28 Feb. I therefore withdrew my agreement to your client's mother's suggestion. Please refer to my email to your client at 6:09 on Thurs l9 Feb.
4. If your client decides to break the fixed term contract, she will be totally responsible for the legal consequences thus incurred. I wish to bring to your attention that your client is legally bound to pay the rent until the lease ends in early December.
Leon
3. The apartment is in excellent condition, and fully renovated two years ago through "Waldorf Management" to meet the standard of a 4.5 hotel. The applicant had been very difficult to deal with.
After having tolerated four days of constant emails, phone calls and text messages from the applicant, on 18th February, we rang her mother to discuss her behaviour, and was advised by her to terminate her lease if she agreed. We decided to email her our intention of ending the lease on 28th February, which was rejected by her. Instead, she requested that she would move out within 26 weeks, which we did not agree to. We emailed her on 19th February to cancel our offer and therefore the original lease would have to be followed- that she should stay until the end of the lease (see the attached emails).
From: [email protected]
To: [email protected]
Subject: RE:
Date: Thu, 19 Feb 2009 18:08:37 +1100Since you do not agree to your mother's suggestion to terminate the lease on Sat 28 Feb, you need to stay for 42 weeks as per agreement until both parties reach a new agreement or until I serve you a formal notice to vacate.
I will bring a hard copy of ACT Residential Tenancies Act with me at about 9:15 on Sat 21 Feb to discuss the legal issues raised.
In the meantime, please provide the name and contact details of your family lawyer as you said so that my legal representative and I can get in touch with him/her.
Leon
From: Mi Chen [mailto:[email protected]]
Sent: Wednesday, 18 February 2009 11:20 PM
To: [email protected]
Subject: RE:Hi Leon
Please take note that the Tenancy Agreement signed on 15th of February, 2009 is between your good self and me. I do not understand why you bother my mother for this?
The signed agreement is a fix term tenancy agreement, according to the ACT Residential Tenancies Act, and therefore according to Clause 94 of this Act, the lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate the premises at the end of the notice provided that the notice is for 26 weeks
Which law gives you the right to instructing "terminate the lease on Sat 28 Feb 2009. A final inspection will be carried out at 9:30 on that day." ?
3. As the applicant had obtained discounted rent through false and misleading information via email, which was later verbally denied by her mother. She also rejected our request of checking her proof-of-income as well as that of her parents' (as she told us they supported her financially) to be eligible for the discounted rent. After having sought legal advice, we emailed her, asking for the full rent of $550/week on 20th February as follows:
"I sought legal advice today and was advised that with regard to your case, the full rate of $550 is payable as from the commencement of the agreement. In my face to face and phone conversation with your mother, she said she had never said "she is willing to cover the rental at this range". Therefore, you need to pay the rent in arrears of $200 immediately. Your next rent payment on or before Sun 1 Mar will be $ 1100".
From: [email protected]
To: [email protected]
Subject: RE:
Date: Thu, 25 May 2006 02:50:52 +1000Dear Elena,
I understand your situation. I can stretch to $500 for you and this is the best price you can ever find in city location and as far as I know, mine is the last one available and it is a very quiet apartment. The one you've mentioned is a studio which is one small room with everything in it. You can hear fridge running in the evening and the cars on the street. I also have some other people interested also. Please let me know if you want to rent ASAP
Regards Sophie and Leon
From: Mi Chen [mailto:[email protected]]
Sent: Friday, 6 February 2009 8:57 AM
To: [email protected]
Subject: RE:Hi Sophie and Leon,
Thanks you for your prompt response. I have seen two ads which were just leased at the same address with exact same type of property at the price of AUD420.00-450.00/w. As a fresh student, I do not have a too high a budget. My parents is willing to cover my rental at this range. So yo have a more reliable guarantee from my parents for your rentals. Would you like to strike a deal for 42 weeks at a price of this range pls? Please forward me the contract if you agree.
Looking forward to hear from you positively.
Thank you very much.
Elena
On the 10th March 2009, the applicant sent us the invoice of her lawyer (whom she decided to call upon to act on behalf of herself) - of the professional fees, which was originally sent to the applicant, and was charged to her. Her request to the tribunal was for us to pay the invoice of her lawyer for her. The services and fees of her lawyer should not concern us at all, as it is a personal agreement between herself and her lawyer. (See attached email from the applicant)
From: Mi Chen [mailto:[email protected]]
Sent: Wednesday, 18 February 2009 11:20 PM
To: [email protected]
Subject: RE:Having said all the above, I would like to make this clear that! entered into the Tenancy Agreement with the purpose of studying in a quiet and pleasant environment. Unfortunately, you have already caused too many inconveniences to me. Should you choose not to perform your duty, and/or continue causing inconveniences to me, I would suggest you contact my family lawyer at your own cost to resolve this.
Elena
In conclusion we request the tribunal to:
A. release the bond of $2000 to us
B. Charge the applicant with the full rent of $550 p/week for the remainder 38 weeks of the lease coming to a total of $20900.
64. On 17 March 2009 the tenant lodged the following letter sent by the lessors to the tenant’s parents (the letter was written in Chinese but an unofficial translation was provided):
Madam Chen,
We are the owner of 225 Leon & Sophie.
Your daughter Elena moved out of the apartment 225 Waldof. without our permission last Saturday has broken the agreement. From the legal point of view, she has seriously violated the ACT Residential Tenancies ACT.
On 18th of Feb., we had taken your advice, sent her an email wanting her to terminate the contract on 28th Feb., which was refused by her. We had dropped this proposal on 19th Feb., since she did not agree to our proposal. We requested that she stay until the end of the term. Meanwhile, based on our lawyer's proposal, we had increased the rent to $550.00, because Elena did not present us the evidence of your family income, proving that your have economic difficulties in your family.
