Residential Tenancies Act 1995 ss 62, 65, 97, 97A, 97B, 97C and 110

Tronnolone v Edwards and Bryan [2016] SACAT 27

Varricchio v Wentzel [2016] SASC 86

Made under the Residential Tenancies Act 1995 ss 65, 97 and 110

1. This is an application seeking compensation and return of goods. I refer to my orders of 16 August 2018 and 13 September 2018.
2. In this application, the tenants seek compensation from the landlord relating to damage to personal property and inconvenience arising out of the circumstances in which they left the premises. The tenants claim that they lived at the premises under a tenancy agreement under the Residential Tenancies Act 1995 (the Act).
3. The respondent landlord (assuming I accept a tenancy agreement to have existed) is Mr Swan. Mr Swan has had no direct contact with the Tribunal in relation to these proceedings. As mentioned in my orders of 13 September 2018 however, it is apparent that Mr Swan has been made aware of these proceedings (see para 4 of those orders) and the Tribunal has sent orders, correspondence and documents to the landlord at the premises on the basis that the landlord was either residing there or other persons who did reside there would pass material on to the landlord. In these circumstances, I am satisfied that the landlord is aware of the proceedings generally and of the final hearing in the matter today. The landlord did not attend the Tribunal premises at the allocated time, and had not arranged an alternative way of participating in the proceedings. The tenants' evidence about circumstances have therefore not been contradicted by the landlord.
4. The circumstances of the tenancy, the end of the tenancy and the evidence generally in these proceedings is limited and irregular. The allegations made by the tenants are very serious indeed and the landlord is exposed to the risk of a significant adverse order in the proceedings, as I warned in my order of 16 August 2018.
5. I have tested the evidence provided by the tenants about all the circumstances of this application as carefully as possible given the limited availability of corroborating documentation. I have generally found the tenants to give cogent evidence about circumstances, and their evidence is supported by what limited documentary evidence and video footage is available. I recognise that the tenants have had difficulty corroborating much of their claim for property damage and financial aspects of inconvenience given the circumstances.

1. In this matter I accept that a tenancy agreement existed. There is no written tenancy agreement, or a written record of the terms of the tenancy agreement. I have accepted the oral evidence of the tenants about the arrangements in which they lived at the premises, and noted inferential support in some of the documentary evidence.
2. In this regard I have noted a text message exchange between Ms Rebers and her father, where her father confirms a payment of rent being made to the landlord. I have noted text message exchanges which appear to relate to arrangements to inspect the premises prior to entering into the tenancy agreement.
3. I have also taken into account a document produced by the tenants that appears or purports to be a Form 2 Notice of Breach, alleging that the tenants are in breach of the tenancy agreement through breaking property, not paying rent or bills and overstaying the lease. The document contains limited particulars, and identifies the landlord's address of service as the address of the premises. The tenants state that the document was backdated when they complained of being locked out of the premises on 11 June 2018. They claim it was produced to Police by the landlord and represented to be a SACAT order for vacant possession. The relevance of the document to these proceedings is that it demonstrates that the landlord purported to deal with the tenants as if there was a tenancy dispute, and this reinforces my view that the tenants' evidence that a tenancy agreement was in place is to be accepted.
4. The evidence of the tenants is that the term of the tenancy was for 12 months, with rent of $240 per week. I also accept their evidence that the tenancy commenced, after they responded to an advertisement on Facebook, on or about Anzac Day 2018: 25 April.

