Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82

Residential Tenancies Act 1997 ss 9, 44 standard term 42

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91

Cases cited: CDJ v VAJ (No 1) [1998] HCA 67

Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4

Fox v Percy [2003] HCA 22

Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275

Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56

Qin & Ors v He [2020] ACAT 116

Tam v Du [2019] ACAT 94

V v Elringtons Pty Ltd [2018] ACAT 23

(a) the sum of $3,275.25 to Xinzhu Qin and Yang Yang jointly;

(b) the sum of $1,500.00 to Dawei Guo; and

(c) the sum of $75.25 to Dawei Guo and Yilin Fang jointly.

1. Dr Hongguang (Michael) He (the lessor), who sublet a unit to four tenants, has filed an appeal against the decisions of a differently constituted tribunal (the original tribunal) in proceedings RT 233 of 2020 and RT 310 of 2020.[1]

2. In RT 233 of 2020, the original tribunal upheld the tenants' claim to end the tenancy, upheld the tenants' claim for compensation for certain breaches of the tenancy agreements, and dismissed the lessor's counter claim for loss of rent and compensation for cleaning.

3. In RT 310 of 2020, the original tribunal dismissed the lessor's claim for loss of rent and compensation for cleaning and other items.

4. In both appeals, the respondents are Mr Dawei Guo, Ms Yilin Fang, Ms Xinzhu Qin and Ms Yang Yang (the four tenants).

5. Dr He owns a two bedroom unit, on the second floor, in a residential strata complex in Braddon. He lives in the unit which is designated Unit 210.

6. Unit 310 (the Unit) is located on the third floor of the same strata complex. Dr He had leased Unit 310 from its owners. Dr He obtained permission to sublet the Unit.

7. On 1 February 2020, Dr He entered into two separate sub-tenancy agreements, each with two of the four tenants, who were all students from China studying in Australia.

8. The tenancy agreement for the master bedroom contained the following details:

fixed term 1 February 2020 to 10 February 2020 (Note, the tenants and lessor agreed that 2020 was an error and that the fixed term ended on 10 February 2021)

holding deposit $500 (to be refunded when tenancy agreement is signed)

9. The tenancy agreement for the second bedroom contained the following details:

10. Both tenancy agreements included the following additional documents:

(a) Standard terms - in the prescribed form of Schedule 1 of the Residential Tenancies Act 1997 (RTA).

(b) An additional 26 terms under the heading "Responsibility of the tenant/s and landlord" (the House Rules).

11. On about 31 January 2020, three tenants moved to live at Unit 310. Ms Fang was then in China, and was unable to return to Australia due to COVID-19 restrictions. Ms Fang did not physically attend the Unit at any time.[2]

Chronology of the proceedings before the original tribunal

12. On 23 March 2020, the four tenants filed a joint application to the tribunal which commenced proceedings RT 233 of 2020. In short, the tenants were seeking orders for termination of the tenancies, refund of the bond, and compensation for various matters.

13. On 31 March 2020, the tenants vacated the premises. On about 6 April 2020, the tenants applied for personal protection orders from the ACT Magistrates Court, being for the protection of the tenants and restraining the lessor.

14. On 13 April 2020, the lessor filed his own application to the tribunal. The respondents are the four tenants. This application commenced proceedings RT 310 of 2020. In short, the lessor counterclaimed in respect of each subtenancy, seeking orders for compensation for cleaning, utilities, and six weeks rent for early termination.

15. On 23 April 2020, Ms Fang on behalf of the four tenants filed an application for interim and other orders in proceedings RT 233 of 2020. The tenants were seeking orders including termination of the tenancies and refund of some rent. The tenants alleged that:

(a) on 27 March 2020, the lessor sent text messages to each of the tenants, containing threats (copies attached with English translations);

(b) on 28 March 2020, the lessor entered the premises against the wishes of the tenants, and the police attended and detained the lessor; and

(c) the lessor was neither the owner nor a person with the right to lease Unit 310.

16. The interim application in proceedings RT 233 of 2020 was listed for interim hearing on 30 April 2020. The tribunal's records show that three tenants appeared by telephone. However, the lessor failed to appear. Transcript for this hearing is not available, because the tenants were not audible on the recording. The original tribunal ordered the tenants to file and serve copies of the personal protection orders, police report of 28 March 2020, and a title search for Unit 310. The original tribunal recommended that the tenants contact the Tenants Advice Service for assistance. The matter was adjourned for further hearing on 8 July 2020.

17. On 3 June 2020, the original tribunal made orders and directions in RT 233 of 2020, extending the timeline contained in the orders made on 30 April 2020.

18. On 29 June 2020, the tenants filed in the tribunal interim personal protection orders, and the police report of the incident on 28 March 2020. Notably, the tenants did not file a title search.

19. On 8 July 2020, the matters proceeded to hearing. The lessor and three tenants appeared by telephone. Ms Fang did not participate at the hearing, because she was in China. In RT 233 of 2020, the tenants were seeking orders that the tenancy ended on 28 March 2020, and orders for compensation from the lessor. In RT 310 of 2020, the lessor sought orders for compensation for wrongful termination of tenancy, and cleaning, utilities, and the cost of removing an oil stain in a parking bay. During the course of the hearing, the lessor confirmed that the tenants had paid the rent to the date of vacating.

20. At the conclusion of the hearing, the original tribunal gave the parties leave to file and serve any final submissions by 22 July 2020. Dr He was ordered to file and serve a copy of the letter from the owner of Unit 310 authorising subleasing it. The original tribunal reserved the decision, which was to be made without further hearing.

21. On 15 July 2020, the tenants filed written submissions. The tenants filed a further copy of the video. The tenants filed a further bundle of exhibits (134 pages), without leave, and these documents were not taken into account.

22. On 20 July 2020, the lessor filed photographs, including photographs of a car in an underground carpark, and a microwave. On 21 July 2020, the lessor filed an email, sent by the owners of Unit 310 on 29 March 2020, confirming that he had a lease of Unit 310 and had permission to sublet Unit 310, on condition that he provide the owner with a copy of the sublease.

23. On 21 September 2020, the original tribunal provided interim written reasons, and made orders, in both RT 233 of 2020 and RT 310 of 2020.

24. In RT 233 of 2020, the original tribunal found some claims by the tenants to be substantiated, but adjourned the final decision for additional evidence on the sum of compensation to be paid by the lessor to the tenants. The original tribunal made orders and directions for the further hearing of the matter on 12 October 2020, on the issue of quantum.

25. In RT 310 of 2020, the original tribunal made final orders, dismissing the lessor's application.

26. The appeal tribunal notes that, on 21 September 2020, the Registry sent an email to all parties attaching the orders made on 21 September 2020, the reasons for decision dated 21 September, and the "Meet me" instructions for the continued hearing by telephone on 12 October 2020.

27. After a short hearing on 12 October 2020, the original tribunal made further procedural orders. The Registrar was directed to send Dr He a copy of the decision of 21 September 2020 and a copy of the tenants' submission of 1 October 2020. Dr He was directed to make submissions in reply prior to the next hearing, which was listed for 6 November 2020.

28. The tenants filed submissions in relation to compensation on 29 September 2020, and the lessor filed submissions on 14 and 23 October 2020.