On 25th of Feb., she had through Lawyer Tino, sending us email advising us that she was moving out on 28th of Feb. which was rejected by us. On 27th of Feb., she again through Tino sending us another email telling us that she was moving out on 28th of Feb., we found out on 29th of Feb., that she had already moved out.
What she had done has seriously violated the ACT law;
01) She has cheated us to reduce the rent.
02) She made up laws to cheat us for our private information
03) She made up laws in order to obtain the receipt which she should not have. (According to the ACT Residential Tenancies Act, Lessor does not need to issue receipt when the payment was done through bank transfer)04) Only when both Lessor and Lessee agree, can the contract be terminated. Should one side did not agree, then the contract can not be terminated. But Elena voluntarily terminated the contract even without our agreement.
We had consulted our lawyer, he told us we had the right to demand for the rental ($550.00 X 38 =$20900.00 plus all the court costs and legal expenses and any other relevant costs through legal procedure. Since you are her Guarantor, we are sending you this letter with the good will of settling this case by accepting $19,000.00. We wish to have your letter or email by 05:00 PM next Thursday (12th of March), otherwise, we will present this case to the court on Friday.
I wish to tell you that she has zero chance of winning this case. Further, she is going to be black listed. If we decide to hire a lawyer, we may demand her paying the lawyer's fee. This is about $4,000.00- 5,000.00 (He is the best lawyer in ACT for residential tenancy case)
Our email address is [email protected], T: 02-62420896, M; 0410651518
65. At the directions hearing on the 19 March 2009 the tenant appeared assisted by her father and both lessors appeared in person.
66. The tenant provide the Tribunal with the following further submission:
Case Presentation
On 15th of Feb., 2009, the Applicant and the Respondents have entered into a Residential tenancy agreement for the apartment on 225 Waldof.
The Applicant has requested for the receipt for the $2,000.00 which was deposited into the Respondents' Bank a/c on 9th Feb., according to the email request by the Respondents on 6th Feb as "to secure the apartment ASAP". The Respondents refused to do so. The Applicant was refused by the Respondents for the residential address in the agreement. (Please see the email request on 12th Feb., the Respondents disclosed that he never have presented the address to his tenants) When the Applicant asked for a receipt for the first 4 weeks rental payment, she was again refused. The Applicant then requested her mother to issue a cheque of $2,000.00 which was withdrawn on 16th Feb., instead paying in cash as so demanded by the Respondents.
When entering the apartment, the Applicant, found that it was not like a 4.5 star fully furnished as advertised on the internet. There was no kettle, the dishwasher, the fax machine do not work, the door in the bathroom to the laundry was not properly screwed, the sofa was broken. Further, the Applicant found that the bed size is smaller.
On 17th of Feb., the Respondents came to deliver a leaking kettle. The Applicant requested again for the receipt of the payment, upon hearing this, the Respondents became dismayed and all the problems occurred.
The Respondents cancelled the appointments for the repair for their proposed time on both 18th and 21 of Feb., further, the Respondents initiated the termination of the Lease, and set a final inspection at 09:30AM on Sat. 28th Feb. by email, together with phone message informing the Applicant to terminate the Lease on 28th of Feb. 2009.
The Applicant, in her response email, accepted the proposed termination by saying that "I would take your last email requesting the termination of the agreement as the notice served to me, I therefore will look for an appropriate replacement...I shall give you notice as soon as possible upon finding the right one" Meanwhile she reminded the Respondents to pay attention to the Schedule one (the Standard Residential Tenancy Contract, which protects the Lessee for 26 weeks on fix term Lease.
Email from the Respondents to the Applicant at 13:14 on 191 Feb., has seen their determination of letting the Applicant moving out definitely, by offering to the Applicant extra one or two weeks after 28th of Feb., is necessary.
Such determination is also evidenced by the fact that the Respondents put the advertisement again on ANU's web page, stating the availability of the apartment was from 28th of Feb. 2009 (Please see the attached copy of the advertisement)
The Respondents informed the Applicant that the legal advice they have got confirmed that they can increase the rental to $550.00 from the contracted $500.00. The Respondents further alleged the Applicant "making up the laws". In order to avoid any further inconveniences from the Respondents, and concentrating on her study, the Applicant had no way but suggested the Respondents to contact her lawyer at their own cost for the interpretation of the law. Having no objection to this proposal, the Respondents strongly requested the contact details of the lawyer, even with the threat of "If you do not provide the contact details of your lawyer, by close of business on 23rd of Feb. appropriate and relevant actions related to the apartment in question may be taken accordingly without any notice and your knowledge"
The lawyers, that the Applicant has consulted, recommended the Applicant to seek for the legal protection from ACAT. The Applicant hereby request the order to the Respondents for refunding of the two weeks unused rental payment; releasing the bond of $2,000.00; a reduction of $280.00 (being $20.00 per day for two weeks) from the already used part of the rental due to the above mentioned condition of the apartment, and the payment of the Lawyer's cost of $2,048.20 per their agreement.
SUMMARY OF THE EVIDENCE TO THE POINT OF THE DIRECTIONS HEARING ON 19 MARCH 2009:
67. The above was the state of the evidence and submissions at the commencement of the directions hearing on 19 March 2009 from which it is relevant to note the following.
68. In the claim filed by the tenant she complained of:
· the attempted unlawful eviction by the lessors: [15] above;
· the unlawful rent increase that the lessors attempted to impose on her: [15] above;
· the lessors’ refusal to provide a receipt for the $2000.00 of rent paid in advance: [14] and [16] above; and
· the lessors’ declared intention to retain the rent and bond paid by the tenant upon her eviction: [15] above.
69. The tenant sought an early termination of the fixed term tenancy on the basis of her grievance with the manner in which she had been treated by the lessors. However the tenant vacated the premises before her application came on for hearing in the Tribunal which rendered this part of her application redundant.