Interference with the reasonable peace, comfort or privacy of the tenants

1. I accept the tenants' evidence that on 11 June 2018 they returned to the premises after attending to urgent business in Adelaide to discover that they had been locked out of the premises and their personal belongings and furniture had been removed to the front yard of the premises, where they had been left in the rain, apparently for a number of days.
2. In accepting this evidence, I have received and considered a short video taken on a mobile phone of approximately nine seconds. In that video, Ms Rebers is narrating the circumstances, and a wide variety of property can be seen to be strewn about in the rain.
3. Under s 65 of the Act it is a term of the tenancy agreement that the tenant is entitled to quiet enjoyment of the premises, that the landlord will not cause or permit an interference with the tenant's reasonable peace, comfort or privacy and that the landlord will take reasonable steps to prevent other tenants of the landlord in adjacent premises from interfering with the tenant's reasonable peace, comfort or privacy. The Tribunal is empowered by s 110 of the Act to award compensation for breach of the Act or tenancy agreement but the Tribunal does not have the power to award compensation for damages arising from personal injury.[1]
4. I find that on 11 June 2018, the landlord egregiously breached the tenant's right to quiet enjoyment of the premises by locking them out of the premises and removing their property from the premises. In this regard, only SACAT may make an order for vacant possession, and only the SACAT bailiff may enforce such an order if it is made. Even if an order for vacant possession is made and enforced, the tenancy law contains a detailed scheme for dealing with property remaining at the premises. I am not satisfied that even the most preliminary of these procedures was followed by the landlord, who appears to have unlawfully taken matters into his own hands. There is no record of any application for vacant possession being made by the landlord in relation to this tenancy.
5. The tenants therefore are to be compensated for the breach of their right to quiet enjoyment of the property in circumstances that may also be described as an unlawful eviction.
6. The tenants claim compensation arising out of damage to their personal property during this incident, and also seek compensation for inconvenience. The tenants have given evidence of considerable emotional distress and disruption arising out of this incident and subsequent events, and Mr Wade alleges that he was subsequently the victim of an assault.
7. Of those matters, the Tribunal may deal only with damage to property and compensation for inconvenience. It is clear that the Tribunal may not make an award for damages arising out of distress, although the line between inconvenience and distress is difficult to identify.[2] The Tribunal expressly does not have jurisdiction to order compensation for personal injury by s 110(2) of the Act. An alleged assault is a matter falling outside a tenancy dispute.
8. I mention one further factual matter. I accept the evidence of the tenants that after the incident of 11 June 2018 their possession of the premises was eventually restored by Police. There is text message communication before me indicating the tenants had indicated to the landlord that they would be leaving in 2 weeks. I accept however that before that time was up a further incident took place that Mr Wade described as an assault on him by the landlord or an associate of the landlord. The tenants immediately left the premises and did not return.
9. The legal characterisation of these events blur. In a sense, the tenants ultimately abandoned the premises but it is difficult to divorce that event from the earlier incident that I have found constituted a breach of the tenants right to quiet enjoyment of the premises, or more colloquially an 'unlawful eviction'. I consider that the practical reality of the situation is that the events must be viewed as a continuum and ultimately are characterised by the breach of the tenants' right to quiet enjoyment of the premises during the term of the tenancy.
10. This is significant because I have taken into account events after the tenants left the premises in identifying compensable inconvenience. I compensate the tenants for that inconvenience on the basis that their subsequent permanent departure from the premises is ultimately the product of the breach of their right to quiet enjoyment of the premises. Similarly, to the extent that I compensate the tenants for the loss of personal possessions, there is no evidence to indicate that the landlord, having regained possession of the premises, dealt with any personal property that remained at the premises in accordance with ss 97, 97A, 97B and 97C of the Act.

1. The tenants had difficulty producing any corroborating evidence of the property they claim has been lost or damaged as a result of the incident of 11 June 2018 or their subsequent departure from the premises. By the third hearing, what was originally an ambit and un-particularised claim for relief had become a list of items with approximate value. There are no receipts from purchase, or photographs of the damaged or missing property. This difficulty was raised with the tenants on two occasions before referral to assistance from an advocate, but the shortcoming was never really resolved.
2. A similar situation was considered by the President of SACAT in Tronnolone. In that decision, his Honour noted that when dealing with a compensation claim by a tenant, the Tribunal must proceed on the basis of the best available evidence. Inability to produce a receipt is not a basis of itself to refuse to consider a compensation claim. The Tribunal may determine the claim on the basis of oral evidence from the tenant as to the value of property. Furthermore, his Honour noted that the Tribunal member may apply their own general knowledge when determining value. The broad discretion of the Tribunal when assessing compensation was also observed upon by the Supreme Court.[3]
3. In this matter I am conscious that I am exploring the outer limits of that broad discretion in circumstances where the list produced by the tenants as to the existence and value of their property has no real corroboration, other than the glimpses of the property thrown in the yard available in the short video.
4. Ultimately however, I have found that the tenants generally have given cogent evidence and have been patient and consistent in their pursuit of a remedy in this matter. I have accepted their evidence as credible and truthful. I reproduce the list they have lodged with the Tribunal insofar as it relates to items of property:

Children's toys $1500, Children's clothes $1000, Children's single beds 2 of $500, Double bed $500, Women's clothing/$1000, Men's clothing $1000, Bedding $500, Books $2000, Wall prints $300, Washing machine $500, Floor rugs $500.

