AA v Ron Tribe & Associates Pty Ltd (Civil Claims) [2008] VCAT 586

1. Insofar as the Tribunal has jurisdiction to hear and determine this proceeding, in respect of claims made under section 159 of the Fair Trading Act 1999, the proceeding is dismissed summarily pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

2 Otherwise the proceeding is struck out for want of jurisdiction.

1. Between 2000 and mid-2006 the applicant AA was a tenant of premises at Flat 7, 24 X Street Williamstown ("the premises"). Her landlord was DL. The respondent, Ron Tribe & Associates Pty Ltd ("the managing agent") was the agent engaged by the landlord to manage the tenancy of the premises throughout that period.
2. Ms A has alleged that from about mid-2002 until mid-2006, when she vacated the premises, occupiers of neighbouring premises made her life a misery. In that regard she has identified the occupiers of other flats at 24 Y Street: Flats, 1, 3, 5, 6 and 8. In that regard she has also identified the occupiers of 86 and 88 Y Street Williamstown. Conduct which she has alleged against some or all of those occupiers that affected her quiet enjoyment of the premises includes excessive noise, abusive and insulting language, a break-in at the premises, harassing telephone calls, damage to her car in the parking space allocated to her, damage to pot plants and the filling of her rubbish bin with neighbours' rubbish. Other conduct which she has alleged against some or all of those occupiers includes the sending of offensive email messages to her at her place of employment, and the stalking or following of her. Ms A has alleged that she reported that conduct to the managing agent (and to others, including the police and the local municipal officers) but nothing was ever done to stop the conduct.
3. Ms A has made another allegation which at first sight would appear to be minor in comparison to the first allegation about the neighbours' conduct, but which has loomed larger and larger. The allegation relates to the condition of the premises at the commencement of her tenancy. She has alleged that they were not in a clean condition when she first took possession of them and that while attempting to clean the kitchen stove she touched some loose wires and suffered an electric shock. She has not alleged that there was any prolonged disability suffered or medical treatment undergone as a result of that incident. No doubt, however, it was painful and frightening.
4. In 2006, after she had vacated possession of the premises, Ms A commenced a proceeding in the Residential Tenancies List of this Tribunal against the landlord claiming compensation. By the time that the Tribunal determined the proceeding (number R2006/53912) the size of her claim had grown to more than $70,000.00. In that proceeding Ms A made allegations, of the kind described above, about the conduct of neighbours, and claimed that the landlord by failing to stop or to attempt to stop that conduct had breached his duty to her to ensure her quiet enjoyment of the premises. In that proceeding Ms A also raised the allegation of the unclean condition of the premises at the commencement of the tenancy and the incident involving the kitchen stove and the electric shock.
5. In the proceeding against him the landlord made an application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 for an order dismissing the proceeding summarily. Senior Member Lambrick heard that application and granted it, dismissing that proceeding and giving detailed written reasons for the decision, on 12 September 2007. As to the allegations relating to the neighbours' conduct, the Senior Member concluded that nothing in the material filed or evidence given by Ms A disclosed any fact which could support the proposition that the landlord breached his duty to her and that the claim to that extent was untenable and hopeless. As to the allegations relating to cleanliness and the kitchen stove, the Senior Member observed that the remedy sought in that regard was compensation of merely $71.00 compared to the total claim for compensation of more than $70,000.00 and that, when the proceeding was viewed as a whole, it was not one in which the respondent landlord should be put to the inconvenience and expense of a lengthy hearing when the bulk of the claim was untenable and hopeless.
6. Ms A then commenced this proceeding in the Civil Claims List against the managing agent. Again she made allegations of the kind described above. Again she sought compensation in a sum exceeding $70,000.00. As the landlord had done in the earlier proceeding, the managing agent made an application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 for an order dismissing the proceeding summarily.
7. I heard that application on 22 February 2008. Ms A appeared in person. Angus Scott-Walker, a director of the managing agent, appeared on its behalf. Each of them gave evidence on that day. Earlier Mr Scott-Walker had filed and served a short affidavit in which he pointed out that the factual basis for this proceeding was the same as the factual basis for the earlier proceeding which had been dismissed summarily on 12 September 2007. Mr Scott-Walker had appeared on behalf of the landlord in that proceeding. A few days before the hearing on 22 February 2008 Ms A had filed and served a document dated 15 February 2008, sixteen pages in length, on which she relied in answer to the managing agent's application. That document, the evidence she gave before me at the hearing, and the documents attached to her initiating application, formed the material which contained Ms A's case.
8. At the conclusion of the hearing I directed that Ms A might file any submission she wished to file, on issues of law raised at the hearing, by 14 March 2008, and said that I would make a determination, and give written reasons for it, after 14 March 2008. Ms A did file and serve such a submission.
9. Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 provides:

