[2005] VCAT 2709

1. The Tribunal declares that the amount which the applicant was liable to pay under the invoice from the first named interested party in respect of a period between 1 October 2004 and 14 December 2004 was $53.29.

2. The Tribunal declares that the amount which the applicant is liable to pay under the invoice from the second named interested party in respect of a period between 14 December 2004 and 23 February 2005 is $63.42.

(a) "the rented premises" or "apartment 404" means the premises at 404/60 Siddeley Street Docklands which are part of a residential apartment building known as Flinders Wharf;

(b) "Energy Plus" means the first named interested party. Energy Plus (Australia) Pty. Ltd., which was joined as an interested party in this proceeding by an order of the Tribunal dated 11 May 2005;

(c) "the body corporate," unless the context shows that I am speaking of a body corporate in general terms, means Body Corporate PS 48830H, which was also joined as an interested party in this proceeding by the order dated 11 May 2005;

(d) "the Winter case" means Winter and Woodley v Buttigieg and Others [2004] VCAT 2430 decided by me on 10 December 2004; and

(e) references to sections are references to sections in the Residential Tenancies Act 1997 unless I state otherwise or the context shows that another Act is meant.

2. This case, like the Winter case, deals with the issue of what liability a tenant has to pay for utility services (in particular, cold water and gas-heated hot water) supplied to residential premises which are a strata-title unit in a block of apartments, when each unit in the block is separately metered for water supplied to the unit but is not separately metered for other utilities supplied to the unit. A body corporate, created when a plan of subdivision for the strata title units was registered and whose members are the unit owners from time to time, is responsible for the common property. Each utility supplier bills the body corporate for the supply to the whole block of apartments. (Under s24 of the Water Industry Act 1994 a body corporate is liable to pay any water usage charge or sewage disposal charge by a licensee-supplier in respect of the land affected by the body corporate or in respect of the common property.) The body corporate attempts to recoup from the occupiers of the units what it has to pay to the supplier. Where the occupier is a tenant, the ability of the body corporate to do this comes into question, because the scheme of the Residential Tenancies Act is to impose liability on a tenant for utility usage charges only when the premises are separately metered to measure the usage of that utility and to impose liability on the landlord whenever the premises are not so separately metered.

3. In the Winter case I decided that the tenants were liable for the charges made for the usage of cold water, the supply of cold water having been separately metered. As to the charges for hot water, I decided that the tenants were liable for so much of those charges as could be related to the measurements of water supplied and used (the supply of that water having been separately metered) but were not liable for the balance of the charges for hot water that were related to the supply of the heating medium (gas) because there was no separate meter for the supply of that medium to the unit. I decided that it followed that the body corporate was able to recoup from the tenants only those charges for which they were so liable. I also decided that the tenants were not liable to pay a "service charge" which either the body corporate or its contractor Energy Plus had purported to impose on them.

4. While there are many similarities between the present case and the Winter case, there is one very significant difference. The tenant in the present case has signed a document which, the body corporate argues, amounts to a contract by him, with a person other than the landlords, to pay for all charges for utility services used by him upon receiving an invoice for properly calculated charges. There was no such document in the Winter case. The body corporate argues that that contract is unaffected by the provisions of the Residential Tenancies Act and binds the tenant to pay those charges. The tenant argues that, notwithstanding that document, the situation remains the same as in the Winter case and that, because of the operation of the Residential Tenancies Act and by application of the reasoning in the Winter case, the present case should be decided is the same way as the Winter case was decided.

5. The applicant Paul Chen, who in documents that he signed is named as Jiun Chen, is the tenant of the rented premises. The owners of the rented premises are the respondent landlords, Bernard Joseph Mulholland and Jennifer Margaret Mulholland. Their leasing agent is Butler and Company Estate Agents.

6. The body corporate in this case is responsible for the common property at Flinders Wharf. The respondent landlords are members of the body corporate. The body corporate manager is Vand Corp Pty. Ltd. The manager is not a party to the proceeding.

7. Energy Plus is a company which conducts a business of providing certain management assistance for residential apartment buildings like Flinders Wharf. The management assistance is the reading of meters installed for the measure of utilities, particularly water, consumed by occupiers of apartments and the preparation and rendering of invoices to the occupiers claiming payment for consumption of the utilities. The evidence in this case, in a witness statement by Ron Vandenberg of Vand Corp Pty. Ltd., was that the body corporate "uses" Energy Plus to read the hot and cold water meters for each apartment at Flinders Wharf and to bill the occupiers for their consumption of hot and cold water.

The Two Invoices

8. This case concerns two invoices which Mr Chen received and was asked to pay. Each set out measurements of kilolitres of cold water and hot water supplied to and used within apartment 404. The first invoice was for a period between 1 October and 14 December 2004 and claimed $143.68. He has paid that sum. The second invoice was for a period between 14 December 2004 and 23 February 2005 and claimed $159.41. He has not paid that sum. In this proceeding he is asking the Tribunal to determine how much of those two sums he was or is liable to pay.

9. The claims made in the first invoice may be summarised as follows:

10. The claims made in the second invoice may be summarised as follows:

11. Mr Chen concedes his liability to pay the two amounts of $39.18 and $48.31 for cold water consumption, calculated at the rate of $1.66 per kilolitre measured. He concedes a liability to pay for hot water consumption but only at the same rate of $1.66 per kilolitre measured. He disputes his liability to pay for the other things claimed in the two invoices.

12. The first invoice, for $143.68, bore the names of both Energy Plus and the body corporate, but with the name of Energy Plus in much larger letters. It was addressed to the landlord, although it was given to Mr. Chen and he paid it. At the foot of the invoice a request was made to remit a cheque to Energy Plus at a post office box number or to pay by electronic funds transfer into an identified bank account number for Energy Plus. There is no difficulty in characterising it as an invoice rendered by Energy Plus.

13. The second invoice for $159.41 bore the name of the body corporate (under a heading and logo for Flinders Wharf). It was addressed to Mr Chen. The only reference to Energy Plus was at the foot of the invoice. There a direction was made to mail a cheque to Energy Plus at the same post office box number or to pay into the same bank account number for Energy Plus. So on its face it appeared to be an invoice rendered by the body corporate but an invoice which required payment to Energy Plus.

14 The proceeding was listed for hearing before me on 29 June 2005. Mr Darling of the Tenants Union of Victoria represented Mr. Chen. Ms Clare Gualtieri of Butler and Company represented the landlords. Energy Plus was represented by its director, Mr John Tandy. The body corporate was represented by Mr Strahan of Counsel. Evidence was given by Mr Chen, Ms Gualtieri and Mr Tandy. Mr Darling and Mr Strahan had each made written submissions, supplemented them with oral submissions, and expressed the wish to make further written submissions. I set a timetable for the filing and serving of further written submissions.

15. On 28 July 2005, at the request of one of the parties, I held a directions hearing , and directed that the proceeding should be listed for further hearing before me. At that directions hearing I made two orders which I had said on 29 June 2005 that I intended to make (after having heard the parties on the points) but which I neglected actually to make on that date. The first was to amend the application so that it was expressed to be brought under the Fair Trading Act 1999 as well as under the Residential Tenancies Act. I shall in due course explain the significance of that amendment. The second was to amend the application so that it sought a declaration as to what sum the applicant tenant was liable to pay under the second invoice. The original application had asked for "a determination as to the extent of his liability for water bills sent by the body corporate" and also for compensation for "overpaid water bills" of $90.39, a sum which evidently related to the first invoice only.

