ZONDERVAN & GOUNDEN (Residential Tenancies) - [2013] ACAT 12

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ZONDERVAN & GOUNDEN (Residential Tenancies) [2013] ACAT 12

AA 12/47

RT 12/683

Catchwords: RESIDENTIAL TENANCIES – appeal on a question of fact or law – matters that need to be considered in awarding compensation – delay in carrying out repairs to ensuite – procedural fairness in the Original Tribunal proceedings – whether the Original Tribunal acted on an incorrect principle, gave weight to irrelevant matters, or gave no or insufficient weight to relevant considerations – whether the decision appealed against was unreasonable – presumption that the Original Tribunal exercised discretion correctly - whether the appellant tenant’s disability was given adequate consideration

List of legislation: ACT Civil and Administrative Tribunal Act 2008

ss. 79 & 82
Residential Tenancies Act 1997
(ACT) ss. 76, 81 & 83, and

schedule 1 (Standard residential tenancy terms)

List of cases: ACT Human Rights Commission v Raytheon Australia Pty Ltd [2009] ACTSC 55
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223
Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Bottles v Commissioner for Social Housing in the ACT [2011] ACAT 19

Byrnes v Jokana P/L [2002] FCA 41
Commissioner for Taxation (Cth) v Cainero (1988) 15 ALD 368
Das v A & A Airconditioning (Civil Disputes) [2011] ACAT 52
Fenton, Neist & Baker v de Andrade [1999] ACT RTT 21
Hilton & Ors v Lee (Tenancy) [2008] NSWCTTT 800
House v King (1936) 55 CLR 499
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Pesi v Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 61
The Medical Practitioner and the ACT Medical Board (Occupational Discipline) [2010] ACAT 63

Tribunal: Ms E. Symons, Presidential Member

Date of Orders: 28 February 2013

Date of Reasons for Decision: 28 February 2013

IN THE ACT CIVIL & )

ADMINISTRATIVE TRIBUNAL ) FILE NUMBER

AA 12/47
RT 12/683

SIMON ZONDERVAN

Appellant/Tenant

RUBAVATHEY GOUNDEN

Respondent/Lessor

Tribunal : Ms E. Symons, Presidential Member

Date of order: 28 February 2013

ORDER

This appeal is allowed.
Order 1 of the decision of the Original Tribunal dated 21 August 2012 is varied to substitute the amount of $1,276.00 (including the filing fee of $61.00) for the amount of $1,061.00.
The respondent is to pay the amount of $215.00 (being the difference between $1,276.00 and $1,061.00) to the appellant within 7 days.
The Tribunal confirms Orders 2, 3 and 4 of 21 August 2012.

………………………………..

Ms E Symons
Presidential Member

REASONS FOR DECISION

Background

The appellant entered into a tenancy agreement to rent the premises at 18 Hardie Close, Macarthur from the respondent in August 2011. The premises were managed by Luton, Real Estate Agents. The rent payable was $450.00 per week. The premises had an ensuite bathroom and a bathroom. The appellant suffers from a degenerative illness, Friedreick’s Ataxia.
In January 2012 the shower in the ensuite bathroom commenced leaking and the initial repair, by the respondent’s son, was unsuccessful. In March 2012, the respondent decided to renovate the ensuite and it was totally inoperable from 24 March 2012. The repairs had still not taken place when the appellant lodged his Application (“the Application”) for resolution of a tenancy dispute on 22 June 2012.
In the Application the appellant sought :
(i)compensation of “at least $6000 for the time it has taken so far for the ensuite to be operable (I would like the tribunal to consider $8000 for compensation for the added inconvenience placed on myself due to my disability, and for the trouble of having this dispute heard by the tribunal)
(ii)the rent be stopped until the dispute is resolved; and
(iii)if required to vacate by 10 September 2012, Luton property be ordered to provide me an appropriate replacement rental property.”
The appellant annexed 11 documents to the Application.
The respondent opposed the Application and annexed five documents to her response. The respondent, Ms Gounden, and her son, Kreisan Gounden, each lodged statements as well as photos and invoices.
On 21 August 2012, the ACT Civil and Administrative Tribunal (the Tribunal), sitting in its original jurisdiction (“Original Tribunal”), heard evidence from the appellant, the respondent and Gerard Northey, Property Officer at Luton. The Tribunal awarded the appellant compensation, including the filing fee, of $1,061 and ordered, inter alia, that the tenancy terminate on 10 September 2012 and that the Agent confirm in writing that the lessor has moved back into the property after 10 September 2012.
The Tribunal extended the time for the appellant to file an application for appeal to 2 October 2012.
On 2 October 2012, the appellant lodged an application for appeal and a directions hearing was held on 19 November 2012 when orders were made setting the appeal down for hearing on 21 January 2013, and for the filing of submissions. The Tribunal also ordered that the appeal be heard, pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) as a review of the decision of President Stefaniak on 21 August 2012.
On 21 January 2013 Mr Zondervan appeared on his own behalf and Ms Hyland from Luton appeared for the respondent pursuant to Power of Attorney Number 20/2012. The respondent also appeared at the appeal hearing. The respondent opposed the Appeal. At the conclusion of the hearing the Tribunal reserved its decision.