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(2) If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under sub-section (1) or (2) is exercisable by -

(a) the Tribunal as constituted for the proceeding; or

(4) An order under sub-section (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

1. The managing agent has contended that Ms A's claim against it is vexatious, misconceived and lacking in substance, within the terms of section 75(1).
2. In determining the managing agent's application for an order for summary dismissal, I must and do apply the following principles:
   • (a) For such an application to succeed, the proceeding must be clearly and absolutely hopeless and be bound to fail.
   • (b) The Tribunal should exercise caution before deciding that the proceeding is clearly and absolutely hopeless and bound to fail, and before summarily dismissing the proceeding, because by so doing it is depriving a claimant of a chance to have the claim heard in the ordinary course at a final hearing on its merits.
   • (c) Insofar as the applicant alleges facts in the material which is the basis of the claim, the Tribunal must assume that those allegations are true. It will not avail a respondent asking for a summary dismissal under section 75 to contest the applicant's version of the facts and to ask the Tribunal to prefer the respondent's version. The respondent's task is to persuade the Tribunal that even if the facts relied upon by the applicant are true the application is still clearly and absolutely hopeless and bound to fail.
   • (d) "Facts" for the purpose of principle (c) mean allegations of what persons actually said or did, or failed to do, and the possible inferences which might be drawn from what those persons allegedly said or did or failed to do. They do not include conspiracy theories, speculations or other wild allegations which are not based upon specific facts or possible inferences from those facts.
3. The parties were, or should have been, well aware of those principles because they were canvassed in the written reasons of Senior Member Lambrick in the Residential Tenancies List proceeding.
4. Before I turn to the ways in which Ms A has put her case I mention some evidence of Mr Scott-Walker which Ms A did not attempt to challenge and which I am sure is incapable of challenge. That evidence was that the landlord Mr L was not a landlord of any premises at 24 X Street Williamstown other than Flat 7 and was not a landlord of 86 or 88 Y Street Williamstown, and that the managing agent had not been engaged to manage any premises at those addresses other than Flat 7 at 24 X Street. Of course the significance of that evidence is that neither the landlord Mr L nor the managing agent had any legal right or authority to control or interfere in the conduct of any occupier of neighbouring premises about which Ms A had complained.
5. In accordance with the principles outlined above I assume, for the purposes of determining the respondent's application for summary dismissal, that Ms A's allegations about the conduct of her neighbours are true, and that Ms A's allegations about the condition of the premises at the commencement of her tenancy, and about the incident of the electric shock, are true.
6. The ways in which Ms A has put her case are these. She has suffered loss and damage, she says, because of:
   1. Conduct by the landlord in breach of provisions of the Residential Tenancies Act 1997; in which the managing agent was "involved" within the meaning of section 159 of the Fair Trading Act 1998; or
   2. Conduct by the managing agent itself which was in breach of provisions of the Residential Tenancies Act 1997; or
   3. Conduct by the managing agent, or by the landlord in which the managing agent was "involved", which was in breach of provisions of the Fair Trading Act; or
   4. Breach of duties which she alleges the managing agent owed to her as a tenant.
7. Section 159(1) of the Fair Trading Act provides:

(1) A person who suffers loss, injury or damage because of a contravention of the provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person involved in the contravention.

Sub-section (2) provides that a proceeding under the section may be brought before the Tribunal.

1. The meaning of "involved" in section 159 is governed by section 145, which provides:

A reference in this Division to a person involved in a contravention of this Act means a reference to a person who -

(a) has aided, abetted, counselled or procured the contravention;

(b) has induced, whether by threats or promises or otherwise, the contravention;

(c) has been in any way, directly or indirectly, knowingly concerned in or party to, the contravention;

(d) has conspired with others to effect the contravention.