70. In their email of 6 February 2009 (para 21 above) the lessors agreed to a rent of $500 per week which was ultimately recorded in the written tenancy agreement. This became the contractual rent agreed between the parties to which Part 5 of the Act applied. But in their later email of 6 February 2009 the lessors then informed the tenant that if the tenant has any one staying with her the rent will be increased by an extra $40 per week. This later statement by the lessors is unlawful. It is inconsistent with the terms of Part 5 of the Act and with prescribed terms 34-37 of the schedule to the Act, dealing with rent increases. It is also inconsistent with the tenant’s right to quiet enjoyment of the premises under prescribed term 52 of the schedule to the Act.
71. Once a tenancy has commenced the tenant has the exclusive right of possession (prescribed term 53) and it is a matter for the tenant whether she has family, visitors or boarders staying with her, subject to the requirement that she not cause damage to the premises and returns the premises in the condition in which she received it minus fair wear and tear (prescribed terms 63-64 of the schedule to the Act).
72. Terms inconsistent with the statutory terms are required to be endorsed by the Tribunal pursuant to s10 of the Act, which has not occurred in the present case.
73. In the email of 6 February 2009 (para 26 above) the lessors required the tenant to deposit $2000 into their account “to secure the apartment”. This requirement was made prior to the meeting of the parties and the execution of the tenancy agreement. This sum was required as a “holding deposit” within the meaning of s18 of the Act and is unlawful. In fact s18 provides that the holding deposit is recoverable as a debt owed by the lessors to the tenant.
74. In the email of 8 February 2009 (para 34 above) the lessors required the tenant to produce “proof of income” at their meeting and to bring a further $2000 cash for the bond. There is no requirement in the Act or in any other law that provides that a tenant must produce “proof of income”.
75. By return email the tenant agreed to produce proof of income and requested a receipt for both the $2000 holding deposit and the $2000 bond to be paid in cash (but actually paid by cheque) at the meeting of the parties. The tenant repeated the request for a receipt in her email of 18 February 2009 (para 45 above). The Act provides for the issue of a receipt for cash or cheque payments whether those payments are treated as bond (prescribed term 20) or rent in advance (prescribed term 29). The tenant was entitled to a receipt and the lessors have persistently and unlawfully failed to provide the receipt.
76. In their email of 18 February 2009, at para 46 above, the lessors informed the tenant that her mother was her “guarantor’ of her obligations under the tenancy. Whilst s16 of the Act does make provision for guarantors, the right to require a guarantor in addition to a bond is limited by s16(2) to a guarantee for the difference between the bond actually paid by the tenant and the maximum bond permitted under the Act i.e. 4 weeks of bond pursuant to s20. In the present case the tenant paid the maximum 4 weeks bond and therefore the lessors had no right to require the mother as a guarantor.
77. Not only was any alleged guarantee by the mother unenforceable under s16(2) of the Act, the fact is that the mother at no point assented to this arrangement. The assertion of the guarantee by the lessors was wrong at law and untrue in fact.
78. In the same email (para 46 above) the lessors advised the tenant that they had contacted the tenant’s mother and reached agreement with the mother to terminate the agreement on 28 February 2009. A date for a final inspection was indicated to the tenant, being 9.30am on that day. The lessors had no right at law to contact the tenant’s mother to negotiate such a termination. The lessors had no right under the Act or at law generally to serve a notice of termination on the tenant during the fixed term except where the lessors allege breach by the tenant, which was not presently the case. The lessors notice to the tenant of the intended termination was either an unlawful termination notice or at the very least an unlawful declaration of the lessors intention to repudiate the tenancy agreement.
79. The lessors followed up this email with a text message to the tenant’s mobile phone that stated in direct terms that the tenancy would terminate on 28 February (para 48 above).
80. The tenant pointed out the unlawfulness of the lessors action in her email of the same date and pointed to prescribed term 94 which the tenant asserted required 26 weeks notice by the lessors to terminate a fixed term tenancy (para 47 above). Actually the 26 week notice only applies to periodic tenancies. There is in fact no power for a lessor to serve a notice of termination for no cause in the fixed term of a tenancy. The tenant said that she accepted the termination but would only move as soon as she could within the 26 weeks required by prescribed term 94.
81. In response the lessors emailed the tenant (para 49 above) making a demand for a rent increase to $550 pw and accusing the tenant of “false and misleading information” concerning her financial status. This demand for a rent increase is unlawful in breach of Part 5 of the Act.
82. The lessors then demanded proof of the income of the tenant’s parents, including their tax returns and asserted that both parents were guarantors. These demands have no foundation in law or fact.
83. The lessors then informed the tenant that she was to stay in the premises until they served her with a “formal notice to vacate” and then required the tenant to provide details of her family lawyer so that the lessors’ lawyer could contact them. The purpose of the lessors’ threats and demands were unstated but presumably they were intended to connote some form of legal action against the tenant.
84. The lessors emailed the tenant again on 21 February 2009 (para 51 above) and accused the tenant of having “caused too much inconvenience” and of “providing false and misleading information”. The lessors told the tenant that they would henceforth only communicate with the tenant through her family’s lawyer “as you suggested in your email”. There is no email before the Tribunal were the tenant made this suggestion or anything of the kind.
85. The lessors told the tenant not to contact them except through her family’s lawyer and that they would not take any calls or emails from the tenant personally. This demand by the lessors is inconsistent with s12(3) of the Act and caused the tenant to run up a substantial account with her lawyer (para 64 above).
86. The lessors then accused the tenant of “misquoting and misinterpreting the Act and creating rules and stipulations at your own will”. As indicated above, in relation to most issues of the dispute it has been the lessors who have breached the Act and failed to understand or comply with their duties as lessors.
87. The lessors then required the tenant to provide certified copies of her parents and her own tax returns through her family’s lawyer. This demand has no basis in law.
