Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Saqa v Chu [2021] NSWCATAP 99 Hearing dates: 4 February 2021 Date of orders: 21 April 2021 Decision date: 21 April 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member R C Titterton OAM, Senior Member Decision: 1. The appeal is dismissed. 2. Any and all stay orders are discharged. Catchwords: LEASES AND TENANCIES – parties to the lease - default and termination – reduction and withdrawal of services – no error demonstrated Legislation Cited: Nil Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Metuisela Saqa (Appellant) Patricia Lunia Tukana (Second Appellant) Atunaisa Saqa (Third Appellant) Herman Chu (First Respondent) Ngoc Huynh Nguyen (Second Respondent) Representation: Appellants (Self-Represented) Tin Duong (Agent) (Respondents) File Number(s): 2020/00371111 (AP 20/44256) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 17 July 2020 Before: S Hennings, General Member File Number(s): RT 20/23304; RT 20/24029 REASONS FOR DECISION 1. This is an appeal by tenants (the appellants) against orders of the Tribunal which terminated the residential tenancy agreement between themselves and the landlords (the respondents) for a failure to pay rent. 2. In addition to those orders the Tribunal ordered the tenants to pay outstanding rent in the sum of $5,757.14, less $1,000 compensation the Tribunal held the tenants were entitled to for the loss of certain amenities during the term of the tenancy. The net result was that the tenants were ordered to pay the landlords the sum of $4,757.14 together with a daily occupation fee of $88.57 per day from the 18 July 2020 until possession was given to the landlords. 3. For the reasons that follow we are of the opinion that the appeal should be dismissed. Background 1. The parties entered into a residential tenancy agreement for premises at Bass Hill, NSW. The tenancy commenced on 22 August 2019 and was for a period of six months. The tenancy continued beyond the initial period of six months. 2. Disputes arose between the parties and the tenants ceased paying rent. 3. The landlord commenced proceedings in the Tribunal (being proceedings RT 20/23304) seeking a termination order and an order for the payment of arrears of rent. 4. The tenants subsequently commenced proceedings in the Tribunal (being proceedings RT 20/24029). Their claim was expressed as follows (with some minor punctuation corrections made by us to aid understanding): "I have written more than 10 letters to RAY WHITE CABRAMATTA clarifying all about the the illegal things they have Persecuted my Family, my first letter to them was on the 3rd of March 2020, inquiring about what we Requested. Sir We paid for our Bonds which were given by the Housing NSW and upon inquiring I was told that they don't have a Bond on the Premises. They have created a Claim case number for me which is 12778380 for my Referance. Sir While inspecting the Property We saw that the main toilet in the house was Clean but when I flush the toilet it was a bit blocked but it was clean and I asked the Manager it is Clean but it is blocked and he said that they will clean it before we moved in. We moved in in August 2019 and it took them 6 months to repaired that toilet even though I was paying rent at their office on a weekly basis with Constant Requesting it to them to no Avail. Sir We were paying $620.00 a Week with a House where the Dining room is not a Dining room because the toilet is on either side of the Dining room. When the toilet is Blocked and the only one that is good does not have any exhaust fan and when it is used the Dining room is Covered with the Disgusting Smells and they Persecuted my Family like that for 6 Months. Further more the eldest of my Son who is in Year 12 but was Born in Fiji as an Australian Citizen and the other 3 was all born in here, in the Night if Nature Calls and the good toilet is in used they would go Outside the house about 20 meters to the Pool to relieve them self's." 1. The two proceedings were heard together. 2. In relation to the landlords' claim, the Tribunal said: "Taking into account the circumstances as presented the Tribunal found that the breach was, in the circumstances of the case, sufficient to justify termination of the agreement and make the orders as sought by the landlord. The tenant has substantial rental arrears and is completely refusing to pay. The tenant has frequently failed to pay the rent, on or before the day set out in the residential tenancy agreement. There have been absolutely no steps taken by the tenant to remedy the breach. The Tribunal could find no basis for the tenant's complete refusal since 9-May-2020 to pay any rent and the Tribunal had no confidence that any other order would lead to a resolution in the matter or the tenant paying the arrears. The Tribunal was satisfied that a termination order should be made Section 83 - and given the tenant's family situation allowed 3 weeks for possession to be returned to the landlord." 