1. The effect of section 507A(2) of the Residential Tenancies Act is that section 159 of the Fair Trading Act applies to the Residential Tenancies Act as if that Act had been referred to in section 159 instead of the Fair Trading Act. Hence a person who suffers loss or damage because of contravention of a provision of the Residential Tenancies Act may bring in a proceeding in the Tribunal, under section 159 of the Fair Trading Act, to recover that loss or damage, from any person involved in the contravention.
2. Section 229(1) of the Residential Tenancies Act provides:
   • (1) A landlord or a person acting on behalf of a landlord must not, except in accordance with this Act -
     • (a) require or compel or attempt to compel the tenant under the tenancy agreement to vacate the rented premises; or
     • (b) obtain or attempt to obtain possession of the rented premises by entering them, whether the entry is peaceable or not.
3. Ms A has alleged that the managing agent, as "a person acting on behalf of a landlord", has contravened section 229 by attempting to compel her to vacate the premises. Alternatively, she has alleged that the landlord has contravened section 229 in the same way and that the managing agent was involved in the landlord's contraventions. She has linked this allegation to the behaviour of her neighbours by saying that the landlord and the managing agent deliberately did nothing, when she complained to the managing agent about the conduct, and deliberately did nothing with the motive of forcing her to leave the premises.
4. Ms A has not claimed that she has any direct evidence that would support this allegation. She has not put forward any cogent reason why the landlord or the managing agent might have had such a motive. The material offered by her does not disclose any facts from which an inference would be open that the landlord or the managing agent did have such a motive or did attempt to compel her to vacate the premises. It is not enough for her to say, as she has said, that she believes that they did. There are simply no demonstrated grounds for the belief. I assume, as I have said, that the neighbours did act in the ways complained of. I also assume that the landlord and the managing agent did nothing, or did not try to do anything effective, to stop that conduct. Those assumed facts do not give rise to any possible inference that the landlord or the managing agent had the alleged motive or that their inaction was a deliberate attempt to compel her to vacate. The allegation of a contravention of section 229 is clearly and absolutely hopeless. It is bound to fail.
5. Section 67 of the Residential Tenancies Act provides that a landlord must take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises during the tenancy agreement. Ms A has alleged that the landlord contravened section 67 by failing to take reasonable steps to ensure that she had quiet enjoyment, and that the managing agent was involved in that contravention.
6. The neighbours' conduct affected her quiet enjoyment of the premises. To succeed, however, in a claim against the managing agent relating to a contravention of section 67 she would have to establish first that there were reasonable steps which the landlord could have taken, but did not take, to ensure her quiet enjoyment, and secondly, that the managing agent was "involved" by counselling or inducing the landlord not to take these steps, or by being "knowingly concerned" in the landlord not taking those steps, or by conspiring with the landlord and/or with the neighbours with respect to the landlord's inaction or with the neighbours' conduct. She has no hope of establishing either of those things. In view of the apparent fact that the landlord had no legal right or practical power to do anything about the neighbours' conduct, she could not possibly prove that there were reasonable steps which the landlord could have taken to ensure her quiet enjoyment. Whatever the landlord did, he could not have ensured that. The allegation that the landlord contravened section 67 is hopeless. Even if it were not hopeless, the allegation that the managing agent was "involved" within the meaning of section 159 of the Fair Trading Act (as defined by section 145) is hopeless. There is nothing that would tend to prove, or would support an inference, that the managing agent counselled, induced or conspired. The claim based upon an alleged contravention of section 67 is clearly and absolutely hopeless. It is bound to fail.
