Aboriginal Housing Company Limited v Kaye-Engel

Preliminary Matters

1. At the commencement of the hearing on 23 February 2015 it became clear that the proceedings still suffered from procedural irregularities that had to be addressed. Whilst the defendant had filed a "Court Book" containing copies of newspaper articles, handwritten and typed notes, photographs of unclear origin, copies of judgments, etc, the material had never been served upon the plaintiff. The plaintiff had some of the material from earlier Motions and related proceedings, but was entirely unaware of many of the documents the defendant relied upon. The defendant explained the failure to serve a copy of the documents filed by the fact that she did not have "fifty bucks" for photocopying.
2. The plaintiff took no issue with the failure of the defendant to serve the material as directed and, upon being given leave to uplift the folder of documents, made an extra copy for the Court as well as making a copy for itself and the defendant.
3. The defendant made an application for leave to call oral evidence from a number of witnesses, including each of those persons she had earlier been refused leave to serve subpoenas upon, together with her daughter, Ellebana (also known as Rebecca) Bilyana, and (later) herself. The plaintiff opposed leave being granted, pointing to the defendant's many failures to file and serve evidence in accordance with the orders of the Court (as repeatedly extended), and the complete absence of any information as to why the Court's orders had not been complied with. The plaintiff observed, with some justification in my view, that the defendant had had an extended period in which to file and serve evidence in written form, in circumstances where, whilst she was unrepresented before the Court at the hearing that commenced on 23 February 2015, she had received the benefit of assistance from capable counsel over a period of some months, with that counsel drafting relevant documents on the defendant's behalf.
4. The plaintiff submitted that it would be substantially prejudiced if required to meet evidence called in support of the defence and cross-claim of which it had received no notice. Additionally, the plaintiff submitted that, on the basis of material already filed by the defendant, there was no reason to conclude that the evidence the defendant sought leave to call would be relevant and admissible, or could do anything other than needlessly extend the proceedings, with all of the additional costs that such a course would involve.
5. It was not clear from the defendant's submissions, or from such evidence as had been filed as part of the "Defendant's Court Book", what admissible evidence the proposed witnesses could give. Excepting the defendant's daughter, it appeared that Ms. Kaye-Engel had made no attempt to speak to the persons she sought to serve with subpoenas, and had no real knowledge of what evidence might be given by the proposed witnesses. She referred to one proposed witness as "neutral" whilst the rest were said to be "hostile" [3] . It was clear that the defendant sought to call evidence from these individuals on the basis of her speculation about what each would say, that being "the truth" [4] . The defendant at no stage provided any satisfactory information on that aspect of the matter.
6. The defendant was equally unable to advance any satisfactory reason for her failure to comply with the Court's orders requiring her to file and serve evidence in written form. She initially claimed that she had been unaware of the obligation to file and serve evidence. It is difficult to accept that that could be so, given the frequency with which the Court made orders and directed Ms. Kaye-Engel to file evidence, and the pro-bono assistance she had from counsel in 2014. It is noted that, whilst not currently employed, Ms. Kaye-Engel was a registered nurse, with professional qualifications and work experience. I do not accept that she did not understand the effect of the Court's orders.
7. The defendant additionally asserted that she had been ill for "six months out of the four years" that the matter had been before the Court and that her illness had adversely affected her capacity to prepare and file evidentiary material. Although there is some very general evidence in the defendant's pleadings of medical conditions from which she suffers, there is nothing which could address the issue of delay and non-compliance. The defendant's ill health could not explain the failure to file evidence within a reasonable time period, or to serve such evidence on the plaintiff.
8. Finally, the defendant relied upon what she asserted to be the unfamiliarity of indigenous persons with communication by means of writing as an explanation of the failure to file and serve evidentiary material. Nothing was advanced in support of that claim, which seemed unhelpfully sweeping, as to the individual capacity of any of the proposed witnesses, other than Ellebana Bilyana, to swear an affidavit or, indeed, as to whether any of the proposed witnesses had even been approached and asked to make an affidavit.
9. In relation to the defendant's daughter, Ms. Kaye-Engel asserted that, as her daughter was indigenous, she "didn't do written stuff" [5] and, in common with indigenous people generally, could not understand "written stuff". Since Ms. Bilyana is a university student I do not accept that she was incapable of preparing an affidavit or other written account of the evidence she could give.
10. Ms. Kaye-Engel repeatedly blamed any procedural failure on her part upon her asserted poor financial position, her ill health, and her status as an unrepresented litigant, contrasting her position in regard to the latter complaint with that of the plaintiff. Indeed, the defendant repeatedly made quite unnecessary and rather barbed comments about the number of lawyers in Court to assist the plaintiff, and the fact that counsel had assistance to find documents, whilst she did not.
11. Whilst I readily accept that it is very difficult to conduct legal proceedings in this Court, and generally, without the benefit of legal representation, I do not accept that Ms. Kaye-Engel was as helpless in that regard as she suggested. It appeared to me that her failure to even attempt to conform to the requirements of the Court was not attributable to incapacity. Indeed, during the hearing of the matter the defendant demonstrated both willingness and ability to put her case with vigour and force. She did not appear to have any difficulties in mounting an argument or protecting her interests.
12. The defendant has been repeatedly granted a significant level of indulgence for her failure to comply with the orders of the Court, indulgence that would not be granted to a litigant with the benefit of legal representation.
13. The Court has an obligation to a self-represented litigant to ensure that he or she is not disadvantaged by being self-represented: R v Zorad (1990) 19 NSWLR 91 at 94 - 95. However, that obligation extends to an obligation of fairness to all parties; the Court's duty would not be properly discharged if, in endeavouring to accommodate an unrepresented party, other considerations were ignored or overlooked, or the interests of the other party were prejudiced. "The court's concern with a fair trial is not divorced from the other considerations that the court has in the administration of justice. In particular, the concept of a fair trial is one that has regard to the interests of all parties to the suit: Hamod v State of New South Wales & Anor [2011] NSWCA 375 at [135]."
14. With no credible or reasonable explanation advanced by the defendant for the failure to file or serve evidence in compliance with the Court's orders, or to serve it at all, the defendant's task in persuading the Court to grant leave to adduce oral evidence of an uncertain nature during the hearing of the matter was a difficult one, even bearing in mind her self-represented status.
15. To grant leave to the defendant would inevitably have led to the hearing date being vacated, and the three days of Court time set aside to determine the matter would have been wasted. The plaintiff, which itself relied wholly on pro-bono assistance in these proceedings, would have been put at considerable disadvantage. It had prepared its case on the basis of material known to it (gleaned, at least in part, from material filed in relation to earlier motions), and was not prepared or able to meet a case of which it had no notice. The proceedings overall would have been again delayed, in circumstances where the matter has now been before the Court since March 2011, as at the date of the hearing, only days short of four years.
16. Where there is delay, as there has been here, and the defendant seeks leave to take a course that would lead to further delay and prejudice or disadvantage to the plaintiff, there is some reasonable expectation that the defendant will provide an adequate explanation of the delay: Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175 at 215. That did not occur here.
17. These proceedings are governed by the Civil Procedure Act 2005, and the overriding purpose of the Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s.56(1)). The conduct of this matter by the defendant has to date made it impossible for that overriding purpose to be achieved in this case. Her repeated failures to comply with the orders of the Court have directly breached the obligations placed upon her by s.56(3) of the Act and have led to the waste of substantial public resources, as well as causing prejudice to the plaintiff.
18. Having balanced the competing interests of the parties, and taken all of the matters referred to into consideration, I refused leave to the defendant to call oral evidence. The matter was dealt with on the evidence filed, supplemented with some oral evidence adduced in the plaintiff's case from Violani Tuitavake, who was made available for cross-examination, at the request of the defendant.