Grounds of Appeal

The appellant states that he is appealing the case on the premise of quantum. i.e. that amount of money he received as a successful claimant. His grounds of appeal can be summarised as follows:
(i)The appellant sought compensation from 5 February 2012 and the Presiding Member awarded compensation from 1 March 2012 on the ground that “I allow up to the beginning of March to get a tradesman to do it. It takes a long time to get a tradesman in Canberra.” This was factually incorrect as the respondent never had any intention of hiring tradesmen for the required work.
(ii)The Presiding Member seemed to make no reference to the time that elapsed after 7 June 2012 during which period the tenant was without the use of the ensuite for another 90 days and paying full rent while his matter was proceeding through the Tribunal.
(iii)The Presiding Member referred to a “toilet case” as a precedent in order to determine the appropriate amount of compensation without providing details of the specifics of that case.
(iv)The compensation amount was not fair and equitable in relation to the actual rent paid for the premises. The compensation should have been between 30% to 50% of the actual rent the appellant paid.
(v)No account was taken of the appellant’s disability and the adverse inconvenience he experienced because of his disability in the award of compensation.
The respondent opposed the appeal and sought that it be dismissed.

The Law

The appeal has been brought pursuant to section 79 of the ACAT Act which provides:
79 (1) This section applies if—
(a) the tribunal has decided an application (the original
application); and
(b) the original application was not an appeal from a decision by
the tribunal.
(2) However, this section does not apply to an application for review of
a decision under the Heritage Act 2004, the Planning and
Development Act 2007 or the Tree Protection Act 2005.
(3) A party to the original application may, by application, appeal the
decision to the tribunal on a question of fact or law.
Pursuant to subsection 79(3) of the ACAT Act this is an appeal on a question of fact or law.
Section 76 of the Residential Tenancies Act 1997 (the RT Act) provides that the Tribunal has jurisdiction to hear and decide any matter that may be the subject of an application to the Tribunal under the RT Act or the standard residential tenancy terms.
Without limiting the orders the Tribunal can make, section 83 sets out some orders the Tribunal may make in relation to an application about a tenancy dispute. The orders include:
83(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; and
....
83(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;
A lessor and tenant must comply with terms of tenancy agreement. Subsection 8(1)(a) of the RT Act states that a residential tenancy agreement must contain and is taken to contain, terms to the effect of the standard residential tenancy terms mentioned in schedule 1 of the RT Act. This Schedule includes the following relevant terms:
·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 (clause 52).
·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 (clause 53).
·The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement (clause 55 (1)).
·The tenant must notify the lessor of any need for repairs (clause 55(2).

·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) (clause 57).

·The lessor must not have access to the premises –
(a) on Sundays; or
(b) on public holidays; or
(c) before 8 am and after 6 pm;
other than—
(d) for the purpose of carrying out urgent repairs or for health
or safety reasons in relation to the premises; or
(e) with the consent of the tenant (clause 76).
·On giving the tenant 1 week notice (or such other agreed period), the lessor may enter the premises at a reasonable time, having regard to the interests of the tenant and the lessor, for the purpose of making or inspecting repairs (clause 82 (1)).

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 (section 38 of the RT Act).

Consideration

An appellant does not have standing to an appeal as of right; an appellant is required to identify a question of fact or law (section 79(3)); an appellant cannot merely request the re-exercise of a discretion.
In ACT Human Rights Commission v Raytheon Australia Pty Ltd[1] Master Harper stated, in relation to the Administrative Appeals Tribunal:
“A decision of the Tribunal is not intended to be open to appeal generally, as is the case, for example, with a judgment of this Court. It must be accepted that there are sound reasons for public policy for this limitation, notwithstanding that some who fail in the Tribunal will have a sense of grievance about it.”
[1] [2009] ACTSC 55
Acting President Chenoweth also stated in Das v A & A Airconditioning (Civil Disputes)[2]:
“The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision; if that were so there would be no point in the original hearing…”
[2] [2011] ACAT 52

Pursuant to subsection 79(3) of the ACAT Act, there must be a question of law or fact identified on appeal that enables the Appeal Tribunal to consider whether the Original Tribunal made an error as to the law or facts raised in those questions.