29. After a further hearing on 6 November 2020, the parties were given time to make further submissions.

30. On 10 November 2020, the lessor provided a written response to specified paragraphs of the interim reasons for decision.

31. The original tribunal published the final orders and reasons for decision on 21 December 2020.[3]

Grounds of appeal in proceedings RT 233 of 2020 and RT 310 of 2020

32. On 27 November 2020[4], the lessor filed his Application for Appeal. The lessor identified the following grounds of appeal:

1 Member did not allow me to explain and made a $4,000 draft fine (compensation) that I have to pay to the tenants in a lump sum way in two separate tenancies disputes.

2 Member did not give me a procedural fairness and made determinations without reading my response

3 Please refer to my Attachment A for explanation (Note, Attachment A was a duplicate of the lessor's submissions made to the original tribunal on 11 October 2020)

33. The lessor raised further issues in the orders he sought on appeal:

1 The compensation that member determined is not fair, I already suffered hugely when the tenants abandoned the lease

2 My request to ask for the tenants' compensation to be reconsidered

34. On 21 December 2020, and on 8 February 2021, the lessor filed written submissions on the appeal.

35. On 7 November 2020, before filing those documents and before the final reasons for decision were published, the lessor submitted a written complaint to the President of the tribunal, raising the following issues:

(a) The Senior Member did not provide the lessor with the draft orders

(b) The Senior Member made final orders without taking the lessor's evidence

(c) The Senior Member did not take the lessor's views into account during the hearing

(d) The Senior Member heard two related files together against the lessor's wishes.

36. On 4 February 2021, the President wrote to the lessor, advising that the issues raised in his complaint formed part of the grounds of appeal, and that it would not be appropriate for the President to comment on the matters raised in the complaint.

37. On 9 April 2021, Ms Fang, on behalf of the tenants, filed a document in response to the appeal. Ms Fang referred to the transcript of the hearing before the original tribunal, and challenged the evidence of the lessor in certain respects. Ms Fang did not provide any fresh evidence, but simply made assertions. Ms Fang raised a number of issues that were not raised at the original hearing. These issues were not considered by the original tribunal in making its decision. These issues are not relevant to the appeal.

38. On 15 April 2021, the lessor filed a document in reply to the submissions of Ms Fang. As stated above, some issues were not raised at the hearing before the original tribunal, and were not considered by the original tribunal in making its decision. These issues are not relevant to this appeal.

39. There was no cross-appeal by the tenants in respect of the amount of compensation awarded to them, or in respect of their claims that were disallowed.

40. We consider that the appeal raises the following issues:

(a) Whether the original tribunal erred in making orders in proceedings RT 233 of 2020 that the lessor pay compensation to the tenants.

(b) Whether the original tribunal erred in making orders in proceedings RT 310 of 2020 that the lessor's application for compensation be dismissed.

(c) Whether the original tribunal failed to provide procedural fairness, by hearing the two proceedings together, contrary to the lessor's wishes.

(d) Whether the original tribunal failed to provide procedural fairness, by failing to allow the lessor to provide evidence or make submissions.

(e) Whether the original tribunal erred by failing to consider, or failing to give sufficient weight to, the evidence and submissions of the lessor.

(f) Whether the original tribunal failed to provide procedural fairness, by failing to provide the draft orders to the lessor.

41. Pursuant to section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), a party to an original application may appeal to the tribunal on a question of fact or law. Pursuant to section 82(1), an appeal may be dealt with as a new application, or as a review of the original decision, as the tribunal considers appropriate. The former is what lawyers refer to as a 'hearing de novo' and the latter as a 'rehearing'.

42. By orders made on 8 February 2021, the appeal is to proceed as a review of the original decision unless the appeal tribunal orders otherwise. The appeal tribunal did not order otherwise. For the reasons set out below at [56]-[65], the application was dealt with as a rehearing on the evidence before the original tribunal.

43. In V v Elringtons Pty Ltd,[5] the appeal tribunal's role in a rehearing was summarised as follows (omitting citations):

In Excel Intelligent Pty Ltd v Thompson, the Tribunal considered the judicial authorities discussing the role of an appeal court or tribunal. It is not necessary to repeat the full discussion in that decision. However, it is relevant to note the following propositions drawn from judgments about the nature of a rehearing:

(a) An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.

(b) Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below (or an original tribunal).

(c) The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

(d) The appellate court (or an appeal tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal).

(e) In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand.

44. In short, an appellant must show that the original tribunal committed an error of fact or law that was material to the result.[6]

45. An appellant must do more than contend that the decision of the original tribunal was wrong and that there should be a different result. A rehearing does not give an appellant the opportunity to have a second run at the target, as if the original decision had never been made, simply because the appellant is dissatisfied with the result. The onus is on an appellant to show, specifically, where the original tribunal went wrong. Normally, that requires an appellant to point to an error of fact or an error of law in the written or oral reasons for decision of the original tribunal and to explain to the appeal tribunal how that error affected the result.

46. If an appellant says that the original tribunal made an error of fact, the appellant must take the appeal tribunal to:

(a) the evidence before the original tribunal to demonstrate the error; or

(b) if the appeal tribunal gives leave for the appellant to rely on further evidence, the evidence that the appellant says demonstrates the error, and the appellant must explain what the correct finding of fact should be, based on that evidence.

47. It is not enough for an appellant to say that a different inference of fact should have been made when all the evidence is weighed in the balance. The appellant must show that a material finding of fact was clearly wrong.

48. Rule 91(c) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 provides that the appeal tribunal may, if leave is granted, receive further evidence about questions of fact.

49. The principles regarding the grant of leave to introduce further evidence on appeal are well-settled. They are summarised in Hurst-Myers v Aulich Civil Law Pty Ltd[7] where the tribunal drew on the High Court's decision in CDJ v VAJ (No 1)[8] to say that the reception of further evidence on appeal should be "exceptional". It noted Justice Gaudron's view that:

...ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing.[9]

50. The tribunal also noted the observations of Justices McHugh, Gummow and Callinan, who stated that factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to whether the discretion to admit new evidence should be exercised. The tribunal quoted their Honours' view that:

The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.[10]

51. In the later case of Fox v Percy, Chief Justice Gleeson and Justices Gummow and Kirby wrote:

The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits.[11] [emphasis added]

52. The tribunal concluded by saying that from these authorities:

[I]t is apparent that an Appeal Tribunal would only grant leave to admit further evidence about questions of fact in exceptional circumstances where it serves the demands of justice to do so.[12]

53. At a directions hearing on 11 January 2021, a presidential member of the tribunal made orders in relation to the appeal, including orders that, by 18 January 2021, Dr He give to the four tenants and the tribunal a copy of any further evidence for the hearing of the appeal and written submissions in support of the application for further evidence.

54. At a further directions hearing on 8 February 2021, a presidential member of the tribunal made orders in relation to the appeal, including orders that, by 10 February 2021, Dr He was to provide to the tribunal's registry four further USBs containing the further evidence sought to be admitted at the hearing of the appeal. The four tenants were ordered to give Dr He and the tribunal written submissions in relation to the applications for further evidence by 24 February 2021.