88. In the same email (para 51 above) the lessors then made a further demand for the rent increase to $550 per week but this time made the demand retrospective to the commencement of the tenancy with a demand for a sum of $200 back rent to be paid immediately. This demand is unlawful in all respects.
89. The lessors then told the tenant that if she did not comply with this rent increase demand or if her family’s lawyer did not contact the lessors that “legal proceedings will be initiated in due course” for which the tenant “will be totally responsible for the costs”. The lessors then said that these proceedings would be commenced without any further notice to the tenant.
90. This is an unwarranted and unjustified threat of litigation by the lessors based on totally spurious grounds at law. Even if there were any cause of action based on the tenant’s refusal to pay the unlawful rent increase, retrospectively or otherwise, no costs are awarded in the Tribunal.
91. On 22 February 2009 the lessors emailed the tenant again (para 52 above), notwithstanding their previously declared intention of only communicating through the tenant’s family’s lawyer. After reciting various provisions of the Act the lessors again demanded rent of $550 pw. The lessors said that they had agreed to $500 per week based on false and misleading information from the tenant concerning her capacity to pay. What ever basis is used to arrive at the contractual rent is a matter for the parties in their bargaining process. The lessors agreed to $500 pw and the issue of the tenant’s capacity to pay, or that of her parent, is thereafter irrelevant.
92. The lessors then said that the tenant’s parents were “quite wealthy” and could therefore afford to pay more rent. Upon this premise the lessors again demanded the unlawful rent increase and re-iterated the demand retrospectively. The lessors’ demands are without any basis in law and are in fact unlawful.
93. The lessors then said in the same email that the tenant should move and said “we can give you an extra week or two to move out”. This statement by the lessors is not consistent with the lessors position that they had rescinded the earlier notice for the tenant to vacate by 28 February 2009. In saying this the lessors were affirming their earlier notice to the tenant that they wished the tenant to move.
94. The lessors emailed the tenant again on 22 February 2009 (para 53 above) accusing her of being “dishonest” and “negative”.
95. On 23 February 2009 the lessors re-iterated to the tenant’s solicitors their demand for certified copies of the tax returns of both the tenant and her parents (para 55 above). Not only were the lessors making repetitive unlawful demands on the tenant but they were causing the tenant to incur a substantial legal costs bill.
96. On 25 February 2009 the tenant’s solicitors advised the lessors that the tenant was intending to vacate on 28 February 2009 (para 57 above).
97. On 26 February 2009 the tenant’s solicitors emailed the lessors and made it clear that the demands for the tax returns, rent increases and guarantors were “fanciful” (para 59 above).
98. The lessors responded with a demand for rent until early December 2009 should the tenant vacate on 28 February 2009 (para 60 above). The highest the lessors case rises in the event of an abandonment of the fixed term by the tenant is for rent until a new tenant is found, up to a maximum of 26 weeks and then subject to the lessors’ duty of mitigation (s62). Notwithstanding this the lessors made a demand for rent until December 2009 which is:
· beyond the 26 weeks limitation period; and
· takes no account of the requirement to find a new tenant, which in the tight Canberra rental market would not be difficult.
99. The lessors demands are beyond that which is even possible at law let alone possessing any rationale basis in law.
On 27 February 2009 the tenant’s solicitor made demand upon the lessors for return of the over paid rent and bond upon termination of the tenancy due to occur on 28 February (para 61).
The tenant vacated on 28 February 2009.
The lessors response to the tenant’s claim (para 65) filed in the Tribunal on 17 March 2009 asserted that the tenant’s claim was no longer valid because the tenant had moved out. But of course the tenant’s application to the Tribunal raised the issue of the return of her over paid rent and bond which her solicitor reminded the lessors of in his email of 27 February 2009.
In the same response the lessors claim the right to the bond of $2000 and rent of $550 per week for another 38 weeks being $20,900. This constitutes a total sum of 42 weeks rent being the whole of the original fixed term period without any allowance for the rent actually paid. It fails to take any account of the 26 week limitation period in the Act or the very real possibility that the lessors would find new tenants (which in fact they did by 1 April 2009). The claim is simply without any foundation in law and is avaricious.
The lessors then wrote to the tenant’s mother on 17 March 2009 (para 66 above) and accused the tenant of “cheating” and threatening to “black list her”. The lessors then demanded $19,000 from the mother as an expression of good will. The lessors concluded by threatening further action in the Tribunal which the lessors said would result in the tenant being ordered to pay their legal costs. Even putting the lessors’ case at its highest there is no possibility that the Tribunal could, let alone would, order $19,000 against the tenant and could not order costs.
The threat of black listing the tenant is a threat by the lessors to breach s107D of the Act.
THE DIRECTIONS HEARING ON 19 MARCH 2009:
The lessors appeared in person and the tenant appeared with her father at the directions hearing.
The lessors immediately made an application for adjournment of the directions hearing on the basis that they had only recently received the tenant’s application. The Tribunal informed the lessors that the matter was not being heard on that day and would be adjourned for hearing on a later date, but that it would still be necessary to identify the issues in dispute and made orders for the filing of the evidence (T3-30) to which Mr Wang responded “Yes, that’s fine”. Ms Bian renewed her request for an adjournment on two more occasions (T9-8; T20-15) to which the Tribunal again explained the need to identify the issues and make the orders for the filing of evidence.
The Tribunal first went through the tenant’s claims in an endeavour to understand her grievances; it then went through the lessors’ claims for the same purpose and finally the issue of an agreed resolution of the dispute was unsuccessfully addressed.
The tenant raised the issue of the holding deposit (T5-30) and the Tribunal advised the parties of the unlawful nature of such a deposit (s18 of the Act).
The issues of cleaning, the missing keys and the rent reduction for failure to repair the defective items in the premises were addressed.