Procedural Fairness

Mr Zondervan raised, as a preliminary issue before the Appeal Tribunal, that he was not afforded procedural fairness at the original hearing in that the Presiding Member said at the commencement of the hearing that he had not had a chance to read the information the appellant had lodged with his Application. The Presiding Member directed him to answer questions; the appellant said he was not given an opportunity to present the Tribunal with the information contained in the annexures to his Application. Annexure A was a time line from 16 January 2012 to 7 June 2012 and Annexure B was copies of email correspondence (eleven separate emails comprising 59 pages) between himself and Gerard Northey, property manager at Luton between 20 January 2012 and 7 June 2012.
The appellant submitted that these emails showed, when referring to the ensuite repairs, he had notified the agent in January 2012 that he wanted to obtain boarders from February to help defray the rent but he couldn’t do this until the ensuite repairs had been completed so he could have his own bathroom. When he became aware, from the respondent’s son in March 2012, that the ensuite repairs would not be carried out until June 2012, he, again, raised his concerns, that if he gained another housemate they will have to use the same bathroom due to the ensuite repairs not being carried out.
He had brought to the agent’s attention that he could not afford to rent the premises on his own; that he rented a house with an ensuite and a main bathroom so he would not have to share a bathroom; that he would have to move out of the main bedroom while the ensuite was unable to be used and that he was unwilling to pay the total rent while living on his own while waiting for the repairs to be undertaken.
The appellant submitted that the Presiding Member had not taken into consideration the inconvenience and cost for him in not being able to have another or other housemates contribute to the rent while the ensuite was not useable.

Quantum of Compensation

In relation to quantum of compensation awarded the appellant said, even after reading the transcript of the Original Tribunal decision, he could not make sense of the Presiding Member’s reasoning or how he had calculated compensation of $1,000.
In his appeal application he submitted the amount of compensation awarded should have been $2,610.17 calculated as follows:
(a)for the period 5 February 2012 – 15 April 2012 (70 days) when ensuite was inoperable and he had use of bathroom - 10% of the rent payable which was $4,500.30 ( $64.29 per day for 70 days), namely $450.03; plus
(b)for the period 16 April 2012 – 5 September 2012 (112 days) when ensuite was inoperable and he had to share bathroom – 30% of the rent payable which was $7,200.48, ($64.29 per day for 112 days), namely $2,160.43.
The appellant said the Presiding Member had referred to some cases, without actually stating the cases’ full names or providing case citations, in a table of comparative verdicts in the text Residential Tenancies Law and Practice NSW by Anforth, Christensen and Taylor (the Anforth Text) which summarised some decisions giving tenants compensation in New South Wales. The appellant had since read the table of comparative verdicts and then read each of the cases recited in that table. He submitted that the table did not reflect the actual compensation amounts paid to the successful claimants in their respective cases.
In submissions lodged on 5 December 2012, the appellant submitted, in Fenton, Neist & Baker v de Andrade [1999] ACT RTT 21 (one of the cases referred to in the Anforth text) the total compensation ordered was $1,085.00 (and which included an amount of $450 for the loss of use of one of two toilets for three months) which was 17.20% of the rent paid. In Hilton & Ors v Lee (Tenancy) [2008] NSWCTTT 800, (another of the cases referred to in the Anforth text) which had the more similar fact situation to his own situation, the applicants sought compensation for the loss of use of one of the bathrooms in a two bathroom property for 6.5 months. They were paying rent of $430 a week. The appellant submitted that the amount of compensation actually awarded was 18.16% of the rent.
On this basis the appellant submitted that the percentage of 18.16% in Hilton & Ors v Lee should now be applied to his matter and his compensation should have been calculated as 18.6% of the rent he had paid for the whole period he was without the use of the ensuite, some 230 days from 16 January 2012 to 10 September 2012.

The appellant’s disability

The appellant also submitted that the Presiding Member did not take into account the adverse inconvenience he experienced as a tenant with a disability, in fact submitting that the Presiding Member dismissed it.
In relation to this submission the Tribunal noted that, in the Application for Resolution of Tenancy Dispute, the appellant asked the Tribunal to take into account the fact that he suffers a rare degenerative illness, Friedreick’s Ataxia and being someone with a disability he had originally rented these premises because it had two bathrooms and no stairs and allowed him to manoeuvre around much easier. He asked that “the tribunal take into account the excess inconvenience imposed on me due to my condition”.