55. On the evening of 8 February 2021, the lessor sent the tribunal an email seeking two orders:

2. To reconsider my compensation request, quantified in my application RT310/2020.

56. The lessor also referred to handing in at the tribunal counter a memory stick with 14 photos, one video and one audio which "are all new evidence for reviewing on AA 45/2020 He v Qin & Ors."

57. Ms Fang on behalf of the four tenants provided a written submission on 8 April 2021. The lessor provided a written reply to that submission on 15 April 2021. Neither document dealt with whether leave should be granted to receive the further evidence.

58. On 8 February 2021, the lessor submitted a USB memory stick containing one audio file, one video file and 14 photographs. Subsequently, the lessor resubmitted the same materials by email in different formats. The lessor sought leave to rely on these materials as further evidence in this appeal.

59. The audio file is named "after their termination request on 28.3.20" and the last date modified is apparently 21 December 2020. The audio file contains conversation in the Chinese language, and is 36 minutes and 18 seconds duration. The lessor has not provided any details of the conversation, for instance, the parties or the date. The lessor has not provided an English translation.

60. Given the difficulties in accessing and understanding those materials, and hence the difficulty in ascertaining their relevance, or any effect they might have on the outcome of the appeal, leave to provide that further evidence is refused.

61. The video file is named "IMG_1070_PNG" and the last date modified is apparently 30 January 2020. The appeal tribunal could not view the video recording, but could hear the audio recording, which was a conversation in the Chinese language, and is seven seconds duration.

62. Again, the lessor has not provided any details of the conversation, for instance, the parties or the date. The lessor has not provided an English translation. For the reasons given at [60], leave to provide the video file as further evidence is refused.

63. The 14 photographs have numerical filenames. The apparent last date modified is on or before 1 April 2020. The lessor has not provided any further information regarding the photographs. The photographs appear to show various views of Unit 310, the balcony, and the underground carpark. In addition, there are two photographs of the front window of the office of ACT Legal Aid. It appears that all of these photographs were in existence before the hearing before the original tribunal which commenced on 30 April 2020.

64. The lessor has not provided an explanation for his failure to provide the photographs at the hearing before the original tribunal. A number of similar photographs were admitted into evidence at the hearing before the original tribunal. In those circumstances, leave to provide the photographs as further evidence is refused.

65. It follows that the application for appeal will proceed as a rehearing on the evidence before the original tribunal.

Consideration of the original tribunal's findings in relation to the tenancy agreements and the House Rules

66. The original tribunal considered the House Rules with respect to the two separate tenancy agreements. The original tribunal concluded that some of the House Rules were not consistent with the standard terms for residential tenancy agreements, and are void (section 9 of the RTA). Some of the House Rules were not practicable, for example, the House Rules required both separate tenancies to connect the utilities, and to clean the kitchen and shower every day.

67. The original tribunal considered the House Rules in the context of considering the respective rights and responsibilities of the lessor and the tenants. Based on its consideration of the tenancy agreements and the House Rules, the original tribunal found that the two tenancy agreements conveyed to the tenants, collectively, the exclusive right of access and use of the common areas. It follows that the lessor may not enter the common areas without the consent of one or more tenants.[13]

68. On appeal, the lessor made submissions regarding the House Rules. For instance, the lessor submitted that the House Rules were in the nature of 'discussion items for noting', 'general advice' and 'not legal requirements'. They are 'not strictly terms of the tenancy agreements'. Importantly, the lessor conceded that the tenants had exclusive right of access and use of the common areas. The lessor stated "I have no intent to retain my right of entry".[14]

69. The appeal tribunal is satisfied that the two tenancy agreements conveyed to the tenants, collectively, the exclusive right of access and use of the common areas. The lessor has not disputed this finding. It is not necessary to consider the House Rules further.

Consideration of the original tribunal's findings of fact in relation to the events of 28 March 2020

70. The tenants provided a termination notice on 26 March 2020, with 14 days' notice. On 28 March 2020, the tenants provided another termination notice, stating that they would vacate on 31 March 2020.

71. A primary issue in the dispute between the lessor and the tenants was whether the incident on 28 March 2020 was a breach of the tenancy agreement, and if so, whether the breach justified termination of the tenancy on three days' notice.

72. The lessor argued that his entry to the premises on 28 March 2020 was not a breach of the tenancy agreement. The lessor relied on various explanations:

They invited to me for air-condition repairing and many other matters, when I went to their apartment, I disagreed on the termination.[15]

I was providing "call in" service by Mr Guo on a regular basis ... he contacted me multiple times for ... issues [16]

Well, originally I'm thinking to be fair to them, to reach a conciliation with them. So they invite me to the apartment. ... when I called them they haven't come back at me at this stage. So I enter the room to have a discussion with you. They thought I was threatening, threaten them. So they called the police without me knowing. ... Look, I contacted them for about 24 hours. They haven't come back to me, so I feel a little bit concerned. So I knock on the door. They didn't answer. The door was unlocked at that stage. So, I think I'm concerned about the safety of them because they contacted me the previous day. Then when I reach a conciliation I think maybe I can reduce the rent for you. ... They called police because I was concerned of their safety. ... I text message them many, many times, call them many, many times, they never came back to me. So after 24 hours I feel concern, so I knock on their door. I find the door is unlocked. I feel like the state of the house for the hygiene, and also the security.[17]

[Th]ey inviting previous, many many times before. And that was why one uninvite incident was because I text them, many many times in the previous 24 to 48 hours, and they never replied to me. And I became so scared of their safety so I knocked on the door and opened it.[18]

But that day, they called the police when I was offering a rent reduction and fixing the balcony. When the police came the three tenants started to attack me. The police thought I was exploiting them. But I was offering them rent reduction upon their request and kindly asking Mr Guo not to smoke in the apartment.[19]

[T]hat uninvited incident is only one of - like because they often asked me to do lots of things. So, I - and they didn't come back to me for 48 hours and I contact them. I feel like concern of their safety. ... [20]

73. The lessor argued that his conduct at the premises on 28 March 2020 was not a breach of the tenancy agreement. At both the original hearing and on the appeal, the lessor described his conduct at Unit 310 on 28 March 2020, including:

I never harm or threaten them. This is a huge allegation. I did increase my voice. I apologised to them on this. Mr Guo constantly smoked in the apartment, I kindly asked him not to smoke repeatedly. He became angry. I increased my voice. [21]

The video the Tribunal saw is a partial recording. It overlooked many other things that were going on at that time. Dawei was smoking at that moment. I was trying to ask him not to smoke. He started to confront me and threatened me. These were not reflected in the videos.[22]

On 28 March 2020, in terms of the trespassing claim, I object this on the grounds that I have reported this to Sergeant Andrew Hull in the City Police Station. It is not true in the draft determination. The police never detained me. I later visited the City Police Station and explained this to Sergeant Andrew Hull and his superior.[23]

Prior to 28 March 2020, Dawei Guo asked for a termination of the lease. On 27 March 2020, I contacted them but with no reply. On 28 March I knocked their door and asked for a sincere and respectful conversation. They let me in, sitting in the living room. I started to offer them rent reduction. When the policy (police) came, I tried to explain to them. The police never detained me or lay any charge against me. I later visited the City Policy Station and explained this to Sergeant Andrew Hull and his superior.[24]

74. The original tribunal viewed two audio visual recordings showing the lessor inside Unit 310. The original tribunal also considered other evidence led at the hearing, including a series of SMS messages. Those messages were originally sent in Chinese, and translations were provided. The lessor did not challenge the accuracy of those translations.