Jurisdiction to Determine the Claim and Cross-Claim

1. This issue was considered by Davies J on 30 May 2014 and is only touched upon briefly here.
2. The relief initially sought in this Court by the plaintiff was for possession of the Newtown premises and payment by the defendant of rental arrears, with interest.
3. As noted by Davies J in Aboriginal Housing Company Limited v Kaye-Engel (No. 3) [2014] NSWSC 718, this Court has no jurisdiction to determine the matters as originally cast.
4. There is no dispute between the parties that the defendant and her husband occupied the Newtown premises as tenants of the plaintiff, the defendant's husband having signed a lease (now lost) at around the time of occupation. The Residential Tenancies Act 2010 (preceded by comparable legislation from 1987) governs rental tenancies: s.6. Section 119 of the Act prohibits a landlord or former landlord from commencing proceedings against a tenant or former tenant in this Court (or the District or Local Courts). The Civil and Administrative Tribunal (as it now is) has jurisdiction to hear and determine disputes about the termination of a tenancy.
5. Laing and Simmons, duly appointed agents for the AHC, served a termination notice on the defendant on 3 February 2011. On 14 March 2011 the AHC commenced action in the CTTT against the defendant. On 21 March 2011 the defendant filed her own claim, with this Court. The CTTT thereafter ordered the transfer of the proceedings before it to this Court, pursuant to s.23 of the Consumer, Trader and Tenancy Tribunal Act 2001 ("the CTTT Act").
6. Section 23(1) provides, (1) If the parties in any Tribunal proceedings so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are: (a) to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and (b) to continue before that court as if they had been instituted there.
7. Whilst the Tribunal could have made orders with respect to the termination of the tenancy pursuant to s.81 of the CTTT Act, it could not make monetary orders in the quantum sought by both sides respectively, the amounts in either case being in excess of $15,000:s.85(3) CTTT Act.
8. It appears to have been the action commenced by the defendant in this Court (in Equity) which prompted the Tribunal to transfer the CTTT proceedings to this Court. Both parties thereafter agreed that this Court should hear the matter and make all relevant orders that are within its power to make. This consent appears to have been given from a wish to have the matters heard as efficiently as possible, in an unfragmented way.
9. Having regard to the ruling of Davies J as to jurisdiction, the parties to these proceedings agreed that this Court should determine such matters as are within its jurisdiction, but otherwise make declarations relevant to the termination of the tenancy and the question of possession of the Newtown premises, with a view to the parties entering consent orders in the Civil and Administrative Tribunal consistent with this Court's declarations.
10. Subsequently, the AHC submitted that the Court should make findings relevant to the issues in dispute, and then invite submissions as to the orders that should be made.
11. The defendant took no issue with that proposal.