The Appeal

To be successful on appeal, the appellant must show, firstly, there was a mistake or incorrectness in the Original Tribunal decision. It would be necessary for him to establish that the Original Tribunal acted on an incorrect principle, gave weight to extraneous or irrelevant matters; or gave no weight or insufficient weight to relevant considerations. Secondly, the appellant would need to satisfy the Appeal Tribunal that the decision of the Original Tribunal, in all the circumstances, was one which no reasonable Tribunal could ever have come to.
In this regard, the Appeal Tribunal noted that it is well recognised that an appellate tribunal should not disturb a discretionary decision as there is a presumption that the discretion was exercised correctly and should therefore be affirmed unless clearly wrong.[3] It is not sufficient to set aside a discretionary decision simply because another view could have been taken or a different decision reached.[4]
[3] Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621, at 627
[4] House v King (1936) 55 CLR 499 cited in Pesi v Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 61.
The role of the Appeal Tribunal is limited to addressing errors in the original decision.[5]
[5] The Medical Practitioner and the ACT Medical Board (Occupational Discipline) [2010] ACAT 63, at [31]
The power given to the Tribunal to award compensation in section 83 of the RT Act is discretionary. The issue for the Appeal Tribunal is not whether it agrees or disagrees with the decision of the Original Tribunal but rather whether the Original Tribunal’s decision is one which any reasonable decision maker could have arrived at.
For the Appeal Tribunal to intervene it would have to come to the conclusion that the Original Tribunal, in making the decision on 21 August 2012, took into account factors that ought not to have been taken into account or failed to take into account factors that ought to have been taken into account or made a decision that was so unreasonable that no reasonable authority would consider imposing it. The Appeal Tribunal cannot overturn the Original Tribunal decision simply because it disagrees with it.
Firstly, the Appeal Tribunal examined the evidence available to and the process of the hearing in the Original Tribunal to determine whether that Tribunal took into account matters which ought not to be taken into account, or, conversely, neglected to take into account matters which ought to be taken into account. Secondly, the Appeal Tribunal considered the process followed by the Original Tribunal and determined whether in all the circumstances the original decision was one which no reasonable Tribunal could ever have come to.

The Appeal Tribunal considered the four discrete periods considered by the Original Tribunal.

16 January 2012 – 29 February 2012 (the first period)

The appellant submitted that the Presiding Member had not awarded him any compensation between 16 January 2012 and the end of February 2012 (the first period) on the basis that it took time to get tradesmen in Canberra and, apparently, and that it was therefore reasonable to allow until the end of February 2012 to get a tradesman and have the repairs completed.
The appellant said that the undisputed facts in his matter were that the respondent’s son, Kreason, was always going to do the repair work; it was not a question of getting a tradesman; he was entitled to compensation from 16 January 2012 as from that date the lessor was no longer providing him the premises (which had both a working ensuite and a working bathroom) he had agreed to rent; and the lessor had breached the contract.

Consideration

Pursuant to clause 57 of the standard Residential Tenancy terms, the landlord was required to repair the ensuite within four weeks of the date of notification, 16 January 2012. This would mean that the repairs should have been carried out by mid February 2012 unless Mr Zondervan agreed otherwise.
It was clear from the evidence that Mr Zondervan did agree to the ensuite repairs being carried out when the respondent’s son, Kreason, was able to. Unfortunately his initial attempt to repair the leak in the ensuite did not fix the problem. Mr Zondervan told the respondent in writing on 5 February 2012 that the shower was still leaking. He continued to acquiesce with the respondent’s timetable. He wanted to maintain a good relationship with the respondent and her son, Kreason, and his family all of whom lived in the house at the front of the battleaxe block and in front of the premises where he lived.
During this time the appellant was primarily living in the property on his own and had the use of the main bathroom. Apparently, he had boarders for a very short period who failed to pay board and left the property.
The Original Tribunal allowed until the end of February 2012 for the repairs to be carried out because of the time it took to get Canberra tradesmen. The Appeal Tribunal accepts the appellant’s submission that it was not relevant for the Presiding Member to consider the time it would take to arrange for the ensuite repairs to be carried out by a Canberra tradesman as the undisputed evidence was, at the time when the repairs were first notified, the respondent’s son was to undertake the repairs.
What was relevant was what was provided in the Standard Residential Tenancy terms (the SRT terms) in relation to a lessor’s obligation to make repairs, other than urgent repairs. Clause 57 of the SRT terms provides that the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).
The Tribunal notes that the Presiding Member allowed until the end of February 2012 for the repairs to be carried out. While this slightly exceeded the period of four weeks provided in the SRT terms the Appeal Tribunal notes that the appellant agreed to the lessor having longer than that four week period in which to carry out the repairs. At this time the relationship between the parties was amicable.
The Appeal Tribunal is satisfied that, notwithstanding the weight which the Original Tribunal attached to the use of Canberra tradesman, this did not render the decision not to award compensation in the first period wrong.
In considering all of the evidence in relation to the first period the Original Tribunal was able to be satisfied that the appellant agreed to that time being taken to carry out the repairs and that during this time the appellant was primarily the sole occupant of the property with sole use of the main bathroom.
The Appeal Tribunal is satisfied that the decision of the Original Tribunal in relation to the first period was reasonably open to it on the available evidence and that the Original Tribunal did not err. The Appeal Tribunal is not satisfied that the appellant’s disability was ignored by the Original Tribunal as alleged. For this period it was not a significant factor.
The Tribunal finds that it was reasonable to allow the lessor until 1 March 2012 for the repairs to be carried out and for the Original Tribunal not to award compensation to the appellant for this period.