75. The original tribunal said the following regarding the video:

The video showing the entry and presence of the lessor was enlightening. There were two videos, one dealing with the lessor's interaction with Xinzhu Qin and Yang Yang and the other dealing with Dawei Guo. In both cases, the lessor entered without consent and directly confronted the tenants in an aggressive manner albeit speaking Chinese. It was sufficiently clear from the body language and the tone of the voices that he had engendered a level of fear in Xinzhu Qin and Yang Yang (two young female tenants). In relation to Dawei Guo (young male) there ensued an aggressive discourse with gesturing and pointing. The lessor then physically assaulted Dawei Guo by snatching his phone and then continued to "shirt front" him." [25]

76. The tenants gave oral evidence. In general, their evidence was consistent with each other. The tenants' version of events was corroborated, to some extent, by the series of SMS text messages. The lessor gave oral evidence, and filed written submissions.

77. The original tribunal made findings of fact regarding the events of 28 March 2020, including that:

(a) the lessor entered without the tenants' consent; and

(b) the lessor's body language was aggressive.[26]

78. These findings were based on the oral evidence at the hearing, and the evidentiary materials provided to the original tribunal.

79. These findings of fact, in relation to the events of 28 March 2020, were central to the decision of the original tribunal. Based on these findings of fact, the original tribunal found that the lessor was in breach of the tenancy agreements. For this reason, the original tribunal found that the tenants' notice to terminate the tenancy with effect on 31 March 2020 was valid.

80. In this appeal, the lessor has not disputed the original tribunal's finding that the tenants had exclusive right of access and use of the common areas. The lessor continues to argue that he did not in breach the tenancy agreement by his entry and conduct on 28 March 2020.

81. The appeal tribunal has viewed the videos, and considered the other evidence led at the hearing. The findings were open on the evidence and the lessor has not satisfied the appeal tribunal that the original tribunal made findings of fact that were clearly wrong. The appeal tribunal also acknowledges that the original tribunal had the advantage of hearing directly from some of the parties.

Overview of the reasons for decision on 21 September 2020

82. On 21 September 2020, the original tribunal delivered reasons for decision in relation to both proceedings. The original tribunal also made orders in each proceeding.

83. In RT 233 of 2020, the original tribunal made findings on liability. In short, the original tribunal found that the lessor had breached the tenancy agreements, in particular by his entry to the premises on 28 March 2020. The original tribunal made orders that the lessor was liable to pay compensation to the tenants for certain identified matters. However, the amount of compensation was to be determined after further submissions and further hearing. Notably, these reasons and orders were final with respect to liability, and interim with respect to the quantum of compensation.

84. In RT 310 of 2020, the original tribunal dismissed the lessor's counter claim for loss of rent and compensation for cleaning. In short, the original tribunal found that the lessor had breached the tenancy agreements, in particular by his entry to the premises on 28 March 2020. The original tribunal made final orders dismissing the lessor's application. Notably, these reasons and orders were final.

85. In that context, the appeal tribunal now considers the issues raised by the appeal in the order set out earlier at paragraph [40].

Did the original tribunal err in making order in RT 233 of 2020 that the lessor pay compensation to the tenants?

86. On 21 September 2020, in relation to RT 233 of 2020, the original tribunal considered and accepted a number of claims made by the tenants.

87. The original tribunal found that the tenants were entitled to compensation in respect of the following claims:

Item (a) return of bond, holding deposit, bond for keys

Item (d) some rent reduction for the lack of parking access; mailbox access; and withdrawal of the air conditioning service

Item (e) compensation for the breaches of quiet enjoyment suffered

Item (f) compensation for the inconvenience and costs imposed on them having to move prematurely from the premises

88. The original tribunal invited the parties to provide submissions with respect to quantum.[27]

89. On 21 December 2020, the original tribunal delivered written reasons for decision and orders in matter RT 233 of 2020.

90. The original tribunal adopted the findings of fact made in the interim decision delivered on 21 September 2020.[28]

91. The original tribunal considered the tenant's entitlements - as identified as items (a) to (f) in the draft decision on 21 September 2020.

Item (a) return of bond, holding deposit, bond for keys**

92. The lessor disputed the tenants' claim for return of bond, holding deposit and bond for keys.

93. At the hearing, and on the appeal, the lessor made submissions on these matters:

It is not relevant as all the bond have been returned in full.[29]

The keys fee is not a bond, it is a fee charged by the third-party as they ask for extra keys, this has been returned.[30]

The $500 is not a deposit. It is a part of the bond and the furniture. This is an error. Later on, I have decided to refund to them when Ms Yilin Fang decided to change her mind.[31]

[The tenants] asked for an additional key and they asked me to prepare the key for them. I explained to them that the fees will be extra, and they understand this.[32]

94. The original tribunal found that, at the commencement of the tenancies, the tenants paid a rental bond. The lessor did not lodge the rental bonds with the Office of Rental Bonds. At the end of the tenancies, the lessor returned the rental bonds to the tenants.

95. Further, the original tribunal found that the lessor required Ms Yang to pay a key bond, and that the lessor retained the key bond. The original tribunal found that a key bond is unlawful. The original tribunal ordered the refund of the key bond of $200.

96. The evidence of the lessor and the tenants were conflicting. The submissions of the lessor and the tenants were conflicting.

97. At the appeal, the lessor has submitted that the "key fee" was a fee charged by the third party as they asked for extra keys. The appeal tribunal notes that the lessor is obliged to provide keys for each tenancy. The appeal tribunal also notes that the tenants are obliged to return all the keys to the lessor at the end of the tenancy.

98. The appeal tribunal is not satisfied that the original tribunal's findings were in error.

99. The lessor disputed the tenants' claim for tribunal lodgement fees.

100. At the hearing, and on the appeal, the lessor made submissions on this claim by the tenants.

I disputed with this amount. I ask they compensate my tribunal application fee $150,50 and related printing fee $300.[33]

101. In RT 233 of 2020, the original tribunal ordered that the lessor pay the tenants application lodgement fee of $150.50. The appeal tribunal observes that the tenants were successful on many aspects of their application. The appeal tribunal considers that the order of the original tribunal is appropriate.

102. The lessor disputed the tenants' claim for return of utility charges paid by them.

103. At the hearing, and on the appeal, the lessor made submissions on this claim by the tenants.

The contract I signed with Ms Fang is a legal contract, it is a legal responsibility for them to pay. As agreed, it is based on calendar month.

They still have not paid all the utilities fees including electricity, gas, hot water and internet. This is around $500 for his two month-stay.[34]

The tenants agreed to share the utilities fees. Dawei Guo never paid.[35]

104. The original tribunal found that there were two tenancies at Unit 310, and there was only one meter.[36]

105. Unless the premises has separate metering, the lessor must bear the costs of utilities. The various discussions between the lessor and the tenants are not relevant.

