On 25 May 2021 the tenant applied for orders under section 187 of the Residential Tenancies Act 2010 ('the Act") that he be paid an amount of money of $1,889.85 and compensation of $5,464.28 by the landlord.
In the written reasons for the application the tenant stated it was made as a "counter-claim" to the landlord seeking to retain the bond at the end of the tenancy. Those reasons alleged Mr Sader and his agent had engaged in deceptive, unconscionable, intimidatory and threatening" actions and behaviours. The tenant said he sought "rectification costs associated with the necessitation of my move, as well as compensatory cost for loss of quiet enjoyment".
The application first came before the Tribunal on 6 September 2021. The matter was adjourned. On that date the Tribunal record shows the bond claim of the landlord had been resolved but this application of the tenant remained to be heard. Both parties appeared at that hearing.
At the beginning of the hearing on 27 October 2021 the tenant was asked to specify with more precision the particular parts of the Act the landlord was alleged to have breached. He said he sought:
1. $15,000.00 compensation for breach of quiet enjoyment (section 50 of the Act)
2. costs associated with end of lease move
3. rent reduction under section 44 of the Act.
On 27 October 2021 the matter was part-heard. The hearing had insufficient time due to the tenant raising in his closing submission that he had been denied procedural fairness during the hearing. An adjournment was necessary to allow the tenant to finish those submissions on procedural fairness and to also make any further submissions on the substantive issues subject of the claim.
The matter came before the Tribunal again on 26 November 2021. The tenant made no further submissions on the issue of procedural fairness. In relation to the substantive claim, he said he left it to the Tribunal's discretion to determine if orders made in a prior claim (see paragraphs 15 to 16 below) by the tenant also finalised the question of breach of quiet enjoyment and payment of money he raised in this application. In further closing submissions the landlord submitted again that this application was subject of res judicata due to the consent orders made in a related claim on 16 April 2021.
The tenancy terminated some 13 days later and the tenant vacated on 29 April 2021. Consequently, this application was lodged nearly 4 weeks after the end of the tenancy.
[2]
Issue of procedural fairness
The Tribunal concedes that the member presiding often questioned the tenant during his evidence and submissions. At times this questioning may even have been robust.
The member presiding explained to the tenant that if the Tribunal were to make adverse findings, the tenant needed to be put on notice as to the issues to address. This particularly related to the landlord's claim that the proceeding should not be entertained at all as it had already been determined in orders made in the prior claim. Many of the member's questions related to the what the tenant perceived to be the scope of those orders. The tenant perceived any questioning on issues being raised by the landlord as the Tribunal being in support of the landlord's defence to this claim. That was not the case. The questioning was aimed at eliciting evidence and submissions from the tenant in order to test the landlord's claims. In a Tribunal such as NCAT where parties often self-represent and are not legally trained, a member will often engage is such questioning to facilitate progress of the matter and ensure a party has adequately addressed the real issues and facts in dispute.
The tenant also objected to being limited to 3 or more further questions at the end of his lengthy cross-examination of a witness. The member limited the questioning as time was running short for hearing and many previous questions had been repetitive and / or irrelevant. In any event, when allowed to ask 3 more questions the tenant did no take up this offer.
The tenant also made lengthy oral closing submissions at the end of the hearing on 27 October. After the landlord had made its oral submissions the tenant then sought to reopen his case and make further submissions. This led to the hearing being part-heard.
In order to try to complete the hearing on 27 October 2021 the presiding member also sought to limit the tenant's time for the remainder of submissions. In limiting the time for submissions, the Tribunal was attempting to comply with its primary obligation under section 3(d) of the Civil and Administrative Tribunal Act 2013 to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible.
At the next hearing on 26 November 2021 the tenant failed to make any further submissions.
For the reasons given in paragraph 8 to 13 above, the Tribunal does not accept the tenant was denied procedural fairness.
[3]
The Prior Claim
On 28 February 2021 the tenant made an earlier claim in relation this tenancy (RT 21/09247 - "the prior claim"). That claim was brought against not only the landlord, but two real estate agents as well. That claim was wide ranging and stated the facts and issues relied on and orders sought. These included:
1. orders relating to access, security devices and keys
2. an order for payment of $2,800.00 and compensation of $15.000.00
3. the $2,800 was stipulated as a payment of loss of facilities. The $15,000.00 was sought as compensation for "unjustifiable breaches to my right to quiet enjoyment".
4. the claim was partly based on alleged failure to repair including such items as hot water, loud air-conditioning unit, no phone or internet connection, brief electricity disconnection, landlord and builders attending without notice, implied threats by landlord / agents, roof leak, flies, pressure to move out and told lease would not be renewed at end of fixed term and stress, anxiety and fear.
On 16-Apr-2021 final orders were made in the prior claim. By consent, the Tribunal ordered the landlord to pay the tenant the sum of $2,000.00 on or before 23-Apr-2021 "in full and final settlement of the dispute". Orders were made in chambers by written consent of the parties.
[4]
Res judicata and issue estoppel
In Gleeson v The Owners - Strata Plan No 48226 [2018] NSWCATAP 204 ("Gleeson"), the Appeal Panel of the Tribunal considered the legal doctrines of res judicata and issue estoppel. Gleeson considered whether the Tribunal is bound to hear a dispute in circumstances where a Tribunal adjudicator had previously determined a similar issue.