The Evidence

1. The plaintiff read and relied upon affidavits of its General Manager, Violani Tuitavake, of 31 October 2013, and of Jerome Liaker, Property Manager at Laing and Simmons Real Estate Agents at Newtown, of 16 February 2015. A quantity of documentary evidence was annexed to each affidavit.
2. Additionally, Ms. Tuitavake was called in the plaintiff's case so that she might be made available for cross-examination by the defendant.
3. The plaintiff's evidence established that a residential tenancy agreement existed between the AHC and the defendant's late husband, with the defendant continuing in occupation of the premises after her husband's death.
4. Having breached a number of orders of the Court for filing and service in documentary form of all evidence to be relied upon by her, the defendant ultimately filed a "Court Book" on 12 February 2013. She did not serve a copy of any of the material contained within the Court Book, and it was ultimately necessary for the plaintiff to uplift the material from the Court's file, with the Court's leave, and make a copy for itself.
5. As a consequence of the defendant's dilatoriness the plaintiff had no notice of the material that the defendant sought to rely upon in support of her defence and cross-claim, seeing it for the first time at the hearing of the matter. The admissibility of much of the material the defendant filed was disputed by the plaintiff, and it was admitted provisionally only, with admissibility to be determined at the time of judgment.
6. A schedule of the material and a ruling as to the admissibility of the material is annexed to this judgment. It is derived from a schedule of documents helpfully prepared by the plaintiff for the assistance of the Court and the parties.

The Plaintiff's evidence

1. As mentioned above, the plaintiff's affidavits of Violani Tuitavake and Jerome Liaker provide a substantial quantity of documentary evidence.

Evidence of Violani Tuitavake

1. Ms Tuitavake deposed that the AHC is the registered proprietor of the property referred to in folio identifiers 1/744991 and 1/106998 and known as 16 Pearl St Newtown. She provided the title searches of the property as at 23 October 2013.
2. The property was first leased by AHC to Yabu Bilyana on 24 June 1987 as evidenced in the Tenant's Ledger held by AHC records. He died in 1998. At or about the time he was in a de facto relationship with the defendant and they had two children together.
3. Despite a dedicated search to find the original lease, Ms Tuitavake told the Court that the lease was unable to be located. She did, however, provide several Residential Leases entered into during the period of 1982 and 1989, likely to be directly comparable to the lease between the AHC and the defendant's late husband.
4. Following Mr Bilyana's death, Ms Tuitavake gave evidence of an occasion when Ms Kaye-Engel attended the AHC office and spoke to Michael Mundine, the Chief Executive Officer of the AHC. After this meeting, Ms Tuitavake spoke with Mr. Mundine. She deposed that the following conversation was had. "Mundine: Natalie came in to talk about the lease because her husband died recently. I told her she could stay in the property on the same terms as the current lease until her kids are old enough to sign a new lease. Tuitavake: Why would the kids have to sign a new lease? Mundine: Because they're Aboriginal but Natalie isn't. I told her that the only reason she can stay is because of the kids. Tuitavake: Okay, so I'll just send the rent notices to Natalie then? Mundine: Yes."
5. Following this conversation, Ms Tuitavake sent all correspondence concerning the existing lease of the property to the defendant. A subsequent lease was not entered into between the two parties as the defendant did not meet AHC's eligibility criteria. The defendant has continued to live in the property since Mr Bilyana's death, other than for a time in 2004 when she was relocated to another AHC property whilst renovations were being conducted on the Newtown premises (referred to below).
6. Before proceedings began in the Supreme Court, namely proceedings number 2011/90824, the defendant had paid rent in a "semi-regular" fashion and never disputed her liability to pay rent for the property.
7. On 17 January 2002 the defendant sent Ms Tuitavake a Statutory Declaration by facsimile from London. The document details that the defendant had become aware that the rent payable on the Newtown premises was in arrears. She noted that she was seeking to rectify that issue.
8. On 3 September 2004 the defendant sent a letter to Ms Tuitavake regarding rent being in arrears.
9. On 10 March 2005 AHC sent a letter to the defendant following a decision of the AHC board to appoint private property managers for the AHC's rental properties. No new lease was entered into between the plaintiff and the defendant.
10. In 2008, Laing and Simmons Redfern became the property managers for the AHC and were responsible for collecting rent from the defendant on behalf of the AHC.
11. Between 25 February 2008 and 15 November 2010, Laing and Simmons Redfern, on instructions from the AHC, notified the defendant of rent increases from the initial $120 per week to $220 per week.
12. On 21 December 2010 the AHC sent a letter to the defendant stating that the property was to be placed on the open market for sale. The Board of the AHC gave the defendant the first option to purchase the property at a discounted price of market value less ten per cent. Ms Tuitavake deposed that that was the only occasion on which AHC had offered to sell the property to the defendant.
13. In late January 2011, Ms Tuitavake instructed Lang and Simmons Redfern to terminate the lease of the property and a Notice to Terminate Tenancy Agreement dated 3 February 2011 was sent to the defendant. At this date, the defendant's rent was in arrears to the amount of $2,549.49.
14. Between 16 February 2011 and 4 December 2012, the defendant did not make any rental payments in respect of the property. As at 4 December 2012, the defendant owed rental arrears for the property in the sum of $22,919.59.
15. In her second affidavit, dated 30 January 2015, Ms Tuitavake details the usual practice regarding the management of AHC properties and the work carried out on the Newtown property in 2004 and 2010.
16. In 2002, the NSW Aboriginal Housing Office (AHO) inspected the property and estimated the costs of repairs and maintenance to be approximately $38,170.00. The AHC was given a funding grant by the AHO to carry out repairs and Resitech Residential Technologies Australia was contracted to perform these repairs and maintenance to the property.
17. The renovations commenced in 2004 and included a new bathroom, new kitchen and work done to the backyard. During the renovation the defendant was relocated to another three bedroom AHC property in Summer Hill until the works were complete. The actual cost of the upgrade was $81,691 as stated in Resitech's status report, part of the evidence before the Court.
18. Between 2008 and 2009, the adjoining property at 18 Pearl St Newtown was renovated and the defendant complained of mildew appearing on the walls of the Newtown premises. The agent was instructed by Ms Tuitavake to obtain a quote for any necessary remediation. After receiving the quote, Ms Tuitavake inspected the property and noticed that the defendant had made alterations to the property, including drilling holes in the lounge room ceiling to hang pot plants.
19. In 2010, Resitech conducted these further repairs and maintenance on the property. The costs of these works was approximately $10,686.
20. Following the completion of these works in 2010, the defendant has not made a further complaint about mildew at the property.