106. There was no evidence or submissions from the tenants or the lessor regarding quantification of utilities charges.

107. The original tribunal was unable to quantify the utilities refund issues:

The [lessor] asserts that the tenants left owing utility charges. That claim by the [lessor] was dismissed as part of his cross claim, but it is probably the case that there is not much owed either way for [utility] charges.[37]

108. Although the original tribunal noted that the tenants would have used utilities whilst they resided at Unit 310, the original tribunal made no orders for payment in respect of utilities by the lessor or the tenants.

109. This matter is dealt with in detail below at [129] to [130] For now it is sufficient to state that, given the separate metering requirement and the lack of evidence about the utilities charges for Unit 310 during the relevant period, the appeal tribunal is not satisfied that the original tribunal's findings and conclusion were in error.

Item (d) some rent reduction for the lack of parking access, mailbox access and withdrawal of the air conditioning service

110. The lessor disputed the tenants' claim for lack of parking access, mailbox access and withdrawal of the air conditioning service.

111. At the hearing, and on the appeal, the lessor made submissions on this claim by the tenants:

...In terms of their air condition claims they have full access to all the parking, with key provided on the first day. Mailbox is always accessible and there is no withdrawal of the air condition services. Therefore, I disagree with the amount of their claims.[38]

In terms of parking, the tenant Dawei Guo and I agreed to use his designated car park. He agreed to take his car parking space. I never occupied his car parking.[39]

With regard to the mail box, they do not have keys as with their agreement, the key will be kept in a safe place and everyone has access at any time.[40]

People sometimes lose the key so what I do is support them and hold the key. I do that type of thing and I always left it in the drawer. There - it was like in 10 minutes, I will open it and put it in the safe box for them. ... Because this happened before when I sell this one, and when people they didn't return the key back, so that's why I hold the key. But never did they check - they don't have access to the key without asking me. It's my property.[41]

112. There was no evidence from the tenants or the lessor regarding quantification of damages. The original tribunal allowed nil rent reduction or compensation. Given that the original tribunal allowed nil rent reduction or compensation for these matters, it is not necessary to consider these matters further.

**Item (e) compensation for the breaches of quiet enjoyment suffered

Item (f) compensation for the inconvenience and costs imposed on them having to move prematurely from the premises**

113. The lessor disputed the tenants' claim for breach of quiet enjoyment and inconvenience.

114. At the hearing, and on the appeal, the lessor made submissions on this claim by the tenants:

They invited to me for air-condition repairing and many other matters, when I went to their apartment, I disagreed on the termination. But they are insisting abandoning the apartment.

In terms of the trespassing claim, I disagree with their $6,000 claims. I object this on the grounds that I have reported this to the Sergeant Andrew Hull in the City Police Station. The matter is now independently reviewed by the Magistrates Court Deputy Registrar Kay Barralet. More information is available if required by the member.

I was going to the apartment to offer them a rent reduction and looking to help them with furniture and repairing upon their request as usual ... The tenants often called me and asked me to repair, fixing things for them, day and night.

In fact, I have been to their apartment at least 8 times upon their request to fix and repair in their two-month stay.

But that day, they called the police when I was offering the rent reduction and fixing the balcony. When the police came, the three tenants started to attack me. The police thought I was exploiting them. But I was offering them rent reduction upon their request and kindly asking Mr Guo not to smoke in the apartment.

In response to (f). I disagree with their claim. They caused more inconvenience to me.[42]

115. The lessor's submissions regarding the events of 28 March 2020 are also relevant, and are discussed above, at [72] to [81].

116. The original tribunal dealt with items (e) and (f) together. The original tribunal noted that Ms Qin was overseas in China at all relevant times, and did not suffer any disturbance of quiet enjoyment.[43] The original tribunal considered the evidence and submissions regarding the events of 28 March 2020. The original tribunal made findings of fact, including that:

(a) the lessor entered the unit without the tenants' consent; and

(b) the lessor's body language was aggressive.[44]

117. These findings are discussed above, at [77]-[81].

118. There was no evidence from the tenants or the lessor regarding quantification of damages.

The assessment of compensation for breach of quiet enjoyment involves a comparison of the amounts awarded to other persons for similar breaches. The total period of the tenancy was only about eight weeks but the disturbances in that time were intense and characterised by aggression.[45]

120. The appeal tribunal considers that the findings were open on the evidence, and the lessor has not established that the original tribunal was in error or that the original tribunal made a discretionary decision based on a wrong principle or in a way that is clearly wrong.

121. In accordance with the above findings, the original tribunal ordered:[46]

The lessor to pay jointly to the tenants Qin and Yang

(noting that Ms Qin was in China and did not reside at premises at any time)

The lessor to pay jointly to the tenants Fang and Gao

122. We note that there are errors in paragraphs [79], [80] and [81] of the reasons for decision and hence in the orders. It appears that the original tribunal proceeded on the understanding that Ms Qin was in China at all times and hence suffered no breach of quiet enjoyment. It is clear from the transcript of proceedings that:

(a) Ms Qin occupied the Unit with Ms Yang under one tenancy agreement;

(b) Mr Guo occupied the Unit under a separate tenancy agreement; and

(c) Ms Fang (who was a party to the tenancy agreement with Mr Guo) remained in China, unable to return to Australia due to COVID-19 restrictions.

123. Consequently, based on the conclusions reached by the original tribunal, the original tribunal should have ordered the lessor to pay:

(a) Ms Qin and Ms Yang jointly the sum of $3,275.25 (comprising $3,000.00 for loss of quiet enjoyment, $200.00 refund of unlawful bond for key, and $75.25 being half of the tribunal filing fee)

(b) Mr Guo the sum of $1,500.00 for loss of quiet enjoyment; and

(c) Mr Guo and Ms Fang jointly the sum of $75.25 being half the tribunal filing fee.

124. The Orders need to be recast to reflect those circumstances, and to correct a spelling error in relation to Mr Guo's name.

125. We note that there is an error in the paragraph [81] of the reasons for decision and the order, the names "Yang and Gao" should read "Fang and Guo". This correction is consistent with the previous paragraphs [79] and [80] of the reasons for decision.

126. Apart from making those corrections, the appeal tribunal is not satisfied that the original tribunal erred in making the orders that the lessor pay the four tenants the amounts set out in the orders. Consequently, that part of the lessor's appeal is dismissed.

Did the original tribunal err in dismissing the lessor's application for compensation in RT 310 of 2020?

127. On 21 September 2020, in relation to RT 310 of 2020, the original tribunal wrote:

The tenants were living in close proximity to the lessor and the level of acrimony had reached the point of police involvement and personal protection orders. The lessor had not demonstrated any intention of respecting their quiet enjoyment.

(a) the lessor was in breach of residential tenancy agreements by reason of his conduct in entering the premises uninvited, his confrontational attitude to the tenants, his threats by text messages including threats of third-party violence, and his threats to disconnect the utilities;

(b) the tenants were entitled to seek the immediate termination of their tenancies under section 44 of the RTA ...

The Tribunal orders the tenancies terminated on 31 March 2020 after which no rent is payable. The lessor's claim for lost rent beyond this date is dismissed.