7. Section 65 of the Residential tenancies Act requires, in effect, that at the commencement of a tenancy the landlord must ensure that the rented premises are in a reasonably clean condition. Section 68(1) provides that a landlord must ensure that the rented premises are maintained in good repair. Ms A has alleged that the landlord contravened each of those sections and that the managing agent was involved in the contravention. The allegation is based upon the evidence which she could give of the unclean condition of the premises at the outset and of her coming into contact with exposed wires while cleaning the stove.
8. This time I consider that there is material which could support the assertion that the landlord contravened section 65, and that there is material from which an inference could be drawn that the landlord ought to have known about the exposed wires (by, for example, making a thorough pre-letting inspection) and by failing to rectify them contravened section 68(1). She can succeed against the managing agent, however, only if there is a tenable basis for asserting that the managing agent was "involved" in the contravention, by aiding or abetting or counselling or preventing the contravention, or by being knowingly concerned in it. The definition of "involved" in section 145 of the Fair Trading Act requires that there be proof of positive, deliberate conduct of that kind. It would not be enough for Ms A to prove, or to persuade the Tribunal to draw an inference, that the managing agent itself failed to ensure that the premises were in a clean condition or in good repair. Nothing has been put forward so far to suggest that she has any hope of proving, by fact or inference, the kind of conduct that would could amount to the managing agent having been "involved" in the relevant sense. The claim based upon involvement of the managing agent in the landlord's contravention of section 65 and/or section 68(1) is clearly and absolutely hopeless. It is bound to fail.
9. I have dealt with those parts of the case which are linked to alleged breaches of the Residential Tenancies Act. Ms A has alleged additionally, however, that the managing agent itself contravened provisions of the Fair Trading Act.
10. First, she has alleged that the managing agent engaged in unconscionable conduct, in contravention of section 8(1). Section 8(1) provides:
    • (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services of a kind ordinarily used for personal, household or domestic purposes to a purchaser, engage in conduct that is, in all the circumstances, unconscionable.
11. The allegation of unconscionable conduct is based not only on the assertion that the managing agent did nothing to try to stop the neighbours' conduct but also upon the assertion, as I understood it, that the managing agent participated in a campaign to drive her out of the premises.
12. Section 8 is not applicable in the present case because the "services" being provided by the managing agent, in trade or commerce, were not "of a kind ordinarily used for personal, household or domestic purposes" by the "purchaser". Generally, an estate agent engaged by a landlord to manage rented premises supplies services to the landlord, not the tenant. "Purchaser" is defined in section 3 of the Fair Trading Act to mean the person to whom goods or services are supplied. The services provided to the landlord were for commercial purposes (the letting of the premises), not for personal, household or domestic purposes.
13. I have said that "generally" an estate agent supplies "services" to a landlord, not to a tenant, because there may be circumstances in which a managing agent supplies services to a tenant directly. Two such circumstances emerged in the present case. There was evidence that the managing agent took it upon itself to arrange for repair of a hole in a ceiling, without getting the landlord's instructions, upon Ms A's request. That was a case of a service being supplied to her, not to the landlord. But she is not complaining about the supply of that service. On the contrary, she expressed gratitude to the managing agent for that service. There was evidence that the managing agent made available to her an electronic funds transfer facility to enable her to pay rent. Arguably by so doing it supplied "services" to her. This case, however, has nothing to do with the electronic funds transfer facility. It has to do with the managing agent's carrying out of its primary role, which was supplying services to the landlord in managing Ms A's tenancy.
14. Although section 8 is not applicable, section 8A is. I shall assume, therefore, that Ms A wants to allege a contravention of section 8A instead of, or in addition to, a contravention of section 8. So far as it is relevant, section 8A provides:
    • (1) A person must not, in trade or commerce, in connection with -
      • (a) the supply or possibly supply of goods or services to another person (other than a listed public company); or
      • (b) the acquisition or possible acquisition of goods or services from another person (other than a listed public company) -