Evidence of Jerome Liaker

1. Jerome Liaker is the property manager at Laing and Simmons Newtown and swore an affidavit on 16 February 2015 on the agency's behalf. Laing and Simmons were engaged by the AHC in or around January 2005 to act as agent for a number of properties owned by the AHC, including the property at 16 Pearl Street, Newtown. As agent, Laing and Simmons is responsible for managing the AHC's properties, including providing monthly rental statements to the AHC, and taking any action to enforce or terminate tenancy agreements, effecting repairs and maintenance.
2. Ms Kaye-Engel is the current tenant of the property. Annexed to the affidavit of Mr Liaker are copies of the tenant trust ledger report for the property for the periods from 24 March 2006 to 14 February 2013 and from 1 March 2013 to 16 February 2015. The tenant trust ledger reports record the date on which Ms Kaye-Engel made rental payments to the AHC and any notations made in the ledger. For example, there is a record that on 11 February 2010 an arrears letter was sent to Ms Kaye-Engel.
3. The trust ledger report also records the value of the rental payments made on each of the payment dates. Another column of the report records the weekly rental rate effective at the time the rent was incurred. Where any arrears of rent exist, any rental payment would first be applied to rent in arrears before payments are applied to future rent. Therefore, if there was a rent increase but there were rental arrears, the weekly rental rate for a payment would be the rate which applied when the rent was incurred, rather than the current weekly rate at the time.
4. The tenth column in the report records the date up to which rent has been paid. For example, on 20 January 2011 Ms Kaye-Engel made a payment of $60. The weekly rental rate at that time was $200 per week. After this payment Ms Kaye-Engel had paid rent up to 2 November 2010.
5. The tenancy ledgers show that Ms Kaye-Engel has irregularly made rental payments to the AHC either by direct deposit or by cheque and that she has been in arrears since 30 June 2010.
6. From 4 December 2012, Ms Kaye-Engel commenced paying an occupation fee of $260 per fortnight, pursuant to orders made by Hallen J on 21 November 2012. This was paid to Laing and Simmons on 26 February 2013, 12 March 2013 and 26 March 2013. Ms Kaye-Engel did not pay an occupation fee between 20 June 2013 and 12 June 2014.
7. From 13 June 2014 [recorded erroneously in the documents as 13 June 2010], the defendant re-commenced paying an occupation fee of $260 per fortnight pursuant to orders made by Justice Hallen on 30 May 2014.
8. Annexed to the affidavit is a copy of the tenant status report for the property as at 16 February 2015. As at this date Ms Kaye-Engel's total arrears in rent was $39,639.59

The Defendant's Evidence

1. The material relied upon by the defendant consisted, in large part, of a quantity of documents of no apparent relevance to the defence or to the cross-claim. Much of it related to matters that might be collectively summarised as relating to political and ideological debates within the indigenous community and, in particular, to debates as to the function of the AHC within that community.
2. In relation to the defendant's contention that the AHC failed to maintain the Newtown premises in a habitable state, it was pleaded that there were holes in the flooring of the premises, it was damp and affected by "toxic black mould", electrical wiring was dangerous, locks to secure the premises were inadequate, and the plumbing was in poor repair. The defendant pleaded that she and her late husband had borne the cost of necessary repairs over the years, although no evidence was led to substantiate the defendant's assertions in that regard.
3. Many of the deficiencies in the maintenance of the property asserted by the defendant arose in the late nineteen nineties or the early years of the following decade. The remoteness in time of matters pleaded is an issue in the proceedings.
4. A significant portion of the defendant's cross-claim ([74] - [97] of that document) raised assertions and allegations concerning matters of politics within the indigenous community and the role therein of the Mundine family. This material consisted principally of assertions of beliefs said to be held by the defendant about matters connected with Mr. Mundine, the Chief Executive Officer of the AHC. No evidence was placed before the Court to support the assertions of belief.
5. The plaintiff sought to have these paragraphs of the pleadings struck out pursuant to UCPR 14.28.
6. It is not intended to set out any of the particular allegations made by the defendant against Mr. Mundine. No evidence was led to establish even a reasonable possibility that the things alleged in fact occurred, and much of what was alleged by the defendant seemed to be fanciful at best, but more properly, scandalous allegations of serious criminal conduct unsupported by any evidence.