The Tribunal is not satisfied that the tenants left the premises in any worse state of cleanliness than they received it. It was the lessor's responsibility to prepare an ingoing condition report which he did not do. The effect to [of] this omission is that the Tribunal has no means of knowing the state of the premises at the commencement of the tenancy other than the evidence of the tenants themselves and their video. The lessor's claims for cleaning costs are dismissed.

The lessor did not comply with the law concerning the utility costs. He was not entitled to charge for the supply fee or to make a profit. He did not provide the tenants with the invoices from the suppliers. There was no separate metering for the two tenancies operating with the one premises that would permit utility charges.

The lessor has already received payments for utility charges to which he was not entitled. ... The rent could have been reduced for the lack of parking bay and mailbox access.

There are no claims from the lessor that are meritorious, and the claim is dismissed.[47]

128. The above reasons and findings with respect to liability were final. The original tribunal made orders in RT 310 of 2020 dismissing the lessor's application.

The lessor's application for compensation for unpaid utilities

129. The lessor claimed for unpaid utilities. At the hearing, and on the appeal, the lessor made submissions in support of his claim for unpaid utilities:

The tenants agreed to share the utilities fees. Dawei Guo never paid.[48]

After Mr Guo abandoned the apartment, Mr Guo never paid the bill. There were no separate meters, this is why I initiated a discussion with Mr Guo about putting their names together, but this was not responded to before they abandoned the apartment.[49]

With Mr Guo staying from 30 January 2020 to 31 April 2020, it is more than 30 days. More importantly, we meant to discuss this in a full bill cycle which is a quarter. But this did not happen as they already left the apartment. The bill includes all the consumables including not only electricity but gas, a one year contract on internet use.[50]

As for the bill with other tenants Yang Yang and Ms Qin, since they lived in the house only for about 8 weeks, it was discussed to incorporate this into the rent. ... But before the bill cycle came in, Yang Yang and Ms Qin were no longer interested in taking up this discussion with me.[51]

130. The original tribunal rejected the lessor's claim for unpaid utilities. The original tribunal noted that there were two sub-tenancies and there was no separate metering of utilities. Standard Term 42 provides that the lessor is responsible for the cost of utilities where there is no separate metering. The various conversations between the lessor and the tenant/s regarding utilities are not relevant, unless formalised as a written term of the tenancy agreement, and endorsed by the tribunal. It follows that the lessor cannot charge the tenants separately for utilities under the standard terms of the RTA. The original tribunal found that the lessor was liable to refund the utilities charges that had been paid by the tenants.[52] However, for reasons discussed at [107]-[108], the original tribunal did not make any order in respect to utilities.

131. The appeal tribunal is satisfied that the premises did not have separate meters, and that the lessor was not permitted to charge the tenants separately for utilities. Accordingly, this ground of appeal is dismissed.

The lessor's application for compensation for cleaning

132. The lessor claimed compensation for unsatisfactory cleaning of Unit 310. At the hearing, and on the appeal, the lessor made submissions in support of his claim for cleaning costs:

So they did the cleaning themselves but it's not satisfactory. It's not a professional vacating clean. So after they leave, I used steam machine because I run a - my friend run a cleaning business and he give report. It's about 280 for everything [that is, cleaning the whole unit].[53]

I didn't have a steam carpet. It's from Jim's Cleaning, so they specialise in carpet cleaner. so they did - they subcontract to another person. So this is the cash economy, but they have the ABN and everything. So they handwrote a receipt for me ... I accepted their quote ... I didn't do the work...[54]

It is tenants' responsibility to restore the living conditions to a substantial level. It was a brand-new apartment before they move in.[55]

I have sent you a number of the photos including ... the carpet and the dirty microoven.[56]

I stand for my claims. The [tenants] admitted that they have caused the damaged and abandoned the premises with no professional cleaning.[57]

133. Over the course of the proceedings, the parties provided photos of the Unit and the garage taken at about the time the tenants vacated the premises. Further, the tenants provided a video taken immediately before they vacated the premises.

134. The original tribunal rejected the lessor's claim for cleaning the Unit. The original tribunal noted there was no ingoing condition report or outgoing condition report as required by the standard terms of the tenancy agreement. Consequently, the original tribunal had no ready means of knowing the state of the premises at the commencement of the tenancy other than the evidence of the tenants and their video.[58]

135. The appeal tribunal has viewed the tenant's video of Unit 310 when they vacated. In the video, the tenants assert that the microwave and fridge were second hand at the commencement of the tenancy. The appeal tribunal observes that the premises appear clean and undamaged.

136. The appeal tribunal notes that there is no ingoing or outgoing condition report for the premises. The lessor failed to prove his claim. This ground of appeal is dismissed.

The lessor's application for compensation for cleaning the garage floor

137. The lessor claimed for removing stains on the garage floor. At the hearing, and on the appeal, the lessor made submissions in support of his claim for the cost removing stains on the part of the garage floor for Unit 210,[59] including the following:

The car parking, the oil could not be removed, so there's still the stain there. the damage is not reversible.[60]

On 8 July 2020 hearing, the tenant Dawei Guo admitted he caused all the oil damage to the parking, which belongs to him.[61]

I have sent you a number of the photos including the car parking leakage ...[62]

138. At the hearing on 8 July 2020, the original tribunal spoke to Mr Guo regarding the oil stains on carpark 210.

Senior Member Anforth Mr Guo, do you agree that there are oil stains on the car park?

Senior Member Anforth Right. Do you agree they came from your car?

139. The original tribunal observed that the parking bay forms part of the unit title and goes with the tenancy unless explicitly excluded in the tenancy agreement. The original tribunal found that the lessor's withdrawal of the parking bay was a breach that would have warranted a rent reduction.[64]

140. The original tribunal rejected the lessor's claim for removing stains on the garage floor. The original tribunal noted there was no ingoing condition report or outgoing condition report as required by the standard terms of the tenancy agreement. Consequently, the original tribunal had no ready means of knowing the state of the premises at the commencement of the tenancy other than the evidence of the tenants and their video.[65]

141. The appeal tribunal accepts the lessor's submission that Unit 310 was "new". However, there is no evidence as to the state of the parking area for Unit 210 or Unit 310 at the commencement of the tenancy. The appeal tribunal simply does not know if other residents were using the carparks, and dropping oil, before the tenancy.

142. Accordingly this ground of appeal is dismissed.

143. In RT 310 of 2020, the original tribunal declined to make an order regarding the filing fee that was paid by the lessor. The appeal tribunal observes that the lessor was wholly unsuccessful in his application. The appeal tribunal declines to make any other order.

Did the original tribunal fail to provide procedural fairness by hearing the two proceedings together, contrary to the lessor's wishes?

144. On 6 May 2020, the lessor sent an email to the Registry about the future listing of RT 233 of 2020 and RT 310 of 2020, including "would it be workable to make the same date for the hearing" of the two matters.

145. On 3 June 2020, the Registry sent a notice to all parties, advising that RT 310 of 2020 was listed for hearing on 8 July 2020 at 10am. On 4 June 2020, the Registry sent a notice to all parties, advising that RT 233 of 2020 was listed for hearing on the same date at the same time.