16. The further hearing took place on 5 September 2005. On that occasion Mr Pound of Counsel represented the applicant tenant, Ms Gualtieri again represented the landlords and Mr Strahan again represented the body corporate. Energy Plus was not represented. Further evidence was led by Mr Strahan, in the form of two witness statements, one by Mr Ron Vandenberg of Vand Corp Pty. Ltd., the body corporate manager, and the other by Alan Edler, a design engineer. Mr Pound did not oppose the tendering of that evidence by way of witness statements, and indeed that evidence seemed non-contentious. Both Counsel made further oral and written submissions. I reserved my decision.

17. After I began to consider my decision I felt a need to hear further argument on one issue and directed that the proceeding be re-listed before me for that purpose. Difficulty in fixing a date that suited the parties meant that there was a delay but eventually there was a further hearing on 9 November 2005. Again Mr Pound represented Mr Chan, Ms Gualtieri represented the landlord, Mr Strahan represented the body corporate and Energy Plus did not appear. Mr Pound and Mr Strahan made further submissions. Ms Gualtieri, as on previous occasions, did not make any separate submission. Again I reserved my decision.

18. On or about 26 April 2004 Mr Chen signed a number of documents. He signed them all on the same day and at the same place: the office of Butler and Company. Ms Gualtieri was present when he signed them. One was a five-page document headed "Residential Tenancy Agreement." The second was a document headed "Account Application." Both those documents are significant in this case. The third was a form relating to the supply of electricity, which Ms Gualtieri described as a "connect now" form; that form was not produced to me. Mr Chen was rather vague about what he signed and how. Ms Gualtieri's evidence about that was more precise. I accept her evidence. The facts I have set out above and am about to set out below concerning the execution of the documents are findings that I make on the basis of her evidence.

19. The document headed "Residential Tenancies Agreement" was a printed form. The final page of it was a schedule which set out details of the landlords, the tenant, the agent, the rented premises and the rent. It specified a term of twelve months commencing on 28 April 2004. It was signed on behalf of the landlords by Susan Butler of Butler and Company. It was also signed by Mr Chen. The first page of the document set out eight numbered terms which conformed with standard terms in the form prescribed by the Residential Tenancies Regulations 1998. The middle three pages set out numerous "additional terms" and "special conditions." Of those, three are relevant. Additional term numbered 9 read:

"9. The tenant shall pay all charges in receipt of the re-connection and consumption of water, electricity, gas, oil and telephone where the rented premises is (sic) separately metered for these services."

"19. The tenant shall pay all charges in respect of the use of electricity, gas, oil, telephone and other utilities."

Those two terms are obviously inconsistent, because the first confines the tenant's obligation to the payment of charges where services are separately metered, but the second does not.

Additional term numbered 27 read (so far as is relevant):

"27. The tenant agrees to observe and be bound by the Articles of Association of the service company or the Rules of the Body Corporate (as the case may be) in so far as they relate to or affect the use, occupation and enjoyment of the premises and the common property ... "

That additional term numbered 27 assumed importance in the submissions made on behalf of the body corporate .

20. The document headed "Account Application" was printed with the name and address of Energy Plus in the top right hand corner. It set out details of the rented premises, the "owners" (landlords) the "leasing agent" Butler and Company, and the tenant. It was signed by Mr Chen and also by Ms Butler. Below the two signatures was the printed name and address of Vand Corp Pty Ltd. Immediately above Mr Chen's signature were these two sentences:

"I, Jiun Chen of Apartment 404 Flinders Warf (sic),

60 Siddeley Street, Docklands 3008, hereby authorise

(sic) Energy Plus (Australia) Pty Ltd to invoice us

monthly for usage of Hot & cold water at Apartment 404

at the correct rate. I also understand that I am responsible

for payment of all Energy Plus invoices, within 14 days

of receipt of invoice."

This is the document that binds Mr Chen to pay the amounts claimed in the two invoices, so the body corporate argues.

21. The documents were signed at the office of Butler and Company when

Mr Chen attended there by appointment. The documents had been prepared beforehand. Ms Gualtieri left the three documents with Mr Chen and asked him to read them, sign them and initial them when there were alterations. He brought them to her signed and initialled. She asked him whether he needed any explanation of them and he said he did not. Ms Butler signed the documents too. Mr Chen was then given possession of the rented premises.

22. The facts I set out in the next six paragraphs are findings that I make on the basis of the evidence contained in the two witness statements I have mentioned and of the oral evidence of Mr Tandy.

23. Water is supplied to the Flinders Wharf building by City West Water. It bills the body corporate for all the water used. The body corporate pays for the water used. The bills from City West Water at all material times charged at the rate of $1.66 per kilolitre used.

24. Gas is supplied to the building by Origin Energy. It bills the body corporate and the body corporate pays the bills.

25. Cold water is delivered to each apartment by a mains pressure system. Each apartment has a cold water meter in the ceiling space above the entry door. The meter measures the volume of cold water that is consumed within the apartment.

26. In the building there is a rooftop hot water plant with two gas-fired boilers. Water that is delivered to the plant is heated and distributed throughout the building. For each apartment there is a hot water meter that sits next to the cold water meter and measures the volume of hot water consumed within the apartment.

27. Energy Plus reads the two meters, then prepares and delivers to the occupier of each apartment an invoice for the cold water consumed and for the hot water consumed. For cold water, Mr Chen was charged at the rate of $1.66 per kilolitre, the same rate as that for which the water supplier City West Water had charged the body corporate. For hot water, Mr Chen was charged at the rate of $10.00 per kilolitre. This was a figure arrived at by Mr Tandy and agreed to by the body corporate. He arrived at it by having regard to the cost of the water (at the rate of $1.66 per kilolitre) that had been heated, the cost of the gas that had been charged for by Origin Energy in respect of the whole building, a component to take account of the cost of electrical heat tracing (for the hot water system has a heat trace cable attached to the pipework for the purpose of maintaining a constant water temperature) and a component to take account of the cost of equipment.

Mr Tandy estimated that a charge of $10.00 per kilolitres to each occupier for hot water consumed was sufficient for the body corporate to cover its costs once regard was had to all those matters.

28. The body corporate agreed to Energy Plus charging each occupier a fee of $10.00 for its work in reading the meters and preparing invoices. This is what is described as the "hot water service charge" or "hot water supply charge" in the two invoices that are the subject of this proceeding. The two invoices also include goods and services tax calculated on everything except the cold water charge.

The Residential Tenancies Act

Section 52 is headed "Tenant's liability for various utility charges" and, so far as is relevant to this proceeding, provides:

(a) all charges in respect of the supply or use of ....gas ... in respect of the tenant's occupation of rented premises that are separately metered ...;

(b) the cost of all water supplied to the rented premises during the tenant's occupancy if the cost is based solely on the amount of water supplied and the premises are separately metered;

(c) that part of the charge that is based on the amount of water supplied to the premises during the tenant's occupation if the cost of water supplied is only partly based on the amount of water supplied to the premises and the premises are separately metered;

(d) all sewerage disposal charges in respect of separately metered premises imposed during the tenant's occupation of the rented premises by the holder of a water and sewerage licence issued under Division 1 of Part 2 of the Water Industry Act 1994 ...".

