Davies v O'Keeffe

The Tribunal Failed to Consider ss 43(2), 45, and 47(5) of the Act

The appellant made submissions that although the sections were not specifically pleaded in the initial application, the Member erred in not considering sections 43 (2), 47 and 45 of the RTA. The appellant made submissions that although the sections were not specifically referred to in the tenant's application, it should have been clear to the Member that the tenant, who was unrepresented was making his application under those sections. In the written submissions to the Appeal Panel the appellant had only referred to ss 43 and 45 and had made no mention of s 47. S 47 was only raised at the Appeal hearing.
In the reasons the Member stated: the Regulations provide that an application in respect of breach of a party's obligations is to be filed within 3 months of the party becoming aware of the breach.
While not specifically referred to by the Member, it is clear that she was considering r 22 of the Regulations which provides the time limits in relation to and pursuant to s190 of the RTA: (9) For the purposes of section 190 (1) of the Act, the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement or proposed agreement is within 3 months after the applicant becomes aware of the breach.
Section 190 of the RTA relates to a breach by a party and relevantly states: (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. (2) An application may be made: (a) during or after the end of a residential tenancy agreement, and (b) whether or not a termination notice has been given or a termination order made.
Counsel made submissions that had the alternative ss 43, 45 and 47 been considered by the Member then there would have been no requirement for consideration of an extension of time under section 41 of the NCAT Act.
At the Appeal hearing, Counsel's attention was drawn to r 23 of the NCAT Rules. The rule requires that an application be made 28 days from when a party becomes entitled to make an application in those cases where the enabling legislation does not impose a time limit. Counsel for the appellant conceded at hearing that she had been unaware of r 23 the NCAT Rules. It appears that the appellant had proceeded on this ground of appeal because they were under the mistaken belief that a consideration of ss 43, 45 and 47 would not have required consideration of an extension of time pursuant to s 41 of the NCAT Act.
The Appeal Panel is satisfied that rule 23 of the NCAT rules would have applied to ss 43, 45 and 47 even though the RTA does not apply a time limit on those sections. Even if the Member had considered those sections as the causes of action for the tenant, an extension of time would have been required to make the application pursuant to s 41 of the NCAT Act. 28 days is a shorter period than the three months allowed for an application for breach under s 190 of the RTA. The same factual and legal considerations would have been required in relation to an extension of time to make the application under those sections as was considered by the Member in relation to extending time for the making of the application under s 190 of the RTA. Presumably, such a request for an extension of time to make an application under those sections would have also failed before the Member.
Moreover, the Appeal Panel is not satisfied that the Member has failed to properly identify the applicant's cause of action. It is true that the Tribunal is not a Court of strict pleadings and the parties are unrepresented. However, from the submissions that had been provided by the tenant in relation to his application, it was not discernible that any application was being made under ss 43, 45 or 47 and in fact they would not have been applicable.
The orders the applicant tenant had been seeking in the initial application were: S115 An order declaring that termination notice has no effect because retaliatory notice S187 (1) (c) An order for the payment of money S187 (1) (d) An order as to compensation
S 187 of the RTA sets out the order making powers of the Tribunal and does not identify causes of action. In the tenants application, under 'What are your reasons for requesting the order/s?' the tenant had written: 25th-4-2015 Peter told me had to get out for the next 3 weeks Turned up asking if found house yet 30-5-2015 - sent text cutting electricity off, put rent up $50.00 in text message saying money would be banked and receipts given (still have not received ever) 10-6-2015 had to ask for bank details took 21 days to receive bank info, in that time landlord filed for eviction for failure to pay rent which I went to the Tribunal and was found to be false. 10-6-2015 notified landlord of I know my rights 12-6-15 received two eviction notices for finding out my rights as a tenant. Repay the sum of $7,400.00 for false payment of rent which was taken from my wage 200pw x 9mths
The last sentence appears to be the tenants claim for compensation. Clearly the Member proceeded on the basis that the tenant was seeking a refund of those monies on the basis that the landlord had breached the agreement. Section 190 of the RTA deals with any breaches of the agreement. It is clear from the reasons for the order that the essence of the claim was that the tenant had paid rent contrary to the agreement. The Member has clearly considered the applicant's claim as it was put to her.