1. The Tribunal found the tenants owed $5,757.14 in unpaid rent up to 18 July 2020, terminated the tenancy and ordered the tenants to pay that sum together with a daily occupation fee of $88.57 per day until possession was given to the landlords. 2. The tenants do not challenge any of those matters on this appeal. 3. In the tenants' proceedings, they claimed compensation/rent reduction for the following matters: "a) 20% rent reduction for 6 months for persecuting the tenant's family demanding full rent when the toilet at the premises was blocked and was not fixed as continually requested. b) $635.00 for loss of food due to no electricity. c) $500.00 for pain and suffering. d) $380.00 for accessory of cleaning the pool. e) $190.00 for chlorine and acid and labour." 1. The claims in relation to compensation/rent reduction in relation to electricity, pain and suffering, accessories for pool cleaning and chlorine etc were dismissed by the Tribunal. The Tribunal said: "9. The electricity to the premises was interrupted for 9 days following the big storms in February 2020 that hit Sydney and made news for the severe damage that occurred. The Tribunal could find no breach of the tenancy agreement by the landlord based on the natural weather event that occurred at that time and given the extent of repairs that were required as reported across the city. There was nothing that the tenant presented to establish that the landlord failed to act reasonably or could have done anything to have prevented the issue or had the electricity reconnected quicker. If the tenant lost food or had other issues with cleaning the pool caused by the storm, then that was a matter for the tenant to address or potentially claim through their contents insurance. 10. And even if there was some responsibility on the landlord, the tenant produced no sufficient evidence to the Tribunal to establish what food was lost, how much it cost, what money was spent on the pool or any other quantum evidence in respect supporting his claims for the specified amounts and the purported pain and suffering that he suffered and claimed. The tenant's specific monetary claims for loss of food due to no electricity, pain and suffering, accessory of cleaning the pool and for chlorine and acid and labour were all dismissed." 1. The Tribunal allowed $1,000 compensation/rent reduction for the blocked toilet. In relation to the toilet the Tribunal said: "11. The Tribunal considered the tenant's claim for the 6 months when the toilet at the premises was blocked and was not fixed by the landlord as continually requested. The lease commenced in August 2019. The tenant stated that he complained about the toilet right from the start of the tenancy. The parties agreed that the toilet was ultimately fixed in February 2020. The landlord produced no evidence to refute the tenant's claim. But the Tribunal also considered that in the 6 months it was clear that the tenant did nothing to take any stronger action to resolve the issue or mitigate any loss. However, the landlord did agree that the tenant was entitled to some compensation for the issues that have arisen and inconvenienced the tenant during the tenancy. 12. Taking into consideration all that had occurred during the tenancy and the delays by the landlord in fixing the toilet, the Tribunal considered that it was appropriate to award the tenant some compensation. The Tribunal determined that it was appropriate to award the compensation as a lump sum rather than as a rent reduction, given that the main issue of the toilet was repaired and resolved back in February. In all the circumstances, the Tribunal determined that $1,000.00 was fair and reasonable compensation for the tenant. The Tribunal deducted that amount off the amount of rental arrears owing in order to fully resolve both matters at the same time. 1. The tenants appealed from the Tribunal's decision but did not appear at the appeal listed for hearing on 14 October 2020 because of their misunderstanding as to whether they were to telephone the Tribunal or the Tribunal was to telephone them. 2. Their appeal was reinstated after they applied to do so (in proceedings AP 20/44256). 3. Thus, this appeal was reinstated and proceeded on 4 February 2021. On that occasion the appellants appeared in person after we made contact with them by telephone. The first appellant delivered the appellants' submissions. The Appeal 1. The tenants appealed from the orders made in proceedings RT 20/23304. 