What are the Issues in Dispute?

1. At issue between the parties are the following matters. 1. Whether the defendant was in arrears for rental payments on the property for a period in excess of fourteen days as at 3 February 2011. 2. Whether the notice terminating the residential tenancy served by the AHC (via its agent) on the defendant on 3 November 2011 is valid. 3. Whether the AHC was entitled to increase the rent payable on the Newtown property, as it purported to do in February 2008, January and June 2009, July 2010 and November 2010. 4. Whether the AHC complied with its obligations as landlord to keep the Newtown premises in a reasonable state of repair, and to provide sufficient locks such that the premises could be reasonably secured. 5. Whether there was unconscionable conduct by the AHC such that loss or damage was sustained by the defendant.

The Issue of Rent, its Increase and Alleged Non-payment

1. The parties agree that the defendant's late husband leased the Newtown premises from the AHC in 1987 with a lease executed between him and the AHC. Neither the ACH nor the defendant is able to tender a copy of the lease, all such copies evidently being lost.
2. In the absence of any specific documentary lease instrument, the parties accept that the relationship between them is one of landlord and tenant within the meaning of the Residential Tenancies Act 1987 ("the 1987 Act"), the (now repealed) statute which governed entry into the lease. The relationship between the parties continues to be governed by statute, the Residential Tenancies Act 2010 ("the 2010 Act") being the successor legislation to the 1987 Act.
3. The parties also agree that, in 2004 or thereabouts, the AHC increased the rent payable for the Newtown premises from $85 per week to $120 per week. The defendant accepts the validity of that increase and paid rent at the increased amount for a period thereafter.
4. Evidence adduced by the AHC from its (now) General Manager, Ms. Violani Tuitavake, established that the AHC notified the defendant of a number of further increases to the rent payable for the premises. Those increases were: 1. An increase from $120 to $140 per week in February 2008; 2. An increase from $140 to $160 per week in January 2009; 3. An increase from $160 to $180 per week in June 2009; 4. An increase from $180 to $200 per week in July 2010; and 5. An increase from $200 to $220 per week in November 2010.
5. In the period February 2008 to November 2010 the relevant legislation was the 1987 Act. Section 45 of the 1987 Act provides for increases in rent payable. "45 Increase of rent (1) The rent payable by a tenant under a residential tenancy agreement shall not be increased except by notice in writing given to the tenant specifying the amount of the increased rent and the day from which the increased rent is payable. (2) A day specified as the day from which increased rent is payable shall not be earlier than 60 days after the day on which notice of the increase was given under this section. (2A) A notice given under this section may be cancelled by a later notice or a later notice may provide for a lesser increase than that specified in the earlier notice. (2B) A later notice has effect instead of the earlier notice and takes effect from the date on which the earlier notice was to take effect. (3) A notice of increase of rent given in accordance with this section (and not cancelled by a later notice or affected by any order of the Tribunal) varies the residential tenancy agreement so that the increased rent specified in the notice is payable under the agreement from the day specified in the notice. (4) The rent payable by a tenant under a residential tenancy agreement that creates a tenancy for a fixed term shall not be increased during the currency of the term unless the amount of the increase, or a method for calculating the amount of the increase, is set out in the agreement. (5) A rent increase (including a rent increase permitted under subsection (4) or provided for in any other residential tenancy agreement) is not payable by a tenant under a residential tenancy agreement unless the rent is increased in accordance with this section or by an order of the Tribunal. (6) A landlord shall not contravene or fail to comply with this section."
6. In effect, s.45 required the AHC to give the defendant notice in writing 60 days in advance of the proposed increased to the rent, specifying the amount payable and the date on which the increase was to take effect.
7. Documentary evidence was before the Court of notice given to the defendant of the proposed rent increases. The notices complied with the statutory requirements and the defendant acknowledged in her Defence that she had received written notice from the AHC in advance of each rental increase. The obligations imposed upon the landlord by s.45 of the 1987 Act were therefore met.
8. Prima facie, the AHC was entitled to increase the rent payable by the defendant, and it complied with the statutory requirements in that regard.
9. The 1987 Act provided a mechanism by which the defendant could have made a complaint concerning the increases made by the landlord to the rent, and sought a declaration that the increases or any one of them were excessive.
10. Section 46 of the 1987 Act provides that, "46 Tenant may apply for an order that a rent increase is excessive A tenant under a residential tenancy agreement may apply to the Tribunal for an order declaring that a rent increase is excessive not later than 30 days: (a) after being given notice of the rent increase, or (b) after being given notice of a rent increase payable under a proposed residential tenancy agreement for residential premises already occupied by the tenant."
11. The defendant did not at any stage seek a declaration as to the excessiveness of any of the rent increases of which she received valid notice.
12. Had she done so, there is no evidence to establish that the defendant would have, or was likely to have been, successful in seeking a s.46 declaration.
13. Section 48 of the 1987 Act provides for matters to which the CTTT can have regard in considering a rent increase. "48 Matters to be considered in determining rent applications The Tribunal may, in determining whether or not a rent increase or rent payable under a residential tenancy agreement or a proposed residential tenancy agreement for residential premises is excessive, have regard to the general market level of rents for comparable premises (other than premises let by a government department, administrative office or public authority) in the locality or a similar locality and may also have regard to: (a) the value of the residential premises, (b) the amount of any outgoings in respect of the residential premises required to be borne by the landlord under the residential tenancy agreement or proposed agreement, (c) the estimated cost of any services provided by the landlord or the tenant under the residential tenancy agreement or proposed agreement, (d) the value and nature of any fittings, appliances or other goods, services or facilities provided with the residential premises, (e) the accommodation and amenities provided in the residential premises and the state of repair and general condition of the premises, (f) any work done to the premises by or on behalf of the tenant, to which the landlord has consented, and (g) any other relevant matter."
14. Other than some limited evidence as to the alleged state of repair of the premises from time to time there is no evidence which would allow the Court to conclude that the rent increases of which the defendant was given notice were excessive.
15. The fact that the defendant made no complaint about excessive rent increases contemporaneously and, indeed, failed to make any complaint at all until after the AHC commenced action to terminate her tenancy of the Newtown premises, is at least suggestive of a conclusion by her that the rent increases were not excessive.
16. There is a further issue relevant to the rent increases, that of the asserted failure of the AHC to maintain the premises in a habitable condition. The defendant contends that, because the premises were not adequately maintained by the landlord, there was no basis upon which rental increases could be levied and, accordingly, the increases were unreasonable and excessive. This aspect of the matter will be addressed below when considering the alleged failure of the AHC to provide to the defendant a premises in habitable condition.