30. Section 53 is headed "Landlord's liability for various utility charges" and, so far as is relevant to this proceeding, provides:

(a) the installation costs and charges in respect of the initial connection to rented premises of any electricity, water, gas, bottled gas or oil supply service;

(b) all charges in respect of the supply or use of electricity, gas (except bottled gas) or oil by the tenant at rented premises that are not separately metered;

(c) all charges arising from a water supply service to separately metered rented premises that are not based on the amount of water supplied to the premises;

(d) all costs and charges related to a water supply service to and water supplied to rented premises that are not separately metered;

(e) all sewerage disposal charges in respect of rented premises that are not separately metered imposed by the holder of a water and sewerage licence issued under division 1 of Part 2 of the Water Industry Act 1994;

(f) all charges related to the supply of sewerage services or the supply or use of drainage services to or at the rented premises ....".

31. Section 3 defines "separately metered" (so far as is relevant to this proceeding) to mean

"... that there is, in respect of rented premises .... - a meter -

(a) that has been installed or approved by the relevant supply authority; and

(b) that measures, in relation to those premises only, the quantity of a substance or service that is supplied to, or used at, those premises ....".

Section 55 is headed "Reimbursement" and, so far as is relevant to this proceeding, provides:

"(2) If a tenant pays for anything for which the landlord is liable under section 53 ... the landlord must reimburse the tenant within 28 days after receiving a written request for reimbursement attached to a copy of the account and the receipt or other evidence of payment."

33. Section 27 is headed "Invalid terms" and, so far as is relevant to this proceeding, provides:

"(1) A term of a tenancy agreement is invalid if it purports to exclude, restrict or modify or purports to have the effect of excluding, restricting or modifying -

(a) the application to that tenancy agreement of all or any of the provisions of this Act; or

(b) ......

(2) A term referred to in sub-section (1) includes a term that is not set out in the tenancy agreement but is incorporated in it by another term of the tenancy agreement."

34. Section 3 defines "tenancy agreement" to mean:

"... an agreement, whether or not in writing and whether express or implied, under which a person lets premises as a residence".

35. Crucial to the outcome of this proceeding is the question of how the document headed "Account Application" is characterised: whether it had any contractual status and imposed any contractual obligation upon Mr Chen, and, if so, whether its contractual status was as part of a contract - a tenancy agreement - between Mr Chen and the landlords or was as a contract between Mr Chen and Energy Plus.

In logical order, although not I think in degree of emphasis, the first submission of the tenant was that the document had no contractual status and thus did not impose any obligation upon Mr Chen to pay for usage of water or any other utility service or to pay any invoice rendered in respect of any such usage. Features of the document that were pointed to in support of the submission were these. First, the document described itself as an "application" not as a contract or as an agreement. Secondly, the verbs in the two sentences (quoted in paragraph 20 above) were "authorise(s)" and "understand", not "agree" or "promise" or "undertake" or any other verb consistent with there having been assumed a contractual obligation. The verb "authorise", in particular, suggested that Mr Chen was giving a revocable mandate or authority, not making an irrevocable promise. To those two features could be added a third. If by signing the document Mr Chen was making a promise to somebody, it is not easy to discern from the document what promise Energy Plus or anybody else was making to Mr Chen in return. In other words, it is not easy to discern the consideration that was moving from the person to whom Mr Chen was making his promise; if there was no consideration for his promise then there was no enforceable contract binding Mr Chen in law to pay anything; the very difficulty of discerning the consideration supported a conclusion that the document was not intended to amount to a contract. In short the submission was that the document amounted only to an authority to Energy Plus to deliver invoices to Mr Chen, not a contract binding him to pay for things charged for in the invoices.

37. I do not accept that first submission. I consider that by signing the document Mr Chen took upon himself contractual obligations. The document has to be read as a whole. Read in isolation, the words of the first of the two sentences ("I .... authorises .... to invoice us ...") are literally an authority to Energy Plus and nothing more. But in my view the words of the second sentence (" I also understand that I am responsible for payment ...") have no sensible meaning other than as a promise by Mr Chen to make payment. There would be no sensible commercial purpose in a document that merely recorded an understanding by him, rightly or wrongly, that he was legally liable to make the payment or that he was to see to it that somebody, not necessarily he, paid the invoices. Read together, the two sentences in my opinion amounted not only to an authority by Mr Chen to Energy Plus to deliver invoices to him but also to a promise by him to pay invoices charging for "usage" of hot and cold water "at the current rate". ( I shall in due course deal with the meaning of those two expressions.)

38. If, as the body corporate contended, the contract was one between Mr Chen and Energy Plus, I think that there was sufficient consideration for it. From the witness statement of Mr Vandenberg I inferred that there was an obligation of Energy Plus to the body corporate to read meters and prepare invoices. A promise by Energy Plus to Mr Chen to perform that obligation would amount to valid consideration for Mr Chen's promise, and although that consideration was not expressed in the document itself, extrinsic evidence is admissible to prove what the consideration was: Halsbury's Laws of Australia, volume 6 para [110-750]; Pao On v Lau Yiu Long [1979] UKPC 2; [1980] AC 614 at 631.

39. What now has to be considered is the major area of dispute: whether the "Account Application" document created a contract between Mr Chen and Energy Plus, as the body corporate argued, or was part of the tenancy agreement between Mr Chen and the landlords, as the tenant argued.

40. The second submission of the tenant was that Mr Chen's promise, made signing the "Account Application" document, to pay invoices received for "usage of Hot and Cold water at Apartment 404" was a promise to the landlords which was part of the tenancy agreement. Because it purported to make Mr Chen liable for usage for hot and cold water irrespective of whether the water and the heating medium were separately metered, the promise amounted to a term which was invalid by reason of section 27(1): it excluded or modified, or purported to exclude or modify, the application to the tenancy agreement of section 52, which limits a tenant's liability to pay charges for the supply of gas, etc., and for the cost of water supplied, to a case where the premises are separately metered for the supply. Because the term was invalid, the liability of Mr Chen to pay for hot and cold water usage was limited to charges for supply where separate metering applied; it was so limited by the application of section 52.

41. Although no party made any submission with respect to special condition numbered 19 in the "Residential Tenancy Agreement" document, it would

seem to follow from the tenant's second submission (if accepted) that that

special condition either was wholly invalid or had to be read down so that, consistently with the additional term numbered 9 and section 52, it imposed

liability only for a supply where separate metering was involved.