2. Orders Challenged on Appeal as set out in the tenants' Notice of Appeal were: "The member have breached the basic foundation of the Law that he needs to Adhere: There were No Lease Agreement, No Bond receipt to base his decision. Secondly I repeat out loud to him that he would be Discriminating me if he continue with what he was doing on that day. Sir I received a very disturbing hearing on the 17th July 2020, because the member had his own way of dealing with some issues and I gave him a part of my mind stating that I would be requesting it. How can the member make an order based on the lease agreement which are Unconstitutional and Wrong. The Agreement were Not Shown wether it is legal or Wrong. How can the Member allow the Real Estate to Persecute My Family For more than 6 months Denying them of their Legal Rights and Manupulating them, but When they Defended their Rights than they were Prosecuted from a Very Discriminating Cival Servant Who were allocated to be a Referee on that Particular Day. Sir these were UnDemocratic and Wrong." 1. The tenants' Grounds of Appeal set out in the same document were: "File number RT/24029 dearly define how my family have been victimised and abused with our legal rights even though we were complaining to them on weekly basis for more than 6 months paying $620.00 a week, even when covid19 struct. In March I asked them again to meet the owner because we knew by then that they did not lodge our Bond and they run alot of things illegally. We have Paid more than $28000.00 Rent and We gave them Two Months warning that if they could not allow us to talk to the Owner of the Property We would stop Paying our Rent on the 21st of May 202Q until they come up with a Referee. When we asked for a referee, we were given some civil servants who thinks that they are above the law, Sir, we treading on a very thin line and I did asked the member, why I was been discriminated and I told him that he must have decided my penalty before the hearing. I would rely on those tape to prove to the world, how some Government department are full racism and it it should be stopped. Sir I knew that I was Victimised by these Member who Clearly said that he Is the Law. I did not retaliate to that Sentence, but he needs to be Corrected that he is in a Position and Acting with Representing the Law. Sir He Discriminate Me and My Family from the beginning of my hearing to the Conclusion with a very Harsh Decision to Evict my Family Even though the Real Estate were Wrong and for these type of things to happen in the 21st Century, We can only say that Something else Is the Purpose of Loosing the Case. The Member have Error In many ways Which can be clearly prooved in the Tape Recording." 1. The tenants sought leave to appeal on the basis that the Tribunal's decision was not fair and equitable. In their Notice of Appeal the tenants described in detail why the decision was not fair and equitable as follows: "Sir the Member Was error from the Begining When he allowed the Real Estate to . Manupulate and Deny my Family for more than 6 Months for their Legal Rights after Paying $620.00 every Week and more than $28000.00 in Rents with Constant Complaint to no Avail so We Warned them in March because it took them 6 month to Repair the Main toilet at the House, an it was Very Disgusting, there. were a lot of things that happens with it, like the Emergency People were called. and they said they did not work for them. Sir it was in my Submission that they were into some kind of illegal Dealings and I Dont know Why the Member were really angry at me and I question the Member that he have Known me before hand, but he said to the word of his referance a Question for me to Answer and I will make a Complaint about these Cival Servant for his Biased and Victimisation on that Particular Day. 2. Sir the Member was one of the Member that I have Complaint about in the Past to the Registra as Very Biased and they are supposed to be Referee for Judgement and Fairness to the People and they are Doing the Opposite. Sir a lot of People Migrated here from the War Torn Country, Martial Law Country Communism and many More for the Peaceful, Love, Joy and Fairness of Democracy but they are implementing Undemocratic Rules and Laws same as the one that this Cival Servant gave me on the 17th July 2020. 3. There were no Lease Agreement No Bond to prove that there was an agreement for the Member to making his Decision on that Day. Because We paid for the Bond and they did not Lodge the Bond. The member based his Decision to those Agreement which should have been Void for their illegal Dealings." 1. The tenants also said that the Tribunal's decision was against the weight of evidence. On that issue the tenants said in their Notice of Appeal: "My submission were not taken into consideration about how they manipulated and denied my family for more six month, living in a house with the main toilet blocked, with disgusting smell for more than six month. than they Repaired it. of All the Payment of Rent and Receipts we Submitted and Rents were paid in Weekly of $620.00 it clearly Support our Claim that we Requested them on Weekly after Paying more than $28000.00 Dollars we Written to Them in March Asking them to Call a Referee Because We will Stop the Rent in May the 21st 2020, We will Put it Aside until they Called a Referee. These was Sweep Under the Carpet by the Member. Sir My Family are also Human and We as Citizen of these Country are Bounded by the Rules and the Law of the Land which should Protect Our Legal Rights into Dealing with Unfairness as Such. We have been Manipulated by the Real Estate and Furthermore We have Reason for Apprehension of Biased." 