146. On 8 July 2020, at the hearing, the lessor did not oppose the matters proceeding together.

147. On 8 July 2020, the original tribunal made an order in RT 310 of 2020 as follows "the evidence and orders in RT 233 apply to this matter". In this appeal, the lessor says that this procedural decision was against his wishes.

148. The two proceedings arise from the same tenancy agreements, and involve the same lessor and the same four tenants. The lessor has not raised any reason that the matters should have been heard separately. The lessor has not identified any difficulties or unfairness arising from the matters being heard together.

149. The appeal tribunal finds that the decision to hear the two matters together was appropriate and reasonable. The appeal tribunal finds that the lessor was not denied procedural fairness by the original tribunal hearing the two proceedings together.

Did the original tribunal fail to provide procedural fairness, by failing to allow the lessor to provide evidence or make submissions?

150. As noted above, transcript is not available for the interim hearing on 30 April 2020. The lessor did not attend on that day. The original tribunal did not proceed to hearing, and only made procedural orders on that day.

151. The appeal tribunal has considered the transcript of the subsequent days of the hearing and considers that the original tribunal encouraged and permitted the lessor to fully participate at the hearing.

152. The lessor gave oral evidence at the hearing on 8 July 2020. On the issue of the incident on 28 March 2020, the lessor's evidence included the following:

SM Anforth : Now, what's the story with the police involvement ?

DR HE: Well, originally I'm thinking to be fair to them, to reach a conciliation with them. So they invite me to the apartment.

DR HE: When I arrive - but when I call them - when I called them they haven't come back to me at this stage. So I enter the room to have a discussion with you. They thought I was threatening, threaten them. So they called the police without me knowing. So when the police came ---

DR HE: Look, I contacted them for about 24 hours. They haven't come back to me, so I feel a little bit concerned. So I knock on the door. They didn't answer. The door was unlocked at that stage. So, I think I'm concerned about the safety of them because they contacted me the previous day. Then when I reach a conciliation I think maybe I can reduce the rent for you. You can still stay and you can sign a one-year contract. Because Mr Guo's girlfriend cannot come and - because they want to reduce the rent because, you know, there was two supposed to share the rent.

So, I'm okay with them, so I said I'm happy to reduce next day, 30 per cent off if you want to stay, but without me knowing, they already find a place to stay. So they are - they were determined to leave the apartment.

SM Anforth Did you ever go in and use the apartment yourself?

DR HE Because - yes, I did. That's why the police came. They called police because I was concerned of their safety.

DR HE They hadn't - I text message them many, many times, call them many, many times, they never came back to me. So after 24 hours I feel concern, so I knock on their door. I find the door is unlocked. I fell like the state of the house for the hygiene, and also the security...[66]

153. Later in the hearing the following exchange occurred:

DR HE: Mr Allan, sorry to bother you. Can I say something here about the video?

DR HE Thank you for permission, It's not - have you got on that day - before that day we have multiple communication, correspondence and communications, and we - I offer a conciliation, try to resolve this, but they just didn't take the advice, they insist to move out. Because of COVID-19, also the house market start to drop the price and when the police came, they thought I was heavily exploiting these international students. They start to cry and I was so scared and I didn't know.

So I finished everything to have pity for them and just charge my service fee. I'm not exploiting them, and I already agreed to take 30 per cent off, but they're insisting to abandon the apartment.[67]

SM Anforth The problem with that, Mr He, is that if you breach the tenancy agreement they're allowed to give you notice and to move out early.

DR HE Yes, if I breach and it's - and if it's evidence based, no, they can't do that. But actually I'm not breaching any tenancy agreement. When I signed the contract with them I explicitly explain to them that - that we are based on the standard ACT tenancy agreement and the Residential Tenancies Act 1997. So, we did that process verbally and in a written way.[68]

DR HE That I did receive the two terminations but they didn't mention any clause I breached. So they just said "You are breaching the clause and I will move on a particular day" and when I respond to their notice of termination I just said "I disagree". If you could point out which particular clause that I violated or breached, I'm happy to discuss with you", but they didn't. ...[69]

154. The original tribunal indicated that he would take the files and work through the documents to write a decision in the case. He continued:

... what I'll do, in case any of the parties remember anything that you want to say that you haven't said today, I'll give (the parties) a week to send in anything else in writing and then I'm going to take it away and start reading to write the decision.[70]

155. The appeal tribunal finds that the original tribunal encouraged and permitted the lessor to participate at the hearing. He also permitted additional written submissions be filed in the next seven days.

156. The appeal tribunal rejects assertions that the original tribunal did not allow the lessor to participate, by providing evidence and making submissions.

Did the original tribunal err by failing to consider, or failing to give sufficient weight to, the evidence and submissions of the lessor?

157. As discussed above, the original tribunal made findings of fact that the lessor entered the premises on 28 March 2020 without the consent of the tenants. Based on the lessor's entry into the premises, and his conduct in the premises on 28 March 2020, the original tribunal found that that lessor was in breach of the tenancy agreement.

158. The lessor provided his version of events on that date in his original application, and other documents, and in his oral evidence and submissions at the hearing. In some respects, his versions of events are inconsistent. He said both that he entered in circumstances of emergency, and that he entered with the tenants' consent.

159. The appeal tribunal has viewed the video. Two female tenants are shown in the living area, both eating. The lessor enters, and the two tenants appear shocked. The appeal tribunal is satisfied that the front door was not opened by the tenants, and that they did not invite the lessor to enter. The appeal tribunal is satisfied that the lessor entered without invitation. The appeal tribunal is satisfied that the lessor opened the front door. The lessor's submission - that the tenants opened the door - is rejected.

160. The lessor's appeal documents are expressed in strong terms, and at times emotive language. The lessor had purchased furniture and white goods and internet connection for the use of the tenants. The lessor was sub-leasing the premises, and he was required to pay rent. The lessor was financially hurt by the early termination of the tenancies.

161. The appeal tribunal accepts that the lessor feels genuinely dissatisfied and aggrieved with the decision of the original tribunal, and that he feels genuinely concerned that the tenants told lies to the original tribunal and they have been believed. This does not mean that the hearing has miscarried.

162. The appeal tribunal notes that the original tribunal made findings of fact, and made orders, that were adverse to the lessor. Without more, this does not show that the proceedings oppressive or unfair. Without more, this does not show that the original tribunal failed to consider or failed to give sufficient weight to the evidence and submissions of the lessor.

163. The appeal tribunal is not satisfied that the original tribunal failed to consider, or failed to give sufficient weight to, the evidence and submissions of the lessor.

Did the original tribunal fail to provide procedural fairness by failing to provide the draft orders to the lessor?

164. On 21 September 2020, the original tribunal delivered orders and interim reasons for decision. On the same day, the Registry sent an email to all parties attaching the orders made 21 September 2020 and the interim reasons for decision dated 21 September 2020.

165. On 12 October 2020, during the hearing, the lessor stated that he had not received the orders made 21 September 2020 and reasons for decision dated 21 September 2020.[71] Furthermore, the tenants advised the original tribunal that they had provided submissions to the original tribunal but not to the lessor. The original tribunal made orders that the Registrar send the relevant orders, the interim decision and tenants' submissions to the lessor, and adjourned to allow the lessor to provide further written submissions.