In support of the submission that the promise to pay made in the "Account Application" document was a promise to the landlord, and was a term of the tenancy agreement between the parties, Mr Pound pointed to the following features of it. It contained details of the landlord's name and address, and details of the leasing agent's name (Butler and Company), address, telephone number and facsimile number; if (the argument went) the document was intended to create a contract between Mr Chen and somebody other than the landlords, there would be no point in it containing all those details. The document was signed not only by Mr Chen but also by Ms Butler of the leasing agent; again (the argument went) there would be no point in the landlord's agent signing it if the contract was intended to be between Mr Chen and somebody other than the landlords, and the fact that the document was in a form which required the agent to sign it, as the agent did, demonstrated that the document was intended to be part of a contract between Mr Chen and the landlords. The document was presented to Mr Chen to sign at the same time and in the same place - the office of Butler and Company - at which the "Residential Tenancy Agreement" document was given to him to sign, and he did sign the two documents then and there. Although the document was addressed to Energy Plus and mentioned Energy Plus twice in its operative words, the document was not signed by Energy Plus and it gave no indication how the "application" might otherwise be accepted by Energy Plus; so there was no indication that Energy Plus was intended to be a party to a contract with Mr Chen, or to be anything other than a mere recipient of an authority to deliver invoices.

In support of the contrary submission by the body corporate that the signed "Account Application" document was not a tenancy agreement, or part of a tenancy agreement, but created an agreement between Mr Chen and Energy Plus (which was unaffected by section 27 because that section rendered invalid only an infringing term of a "tenancy agreement"), Mr Strahan emphasised the following matters. First, Mr Chen and the landlords (through their agent) had signed the "Residential Tenancy Agreement" document, which was a standard form document that had every appearance of being, and of having been intended to be, a comprehensive record of the terms of a residential tenancy agreement between the parties to it. There was no feature of that document that might have led a reasonable independent reader of it to think that there was a gap in it which needed to be filled or to enquire whether there might be some other document that filled the gap; on the contrary, the additional term numbered 9 dealt with the issue of who was to pay for water and gas charges and confined the tenant's liability under that agreement to payment for separately metered services; there was no need to look outside the "Residential Tenancy Agreement" document to determine what the landlords and the tenant had agreed, in respect of utility charges. Secondly, the term of the "Account Application" document did not meet the definition of "tenancy agreement" in section 3, because that document did not embody any agreement to let premises as a residence, whereas the "Residential Tenancy Agreement" document plainly did. Thirdly, although section 27(2) allows that a tenancy agreement may consist of one instrument that incorporates by reference a term set out in another instrument, the "Residential Tenancy Agreement" document did not state that the terms of the "Account Application" document were incorporated with the tenancy agreement and did not refer to that document at all.

44. As in relation to that third matter, Mr Strahan pointed out that by the additional term numbered 27 the rules of the body corporate had been incorporated into the tenancy agreement in the way allowed by section 27(2). Had the parties intended that the terms of the "Account Application" document should become terms of the tenancy agreement, he argued, they would have incorporated them by reference in the same way; the fact that they had not done so demonstrated that the contents of the "Account Application" document were not intended to be part of the tenancy agreement but were a separate agreement between Mr Chen and Energy Plus.

45. Both the competing submissions have attractive aspects. In choosing between them I have fallen back upon general principles of law as to how the terms of a contract may be identified.

In my opinion, where as in the present case there have been two documents executed almost simultaneously, one a major document (in comparative length at least) and the other a minor document, it is wrong to postulate as a starting point that the major document is the primary record of the agreement between the executing parties and then to inquire whether there is a reason to look outside the major document to the minor document. The correct approach is to consider both documents together and the circumstances surrounding the execution of them and to judge whether the documents form one transaction or separate transactions. It is put this way in Lewison, The Interpretation of Contracts, 3rd edition (2004) p.48:

"In most cases, the identification of the relevant document will not be in doubt. There will be a self contained document which purports to be, and is, the parties' contract. But there are also cases in which it is not clear which pieces of paper constitute the contract, with the result that the instrument must first be identified before it can be construed."

47. Viewed in the light cast by that general principle, the submission that there was no feature of the "Residential Tenancy Agreement" document that might have led an observer to look for and locate another document loses some of its force. The fact is that there were two documents, and both should be looked at to determine whether they formed a single contract. Moreover, although section 27 allows for incorporation by reference of a term that is not set out in a tenancy agreement, it does not provide that an incorporation by reference is the only way that two distinct documents may contain terms of a single tenancy agreement. Nevertheless, one must constantly bear in mind the significant fact that one of the two documents in this case is specifically headed "Residential Tenancy Agreement" and sets out terms of a tenancy agreement in a way that appears to be comprehensive.

48. I have come to the conclusion that the "Account Application" document should be regarded as part of a contract between Mr Chen and the landlord, and that Mr Chen's promise in it to pay Energy Plus invoices for usage of hot and cold water was a promise given to the landlords. The document served as an authority to Energy Plus to direct invoices to Mr Chen, but more importantly created, together with the "Residential Tenancy Agreement" document, an over-arching contract between Mr Chen and the landlords.

49. Two facts have swung the balance towards that conclusion. The first fact is that the "Account Application" document was designed to be signed, and was signed, by the landlords' agent. The fact that there was no provision in the document for Energy Plus to signify an acceptance of the "application", by signing the document or in some other fashion, is relevant but not critical. But to my mind the provision for signature by the landlords' agent is critical. I cannot see any plausible explanation for that, other than an explanation that the landlords were one intended party to an agreement. The deft alternative explanation suggested by Mr Strahan - that Butler and Company might have signed in their capacity as agent for Energy Plus rather than as the landlords' agent in that instance - lacked any foundation in the evidence. The second significant fact is that there was one single occasion or ceremony at which the two documents were presented to Mr. Chen for signature and at which he signed; it was an occasion or ceremony at the offices of, and overseen by, the landlords' leasing agent, while presenting a single leasing package.

50. It does not necessarily follow that the over-arching contract I have identified is a "tenancy agreement". One possible analysis of the over-arching contract is that it consists of two constituent contracts, one a "tenancy agreement" and the other a side agreement, or collateral agreement, for the payment of water usage charges. For example, in Krakowski -v- Eurolynx Properties Ltd. (1994) 130 ALR 1 a landlord and a tenant of commercial premises entered into an instrument of lease with a specified annual rental, but at the same time entered into a "separate agreement in letter form between the parties" (as they expressed it) for the tenant to have a three month rent free period and a lump sum to assist the tenant with fitting out the premises. When the landlord sold the premises it did not disclose to the purchaser the existence of that agreement. The High Court held that a representation to the purchaser that the instrument of lease represented the whole contractual arrangement between the landlord and the tenant was false and was made fraudulently. "There is no doubt", said the majority of the Court at p. 11, "but that the instrument of lease did not contain the whole of the agreement" between the landlord and the tenant. In that case, therefore, two separate documents were regarded as constituting one over-arching agreement, yet the "lease" was not only one of those two documents, not both of them. The fact that the parties specifically identified the document as a "separate agreement" seems to have precluded the possibility that the two documents together formed the "lease".

51. Nevertheless, I consider that the "Account Application" document formed part of a tenancy agreement and did not amount to a separate agreement. The supply of water, and the supply of a heating medium to produce hot water, to residential premises are essential services. They are just as essential to the subject matter of an agreement "under which a person lets premises as a residence" (see the definition of "tenancy agreement" in section 3) as is the shelter afforded by a building on the rented premises. A term that purports to impose a liability for payment of the usage of hot and cold water, being a term that deals with those essential services, should properly be regarded as part of the tenancy agreement, in my opinion.