The Appeal Panel determination cited from Halsburys (online) at [190-45] which states:
1. res judicata is the principle of law which prohibits a party from bringing a further action in respect of a subject matter raised and determined in a prior final judgment before a competent tribunal between the same parties or their privies litigating in the same capacity; if made out, res judicata is a complete bar to the claim
2. res judicata is founded on the necessity of avoiding re-agitation of issues and of preventing the raising of issues which could have been and should have been decided in earlier litigation
3. res judicata is not restricted to courts of record. It applies to judicial decisions of a final nature of any court or tribunal upon any matter over which it has jurisdiction to give a final judicial decision, including arbitral tribunals and a consumer claims tribunal: Maganja v Arthur [1984] 3 NSWLR 561 at 563
4. in order to establish a plea of res judicata, it must be shown that the cause of action in the later proceedings is the same as that which was litigated in the former proceedings. "Cause of action" means (i) the series of facts which the plaintiff must allege and prove to substantiate a right to judgment, (ii) the legal right which has been infringed, and (iii) the substance of the action as distinct from its form: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 610
5. res judicata applies where there is an identity of parties. This occurs where the parties are literally the same or there is privity of interest or capacity. The determination of identity between litigants for the purpose of establishing privity is a question of fact. There are three classes of privies, blood, title and interest.
With regard to issue estoppel, Halsburys states it is the principle that "a final judgment by a competent tribunal forever binds the parties and all those who claim through them in respect of any issue of fact or law which was legally indispensable to that decision". The Appeal Panel said for the doctrine to apply in a second set of proceedings:
1. the same question must have been decided
2. the judicial decision which is said to create the estoppel was final
3. and the parties were the same persons as the parties to the proceedings in which the estoppel is raise.
How is res judicata different to issue estoppel? Issue estoppel widens the scope of a claim being disallowed because "the plea of issue estoppel may succeed although the causes of action in the two cases are entirely different (see Halsburys at [190-100])".
[5]
Evidence of parties at hearing
In oral evidence at hearing the tenant raised issues with hot water and attendance of a plumber without notice. He said the orders of 16 April in the prior claim only related to issues with the property until that date. The tenant alleged the landlord "threatened" to fix a hot water system only if he did not tell other tenants. Tenant said he could not connect to the phone / internet. He said there was water ingress around January 26 and the living room was unusable for 2 weeks. He said electricity was turned off for a short period on 3 February 2021. After the orders of the Tribunal in the prior claim, the tenant said the tenancy agreement was terminated as the landlord did not want to address a mould issue. The tenant said he had to move due to mould.
The agent for the landlord gave evidence that the electricity issue was addressed and initially no fault was found. The owner installed a new service. The owner used his own trades to carry out repairs as the premises were in a new building still under warranty. The agent gave evidence the mould issue arose in early April 2021. Another agent who had managed the property did not concede in cross-examination that the request to not discuss the hot water issue with other tenants was a threat. The agent representing at hearing said the tenant was allowed to break the lease in the fixed term without penalty and his bond was paid to him. In any event, it was submitted that all the facts and issues raised in this application had been determined in the Tribunal orders for the prior claim.
[6]
Issue for determination
The issue that must first be determined is whether this matter is subject of res judicata or issue estoppel as it is a further action in respect of a subject matter, issues and causes of action raised and determined in a prior final judgment.
[7]
Findings and detestation
The prior claim was one for a payment of money and compensation as sought in this claim.
The prior claim was based on allegations of breach of quiet enjoyment as the tenant claimed in this matter.
The facts in relation to failure to repair were the same in both matters apart from, at best; the issue of mould that arose in early April 2021. When the orders were made in the prior claim on 16 April, the tenant would have been well aware of the mould issue. It is possible the tenant may have suffered new issues from mould in the period between 16 April 2021 and 29 April 2021 when the tenancy was terminated. However, the tenant sought a rent reduction under section 44 in this claim in relation to failure to repair items such as the mould. The tenant claimed this resulted in alleged reduction or withdrawal by the landlord of goods, services or facilities provided with the residential premises. However, claims under section 44 must be lodged prior to the end of the tenancy and this claim is not allowed in this application as it was lodged well after the tenancy ended.
The tenant sought moving costs in both claims. If any costs were incurred after 16 April and before vacation, they resulted from the tenancy being ended by the tenant. However, he was not charged the break fee and the bond was paid to him. The landlord allowed the early break without penalty.
The Tribunal is satisfied that this claim involves the same parties as the prior claim. The real estate agents who had been erroneously joined to the prior claim had been removed by the time final orders were made. The same causes of action for compensation for breach of quiet enjoyment and payment of money for failure to repair were in dispute. No new facts or issues arose between the finalisation of the prior claim on 16 April and vacation of the premises on 29 April that would allow this claim to be made. An order for payment of money was made in the prior claim. At the time of consenting to that order the tenant would have been well aware of the facts and issues in dispute and the prior claim order determined by order of the Tribunal was in satisfaction of the claim for compensation of $15,000.00. Apart from events that arose between 16 April and vacant possession, which have been dealt with in this determination, this claim only seeks to re-agitate the same issues which were raised, or could, or should have been decided in the prior claim. The causes of action in both matters were substantially the same.
[8]
Order(s)
The following order is made:
1. The application is dismissed.
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 March 2022