1 March 2012 to 15 April 2012 (the second period)

The appellant was paying rent of $450 per week. For the approximately six weeks between 1 March 2012 and 15 April 2012 (the second period) the Original Tribunal had awarded him compensation of $200 stating that, as he was living on his own at the premises, he had exclusive use of the main bathroom during this period and the issue of the ensuite was “a minor inconvenience”. The rent for this period was $2,700 and the $200 compensation was about 7.5% of the rent he had to pay.
The second period included Easter. The appellant had been told by Luton that the ensuite repairs would take place over the Easter Public holidays/long weekend so he made arrangements to remain at the premises during this holiday period in order to provide access to the premises for the repairs to be carried out and to ensure that the premises were locked each day after the repair work had been done. The appellant wanted to ensure that the premises were locked each day as the respondent’s son had previously left the premises unlocked after he had been there to do some of the repair work and the appellant had been unhappy about that. He was not told until the day before the Easter holiday commenced that the repairs would not be undertaken that long weekend. As a result he lost the opportunity to have made other plans for the long weekend and the ensuite remained unusable.
He had agreed to store items for the bathroom repairs in the garage which meant he could not lock the garage during the day. He also agreed to the respondent’s son leaving his trailer, which he was using for the repairs, at the premises but as the repairs dragged on he had difficulty, because of his disability, manoeuvring around the trailer.
The appellant variously submitted that the compensation in this period should have been between 30% ($810) and 50% ($1,350) of the rent he had to pay and on the basis of Hilton & Ors v Lee (see paragraph 29 above) 18.16% of the rent.
The Appeal Tribunal notes, where repairs are required, a tenant is entitled to have them carried out within a reasonable time. The Original Tribunal described the lack of use of the ensuite as a minor inconvenience. This was no doubt because the appellant still had the sole use of the bathroom at the premises.

Consideration.

The Original Tribunal awarded the appellant some compensation for the second period describing the lack of use of the ensuite as a “minor inconvenience.” It was not in dispute that the appellant was primarily living alone at the premises during this period and that he had sole use of the main bathroom. A friend had moved into to share the premises before 15 April 2012, however, the appellant did not have evidence which could corroborate a date earlier than 15 April 2012. The award of $200 for this period was about 7.5% of the rent paid.
This award does not appear to have taken into consideration the fact that the ensuite repairs had dragged on into the third month after notification; that the appellant had, early on, informed Luton that he wanted to take in another occupant as he was unable to afford to pay all of the rent on his own and that he needed to have the ensuite repairs completed so he and the new tenant could have their own bathroom; that the appellant accommodated the repairs being carried out at Easter; the inconvenience for the appellant resulting from those plans being changed at the last minute; the appellant’s inability to lock the garage and that the appellant had to put up with the ongoing storage of the trailer at the premises.
The decision to award compensation is discretionary. It is clear from a perusal of the authorities referred to by the Original Tribunal that compensation is generally determined as a percentage of rent paid. If the compensation was calculated as a lump sum figure of $200 it is not clear how the Original Tribunal arrived at that figure. If it was calculated as a percentage of the rent paid in that period then it appears to be about 7.5% of the rent.
The Appeal Tribunal notes that Allsop J in Byrnes v Jokana P/L[6] considered the measure of damages (compensation) to be awarded for a breach of quiet enjoyment in a commercial lease and stated:
[6] [2002] FCA 41
“Sometimes the Court has to assess damages on inadequate evidence and has to do the best it can even if it involves an element of guess work.”
The Original Tribunal used ten percent of the rent as a yardstick for calculating compensation for the later periods of the tenancy. Given the Original Tribunal’s findings that the appellant had the sole use of the premises, and therefore he had sole use of the main bathroom, it is possible that the Original Tribunal may have exercised its discretion to reduce the compensation for this period from ten percent by two and a half percent accordingly. However, the reality is that the way the $200 was calculated is not stated in the decision. The Appeal Tribunal noted that the Original Tribunal described the appellant’s inconvenience in the second period as minor whereas in the later periods it described the appellant’s inconvenience as more major.
However, the original Tribunal has not given any weight or any adequate weight to the fact that the repairs have remained undone for three months; that the appellant was cooperating to the extent that he was agreeable to permitting the respondent access to the premises over the Easter period notwithstanding clause 76 of the SRT terms; that the appellant was finding it financially difficult to continue to be solely responsible for the rent and the respondent knew that he wanted to bring in another tenant as soon as the repairs were carried out; that he allowed the respondent access to the garage to store items and he allowed the respondent to keep the trailer at the premises.
Given the matters set out in the previous paragraph, the Appeal Tribunal is satisfied that these were material facts and are not in dispute. When these facts are taken into consideration the Appeal Tribunal is not satisfied that the Original Tribunal’s determination to award $200 for this period is reasonable or is a decision that a reasonable Tribunal would make.
The Appeal Tribunal is satisfied that there was no reason to depart from the ‘ten percent of rent’ measure of compensation the Original Tribunal used for the subsequent periods of the tenancy. Accordingly, it determines that the appropriate amount for compensation for the second period is $270.00 (being six weeks at $45 a week).
While the appellant submitted that, generally, the Original Tribunal had not taken his disability into account and this was a relevant consideration, the Appeal Tribunal noted that the appellant’s disability and its impact appears, from a perusal of the transcript[7], to be found in the following exchange[8]:
[7] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 272 “They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
[8] Transcript, page 46, lines 7-29
President Stefaniak: ...I have given you more on the basis that when you do get someone in there you are meant to have exclusive use because that’s been said but in terms of not being able to get someone in there because an ensuite doesn’t work, all right it is very, very similar to the toilet case which was $450 over three months. I have given you about $200 over a five week period.
Mr Zondervan: Did the toilet case simply say it was due to somebody having a disability?
President Stefaniak: I don’t know what it said but ---
Mr Zondervan: You see I rented this premises ---
President Stefaniak: You took the bin out didn’t you and you brought the bin back in [which appears to be referring to the respondent’s statement dated 13 August 2012].
Mr Zondervan: I go out to work every day. This is of no consequence to these proceedings.
President Stefaniak: But – yes, it is because there’s two- it is not like there is one bathroom. If there is one bathroom you would get 30% of your rent off ... because that would be so serious......
While this appears to be the only reference to the appellant’s disability in the transcript, the Appeal Tribunal was unable to find any other evidence, other than the appellant’s statements in his Application, of the Applicant’s disability and the impact on him of having to manage sharing a bathroom with his disability from mid April 2012.
Without this evidence, which should have been provided by the appellant to the Original Tribunal, the Appeal Tribunal cannot be satisfied that that the Original Tribunal did not consider relevant evidence when that evidence was not before it.