52. Mr Chen's promise to the landlords (as I have concluded that it was) was to pay for invoices that charged "at the current rate" for usage of hot and cold water.

53. The tenant's submission was that "the current rate" should be construed to mean the rate charged to the body corporate by City West Water, namely, $1.66 per kilolitre. (In a written submission it was asserted that that was a "gazetted" rate, but I was not given any evidence about that.) Rightly, in my opinion, Mr Pound did not put any submission that the expression "current rate" was meaningless and that the promise was void for uncertainty. Courts are reluctant to hold that terms of a contract are unintelligible by reason of uncertainty. Rather, the submission was that the failure to specify whose "rate" was to apply and the use of the singular word "rate", suggested that there was only one "current rate", and that the only "rate" in the evidence that met the case was the evidence of City West Water's rate of $1.66 per kilolitre. Thus the only thing that Mr Chen promised to do was to pay for water, hot or cold, at the rate of $1.66 per kilolitre used.

54. The body corporate's submission was that "the current rate" should be construed to mean the rate, at the time that Mr Chen was invoiced, that Energy Plus was in fact charging to occupiers of units in the building for hot water, and the rate that Energy Plus was in fact so charging for cold water. Although the "Account Application" document did not identify a rate or rates, those two rates had been fixed by Energy Plus and were ascertainable; at the time he signed the documents Mr Chen could have ascertained what the two rates then were, and at the time that each invoice was delivered he could also have ascertained what the two rates then were, namely, $1.66 per kilolitre (for cold water) and $10.00 per kilolitre (for hot water) respectively.

55. Vague though the expression "current rate" is, I think that the body corporate's submission is to be preferred. Had the term been expressed as a promise to pay for invoices "for usage of water at the current rate", the tenant's submission would have been a strong one, but the phrase "usage of hot and cold water at the current rate" suggests, I think, that separate rates for hot and cold water were meant, and those separate rates were capable of ascertainment.

56. Had I accepted the tenant's submission, the major issue of whether the "Account Application" document formed part of a tenancy agreement with the landlords or was a separate contract with Energy Plus would hardly have mattered. Regardless of how that major issue was decided, Mr Chen would have achieved the outcome he sought: the same outcome as in the Winter case, with him being liable only to pay for water, hot or cold, at the rate for which the water supplier actually charged the body corporate.

57. The two invoices in question in this case were for more than the consumption of hot water and cold water. They included an additional flat charge of $10.00. That was the flat charge that the body corporate had agreed that Energy Plus could charge each occupier as a fee for its work in reading meters and preparing invoices. In each invoice addressed to an occupier, that flat charge was passed on to the occupier.

58. In the case of an owner-occupier, perhaps the body corporate's decision binds each member and the occupier thereby becomes liable to pay the flat charge. But the case of a tenant is different. In the present case the tenant challenges his liability to pay the flat charge and it is necessary for the body corporate to prove that, as a matter of contract, Mr Chen is liable to pay it.

59. The second sentence in the "Account Application" document recorded Mr Chen's undertaking of responsibility for payment of "all Energy Plus invoices". In isolation, this sentence might be regarded as a promise to pay the flat charge if an Energy Plus invoice happened to include it. But the sentence cannot be read in isolation. The first sentence authorises invoicing "for usage" of hot and cold water and for nothing else. The tenant correctly submitted, in my opinion, that "all Energy Plus invoices" in the second sentence should be construed as meaning "all Energy Plus invoices for usage of hot and cold water", in the light of the first sentence.

60. "Usage" in my opinion, should be given its ordinary meaning in the context of a supply of a utility service. It comprehends the use or consumption of the utility. It does not comprehend work done by somebody to calculate the volume of what has been used or consumed. So Mr Chen, by the "Account

Application" document, was not promising to pay the flat charge which was

Energy Plus's fee. That conclusion is arrived at as a matter of construction

of the agreement into which Mr Chen entered, irrespective of who was the opposite party to the agreement. There having been no other way in which it was suggested that Mr Chen could have been liable to pay the flat charge

than as a result of a promise by him to pay it, I conclude that he was not liable to pay the flat charge of $10.00 in the first invoice and is not liable to pay the flat charge of $10.00 in the second invoice.

The Width of the Term

61. There is a principle of construction that if a clause of a contract is followed by a later clause which destroys the effect of the first clause the later clause is to be rejected as repugnant and the earlier clause prevails: Lewison, op.cit. pp 299-300.

62. The term created by the two sentences in the "Account Application" document purported to make Mr Chen liable for payment of invoices received for usage of hot and cold water, whether or not the premises were

separately metered for hot and cold water. So did special condition numbered 19 in the "Residential Tenancy Agreement" document. The additional term numbered 9 in the "Residential Tenancy Agreement" document, which appeared earlier in it, was expressed to make Mr Chen liable to pay charges for services only where the rented premises were separately metered for those services.

63. I do not think that the principle of construction can be relied upon so as to make the term in the "Account Application" document repugnant because of inconsistency with the additional term numbered 9. The reason is that, where there are two separate documents constituting one agreement, it is not possible to say which of them contains the "earlier clause". I do not need to express any view about whether the principle operates to enable special condition numbered 19 to be rejected, or whether the principle is inapplicable because the additional term numbered 9 is outweighed by two different clauses both inconsistent with the additional term numbered 9 but consistent with each other.

Invalidity under Section 27

64. The term in the "Account Application" document not having been rendered ineffective by reason of inconsistency with an "earlier" term in the tenancy agreement, it is now necessary to consider whether, as the tenant submitted, the term is invalid under section 27 by reason of it purporting to have the effect of excluding or modifying the application to the tenancy agreement of section 52.

65. It is clear, in my opinion, that the term does have that effect. It purports to render a tenant liable to pay for usage of "hot and cold water" irrespective of whether the supply of water is separately metered or whether the supply of the heating medium is separately metered. It purports to modify the application of section 52 (b) by extending a tenant's liability for "the cost of all water supplied to the rented premises" beyond circumstances in which the cost is based solely on the amount of water supplied and the premises are separately metered. It purports to modify the application of section 52 (c) by extending a tenant's liability for "that part of the charge that is based on the amount of water supplied to the premises" beyond circumstances in which the premises are separately metered.

66. Accordingly, the term is rendered invalid by reason of the operation of section 27 (1). For the same reason the special condition numbered 19 in the "Residential Tenancy Agreement" document, at least insofar as it affects the use of electricity, gas, oil and water, is invalid. The additional term numbered 9 in that document, insofar as it deals with consumption, appears to be valid; it is consistent with the application to the tenancy agreement of section 52.

67. There was a submission on behalf of the body corporate that section 53 did not render the landlord liable for any hot or cold water charges in the circumstances of this case. That submission is relevant to the issue of whether Mr Chen is entitled to claim reimbursement from the landlords of sums that he has paid in respect of the first invoice; I shall deal with that issue shortly. But in my view the submission has nothing to do with whether a term of the tenancy agreement offends section 52 or whether under section 52 liability is imposed upon Mr Chen.