engage in conduct that is, in all the circumstances, unconscionable.

(2) This section only applies to -

• (a) the supply or possible supply of goods of services to a person; or
• (b) the acquisition or possible acquisition of goods or services by a person -

whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce.

This section is applicable because the landlord acquired the managing agent's services for the purpose of trade or commerce, namely, for managing Ms A's tenancy.

1. Section 8A prohibits engagement in conduct that is "unconscionable" in all the circumstances. "Unconscionable" is a strong word. It means far more than "careless" or "thoughtless" or "unfair". It connotes a moral judgment. It applies only to conduct that could be regarded as highly improper or unethical. To prove that the managing agent acted unconscionably in the matter of the neighbours' behaviour, Ms A would have to establish more than that the managing agent failed to act upon her complaints. Whatever might be said about such a failure to act, it could not be said that the failure was unethical or offended conscience. If there were anything raised by Ms A that would tend to prove, or from which an inference might possibly be drawn, that the managing agent acted as it did in furtherance of a campaign to drive her out of the premises, then she would have a real prospect of establishing that there was unconscionable conduct. But nothing of that kind has been raised. She has no hope of proving the claim that the managing agent engaged in unconscionable conduct. That claim is bound to fail.
2. Ms A has alleged contraventions of the Fair Trading Act that relate to the condition of the stove and to the electric shock that she received when she came into contact with the exposed wires. She has alleged a contravention of section 33, which prohibits the supply of goods which do not comply with an applicable safety standard (described in section 34). I shall assume that Ms A would be able to prove that there was an applicable prescribed safety standard for the stove and that it was not complied with. The short answer to the claim based upon the alleged contravention of section 33 is that if anybody supplied the stove to her within the meaning of section 33 it was the landlord, not the managing agent. (This is not a conclusion that section 33 has any application to the provision by a landlord to a tenant of a stove as part of the rented premises. I doubt that it has. But I do not have to reach any conclusion on the subject.) The claim that the managing agent contravened section 33 is clearly and absolutely hopeless. It is bound to fail.
3. She has also alleged a contravention of section 19. That section prohibits the acceptance of payment for the supply of goods that are "materially different from the goods ... to which the agreement to supply related. The section has nothing to do with her allegations about the stove. There was no "agreement to supply" the stove; if there was, it was the tenancy agreement itself and it was the landlord, not the managing agent, who agreed to supply. The stove could not be said to be "materially different" from anything merely because it had a defect in it. Nobody accepted payment for a supply of the stove to her, and if anybody did it was the landlord, by virtue of the tenancy agreement, not the managing agent. The claim that the managing agent contravened section 19 is manifestly untenable, hopeless and bound to fail.
4. Ms A mentioned section 45 and alleged a contravention of it, but that section is simply a deeming provision and is not capable of being contravened.
5. So I have dealt with all claims based upon alleged contraventions of provisions either of the Fair Trading Act or of the Residential Tenancies Act. They are claims over which the Tribunal has jurisdiction pursuant to section 159 of the Residential Tenancies Act. So far as the proceeding consists of those claims, I consider that it should be dismissed summarily. I am conscious that in reaching the conclusion that it should be dismissed summarily to that extent, and in making an order to that effect, I am preventing Ms A from being able to present her claims at a full hearing. That is something which ordinarily I would be most reluctant to do to an applicant. The claims, however, are so obviously hopeless that it would be unfair to the managing agent to subject it to the expense and trouble of a full hearing.
6. The final way in which Ms A has put her case is that the managing agent owed duties of care to her in relation to the provision of quiet enjoyment and in relation to the physical condition and safety of the premises and breached those duties. I am not aware of any case which has decided that an estate agent, as distinct from a landlord, has any such duties. I do not propose, however, to attempt to decide whether Ms A has a tenable claim that such duties exist in law. For I consider that this Tribunal has no jurisdiction to hear and determine such a claim.
7. The Fair Trading Act confers two head of jurisdiction upon the Tribunal. One is the jurisdiction under section 159 to determine a claim for loss and damage caused by involvement in a contravention of a provision of the Act. I have already dealt with Ms A's various claims made under that head of jurisdiction. The other is the jurisdiction conferred by Part 9 of the Act to determine a "consumer and trader dispute", defined in section 107(1) as a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services.
8. For reasons given in paragraph 29 above, Ms A was not a purchaser of services from the managing agent and the managing agent was not a supplier of services to her. Rather, the managing agent supplied services to the landlord and the landlord was a purchaser of those services from the managing agent. A dispute between Ms A and the managing agent is not a "consumer and trader dispute". So the Tribunal has no jurisdiction under Part 9 to hear and determine it.
9. The only claims made by Ms A that the Tribunal has jurisdiction to hear and determine are those made under section 159 of the Fair Trading Act. I have concluded that those claims are clearly and absolutely hopeless, are bound to fail and ought to be dismissed. I shall dismiss them.
10. Otherwise I consider the proper order to make is that proceeding (except for the claims sought pursuant to section 159, which are dismissed) is struck out for want of jurisdiction. I shall make that order.