1. In the section of the Notice of Appeal which asked "What evidence should the Tribunal have given more weight to? Why?" the tenants said: "First thing First the Agreement were not Produced and the Bond were never Lodged and the Member Dont have a time to hear it. I asked him to see of all the Payments we were Doing with and they were not doing theit Part of the Bargain so we stand our Ground to Defend our Legal Rights, Where was the Tribunal when My Family need them most. Now of What is Done to My Family I have reached a point where I came to realised that it is not What Democracy really Means. These Order was UnDemocratic, Very Biased and Wrong For the Pandemic Period and Giving me a Disability Pensioner with a Partner who was Wrongly Dismiss on the 30 June 2020 with 3 Children in High Scool, and 1 in Primary School to Vacate these Premises in 3 Weeks. Sir No Wonder when some People have good Reason to do thing that are beyond their Control for the sake of their Family . Sir I will stand tall and Defend My Family until my Last Breath." 1. In written submissions the tenants complained that the lease had been forged, the compensation for the toilet awarded by the Tribunal was insufficient and the Tribunal erred in failing to award compensation for the temporary interruption to the power supply (see [13] above). 2. In oral submissions the tenants said that their complaints regarding the Tribunal's decision were now: 1. that the lease was forged in that the third appellant, the son of the first and second appellant, had not signed the lease and therefore should not be held liable to the landlords for the amounts ordered; 2. they had not received the bond back; and 3. $1,000 was insufficient compensation for the blocked toilet. Decision 1. It is far from clear to us that there was an issue before the Tribunal whether the third respondent signed the lease. 2. In any event his signature appears on a copy of the lease which was in evidence, his name (in typewritten characters) appears on the lease, the first appellant said in his "Affidavit 2" filed on 28 August 2020 that the third appellant's name was on the lease when the first and second appellants signed it, there was no evidence given by the son denying his signature and no evidence was called from the witness to the third appellant's signature to the effect that the signature was not that of the third appellant. 3. In those circumstances we are unpersuaded that there was any error in the third appellant being held liable under the terms of the lease for unpaid rent. 4. In relation to the bond, the fact is that the appellants paid no bond, a fact consistent with the lack of any claim on any bond in their application. The tenants' bond was paid under the Rentstart Bond Loan scheme under which the Department of Communities and Justice (as it is now known) pays the bond on behalf of eligible tenants in the private rental market direct to the Rental Bond Board. When the tenancy ends that bond is then repayable to the Department, not to the tenants. 5. In any event, as the claim to the bond was not sought before the Tribunal we would not entertain it for the first time on this appeal. 6. In relation to the claim that the Tribunal erred in awarding the sum of $1,000 to the tenants for the reduction or withdrawal of services or facilities, i.e. the blocked toilet, the tenants have not persuaded us of any error in the Tribunal's award. 7. Such awards are evaluative and impressionistic, and the amount is not outside what may be regarded as a reasonable range for compensation for this item taking into account the matters the Tribunal did. 8. The tenants have not established that in deciding that that sum was appropriate the Tribunal failed to take into account any relevant consideration, or took into account one or more irrelevant consideration, or any other error of reasoning which may have unduly suppressed the amount awarded. 9. For completeness we should note that there was a complete lack of any evidence of bias by the Tribunal in what must have been a less than easy case for the Tribunal member to conduct and decide. 10. Finally, at an earlier stage of the appeal proceedings a stay of certain orders of the Tribunal was made. Subsequent to the date the stay was granted (7 August 2020) the appeal was dismissed as we have recounted at [15] above. That dismissal should have had the effect of discharging the stay, but out of an abundance of caution we shall make an order discharging any and all stay orders to avoid any possible and unnecessary complications. Orders 1. We make the following orders: 1. The appeal is dismissed. 2. Any and all stay orders are discharged. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2021