The Application of Section 52

68. The first invoice rendered to Mr Chen included a charge of $39.18 for "Total Cold Water including Disposal", calculated at the rate of $1.66 per kilolitre. The second invoice included a charge of $48.31 for "Cold Water Volume Charge" calculated at the same rate. It was conceded on Mr Chen's behalf that he was liable under section 52 for the payment of those charges. The concession was correct. The rented premises were separately metered for cold water. The charges simply passed on to Mr Chen the "cost of all water supplied to the rented premises during the tenant's occupancy", that cost having been based solely on the amount of water supplied, and the amount having been measured by the separate meter. The charges therefore conformed to section 52 (b). Insofar as the bills rendered by City West Water to the body corporate included sewerage disposal charges (as I imagine they did, although there was no evidence about that), those charges were simply passed on to Mr Chen also; so the charges conformed to section 52 (d) in that regard. The concession assumed that City West Water held the appropriate water and sewerage licence. There is no reason to doubt the correctness of the assumption.

69. The first invoice included a charge of $85.00 for "Total Hot Water including Disposal", calculated at the rate of $10.00 per kilolitre. The second invoice included a charge of $91.00 for "Hot Water Consumption" calculated at the same rate. The charge was composite. It was "partly based on the amount of water supplied to the premises". The premises were separately metered to measure the supply of the water. But the charge was also partly based on other matters. It included a provision for the cost of gas supplied to the body corporate for heating of the hot water supplied to the rented premises, although the rented premises were not separately metered in relation to the supply of gas. It included a component to take account of the cost of electrical heat tracing, although there was no evidence that the rented premises were separately metered in relation to the supply of electricity. It included a provision for the cost of equipment.

70. For the two charges referred to in the previous paragraph, section 52 (c) limits Mr Chen's liability to "that part of the charge that is based on the amount of water supplied to the premises during the tenant's occupation". On the evidence, that part was the sum arrived at by multiplying the total kilolitres of water supplied, that become hot water, and the rate of $1.66 per kilolitre for water supplied and measured by the separate meter. So it amounted to 16.6 per cent of each charge made: $14.11 and $15.11 respectively.

71. Each invoice included the flat charge of $10.00, described as "Hot Water Service Charges" and "Hot Water Supply Charge" respectively. This was the charge for Energy Plus's work in reading meters and preparing invoices. Nothing in section 52 renders a tenant liable for charges of that kind. The term in the "Account Application" document, even if valid, did not on its proper construction render Mr Chen liable for charges of that kind. He did not request Energy Plus or the body corporate to do any work or perform any services for him in relation to reading meters or preparing invoices. There is no basis in law for concluding that he was legally liable to pay those charges and I determine that he was not.

72. Each invoice purported to pass on to Mr Chen goods and services tax. I assume that goods and services tax is indeed payable on the services referred to in the invoices (although the invoices reflect, as I was told in the Winter case, that the mere supply of cold water does not attract goods and services tax). As the tax relates to charges which I have already determined were not payable by Mr Chen it follows that he was not liable to pay the tax.

73. The result is that the only sum for which Mr Chen was liable under the first invoice was $53.29 ($39.18 for cold water and $14.11 for part of the hot water charge) and the only sum for which he is liable under the second invoice is $63.42 ($48.31 for cold water and $15.11 for part of the hot water charge). This result corresponds to the result in the Winter case.

Reimbursement

74. Mr Chen has paid the whole of the sum of $143.68 charged for in the first invoice. He has asked for an order that the landlords reimburse him for the difference between that sum and the sum of $53.29 which I have determined was the only sum that he was liable to pay.

75. The claim for reimbursement cannot succeed, at least at the moment. For a tenant to be entitled to reimbursement from a landlord, section 55 (2) requires the tenant to prove three things. The first is that the tenant has paid for something for which the landlord was liable under section 53. For the moment I shall assume that the landlords in this case were liable under section 53 for the balance of the first invoice which Mr Chen was not liable to pay. The second thing is that the landlord has received a written request for reimbursement attached to a copy of the account and the receipt or other evidence of payment. The third thing is that 28 days have elapsed since the receipt of the request for reimbursement. There was no evidence that Mr Chen had ever complied with section 55 (2) by making a written request for reimbursement to which was attached the evidence of payment required by the sub-section. So he did not prove the second thing.

76. Mr Strahan submitted that there was a more fundamental reason why Mr Chen could never establish an entitlement to reimbursement: under the terms of section 53 the landlords were not liable to pay any of the charges in the first invoice even if I determined that Mr Chen was not liable to pay them.

77. First, he submitted that section 53 (1) (b) did not cover the case of the hot water charges because they were not a charges "in respect of the supply or use of electricity (or) gas ..... by the tenant". The argument, as I understood it, was that the electricity and gas supplied and used in the heating of the water were supplied and used prior to Mr Chen's use of hot water, so the electricity and gas were not supplied to him or used by him. I do not accept that first submission. The phrase "in respect of" is of broad import and requires no more than a relationship, whether direct or indirect between two subject matters: see Pearce & Geddes, Statutory Interpretation in Australia, 5th Edition (2001) at para [12.7]. There is a clear relationship between the charges made for hot water and the supply and use of the heating medium.

78. The second submission of Mr Strahan on this topic was more formidable. He submitted that section 53 (1) (c) did not cover the case of the hot water

charges because they were indeed "based on the amount of water supplied"

to separately metered rented premises, even though they were also based on other components. He pointed to the difference in expression between "based solely" in section 52 (b) and "based" in section 53 (1) to support the argument that "based" in that later section meant "based whether wholly or in part".

79. The submission, if correct, would mean that neither a landlord nor a tenant could be liable for hot water charges that were calculated in the manner in which they were calculated in the present case. There would be a gap in the Act, and conceivably a gap in any process by which a body corporate could attempt to recoup charges that it had paid to a gas supplier. But I do not think that the submission is correct. The appropriate comparison, in my opinion, is between section 52 (b), which has the expression "based solely",

and section 52 (c), which has the expression "only partly based". The word "solely" is being used to highlight the distinction between the two sub-paragraphs. There is no such distinction made in section 53 and hence no need to use either "solely" or "only partly" in that section. So the absence of "solely" from section 53 (1) (c) is not significant and does not imply that that sub-paragraph is dealing only with a case where the measurement of the amount of water supplied is not a factor at all in the basing of the charge. Moreover, the first purpose expressed in the Act, in section 1 (1), is "to define the rights and duties of landlords and tenants of rented premises". In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object: Interpretation of Legislation Act 1984 section 35 (a). A construction of section 53 (1) (c) of the Residential Tenancies Act that left a gap in the Act and in the allotment under sections 52 and 53 of liability as between tenant and landlord would not promote the purpose of defining their respective rights and duties.

80. The proper construction of section 53 (1) (c) is, therefore, in my opinion, that a landlord is liable for all charges arising from a water supply service to separately metered premises that are not based solely on the amount of water supplied to the premises.

81. On the other hand, section 53 does not deal with a charge of a kind that equates to the flat charge of $10.00, the service charge, and does not render a landlord liable for such a charge. Whether a landlord becomes liable for it by virtue of being a member of a body corporate when the majority of members have approved of such a charge is not something that I need to decide. The point is that there may be a technical difficulty in Mr Chen ever being able to obtain reimbursement from the landlords for the service charge (and tax thereon) that he has paid under the first invoice, because under section 55 (2) his right to reimbursement is only for something for which he has paid but for which the landlords were liable to pay under section 53, whereas the liability (if any) of the landlords does not derive from either of those sections.