1. In further evidence, the tenants explained that the beds described were ensembles and were destroyed by being left in the rain. Clothing was not only left in the rain but the contents of a refrigerator was emptied on top. The tenant's daughter had collectibles that were destroyed, and even though some items were retrieved and returned inside they became mouldy and had be thrown out. The electronic components of the washing machine failed, which the tenants reasonably attribute to the items being left out in the rain for days.
2. I find I have no basis to quibble with any aspect of the approximate valuations of the goods offered by the tenants. The nature of the goods identified are typically what would be found inside a person's home and the approximate values accord with my understanding as to the value of such items. I will allow compensation as claimed in the amount of $9,800.
3. The tenants also identify irreplaceable and priceless items that were lost or destroyed. I accept that items such as personal photographs, children's drawings and items retained from the funeral of a loved-one are not amenable to being valued. Nonetheless, I consider the loss of property of this nature is compensable and using a broad brush I will allow a further $1,000 for compensation of items not amenable to the identification of specific values.
4. I turn to consider compensation for inconvenience. In Tronnolone, Parker J noted that damages for inconvenience is not limited to reimbursement of actual costs incurred, and a broad brush is to be taken to the assessment of compensation. I remain mindful that I must not compensate for 'distress' or personal injury.
5. The tenants gave evidence of the consequences of these events on them. It is not possible to summarise their evidence in this regard without transgressing into matters that describe the emotional distress they endured.
6. The tenants say they had to leave Port Lincoln for Adelaide. They had to hire trailers for some property they still had that was not destroyed. The tenants had to live in a caravan park for a number of weeks. The tenants say that they lost shared care arrangements with children because their living arrangements were not suitable, and had to access the courts to regain access to children. Their circumstances have only recently settled with securing new rental accommodation, for which they had to find money for a bond. They say that some items of property were left behind, and they were fearful of returning to Port Lincoln and missed some important family events.
7. Not all of these matters can be the subject of compensation in these proceedings, and those items that may clearly be identified as relating to inconvenience are not corroborated by receipts or other documentation.
8. The tenants have suggested compensation on the basis of rent they would have paid if proper notice had been given to terminate the tenancy, but I think this is both misconceived and immaterial. Likewise, the value of the bond for their next tenancy does not relate to the inconvenience they endured.
9. I am satisfied that the tenants ought to be compensated for inconvenience, to the exclusion of distress, but have difficulty identifying any particular amount by reference to the evidence I have received. Again, at the limits of the broad discretion the Tribunal has to identify appropriate compensation, I consider an amount of $3,000 represents the undoubted inconvenience the tenants endured as a result of the landlord's actions, without encroaching on the further matters mentioned that demonstrate distress. I intend for this amount to relate to moving costs, reestablishment costs and costs that inevitably arise in the context of a sudden and traumatic displacement.

1. The tenants claimed they paid a bond of $960, but the bond was not lodged with the Commissioner by the landlord. In this regard, the Tribunal has not detected any record of a bond having been lodged in connection with this tenancy. I consider the tenants' claim in this regard is plausible, as it is most unlikely that the landlord would have handed over possession of the premises without a bond. I accept that the landlord received money of $960 on the basis that it was to be held as a bond.
2. The landlord has not dealt with the bond lawfully, and has made no claim against the bond. The landlord is not entitled to retain that money. I will also order that the landlord compensate the tenants for the bond that I accept they have paid.

1. Taking into account all of the matters outlined above, I will order that the landlord pay to the tenants the amount of $14,760 within 14 days of the date of this order.

1. The circumstances of this matter raise the real question about whether offences have been committed under the Act. For example, the circumstances of the landlord's breach of the tenants right to quiet enjoyment raises the question of whether offences have been committed contrary to ss 65 and 97A of the Act. The manner in which the landlord dealt with the bond raises a question of whether an offence has been committed contrary to s 62 of the Act.
2. The Commissioner for Consumer Affairs has the role of investigating and, if appropriate, prosecuting offences under the Act. I will direct the Registrar to refer this decision record to the Commissioner so that the Commissioner may take such further action as he deems fit.

1. I order that the landlord pay to the tenant the sum of $14,760 within 14 days of the date of this order as compensation for breach of the covenant for quiet enjoyment and repayment of moneys paid as a bond. Failing payment this order may be enforced in the Magistrate's Court.

[2] Tronnolone v Edwards and Bryan [2016] SACAT 27 (Parker P).

[3] Varricchio v Wentzel [2016] SASC 86 (Doyle J).