The Purported failure of the AHC to Maintain the Premises

1. The defendant contends that the increases to the rent were invalid notwithstanding compliance by the AHC with statutory requirements for notice, by reason of the condition of the premises in the relevant period. She claims that the AHC failed to secure and maintain the premises, such that they were not fit for habitation, and any purported increase in rent was thereby unreasonable and excessive.
2. In support of her contention that the property was neither maintained nor secured by the landlord, the defendant sought to tender photographs and a digital recording which she said depicted the state of the premises at the relevant time. There was an issue as to the admissibility of the material, given that it had never been filed or served on the AHC, and there was no evidence as to when the images were obtained, or even of what was shown in them.
3. Even inferring that the interior of a building depicted in the images was the interior of the Newtown premises - an inference that I am prepared to draw in light of the defendant's status as a self-represented litigant - neither the photographs nor the footage showed anything which was capable of establishing that the plaintiff had breached its obligations to maintain the premises in a secure and habitable condition, or that the premises was not habitable because of some failure on the plaintiff's part.
4. Commentary in the digital footage, apparently from the defendant, made repeated reference to "toxic black mould" in the premises, but there was no satisfactory evidence that mould was present anywhere in the premises during the period 2008 to 2010, much less that any such mould, if it existed, was "toxic". Visible areas of discolouration to paintwork discernible in the photographs and footage were relatively limited.
5. In her evidence, Ms. Tuitavake conceded that some of the photographs tendered by the defendant showed mould on the walls of a house, but she was not able to state that the premises depicted was one owned by the AHC.
6. The only evidence before the Court as to mould in the Newtown premises was that tendered by the plaintiff of the work carried out to address a complaint of "mildew", and of some further work carried out on the landlord's behalf, referred to as "bleed and seal" completed in 2010. Ms. Tuitavake gave evidence that she was aware of work done at the premises that she thought may have related to mitigation of mould. A sum of $389 was paid to the company that carried out the work. See generally T85 --T91.
7. There was also evidence from Ms. Tuitavake of other repair and renovation work carried out on the premises, and overseen by Resitech. The work was carried out to bring the property "up to standard" (T90:44), after which the management of the tenancy was taken over by Laing and Simmons Real Estate Agency at Newtown. There was evidence adduced by the plaintiff of the detail of that work and the cost of it to the AHC.
8. That evidence appears to indicate that considerable funds were expended by the landlord from time to time to keep the premises in an adequate state of repair.
9. The defendant raised in cross-examination an issue about damage to the roof of the Newtown premises caused by a destructive storm in 2000. Ms. Tuitavake deposed that the storm damage was referred to the AHC's insurer, and repairs and payment for them were left to the insurer. She was unable to say how long it had taken for the repairs to be effected. Events in 2000 appear to be outside the scope of the actions before the Court and, in any event, could not be relevant to the state of the premises in 2008 - 2011.
10. Similarly, the defendant cross-examined Ms. Tuitavake about deficient electrical wiring in the premises which she suggested she and her husband had repaired at their own expense in 1996. Some action was subsequently taken by the AHC in the "Tribunal" (presumably the Residential Tenancies Tribunal or the CTTT), and Ms. Tuitavake conceded that the AHC had "lost" the case (T93:22). The recollection of the witness was that the action before the Tribunal related to a stove rather than to deficiencies in electrical wiring. There is no evidence of deficient or dangerous electrical wiring.
11. Matters resolved by legal action in 1996 also appear to be outside of the scope of the matters to be determined by this Court, and well outside the time frame to which the Court can have regard: s14(1)(a) Limitation Act 1969.
12. Whilst I would admit the evidence of the photographs over the plainitff's objections, I refused to admit evidence of the digital recording. The probative value of the photographs was very limited in the absence of any evidence as to when and where the photographs were taken; that of the recording is negligible.
13. The evidence is not capable of establishing that the premises was poorly maintained in breach of the AHC's obligations, or that the premises was not habitable such that any rent increase was excessive or unreasonable, or should have abated altogether.
14. Further, the evidence adduced by the defendant was incapable of establishing that any inadequacy in the state of the premises was the fault of the AHC. Section 26 of the 1987 Act imposed obligations upon tenants in relation to maintaining rental premises in a reasonable state of cleanliness, and to notify the landlord of necessary repairs. There is at least some evidence from Ms. Tuitavake that the defendant did not comply with this statutory obligation, at least in relation to a stove on the premises.
15. The evidence fails to establish any deficiency in the maintenance of the premises by the AHC such that the premises were not fit for occupation, or so as to give rise to a conclusion that, had an objection been made by the defendant to the rent increases within the period specified by law, the increases would have been declared to be excessive.
16. Neither is there any evidence before the Court to permit the Court to conclude that the defendant suffered loss or damage as a result of the purported failure by the AHC to maintain the premises in discharge of its contractual and statutory obligations.