Jurisdiction

82. Part 9 of the Fair Trading Act 1999 confers jurisdiction upon the Tribunal to hear and determine a "consumer and trader dispute", which is defined by section 107 (1) of that Act to mean (so far as is relevant to this case) a dispute or claim arising between a purchaser of services and a supplier of services in relation to a supply of services. By section 3 of that Act "services" is defined to mean (so far as is relevant to this case) any rights, benefits, privileges or facilities that are provided, granted or conferred in trade or commerce, "purchaser" is defined to mean the person to whom the services have been supplied, and "supplier" is defined to mean the person who has supplied the services.

83. Section 108 (2) (i) of the Fair Trading Act provides that, in relation to a consumer and trader dispute, the Tribunal may declare that a debt is, or is not, owing.

84. The application in the present proceeding has been amended so that it expressed to have been made under the Fair Trading Act as well as under the Residential Tenancies Act. Mr Chen and the landlords are purchaser and suppliers respectively of services, the landlords by the tenancy agreement having in trade or commerce conferred rights on Mr Chen to have exclusive possession of the rented premises during the currency of the tenancy agreement. As I said in the Winter case, the possibility that the body corporate will call upon the landlords to pay charges in the invoices for which Mr Chen is not liable creates a controversy between him and the landlords which is a dispute for the purposes of Part 9 of the Fair Trading Act.

85. So far as the dispute over the second invoice is concerned, I may resolve that dispute by making a declaration as to what sum is owing under it. So far as the dispute over the first invoice is concerned, I doubt that section 108 (2) (i) of the Fair Trading Act empowers me to make a declaration, because there is not a claim that anything is "owing" under it, Mr Chen having paid the whole of it. Nevertheless, I consider that there is power to make a declaration under section 109 (1) of that Act, which in a "consumer dispute" (defined in section 109 (4) of that Act in a way that covers the present case, the relevant services being of a kind ordinarily used for personal household or domestic purposes) empowers the Tribunal to "make any order it considers fair", including a declaratory order declaring void any unjust term of a contract; I am pointing to the example given of one kind of declaration to support the view that other kinds of declaration may be made if considerations of fairness require them.

86. As in the Winter case, no party questioned the Tribunal's jurisdiction to make orders or declarations binding Energy Plus and the body corporate, but there is still a need to be satisfied that the Tribunal does have that jurisdiction. I am so satisfied. In that regard the present case is more straightforward than the Winter case was. Both Energy Plus and the body corporate can be regarded as having rendered invoices to Mr Chen in which a charge is made for services purportedly rendered to him. The first invoice bore the name of Energy Plus (and the name of the body corporate in smaller typeface) and the second invoice bore the name of the body corporate. By asserting in its invoice that it had provided services to Mr Chen (for it was charging him a flat fee for a service), each of those parties gave rise to a "consumer and trader dispute" between it and him, and the sub-class of such a dispute which is a "consumer dispute". By reason of Part 9 of the Fair Trading Act the Tribunal has jurisdiction to determine each dispute by making an appropriate declaration.

87. So there will be declarations as follows:

Of the sums totalling $143.68 claimed in the first invoice, the applicant was liable to pay $53.29 only. Of the sums totalling $159.41 claimed in the second invoice, the only amount owing by the applicant is $63.42.

"Unfair" or "Unjust" Terms

88. To meet the possibility that the attack made upon the "Account Application" document under section 27 of the Residential Tenancies Act might fail, Mr Pound made three alternative submissions. All were made on the footing, as contended for by Mr Strahan, that the document created a contract between Mr Chen and Energy Plus.

89. The first alternative submission was that it is not possible for a tenant and a third party to enter into a contract containing terms that are contrary to provisions of the Residential Tenancies Act in that the terms seek to impose liability on a tenant to pay for something for which under the provisions of the Act the landlord, not the tenant, is made liable. I defer consideration of that submission. I shall deal with it towards the end of these reasons. All I say at the moment is that I do not accept the submission in the terms in which it was made.

90. The second alternative submission was that the "Account Application" document created an unfair term in a consumer contract and so the term was void under section 32Y of the Fair Trading Act.

91. It is fair to mention that this submission was made only after I myself had raised with the parties, during argument, the possibility of the application of Part 2B of the Fair Trading Act, which deals with unfair terms in consumer

contracts. In view of the decision I have reached about the applicability of section 27 of the Residential Tenancies Act I do not need to deal with the submission at all. The provisions introduced by Part 2B of the Fair Trading Act are novel in Victoria and there has been no authoritative decision in relation to any of those provisions. So, although I do propose to say something about the submission, what I say shall be brief.

92. Plainly enough, the contract between Mr Chen and Energy Plus (if that is what it was, although I have determined that it was not) was a consumer contract as defined by section 3 of the Fair Trading Act. Section 32W of that Act provides:

"A term in a consumer contract is to be regarded as unfair if, contrary to the requirements of good faith and in all the circumstances, it causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the consumer".

Section 32X goes on to set out matters which the Tribunal may take into account, without limiting section 32W, in determining whether a term is unfair.

93. Of the matters set out in section 32X, the only one which I consider is arguably applicable to the present case is matter numbered (d): "permitting the supplier but not the consumer to vary the terms of the contract". The possible applicability of that matter arises from the phrase "at the current rate" in Mr Chen's promises to pay invoices for usage of "Hot & Cold Water at Apartment 404 at the current rate". I have already said that the promise should be interpreted as one to pay the invoices at the respective rates that Energy Plus was charging occupiers generally at Flinders Wharf for hot and cold water respectively at the time that invoices were rendered to Mr Chen. Those rates could vary from time to time. Energy Plus could vary them unilaterally. But a term of a contract permitting a party to vary a rate unilaterally from time to time is a different thing from a term of a contract permitting a party to vary another term of the contract. The contract in the present case does not permit a party to vary the term that requires payment at "the current rate". It is simply the case that the rate is variable. While a term expressed in that vague way is not what I would regard as a paragon of contractual fairness, I do not think it is "unfair" within the meaning of section 32W of the Fair Trading Act.

94. Mr Pound's submission also relied upon the assertion that the contract was not "individually negotiated" in that the "Account Application" document was presented to Mr Chen for his signature at the same time as he was offered a tenancy on those terms and had to decide whether to take it or leave it. One of the matters mentioned in section 32X of the Fair Trading Act is "whether the term was individually negotiated". The assertion was correct, as far as it went, but the trouble with it, and with other matters relied upon in the written submission on this point but which I shall not enumerate, is that they tend to impugn the whole contract, not just one term of the contract. The written submission included points based upon comparable provisions in the United Kingdom and a House of Lords decision upon them. In a case which turns upon the operation to be given to the "unfair terms" provisions, those points would merit close attention by the Tribunal. The present case has not turned upon that.