The Tribunal then addressed the tenant’s claim for unlawful eviction at length in order to understand what the tenant was asserting. The Tribunal explained the following to the parties:
· within the fixed term neither party can serve a notice of termination on the other except where a serious breach is asserted
· if a notice of termination is in fact served by the lessors within the fixed term then the tenant does not have to move in response to the notice (T10-25)
· if the parties reach agreement for the tenant to move in the fixed term then this is called a “surrender” and it brings the tenancy to an end without any obligation on the tenant for further rent beyond the date that vacant possession is given to the lessors (T10-15)
· if a lessor serves an unlawful notice of termination in the fixed term then the tenant can elect to move in response to the notice and claim compensation for the unlawful termination (s58 of the Act) (T11-20)
· the compensation extends to compensation for distress and inconvenience suffered by the tenant (T11-30).
· an unlawful notice of termination by a lessor is an act of repudiation of the tenancy agreement by the lessor (T11-15).
The tenant, through her father, said that they wished to pursue the claim for unlawful eviction (T13-35; T14-35).
The tenant, through her father informed the Tribunal that the tenant’s primary concern was the lack of “peaceful mind” she had suffered in the tenancy and this was why she had to move (T12-5).
The Tribunal explained to the parties the concept of “quiet enjoyment” and the relevance of a claim for breach of quiet enjoyment (pages 33-34 of the transcript). It was explained why such a claim was open to the tenant for the inconvenience and distress suffered, but was not open to the lessors.
The Tribunal explained that if the tenant chooses to move at her own convenience rather than in response to the lessors’ unlawful notice of termination then s58 would not apply and she would be guilty of an abandonment (pages 21-22 of the transcript).
The lessors’ counter claims were addressed including the claim for abandonment. The lessors indicated that they wished to counter claim for the whole of rent for the balance of the fixed term of 38 weeks, plus keep the rent paid and the bond (T15-45).
The Tribunal explained, several times:
· the 26 week limitation on compensation for abandonment (T23-35; T24-5, page 26)
· the need for the lessors to mitigate their losses by searching for a new tenant (page 22) and if a new tenant is found then the lessors do not recover double rent.
The parties were told that the hearing would be scheduled for about 4-6 weeks to provide time for the parties to file and serve their evidence (T27-20).
Procedural orders were then drafted and read to the parties.
At the end of the directions hearing Ms Bian took issue with the Tribunal providing “legal advice” to any party before the Tribunal (T38-35). In particular Ms Bian contended that the tenant should not be allowed to advance any claim beyond the scope of her application as filed and that she should not be able to bring any claim for stress and inconvenience (pages 39-40). There followed discourse in which the Tribunal said, inter alia:
MEMBER: …It’s a statutory obligation to make sure that everybody understands the issues, they understand the case that they’ve got to make, the case they’ve got to answer. Its an unqualified statutory obligation particularly with unrepresented people to explain to them the framework in which I’m going to---
MS BIAN: Yes, because it was like-there is kind of things that you know, tell us that the tribunal in which not suppose to give legal advice to people they’re supposed to go seeking their own legal advice through their lawyers.
MEMBER: …that’s game playing to me and not only is it game playing, its game playing that says let the rich have their privileges. You know as far as I’m concerned every citizen that comes here is entitled to know how I’m going to determine the case, to understand my frame of mind, to understand what I’m looking for, to have an opportunity to present the evidence and an opportunity to test the other party’s evidence. I am absolutely not into judicial game playing. I just want to get at the truth and get the answers. There won’t be any tactical devices or ---
THE TRIBUNAL’S REASONS FOR DECISION:
In the appeal notice the tenant has raised the issues of:
(a) The Tribunal’s power to amend the tenant’s claim to permit the issues of unlawful termination and breach of quiet enjoyment to be argued on behalf of the tenant;
(b) The role of the Tribunal in assisting parties to re-formulate their claims;
(c) whether the issue of unlawful termination was ever before the Tribunal and whether there was in fact any unlawful termination:
(d) whether the issue of breach of quiet enjoyment was ever before the Tribunal and whether there was in fact any breach of quiet enjoyment
The power of the Tribunal to permit amendment of claims and counterclaims (para 162(a) above):
The Tribunal’s jurisdiction is to resolve tenancy disputes (ss 71H and 73 of the Act). Section 73 requires the application to be in writing.
If the dispute is not solved by the Registrar via mediation it is referred to the Tribunal (s78) for hearing (s90).
Section 99 of the Act deals with amendment of claims and reads as follows:
At any stage of a hearing, the tribunal may—
(a) on application by a party or of its own motion, order that any document in the hearing be amended; or
(b) with the consent of the parties, give leave to any party to amend any document of that party in the hearing.
Section 99 permits the Tribunal to either amend a document, including a claim as filed, of its own motion to permit a party to amend the document.
This power is to be exercised in accordance with the principles set out in ss 6 and 7 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) namely with the objective of resolving disputes in a manner that is:
· quick
· simple
· inexpensive
· informal and
· fair
subject to the rules of natural justice and procedural fairness (s7(b) of the ACAT Act).
The rules of evidence do not apply (s8 of the ACAT Act) and the Tribunal is the architect of its own processes (s23 of the ACAT Act).
The purpose of permitting amendments to claims and counter claims is to permit the Tribunal to deal with the true essence of the dispute between the parties including those issues that are set out in the claims and counter claims as filed, and those issues that emerge during the directions hearing and other processes in the Tribunal. If such amendments were not permitted then an aggrieved party would simply lodge another claim containing the content of the proposed amendment and all related claims would then be heard concurrently.
The power for the Tribunal to amend claims of its own motion is particularly relevant in the case of unrepresented parties who often lack the background understanding to perform this task for themselves.
In Holden Australia Ltd v Eagleston [2004] NSWSC 779 the NSW Supreme Court held that a similar power in section 28(3) Consumer Trader and Tenancy Tribunal Act 2001 (CTTT Act) permitted the NSW Consumer and Trader Tribunal to make orders in accordance with the justice of the case, not limited to granting only orders sought in the application as filed.