The Termination of the Tenancy

1. The evidence of the AHC's General Manager is that the defendant fell into arrears in payment of rent due and, by 3 February 2011 she was in arrears well in excess of the period of fourteen days, and in an amount of $2,549.49. On that date a notice was served on the defendant terminating the residential tenancy, effective on 25 February 2011, because of non-payment of rent.
2. The termination notice was served in accordance with the provisions of s.88 of the 2010 Act, it being then in force. "88 Termination notices for non-payment of rent (1) A termination notice given by a landlord on the ground of a breach of the residential tenancy agreement solely arising from failure to pay rent (a non-payment termination notice) has no effect unless the rent has remained unpaid in breach of the agreement for not less than 14 days before the notice is given. (2) A non-payment termination notice is not ineffective merely because of any failure of the landlord or the landlord's agent to make a prior formal demand for payment of the rent. (3) A non-payment termination notice must inform the tenant that the tenant is not required to vacate the residential premises if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord, unless the Tribunal makes a termination order on the basis that the tenant has frequently failed to pay rent on time. (4) Despite any other provision of this Part, a landlord may apply to the Tribunal for a termination order before the termination date specified in a non-payment termination notice. The Tribunal must not consider any such application until after the termination date."
3. On Ms. Tuitavake's evidence the notice complied with the statutory requirements and was prima facie valid.
4. After being served with the notice the defendant made a rental payment of $250. After the date of that payment, 16 February 2011, the defendant made no rental payments at all to the AHC until she was ordered on 4 December 2012 by Hallen J to pay an occupation fee to the landlord. She has, however, continued to occupy the property throughout, with the consequence to the AHC that the property has been unavailable to the AHC to lease to a rent paying tenant, or to rent the premises to an indigenous tenant, consistent with the company's objectives.
5. As at 16 February 2015 the defendant was in rental arrears in the sum of $39,639.59.
6. The evidence establishes that the defendant was served with a valid notice terminating her tenancy of the Newtown premises. She remained in occupation of the property contrary to the termination of the lease by the landlord.