95. The third alternative submission was that the "Account Application" document created an unjust term of a contract which, under section 109 (1) of the Fair Trading Act, the Tribunal may and should declare void. I have already said that there is a "consumer dispute" in the present case and so it is possible to call section 109 in aid. Like the "unfair terms" provisions, section 109 has not attracted any authoritative exposition. To my mind, the general tenor of section 109 is of a state of affairs in which one party is susceptible to being overborne by the other party. My observation of Mr Chen was that he was an intelligent man with facility in English who was well able to understand what he signed. Even though he no doubt was in a "take it or leave it" situation when he signed, there was no overbearing of him and I am not persuaded that the powers created by section 109 of the Fair Trading Act ought to be exercised. This particular alternative submission was put in brief terms. Likewise I have dealt with it in brief terms. I repeat that the occasion did not arise in which I had to deal with it at all.

"Energy Plus Invoices"

96. Mr Pound made a submission that was directed only to the issue of Mr Chen's liability to pay the amount of the second invoice. Mr Chen's promise - whether made to the landlords (as I have determined) or made to Energy Plus - was to pay "Energy Plus invoices" for usage of hot and cold water. The second invoice bore the name of the body corporate, under a heading and Lego for Flinders Wharf. It appears, therefore, to be an invoice rendered by the body corporate. It was not, the argument went, an

"Energy Plus" invoice and so nothing in the "Account Application" document obliged Mr Chen to pay it.

97. I do not accept that submission. The invoice included a direction to mail a cheque to Energy Plus at a post office box number or to pay into a bank account or Energy Plus. Whether or not it was indeed an invoice rendered by the body corporate, it met the description of an "Energy Plus invoice" because the invoice, in effect, demanded "pay Energy Plus". Nevertheless, I have determined that the term in the "Account Application" document was invalid. That is the reason why the second invoice was not payable by virtue of that term (although part of it is payable as provided for in section 52), not because the second invoice was not the subject matter of the term.

The Width of the Orders Sought

98. In the written application filed to commence this proceeding Mr Chen set out the orders he was asking for. He asked for "a determination as to the extent of his liability for water bills sent by the body corporate". I have indicated what declarations I am going to make in relation to the two invoices discussed above. Then he asked for compensation for "overpaid water bills". That was in effect a request for an order that the landlords reimburse him for part of the amount of the first invoice. I have explained why I am not making an order for reimbursement. Finally, he asked for "injunctive orders restraining the body corporate from continuing to send such bills to the tenants".

99. In a written submission made on Mr Chen's behalf that final request was elaborated upon. I was asked to make a declaration that no tenant at Flinders Wharf is liable to pay any invoice that includes charges for the supply of water or gas that is not separately metered or includes any service fee, and a declaration that the liabilities set out in section 52 and section 53 "are not able to be restricted, modified or otherwise affected by any agreement between a tenant and any third party to a tenancy agreement".

100. In the present case there are better than usual reasons for not making any orders or declarations that go further than those that are necessary for determining the particular case. The outcome of this case has depended upon the way in which the "Account Application" document was framed and the circumstances in which Mr Chen signed it. I have no knowledge of whether any other tenant at Flinders Wharf has signed a document that was framed in the same way or in some different way and no knowledge of the circumstances in which any such document was signed. Making determinations that affect the interests of persons who are not parties to the proceeding is hazardous at the best of times. I certainly do not propose to make any such determination in this case.

Agreement between a Tenant and a Third Party

101. From the length of these reasons, from the numerous hearings that have taken place in this proceeding and from the comprehensive submissions that I have discussed in these reasons, it will have been apparent that the parties had hoped that this would be a test case to determine whether a tenant and third party like Energy Plus or the body corporate, by entering into a contract as to the tenant's liability to pay utility charges, can achieve a result that is different from the result that the Winter case produced.

102. As I have determined that there was no such contract between a tenant and a third party, the case has turned out not to be such a test case. Moreover the case has involved documents and circumstances which may not have been replicated anywhere else. It is appropriate, however, that I should venture some views about the issue which the parties hoped would fall for determination but did not. It is an important issue and the arguments that have been ventilated before me call for a response.

103. In the Winter case I was incautious enough to make the assertion that section 52 "appears to be a complete statement of the circumstances in which a tenant is liable for utility charges", an assertion on which Mr Pound, and Mr Darling before him, relied more than once in support of the argument that it is not legally possible for a tenant and a third party to enter into a contract that imposes a wider liability upon a tenant for the payment of utility charges than section 52 imposes. The assertion was not essential to my decision in the Winter case and I need not have made it. The able argument of Mr Strahan on this issue has persuaded me that the assertion is wrong.

104. I now think that there is nothing in the Residential Tenancies Act, and in particular nothing in Part 2 Division 4 (which includes sections 52, 53 and 55), which prevents a tenant and a third party from entering into and being bound by such a contract. Sections 52 and 53 deal with the respective liabilities of tenant and landlord, as between themselves, for utility charges. Those sections do not appear to contemplate, and certainly do not deal directly with, a state of affairs in which utilities are supplied to a body corporate and the utility supplier charges the body corporate; nor do they contemplate or deal with the existence of a contract between a body corporate, or any other third party, and a tenant or a landlord as to the ultimate incidence of liability for those charges.

105. At first sight, to permit such a contract to operate validly may appear to be contrary to the scheme of the Act. Section 27 prevents a landlord and a tenant from validly contracting with each other in a way that produces a result different from the result produced by the operation of sections 52 and 53. It may be thought odd, and contrary to the scheme of the Act, that a tenant could be permitted to contract in that way with a third party.

106. Yet on closer sight I do not think that it is necessarily contrary to the scheme of the Act to permit such a contract to operate. Suppose that the tenant becomes obliged, under such a contract, to pay to a body corporate or to another third party a utility charge which under section 52 the tenant would not have been liable to pay but under section 53 the landlord would have been liable to pay. Once the tenant pays the charge and makes the appropriate request for reimbursement under section 55 the landlord would become obliged to reimburse the tenant for the amount paid. Except that the burden of payment has fallen upon the tenant at first although not at the last, and except that a service fee once paid to the third party may not be able to be made the subject of a claim for reimbursement under section 55, the scheme of the Act will have been followed.

107. There might be reasons, of course, other than any possible application of the Residential Tenancies Act, why an attempt to enforce such a purported contract fails. The document creating it might be expressed as vaguely and confusingly as the "Account Application" document in the present case, or even more vaguely and confusingly. The purported contract might fall foul of the "unfair terms" provisions in Part 2B of the Fair Trading Act. There might be other reasons.

108. Whether it is desirable that a third party should be permitted to bind a tenant contractually to pay for utility charges for which under section 52 a tenant is not liable is, I think, a matter for Parliament, not this Tribunal, to determine. If it is regarded as undesirable, it can be forestalled by legislation, and the appropriate legislation would appear to me not to be the Residential Tenancies Act but legislation that deals with bodies corporate. Attention is being given at the moment to introducing new legislation that deals with bodies corporate and that may confer some jurisdiction upon the Tribunal in respect of them. I hope that the issue I have just been discussion is given attention in that, or other, legislation.

Order

109. For the above reasons, there will be an order as follows:

The Tribunal declares that the amount which the applicant was liable to pay under the invoice from the firstnamed interested party in respect of a period between 01 October 2004 and 14 December 2004 was $53.29. The Tribunal declares that the amount which the applicant is liable to pay under the invoice from the secondnamed interested party in respect of a period between 14 December 2004 and 23 February 2005 is $63.42.