Section 92 permits the Tribunal to adjourn any hearing “on the terms the Tribunal considers just” which includes adjournments to permit amendments to documents and to file and serve relevant evidence.
For these reasons the Tribunal rejects the lessors contention that it lacks the power to either amend claims of its own motion or to permit amendments by parties, and to adjourn proceedings for this purpose.
After the directions hearing of 19 March 2009 it was entirely apparent to the Tribunal that the essence of the tenant’s complaint was that she had been effectively forced out of the premises by the lessors’ conduct at para 156 above and the effect it had on her quiet enjoyment of the premises. Hence the terms of the procedural orders made on that date which specifically included a claim by the tenant for compensation for unlawful eviction; and the orders for filing evidence relating to the inconvenience and distress suffered by the tenant (para 70 above).
The lessors were on notice of the tenant’s complaints via her correspondence with them and submissions to the Tribunal. But even if the lessors had not gleaned the essence of the tenants complaint set out immediately above, the matter was the subject of explicit discussion and orders at the directions hearing, was then the subject of submissions filed prior to the hearing and argument at the hearing. The Tribunal rejects any suggestion that the lessors were taken by surprise by these issues such as could amount to a denial of procedural fairness.
The role of the Tribunal in assisting parties to re-formulate their claims (para 162(b) above)
Section 98 of the Act provides:
The Tribunal must actively assist parties to understand the hearing process and present their cases.
This section requires that the Tribunal “must” undertake this task i.e. it is not option for the Tribunal.
Secondly, this power requires that the Tribunal undertake this task ‘actively” and merely nominally.
In Weinstein v Medical Practitioners Board of Victoria (2008) VCA 193 the Victorian Court of Appeal held that a provision identical to sections 8 and 26 of the ACAT Act was sufficient to indicate a legislative intend that the proceedings of the Board were “inquisitorial” and not “adversarial” in nature.
In Bates v Port Stephens Holiday Park Pty Ltd (1996) NSWRT 208, the NSW Residential Tenancies Tribunal had the following to say concerning the mix of adversarial and inquisitorial processes in the Tribunal:
It is of course one of the great difficulties for the Tribunal as it is for a number of similar bodies that generally speaking parties are not represented. Whilst the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit, it is extremely difficult when dealing with applications such as the current ones to draw a line between giving guidance and direction to each of the parties and actively stepping into the arena of evidence. The easy path would be for the Tribunal to lean heavily on parties and to dismiss applications if evidence was not readily produced. However, in practice this would have the alarming consequence that the number of dismissals would exceed the number of cases heard. It could also mean that people from different cultural, social and educational backgrounds would be disadvantaged.
It is clear that the discretion given to the Tribunal must be exercised judicially. His Honour confirmed the former chairman of the Tribunal Mr Harley Rustin’s comments in an Addendum to his (Mr Rustin’s) decision in that case ... ‘The Tribunal (is not entitled) to act according to some arbitrary concept of its own or to ignore the legal rights and liabilities of the parties assuming a new and undefined power to decide the matter in dispute according to what it thinks is fair and proper. (Ex parte Herman; Re Mathieson (1960) 78 WN NSW 6).’
The Tribunal does not in practice sit back and wait as parties attempt to do their best. It advises; it raises issues, asks questions and suggests hypotheses. Within the framework of natural justice and conventional legal procedures it actively intervenes in an attempt to adduce the relevant evidence which it finds to be admissible. The words of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342 are apposite.
‘In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case’.
In NSW Department of Housing v Szilagy (1997) NSWRT 182 a similarly constituted Tribunal said:
There are circumstances where the Tribunal does not sit back and wait as parties attempt to do their best. Instead it raises issues, asks questions and suggests hypotheses. Within the framework of natural justice and procedural fairness it actively intervenes to adduce the relevant admissible evidence. If it did not do so in a forum where parties appear in person and rights of representation are restricted the majority of applications would be dismissed.
In APA Life Insurance Ltd v Charles (1981) 2 NSWLR 352, when speaking of the role of referees in the Consumer Claims Tribunal, Hunt J stressed the need for referees to ensure that unrepresented litigants were assisted by the referee in understanding how to present their case and in understanding the case they had to answer.
The duty for presiding officers to intervene in proceedings to ensure justice is done has been affirmed by the High Court in Vakauta v Kelly (1989) 167 CLR 568 at 571:
It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated ...
Similar views were expressed by the NSW Court of Appeal in Galea v Galea (1990) 19 NSWLR 263 at 281–282.
In Malaxetxebarra v The State of Queensland [2007] QCA 132 the Court of Appeal made the following observation about the role of Anti Discrimination Tribunal in Queensland when dealing with unrepresented litigants:
It is also important to bear in mind that, while it may be desirable to eschew undue formality and technicality in proceedings under the Act, the more informal the conduct of proceedings may be, the more important is the need to ensure that all parties have a precise understanding of just what is being alleged: natural justice requires no less.
In Nippress v Military Rehabiliation and Compensation Commission [2006] FCA 943 Cowdroy J was critical of Administrative Appeals Tribunal’s decision to limit consideration of the issues before by reference to concession extracted from an unrepresented litigant who did not understand the legal significance of those concessions. Cowdroy J said the Tribunal should have taken up any issues which arose in the course of the proceedings which appeared relevant to a determination of the substantive merits of the case.
In Marblecraft & Granite Supplies v Pratezina and ors [2005] NSWCTTT 558 the presently constituted tribunal sitting in the NSW Consumer Trader and Tenancy Tribunal made the following observations about the difficulties tribunals members sometimes face with unrepresented litigants:
108 By way of final comment the Tribunal draws attention to the difficulties incumbent in conducting defended hearings by unrepresented parties in emotionally charged circumstances. The Tribunal was set up, inter alia, for the purpose of facilitating unrepresented litigation. Section 28 of the CTTT Act provides that the Tribunal is not bound by the rules of evidence and is given power to determine its own processes consistent with the dictates of natural justice. The Tribunal is required to act with expedition and informality in an endeavour to determine cases according to their substantive merit without regard to technicalities.