15 April 2012 – 7 June 2012(the third period)

The Original Tribunal awarded compensation of $315.00 between 15 April 2012 and 7 June 2012 (the third period), a period of about seven weeks, which was calculated as ten percent of the rent paid ($45.00 x 7). The Original Tribunal described the loss of use of the ensuite during this period as “a more major inconvenience.” The Original Tribunal also said that after the appellant had had a colleague move in on 15 April, the appellant did not then have exclusive use of the bathroom and it was giving him, basically, ten per cent of the rent paid for this period as compensation.
The appellant said another occupant, a colleague, moved in before 15 April 2012 but he had only been able to provide corroborative evidence of the new tenant from 15 April 2012. The appellant referred the Appeal Tribunal to Fenton, Neist & Baker v de Andrade and Hilton & Ors v Lee, the cases referred to in paragraph 28 above, and submitted that the calculation he had made as to the compensation being 18.6% of the rent payable in the relevant period in Hilton & Ors v Lee should be applied in his case. He did, however state in his appeal:
“I leave the determination in the hands of the ACAT member presiding over this appeal, however in contrast to my previous dealings with ACAT, I will require an explanation of the methods used from the presiding member when deciding an amount for compensation.”
The Original Tribunal said that the fact that the repairs have not been done as at 7 June 2012 is “the landlord’s problem. There are two people there and some recompense needs to be made to the tenant there.....he’s been promised exclusive use of the bathroom” and awarded the appellant compensation equal to 10% of the rent paid during this period.
The appellant had previously submitted to this Tribunal that appropriate compensation for this period was 30% of the rent he had paid. During this period he was sharing a bathroom and the ensuite was totally inoperable. He was entitled to exclusive use of the bathroom or of the ensuite. He said the Original Tribunal did not consider or give appropriate weight to the excess inconvenience he experienced due to his degenerative illness which impacted on his manoeuvrability during this third period.
The Appeal Tribunal has read Hilton & Ors v Lee. Relevantly the Appeal Tribunal notes that there were three tenants each one of whom was a party to the proceedings and that in addition to one of the two bathrooms not being able to be used there were two additional problems, firstly, the tenants were unable to close the bathroom door to the bathroom which was usable and secondly, the leak from the other bathroom had resulted in mouldy carpets.
The Appeal Tribunal cannot, therefore, be satisfied that the facts of Hilton & Ors v Lee and the appellant’s case are so similar that the Appeal Tribunal should find that the Original Tribunal erred in calculating compensation using ten percent of the rent paid in this period and not 18.16% which the appellant has calculated was the outcome in Hilton & Ors v Lee. Indeed, it is specifically stated in the decision that the tenants’ claim in Hilton & Ors v Lee was for compensation being ten percent of the rent.
The Appeal Tribunal was also not satisfied that the thirty percent the appellant had originally claimed had any merit.
The Appeal Tribunal is satisfied that the calculation of compensation using ten percent of the rent during the relevant period was open to the Original Tribunal on the evidence and on a close reading of Hilton & Ors v Lee. The Appeal Tribunal is satisfied that the Original Tribunal did not fall into error in calculating the compensation for the third period.