Even though the agreement was oral, s 52 of the RTA relevantly states 52 Landlord's general obligations for residential premises (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. …. (4) This section is a term of every residential tenancy agreement.
Accordingly, if the tenant's claim was that the premises were uninhabitable, then the applicable section remains s 190 of the RTA.
Section 43 (2) of the RTA relevantly states: (2) Premises unusable. The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are: (a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or (b) cease to be lawfully usable as a residence, or (c) appropriated or acquired by any authority by compulsory process.
It was put to Counsel at the hearing that the section seemed only to apply to those situations in which premises "become" wholly destroyed or in which it "ceases" to be inhabitable. In the reasons for decision the Member states: that he entered into an oral agreement with the respondent to occupy the residential premises, rent free until they were made habitable, with the applicant assisting to do the place up.
It such circumstances s 43(2) of the RTA would not apply. The applicant's evidence is that the premises were never habitable to begin with, they did not "become" or "cease" to become uninhabitable or partly uninhabitable. The Appeal Panel is satisfied that s 43(2) of the RTA would not have been applicable on the submissions that were made by the tenant.
Section 45 of the RTA relevantly states; 45 Remedies for reduction of rent on frustration of residential tenancy agreement (1) The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43 (2). (2) The Tribunal may order that: (a) from a specified day, the rent for the residential premises must not exceed a specified amount, and (b) the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount.
Again this section would not have applied as the rent was never and could never have been abated under s 43 of the RTA for the reasons given in paragraph 30 above.
S 47 of the RTA relevantly states: 47 Tenant's remedies for repayment of rent and excess charges (1) Requests to landlord A tenant may make a written request to the landlord that the landlord repay to the tenant any rent, or other amounts, paid by the tenant that are not required to be paid under this Act or the residential tenancy agreement. (2) A request may be made during or after the termination of a residential tenancy agreement. (3) A landlord must, within 14 days of a written request by a tenant, repay to the tenant the amount of any rent or other amount paid in excess of the amount payable by the tenant under this Act or the residential tenancy agreement. (4) Tribunal orders A tenant may apply to the Tribunal for an order for the repayment of rent or any other amount paid by the tenant if a written request by the tenant for payment is not complied with by the landlord within 14 days. (5) The Tribunal may order that rent or any other amount be repaid to the tenant if it finds that the rent or amount was not required to be paid by the tenant under this Act or the residential tenancy agreement.
Counsel for the appellant made submissions at hearing that in particular s47(5) applied. This had not been raised in the notice of appeal or the written submissions provided to the Appeal Panel prior to the hearing.
In any case, the Appeal Panel is not persuaded that s 47(5) can be read on its own in isolation from the rest of the section. It has to be read in context of the whole section. The section clearly applies to those situations in which the tenant has paid rent which is not required to be paid under the Act or the residential tenancy agreement. The first paragraph of the section clearly deals with steps to be taken by the tenant when a tenant has overpaid rent. The tenant must make a written request to the landlord and then the landlord must repay the rent within 14 days of the request. Para 4 and 5 then provide the remedy for the tenant to apply for an order if the rent has not been repaid by the landlord within the 14 days and para 5 gives the Tribunal the power to make the order. There is nothing to suggest that the tenant followed the process that is required under s47(1) of the RTA. Accordingly absent such evidence or submissions, it cannot be said that the Member should or could have known to consider making an order pursuant to s47(5) of the RTA.
The last two grounds raised by the appellant in relation to the appeal appear to be a repetition of issues raised in the previous grounds. Ground 4 which is that the Tribunal fell into error by failing to take into account relevant considerations that should have been taken into account relates to the factors considered by the Member in relation to an extension of time has been dealt with in these reason in relation to the first ground of appeal. The fifth ground of appeal that the Tribunals decision is irrational and/or afflicted by legal unreasonableness and is therefore void, also appears to relate to the Members decision not to extend time and has also been addressed in the Appeals Panels reasoning in relation to ground 1 above.
Having considered all the grounds of appeal therefore, the Appeal Panel finds no error of law and the Appeal is dismissed.

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