109 The Tribunal is required by section 28(4) CTTT Act to ensure that each party understands the nature of the case against them and the legal implications of any assertions made. Section 35 requires the Tribunal to ensure that each party has a fair chance to call the evidence required to reasonably put their case, and to make whatever submissions they wish on the evidence and issues of law raised in the case.
110 In order to achieve these outcomes the Tribunal must often engage in strong case management in the preparatory stages of the proceedings and must often take active involvement in the examination of witnesses at the hearing. This approach will on some occasions result in tension between the Tribunal member and unrepresented parties. This possibility is simply a risk inherent in the quasi-inquisitorial nature of the proceedings.
111 In order for the Tribunal to discharge its duty to the unrepresented parties it is often necessary for the Tribunal to explain legal concepts to the parties in non-legalistic terms. The language needed depends on the level of familiarity with the law possessed by the parties and their general capacity to grasp the concepts. The language of necessity must be tailored to the lowest common denominator in order that all the parties understand what is being said. This can sometimes lead to inaccuracies and sometimes to basic street level language. This cannot always be avoided.
112 The situation can then be further complicated by tension arising between the involvement of the Tribunal Member with the parties in the above manner. In order to control the proceedings and avert deterioration into episodes of verbal aggression between the parties, the Tribunal Member must sometimes exercise a firm hand on the conduct of the parties which can in turn exacerbate emotions.
113 These problems presented themselves to varying degrees in the present case. Ms Pratezina was constantly angry and often provocative and discourteous to the other parties, and to the Tribunal. This factor made it difficult to probe the facts of the case and to solicit compromise and co-operation from the parties. Her tendency to exaggerate things made it difficult to determine what was truly significant in an objective sense and what was her simply over reacting.
Whether the issue of unlawful termination was ever before the Tribunal and whether there was in fact any unlawful termination (para 162(c) above):
The issue of an unlawful termination was explicitly made the subject of an amendment in the orders issued after the directions hearing on 19 March 2009 and was therefore clearly before the Tribunal.
At the hearing on 11 May 2009 the Tribunal examined this issue and came to a finding that although the lessors had attempted an unlawful termination, the tenant ultimately vacated the premises on her own terms and not in accordance with the unlawful termination notice issued by the lessors.
Although it is too late for the Tribunal to revisit this finding, upon reflection in composing these reasons for decision, the Tribunal is concerned that it may have given insufficient weight to section 58 of the Act in favour of the tenant. At the hearing the Tribunal decided against the tenant on the issue of an unlawful termination on the grounds that the tenant initially refused to vacate on 28 February 2009 and informed the lessors that she would vacate when she found suitable accommodation.
It was open to the Tribunal at the hearing to have found that the actual vacation of the premises by the tenant on 28 February 2009 may not have been inconsistent with the tenants declared intent to leave when she found suitable accommodation in that she may have decided that she had found suitable accommodation on 28 February 2009. Certainly the lessors had advertised the premises at the ANU as of this date indicating their expectations on the matter.
Whether the issue of breach of quiet enjoyment was ever before the Tribunal and whether there was in fact any breach of quiet enjoyment (para 162(d) above)
A tenant’s right to “quiet enjoyment” is a term of art used in tenancy law. In the context of the Act it is embodied in prescribed term 52 which reads:
The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
The interference caused to the tenant’s use of the premises must be substantial and not trivial (Worrall v Commissioner for Housing of the ACT [2002] FCAFC127 but it does not have to be so severe as to deprive the tenant of the whole of the benefit of the tenancy (Hawkesbury Nominees P/L v Battik P/L [2000} FCA 185; Byrnes v Jokana P/L [2002] FCA 41).
The right to quiet enjoyment can be breached by the actions of a lessor falling short of an unlawful termination of the tenancy, but an unlawful termination is just the extreme case of a breach of quiet enjoyment, i.e. the whole the quiet enjoyment of the premises has been lost. A loss of quiet enjoyment is a matter of degree.
Thus by way of example in Davies v Cantoni[1998] NSWRT 41 and in Sheridan v Griffith [1999] NSWRT 22 the Residential Tenancies Tribunal in NSW held that unsuccessful endeavours by a lessors to coerce a tenant to vacate the premises were a breach of quiet enjoyment.
The right to quiet enjoyment is an absolute and therefore a breach of that right occurs whether or not the lessors intended to cause the breach (Worrall (supra); Coles Myer ltd v Volley Investments P/L [2003] WASC 254).
The Tribunal found as a fact that each of unlawful or inappropriate actions carried out by the lessors at para 156 above constitute breaches of the tenant’s quiet enjoyment. Even if these actions fell short of a constructive unlawful eviction they were so severe as to in fact cause the tenant to vacate the premises. These issues were before the Tribunal from the first day and were amply ventilated in the correspondence, submissions, discussion at the directions hearing, orders made at the directions hearing, submission filed post directions hearings and at the hearing. It is simply disingenuous of the lessors to say that they were unaware of the issues.
…………………………………………….
Senior Member, A. Anforth
The relevant legislation:
Residential Tenancies Act 1997:
Sections of the Act:
30(1) If section 29 (1) and (3) have been complied with, a statement in a report mentioned in section 29 about the state of repair or general condition of the premises, and of any goods leased with the premises, (other than a statement in relation to which the tenant, by endorsement, has indicated disagreement) is evidence of that state of repair or general condition on the day the tenant was given the report.
38. A person who, apart from this section, would be entitled to compensation under this Act is not entitled to the compensation, or part of it, if the loss, or part of the loss, to be compensated could have been reasonably avoided.