From 7 June 2012 (the fourth period)

The appellant initially submitted that the ten percent of the rent ($450.00) for the period (the fourth period) from 7 June 2012 until the hearing on 21 August 2012 (about 10 weeks) should have included compensation for the remaining three weeks from the hearing to the end of the lease, 10 September 2012, because
·the Presiding Member accepted that the lease would end on 10 September 2012, as the respondent had given notice that she wished to return to reside in the premises;
·the repairs had not been carried out by the date of the hearing, 21 August 2012, and the Presiding Member said “I don’t know that it is realistic now that it’s 21^st [of August] to expect the bathroom to be fixed”;
·notwithstanding the Presiding Member said “some attention be made even though he is making it [access to the premises] very difficult but I do have to take the fact that the tenant refuses to co-operate then it cannot be fixed, simple as that” he also said “I can understand why there’s an impasse there now but the tenant is entitled to have his own bathroom there.” and “I think that the tenant hasn’t actually said he is refusing entry, he simply just wanted certain conditions to be met…[some of which were unreasonable]”;
·it was unreasonable to exclude the extra three weeks from the hearing date to 10 September 2012 apparently on the basis of the appellant/tenant being difficult in providing the respondent’s son access to the premises in June 2012 and the Presidential Member considering what was the fairest thing (as opposed to basing his decision on the evidence) by stating “I think the fairest thing there is that we just split the difference for the remaining three months of the tenancy and allow another – and allow some extra rent deduction again for a period of time at the rate of $45.00 a week.”;
·it was also unreasonable, considering all of the evidence which the appellant had provided to the Original Tribunal for the Presiding Member to find that the amount of compensation offered by the respondent in June 2012 of $1,000 was “probably a reasonable figure” and “a fair amount in terms of compensation” when the Presiding Member also said “....the landlord, I think quite properly in the circumstances, has plucked a figure out of thin air which is very much in the ball park.”
·the tenancy agreement provided that the premises would have a bathroom and an ensuite, which, because of his disability, was what had attracted him to rent these premises in the first place and with the ensuite being inoperable he did not get what the agreement provided; and
·the lease he had signed gave him the right to quiet enjoyment of the premises, including all of its facilities, which was breached.

Consideration

The Original Tribunal calculated the compensation for this period at 10% of the rent from 7 June 2012 until the hearing - about 10 weeks at $45 a week, namely $450.00. The appellant told the Original Tribunal he was seeking to be compensated for the entire period when he has not had the full use of both bathrooms. The transcript shows the following exchange:
President Stefaniak: I have done that and I have awarded you $1,000 compensation.
Mr Zondervan: Not for the whole period ---
President Stefaniak: Yes I have done that over the entire period because from in January they attempt to fix it. Don’t do a very good job. They then – you both agree, renovate it. I allow up until the beginning of March to get a tradesman to do it. It takes a long time to get a tradesman in Canberra. Your compensation relates from the start of March to 15 April where I am giving you effectively $200 for that period because you have exclusive use of a bathroom. When you have a friend, a colleague, come in there on 15 April you don’t have exclusive use and I am giving you basically 10% from then. Then you make it incredibly difficult with some understandable justification because of the stuffing around by the applicant and not allow them in but I am still giving you fair and reasonable compensation there very much in line with the cases and in fact I think it is a little bit more perhaps than what you might otherwise be entitled to because the landlord, I think quite properly in the circumstances, has plucked a figure out of thin air which is probably very much in the ball park.[9]
[9] Transcript, page 46, lines 42, and page 47, lines 1-17