The Claimed Unconscionable Conduct by the AHC

1. The defendant asserts that she has been the victim of the AHC's unconscionable conduct contrary to s.21 of Schedule 2 of the Trade Practices Amendment (Australian Consumer Law) Act No. 2 2010 ("the ACT Act"). That section provides, "21 Unconscionable conduct (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable. Note: A pecuniary penalty may be imposed for a contravention of this subsection. (2) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (the consumer), the court may have regard to: (a) the relative strengths of the bargaining positions of the supplier and the consumer; and (b) whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and (c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and (e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the supplier. (3) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to a person by reason only that the person institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration. (4) For the purpose of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person: (a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and (b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section. (5) A reference in this section to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption. (6) A reference in this section to the supply or possible supply of goods does not include a reference to the supply or possible supply of goods for the purpose of re‑supply or for the purpose of using them up or transforming them in trade or commerce. (7) Section 4 applies for the purposes of this section in the same way as it applies for the purposes of Division 1 of Part 3‑1."
2. Part of her claim in that regard relies upon the matters asserted by her in relation to the purported failure by the AHC to adequately maintain the Newtown premises. I have already concluded that there is no evidence capable of establishing that any such breaches of the landlord's obligations to maintain the premises in a state fit for occupation in fact occurred.
3. Other parts of the complaint as to unconscionable conduct relate to events which appear to fall well outside the statutory limitation imposed by the ACT Act: s236(2).
4. Much of the balance of the claim as to unconscionable conduct is to be found in the impugned section of the defendant's cross-claim, that is, in paragraphs [74] - [97] of the Statement of Claim.
5. The onus is on the defendant to establish the matters therein asserted.
6. The plaintiff (and cross-defendant) contends that the matters raised in that part of the claim should be struck out pursuant to r14.28 of the Uniform Civil Procedure Rules.
7. The relevant provision is in these terms: "14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
8. By this part of her claim the defendant asserts that she is a vulnerable person by virtue of her ill health and (in the particular circumstances of this matter) her non-Aboriginality, and that her particular vulnerability has been exploited by the AHC. The defendant additionally asserts that the Chief Executive Officer of the AHC, Mr. Mundine, and members of his family or his associates have engaged in serious criminal conduct directed at harming the defendant, her family, and the defendant's interests, and that she has thereby suffered damages and loss.
9. No evidence in support of any of these claims has been advanced by the defendant.
10. The defendant sought to issue a subpoena to Mr. Mundine because, she contended, if he came to Court to give evidence he would acknowledge the criminal conduct the defendant alleged against him. As noted above, neither Davies J nor I were prepared to permit the defendant to issue a subpoena to Mr. Mundine and, for my part, I do not regard it as reasonably possible that Mr. Mundine's attendance as a witness would have led to testimony by him of the sort foreshadowed by the defendant.
11. I am conscious that, if the Court strikes out a party's claim or part of it the claimant may be denied the opportunity to have the claim fully litigated and determined. However, the defendant has been given the benefit of an extended period in which to assemble in documentary form the evidence upon which she sought to rely, and place it before the Court. She also had the significant advantage of considerable assistance from very experienced counsel through the pro bono scheme. Despite that, the defendant failed to adduce any evidence at all supportive of her allegations against Mr. Mundine.
12. Even evidence which it is reasonable to infer the defendant should have been able to readily secure and place before the Court was not adduced. For example, although it should have been a straightforward matter for the defendant to obtain at least some evidence from her son as to those matters alleged in [83b], [83c], and [85b] of the Claim, no evidence from the defendant's son was before the Court.
13. Although the defendant sought to assert that her now adult children still live or stay from time to time at the Newtown premises, there was no evidence of even that assertion. Indeed, the only involvement of the defendant's son or daughter of which there is clear evidence was a brief attendance by the defendant's daughter in the courtroom on 24 February 2015 (T113:36).
14. The defendant sought to explain the absence of any evidence from her children of matters which should have been within the knowledge of each by reference to their aboriginality, asserting that indigenous people were not culturally disposed to create or use written documents (T13). I do not accept that assertion as a credible explanation for the absence of affidavit evidence from the defendant's children.
15. Indeed, her persistence in endeavouring to pursue and air serious allegations against Mr. Mundine, in support of which she was not able to adduce any evidence, was troubling. Although the defendant disavowed having any grudge against Mr. Mundine, or pursuing a vendetta against him, she referred on more than one occasion to him "getting karma" (T8:12 - 8:27 for example), or being a "criminal" (T21:30).
16. In light of the absence of any evidence to support the allegations raised by the defendant at [74] to [97] of her claim, and the largely scandalous nature of the matters alleged, I have concluded that it is appropriate to strike out those paragraphs of the defendant's claim, pursuant to r14.28. The material does not disclose a reasonable cause of action or defence and, to the extent that no evidence has been led to substantiate the allegations made, the material has a tendency to cause prejudice, embarrassment or to delay to the proceedings.
17. The defendant's claims of unconscionable conduct by the AHC do not withstand scrutiny and have not been made out.

Conclusions of Facts Found by the Court

1. Having considered all of the evidence of the parties, both written and oral, and taking into account the submissions of the parties, the Court makes the following findings of fact. 1. As at 3 February 2011 the defendant was in arrears for rent payable in respect of the property situated at 16 Pearl Street Newtown in New South Wales, comprising folio identifiers 1/744991 and 1/106998, for a period in excess of fourteen days. 2. The Notice of Termination served by the plaintiff on the defendant on 3 February 2011 was a valid notice with full legal effect. 3. On the expiration of the Notice of Termination, that being 25 February 2011, the defendant failed to give vacant possession of the property to the landlord, as she was obliged by law to do. 4. The defendant continues to be in arrears of rent owed to the plaintiff, and is liable for payment of all outstanding rental arrears to the plaintiff, together with interest on the unpaid monies pursuant to s.100 of the Civil Procedure Act 2005.

orders

1. Consistent with the approach suggested by the plaintiff and adopted by the defendant, I do not propose to make full and final orders without hearing further submissions from the parties.
2. The orders I can and do make are these: 1. Paragraphs 74 to 97 of the statement of cross-claim filed by the defendant on 17 April 2014 are struck out pursuant to r.14.28 of the Uniform Civil Procedure Rules. 2. The statement of cross-claim filed by the defendant on 17 April 2014 is dismissed. 3. The plaintiff is directed to file and serve any submissions directed to any further orders it seeks by close of business on 4 September 2015. 4. The defendant is directed to file and serve any submissions in reply by close of business on 18 September 2015. 5. The Court will make final orders on the papers. 6. Liberty to the parties to restore the matter within 7 days

Schedule - Evidence and Admissibility (288 KB, pdf)

Endnotes

1. Proceedings reference: SH 11/16092
2. Proceedings reference: SH 11/13265
3. T7:46 of 23.2.2015
4. T7: 47 of 23.2.2015
5. T13:08, 23.2.2015

Amendments 20 October 2015 - (No 6) Added to case title. 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: 20 October 2015