71(1) On application by a tenant, the tribunal must order a reduction in the rental rate payable under a residential tenancy agreement if it considers that the tenant’s use or enjoyment of the premises has diminished significantly as a result of any of the following:
(a) the loss or diminished utility of an appliance, furniture, a facility or a service supplied by the lessor with the premises as a result of—
(i) the withdrawal of the appliance, furniture, facility or service by the lessor; or
(ii) the failure by the lessor to maintain the premises and any appliance, furniture or facility supplied with the premises in a reasonable state of repair, having regard to their condition at the commencement of the residential tenancy agreement; or
(iii) the failure by the lessor to provide and maintain the locks or other security devices necessary to ensure that the premises are reasonably secure;(b) the loss of the use of all or part of the premises;
(c) interference with the tenant’s quiet enjoyment of the premises or the tenant’s ability to use the premises in reasonable peace, comfort and privacy by the lessor or anyone claiming through the lessor or having an interest in, or title to, the premises.
(2) To remove any doubt and for subsection (1), a tenant’s quiet enjoyment of premises is interfered with if there is substantial interference with, or a significant lessening of freedom in exercising, the tenant’s rights.
(3) A reduction in the rental rate ordered under subsection (1)—
(a) takes effect from the day the tenant’s use or enjoyment of the premises diminished, or the later date that the tribunal specifies; and
(b) remains in force for the period, not longer than 12 months, specified by the tribunal.
(4) The tribunal may order a lessor to pay to the tenant the difference between the rent paid and the rent payable as a result of an order for a rental rate reduction.
(5) Any purported increase in the rental rate in relation to premises for which a reduction order is in force is void and any amount paid above and beyond the reduced rental rate in accordance with a purported increase is a debt owing by the lessor to the tenant.
104. The tribunal may, in addition to any other order it is empowered to make, make the following orders in relation to an application about a tenancy dispute or occupancy dispute:
(a)…;
(b) an order requiring performance of a residential tenancy agreement or occupancy agreement;
(c) an order requiring the payment of money to the Territory or a person;
(d) 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;
…..
(i) an order terminating a residential tenancy agreement or occupancy agreement and granting vacant possession of the relevant premises to the applicant for the order;
….
(l) any other order the tribunal considers appropriate.
115(1) The tribunal has exclusive jurisdiction to hear and decide any matter that may be the subject of an application to the tribunal under—
(a) this Act; or
(b) the standard residential tenancy terms; or
(c) the standard occupancy terms.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
(2) However, the tribunal does not have jurisdiction to make an order for—
(a) the payment of an amount greater than $25 000; or
(b) work of a value greater than $25 000.
120(1) If this Act does not prescribe a procedure for a matter in a hearing or a step in a proceeding, the tribunal may decide its own procedure for the matter or step.
121(1) In the exercise of a function, the tribunal must have regard to the rules of natural justice.
(2) Subject to subsection (1), the tribunal—
(a) must proceed with as little formality and technicality and with as much expedition as the requirements of this or any other Act and a proper consideration of the matter allow; and
(b) is not bound by rules of evidence but may inform itself of any matter in any way it considers appropriate.
Prescribed terms of the Schedule to the Act forming the terms of the residential tenancies agreement:
3. A party to this tenancy agreement cannot contract out of it or out of the provisions of the Residential Tenancies Act, except as provided in that Act.
52 The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
53. Unless otherwise agreed in writing, the tenant has exclusive possession of the premises, as described in the agreement, from the date of commencement of the tenancy agreement provided for in the agreement.
54(1) At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings and appliances (unless excluded from the tenancy agreement), are—
(a) fit for habitation; and
(b) reasonably clean; and
(c) in a reasonable state of repair; and
(d) reasonably secure.
55(1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
(2) The tenant must notify the lessor of any need for repairs.
(3) This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse.
56 The lessor is not obliged to repair damage caused by the negligence or wilful act of the tenant.
57 Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).
59. The tenant must notify the lessor (or the lessor’s nominee) of the need for urgent repairs as soon as practicable, and the lessor must, subject to clause 82, carry out those repairs as soon as necessary, having regard to the nature of the problem.
60 The following are urgent repairs in relation to the premises, or services or fixtures supplied by the lessor:
(a)a burst water service;
(b)a blocked or broken lavatory system;
(c)a serious roof leak;
…
(j)a failure or breakdown of any service on the premises essential for hot water, cooking, heating or laundering;
…
61 If the lessor (or the lessor’s nominee) cannot be contacted, or fails to effect the urgent repairs within a reasonable time, the tenant may arrange for urgent repairs to be effected to a maximum value of up to 5% of the rent of the property over a year.
62 The following procedures apply to urgent repairs arranged by the tenant:
(a) the repairs arranged by the tenant must be made by the qualified tradesperson nominated by the lessor in the tenancy agreement;
(b) if the lessor has not nominated a tradesperson, or the nominated tradesperson cannot be contacted or is otherwise unavailable—the repairs must be performed by a qualified tradesperson of the tenant’s choosing;
(c) if the repairs are arranged by the tenant in accordance with these procedures—the lessor is liable for the cost of repairs and the tradesperson may bill the lessor direct;
(d) if the tenant does not act in strict compliance with this clause—the tenant is personally liable for the cost of any urgent repairs arranged by the tenant.
63. During the tenancy, the tenant must—
(a) not intentionally or negligently damage the premises or permit such damage; and
(b) notify the lessor of any damage as soon as possible; and
(c) take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living.
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: RT 09/117
APPLICANT: ELENA MENG XIA
RESPONDENTS: YAOXIANG WANG and SHEFANG BIAN
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT: SELF & MR Y D XIA
RESPONDENTS: SELF
TRIBUNAL MEMBER/S: MR A ANFORTH
DATE OF HEARING: 11 MAY 2009 PLACE: CANBERRA
DATE OF DECISION: 20 JULY 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
6
8
0