166. On 23 October 2020, the Registry sent an email to all parties, attaching the orders made 21 September 2020, the interim reasons for decision dated 21 September 2020, and the tenants' submissions.

167. On 6 November 2020, during the hearing, the lessor stated that he had received the orders dated 21 September 2020, but not the interim reasons for decision.[72] The original tribunal made orders that the Registrar send the interim decision to the lessor, and adjourned to allow the lessor to provide further written submissions.

168. On 10 November 2020, the Registry sent an email to all parties, attaching the orders made 21 September 2020, and the interim reasons for decision dated 21 September 2020.

169. On 10 November 2020, the lessor filed his written submissions in response to the interim decision.

170. As discussed above, at the hearing on 12 October 2020 and on 6 November 2020, the lessor claimed that he had not received the draft decision dated 21 September 2020. On both occasions, the original tribunal adjourned the hearing, and made orders that the Registry provide the decision to the lessor. Further, on both occasions, the original tribunal adjourned to allow the lessor to receive the draft decision and make submissions. In due course, the lessor did receive the draft decision, and did make written submissions.

171. In all the circumstances, the appeal tribunal finds there was no failure to provide procedural fairness.

172. For the reasons given above, all of the lessor's grounds of appeal have failed. Consequently, the appeal is dismissed.

173. As noted at [121]-[124] above, there were errors in relation to the names of the tenants entitled to payment by the lessor and the amounts to be paid to them. Consequently, although the appeal is dismissed, the Orders made by the original tribunal are revoked and the following orders are made in their place.

(a) the sum of $3,275.25 to Xinzhu Qin and Yang Yang jointly;

(b) the sum of $1,500.00 to Dawei Guo; and

(c) the sum of $75.25 to Dawei Guo and Yilin Fang jointly.

[1] Qin & Ors v He [2020] ACAT 116

[2] Transcript of proceedings 8 July 2020, pages 4-6

[3] Qin & Ors v He [2020] ACAT 116

[4] After the original tribunal's interim reasons for decision dated 21 September 2020 but before the final reasons for decision and orders dated 21 December 2020 were published.

[5] V v Elringtons Pty Ltd [2018] ACAT 23 at [23]

[6] Tam v Du [2019] ACAT 94 at [22] (per Presidential Member McCarthy) citing Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29]-[39] (per Refshauge J); Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46]-[55] (per President Neate)

[7] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [11]- [30]

[8] CDJ v VAJ (No 1) [1998] HCA 67

[9] CDJ v VAJ (No 1) [1998] HCA 67 at [55]

[10] CDJ v VAJ (No 1) [1998] HCA 67 at [111]

[11] Fox v Percy [2003] HCA 22 at [22]

[12] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [30]

[13] Qin & Ors v He [2020] ACAT 116 at [35]

[14] Lessor's submissions 10 November 2020 point 35. Lessor's submissions 21 December 2020 paragraphs 3 ,4, 5, 21, 22

[15] Lessor's submissions 14 October 2020, point 7

[16] Lessor's submissions 10 October 2020, point 8

[17] Transcript of proceedings 8 July 2020, page 9 10 line 39 to page 10 line 28

[18] Transcript of proceedings 6 November 2020, page 13 lines 31-

[19] Lessor's submissions 14 October 2020, point 11 and lessor's submissions 10 November 2020, point 11)

[20] Transcript of proceedings 6 November 2020, page 15 lines 37-40

[21] Lessor's submissions 21 December 2020, points 9 and 20

[22] Lessor's submissions 10 November 2020, point 24 and submissions 21 December 2020, point 20

[23] Lessor's submissions 21 December 2020, point 10

[24] Lessor's submissions 10 November 2020 [13], lessor's submissions 21 December 2020, point 12

[25] Qin & Ors v He [2020] ACAT 116 at [23]

[26] Qin & Ors v He [2020] ACAT 116 at [23]

[27] Qin & Ors v He [2020] ACAT 116 at [67]- [68]

[28] Qin & Ors v He [2020] ACAT 116 at [70]

[29] Lessor's submissions 14 October 2020, point 1

[30] Lessor's submissions 21 December 2020, points 8.3, 28

[31] Lessor's submissions 21 December 2020, point 6

[32] Lessor's submissions 15 April 2021 response 5, point 1

[33] Lessor's submissions 14 October 2021, page 2, points 3 and 4

[34] Lessor's submissions 14 October 2021, page 2

[35] Lessor's submissions 21 December 2020, point 37

[36] Qin & Ors v He [2016] ACAT 116 at [37], [38]

[37] Qin & Ors v He [2020] ACAT 116 at [78]

[38] Lessor's submissions 14 October 2020, page 2, point 5

[39] Lessor's submissions 23 October 2020, page 2 point 7

[40] Lessor's submissions 21 December 2020, point 30

[41] Transcript of proceedings 6 November 2020, pages 10 lines 30-32, page 11 lines 3-6

[42] Lessor's submissions 14 October 2020, pages 2-3 points 7-11

[43] This was an error of the original tribunal. See paragraph 122

[44] Qin & Ors v He [2020] ACAT 116 at [23]

[45] Qin & Ors v He [2020] ACAT 116 at [80]

[46] Qin & Ors v He [2020] ACAT 116 at [81], see also [76], [80]

[47] Qin & Ors v He [2020] ACAT 116 at [59]- [65]

[48] Lessor's submissions 21 December 2020, point 37

[49] Lessor's submissions, 15 April 2021, response 2, page 3, point 1

[50] Lessor's submissions, 15 April 2021, response 2, page 3, point 2

[51] Lessor's submissions 10 April 2021 response 2, page 3, points 3 and 4

[52] Qin & Ors v He [2020] ACAT 116 at [38], [39]

[53] Transcript of proceedings, 8 July 2020, page 8, lines 40-44

[54] Transcript of proceedings 8 July 2020, page 13, lines 6-13

[55] Lessor's submissions 10 November 2020, point 21, lessor's submissions 21 December 2020, point 17, point 19

[56] Lessor's submissions 21 December 2020, point 36

[57] Lessor's submissions 10 November 2020, point 15, lessor's submissions 21 December 2020, point 14

[58] Qin & Ors v He [2020] ACAT 116 at [37], [58], [62]

[59] Transcript of proceedings 8 July 2020, page 12

[60] Transcript of proceedings 8 July 2020, page 9, lines 1-2

[61] Lessor's submissions 21 December 2020, point 16

[62] Lessor's submissions 21 December 2020, point 36

[63] Transcript of proceedings 8 July 2020, page 14, lines 11-23

[64] Qin & Ors v He [2020] ACAT 116 at [56]

[65] Qin & Ors v He [2020] ACAT 116 at [57], [58], [62]

[66] Transcript of proceedings 8 July 2020 page 9 line 36 to page 10 line 28

[67] Transcript of proceedings 8 July 2020, page 14 line 38 to page 15 line 6

[68] Transcript of proceedings 8 July 2020, pages 15 line 40 to page 16 line 2

[69] Transcript of proceedings 8 July 2020, page 17 lines 13-21

[70] Transcript of proceedings 8 July 2020, page 17 lines 38-41

[71] Transcript of proceedings 12 October 2020, page 4

[72] Transcript of proceedings 6 November 2020, page 23 line 5