It is clear that the period from 7 June 2012 to 10 September 2012 is more than 10 weeks; namely 14 weeks. The Original Tribunal stated [10] that the fourth period from 7 June 2012 to the upcoming end of the lease was about three months.
[10] Transcript, Page 42, line 15
However the Original Tribunal also referred to the appellant’s conduct on about 6 June 2012 when he refused to accept a tile delivery. Thereafter work on the ensuite ceased.
Section 38 of the RT Act clearly states that a person who would be entitled to compensation under the Act is not entitled to compensation or part of it if the part of the loss to be compensated could have been reasonably avoided. A perusal of the transcript[11] confirms that the Original Tribunal took this conduct into consideration stating that the appellant ‘made it incredibly difficult with some understandable justification because of the stuffing around by the respondent.’
[11] Transcript Page 47 lines 10 - 12
The question for the Appeal Tribunal is to ask whether it was reasonably open on the evidence to the Original Tribunal to reduce the compensation because of the appellant’s conduct in June 2012. It appears that the Original Tribunal has formed the view that 10 weeks compensation, out of the three months considered by that Tribunal and calculated at 10 per cent of the rent payable during the fourth period, was reasonable.
However, it also appears to the Appeal Tribunal that insufficient weight was given to the appellant’s disability during this period and to the fact that the respondent had had almost six months to carry out the ensuite repairs or renovation. The Appeal Tribunal is satisfied that the respondent’s delay was unreasonable and inexcusable. The respondent should have engaged professional tradesmen once she decided to renovate rather than repair the ensuite so that the disruption to the appellant was minimised. The almost six months delay explains the appellant’s frustration in June 2012.
It also appears from the evidence that once the appellant stated that he would apply to the tribunal for a determination, the respondent notified the appellant that she wished to return to live at the premises. The appellant lodged his application with this Tribunal in June 2012 and thereafter no work was undertaken by the respondent to make the ensuite useable. The Appeal Tribunal noted that the Original Tribunal considered whether the respondent’s notice to terminate the tenancy was in retaliation and found that it was not. The Original Tribunal made orders which required the respondent to notify the Original Tribunal in writing that the respondent had, indeed, resumed occupation of the premises after 10 September 2012.
It did not appear that the Original Tribunal gave adequate consideration to the fact that the appellant would have to continue for the remainder of the tenancy to 10 September 2012, without the ensuite being usable not because of his conduct but because the respondent would have the ensuite renovations carried out after she had returned to live at the premises. On the Appeal Tribunal’s calculations the total period between 6 June 2012 and 10 September 2012 was 14 weeks, not 12 weeks. The Original Tribunal erred in not finding accordingly.
For the above reasons, in the particular circumstances of this case, the Appeal Tribunal does not agree that it was reasonable for the Original Tribunal to deduct a period of two weeks on account of the appellant’s conduct in June 2012 and in doing so, it erred. The Original Tribunal placed no or insufficient weight on the respondent’s unreasonable delay in carrying out the repairs and in so doing the Original Tribunal erred. The Appeal Tribunal is satisfied that the appellant was entitled to compensation for the full duration of the fourth period, namely 14 weeks. The Appeal Tribunal is satisfied that a reasonable Tribunal would concur. This results in the proper amount of compensation for the fourth period being $630.00 ($45 x 14 weeks).
The total amount of compensation calculated by the Original Tribunal for the four periods amounted to $965.00 ($0.00 + $200.00 + $315.00 + $450). In determining the $1,000 compensation awarded the Original Tribunal acknowledged that this was the amount previously offered by the respondent as compensation. The Presiding Member stated, while the $1,000 was more than he had calculated (for the four separate periods) he awarded $1,000 as the compensation because it was very much in the ball park.
The Appeal Tribunal, in examining the evidence available to it, and the process of the hearing in the Original Tribunal, determined, as above, that that Tribunal neglected to take into account matters which ought to be taken into account and gave no or insufficient weight to other matters. The Appeal Tribunal also considered and determined that in all the circumstances, for two of the four periods the original decision were one which no reasonable Tribunal could ever have come to.
Notwithstanding the appellant’s perception that he was not given the opportunity to put all of the evidence in his annexures to the Original Tribunal, the Appeal Tribunal is satisfied that the Original Tribunal got around to receiving that evidence in response to questioning from the Presiding Member.
However, having had the opportunity to peruse the transcript and to read the appellant’s documents and to hear from the parties, the Appeal Tribunal is satisfied that the appellant was afforded procedural fairness at the original hearing.

Conclusion

The Tribunal’s role is to address the questions of fact or law that have been raised and if an error is found, the role of the Appeal Tribunal is to allow the Appeal and either correct the orders to reflect what the decision should have been at that time or refer the matter back to the original, or a newly constituted, Tribunal with or without directions.
Having considered all of the matters before it, the Tribunal is satisfied for the reasons set out above, and finds, that the grounds of appeal did disclose errors in the Original Tribunal’s decision on 21 August 2012 and that the appeal should be allowed. The decision of the Original Tribunal should be varied to provide that the compensation payable by the respondent to the appellant is $1,215.00 being $0.00 for the first period, $270.00 for the second period, $315.00 for the third period and $630.00 for the fourth period.
The Appeal is allowed.

………………………………..

Ms E Symons
Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: AA 12/47

APPLICANT: Simon Zondervan

RESPONDENT:

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

SOLICITORS: APPLICANT:

RESPONDENT:

OTHER: APPLICANT: Mr Zondervan

RESPONDENT: Ms Hyland
TRIBUNAL MEMBER: Ms E Symons, Presidential Member

DATE/S OF HEARING: 21 January 2013 PLACE: CANBERRA

DATE/S OF DECISION: 28 February 2013 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: