[2004] VCAT 2430

1. The correct name of the First Interested Party is Energy Plus (Australia) Pty Ltd. The principal registrar is directed to amend the register accordingly.

2. The Tribunal declares that, of the debts totalling $613.07 which the First Interested party has claimed in two invoices that the applicant tenants owe, the only amount owing by the applicant tenants is $163.02 and the balance is not owing by them.

1. "The Arkley Tower" is a block of residential apartments situated at 30 Rakaia Way, Docklands, 3008. Each apartment in the block is a unit of land on a plan of subdivision registered under the Subdivision Act 1988. On registration of the plan a body corporate called Body Corporate PS 434030V ("the body corporate") was created. Each unit owner for the time being is a member of the body corporate.

2. Apartment No 103 in "The Arkley Tower", the street address of which is 103/30 Rakaia Way, is presently owned by Mary Buttigieg and Charles Buttigieg. They are the respondent landlords in this proceeding.

3. On 25 October 2002 Ms and Mr Buttigieg let apartment no 103 to the applicant tenants in this proceeding, Nicole Winter and Sarah Woodley, for a term of twelve months under a written tenancy agreement. The tenants vacated the premises on 22 September 2003 and the tenancy then came to an end. The standard-form residential tenancy agreement contained pages of "Additional Terms", one of which was:

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

4. After they vacated the premises the tenants received two invoices for "volume and service charges" for cold water and hot water consumed by them. The invoices were for $335.47 and $227.59 respectively: a total of $613.97. The tenants have not paid the invoices. They maintain that they are not liable to pay the amounts of these invoices and in this proceeding have asked the Tribunal to determine that they are not liable to pay them.

5. Each invoice bears the name of the body corporate, bears also the name of the first interested party Energy Plus (Australia) Pty Ltd ("Energy Plus") and asks the tenants to remit a cheque to Energy Plus at a post office box number. (The word "(Australia)" has been omitted from the name of the company in the Tribunal's register. I shall make an order correcting that error.)

6. Each invoice records the total number of kilolitres of cold water and of hot water said to have been used by the tenants, charges for "cold water including disposal" at a rate of $1.53 per kilolitre, charges for "hot water including disposal" at a rate of $10.00 per kilolitre, charges $10.00 as "service charges" and charges for goods and services tax (GST) on the total of the second and the third charges (but not for cold water). The amounts on the invoices are:

7. By a written agreement dated 4 September 2002, the body corporate engaged Energy Plus "to read the meters installed in the building 'Arkley Tower', Docklands Melbourne, collate and generate billing for services used by the tenants of the said building and collect payment for these services by the tenants". Clause 5 of the agreement provided that Energy Plus would collate data from meter readings, format the data into an invoice or bill that would be given to each tenant and include in each bill "the service charge to the tenant".

8. On 12 January 2004 the tenants filed an application and commenced proceeding no R2004/1534. The respondents were the landlords Ms and Mr Buttigieg. The application referred to an invoice "for hot water" for $613.07: this must have been a reference to the two invoices to which I have referred. The application did not state what order or remedy the tenants were asking the Tribunal to make or grant.

9. Although the landlords had, by letter, asked that Energy Plus be joined as a party to that proceeding, no other party was joined. The proceeding remained one between the tenants and the landlords only.

10. On 3 February 2004 Member Kirmos heard the application and dismissed it, giving short reasons in the order. In paragraph 1 of the reasons the Member stated that the tenants sought to have the landlords indemnify them from any liability to pay "an account issued by Energy Plus". So evidently that was the claim that the tenants were making in the proceeding. The Member concluded the reasons by stating that the landlords were not liable to indemnify the tenants.

11. On 21 July 2004 the tenants filed the application which commenced this proceeding. In their application they stated that they "challenge certain aspects of their water bill" and that they sought to join Energy Plus as an interested party.

12. By an order dated 3 August 2004 Energy Plus was joined as an interested party. The earlier proceeding and its result having come to the Tribunal's attention, by the same order the Tribunal gave directions for the holding of a jurisdictional hearing.

13. On 17 September 2004 Member Kirmos presided at the jurisdictional hearing and made findings that the issues in dispute in this proceeding were different from those determined in the earlier proceeding and that accordingly the application in this proceeding was not a duplication of the application made in the earlier proceeding. The Member proceeded to make an order joining the body corporate as a second interested party, and adjourned the proceeding

"... to finally determine all matters in dispute relating to the Energy Plus account under the Residential Tenancies Act 1997 or the Fair Trading Act 1999, insofar as [the proceeding] is not inconsistent with the order made by the Tribunal on 3 February 2004".

The effect of this order, as I interpret it, was to amend the tenants' application so that it was brought not only under the Residential Tenancies Act against the landlords, but also under the Fair Trading Act against all parties, who were by then the landlords, Energy Plus and the body corporate.

14. Eventually the proceeding came on for hearing before me on 9 November 2004.

15. At the jurisdictional hearing on 17 September 2004 the tenants and the landlords both appeared but Energy Plus did not. In the absence of any application by Energy Plus for a review of the order, and there was none, the determination on that day was final and binding on the tenants, on the landlords and on Energy Plus. None of those parties would have been entitled to ask me to decide the proceeding in a way that was inconsistent with that determination and I would not have been able as a matter of law to do that even I had been asked by one of them to do it; in fact I was not. Nor was I asked by the body corporate to do that. The determination on 17 September 2004 was not binding on the body corporate because it had not been made a party before the hearing on that day.

16. Had I come to conclusions which were inconsistent with the determination made by Member Kirmos on 17 September 2004 and with the order made by the Member on 3 February 2004 in the earlier proceeding, an awkward state of affairs would have arisen. However, as will appear from these reasons, my conclusions are consistent with that determination and with that order in the earlier proceeding.

17. At the hearing on 9 November 2004 the tenants were present and were represented by Mr Darling of the Tenants Union of Victoria. One of the tenants, Nicole Winter, gave evidence. Ms Buttigieg represented the landlords and gave evidence. Energy Plus's managing director, John Tandy, represented it and gave evidence. The body corporate's chairperson, Vicki Dudley, represented it and gave evidence.

18. At the commencement of the hearing Mr Darling asked for written reasons for my decision and handed to me a written submission. From that submission, and from the way that the hearing developed, it became apparent that what the tenants were asking the Tribunal to do was to determine that they were not liable to pay the amounts specified in the two invoices from Energy Plus. The written submission was dated 17 September 2004 and so I infer that it had been designed for presentation to Member Kirmos on that day. Parts of the submission related only to the preliminary or jurisdictional issue that Member Kirmos determined on that day. Other parts of it remained relevant for the purposes of the hearing before me.

19. At the conclusion of the hearing I reserved my decision. I gave each party liberty to file and serve any further written submissions and set out a timetable for them which would expire on 6 December 2004. The tenants and Energy Plus filed further written submissions within the timetable. I have considered each of the submissions but neither really advanced the matter beyond what had been debated at the hearing.

20. Mr Tandy's was the only evidence that was really central to the issues I had to decide. The facts I set out below are derived from his evidence, which I have accepted.

21. City West Water supplies water to the apartments at "The Arkley Tower". For each apartment there are two meters. One measures water that passes through hot water pipes in the apartment. The two meters that belong to apartment no. 103 are situated in a cupboard near the apartment and have a tag with the number "103". They measure the water supplied to apartment no. 103 and to nowhere else. The cold water meter bears a number 01B 337519. The hot water meter bears a number 00I 568977. These two numbers appear on the invoices given to the tenants of apartment no. 103. City West Water supplied the cold water meter and it accords with approved national standards. There are no approved national standards for the hot water meter. Once installed the meters were owned by the body corporate.

22. There is a gas hot water system in the apartment block. The apartments are not separately metered for gas supply. There is a separate meter only to measure the hot water.

23. City West Water holds a water and sewerage licence issued under Victorian legislation. (Mr Tandy made that bare assertion; I was not shown any document that supported it, but I see no reason not to accept it; for City West Water, a major water supplier, not to hold the necessary licence would beggar belief.)

24. City West Water charges the body corporate a composite charge that takes into account the volume of water supplied to the apartment block and includes a sewerage charge based upon an estimate that ninety per cent of the water used is discharged in sewerage or through drains. The composite charge comes to $1.53 per kilolitre used. No GST is added.

25. The gas supplier charges the body corporate a pre-negotiated amount for gas supplied to the apartment block. The charge includes a charge for GST.

26. As it has been engaged to do under its agreement with the body corporate, Energy Plus reads the two water meters for each apartment every two months, prepares an invoice addressed to each tenant of an apartment, and renders the invoice.

27. The first invoice, for $335.47, shows that the two meters (for cold water and hot water) for apartment no. 103 were read on 30 June 2003. The second invoice, for $277.59, shows that the two meters were read on 25 September 2003.

28. The first charge in the invoices is for cold water including disposal. The charge is made at the rate of $1.53 per kilolitre for the number of kilolitres shown in the last reading of the cold water meter, less the number of kilolitres shown in the previous reading. So the charge is made at the same rate for which City West Water charges the body corporate.

29. The second charge in the invoices is for hot water usage including disposal. The charge is made at the rate of $10.00 per kilolitre for the number of kilolitres shown on the last reading of the hot water meter less the number of kilolitres shown in the previous reading.

30. Mr Tandy earnestly endeavoured to explain to me how that rate of $10.00 per kilolitre was arrived at. Despite his earnest endeavours I did not understand the explanation. He told me that Energy Plus, in its capacity as an administrative service provider for the body corporate (and for other similar bodies), obtains evidence "anecdotally" of what gas suppliers were charging and that the rate of $10.00 per kilolitre was struck after considering that evidence. One part of the explanation that I did understand, however, was that the rate of $10.00 included a component for the volume of water used as hot water, a volume which has been charged for by City West Water at the rate of $1.53 per kilolitre. So the rate of $10.00 could be regarded as including a rate of $1.53, as charged to the body corporate and passed onto the tenants, for the tenants' use of hot water.

31. The third charge in the invoices is for the "service charge" which the body corporate had authorised Energy Plus to charge to the tenants. The written agreement between the body corporate and Energy Plus did not specify a figure. I infer that Energy Plus determined the size of the charge.

32. The final charge in the invoices is for GST, calculated upon the hot water usage charge and upon the service charge, but not upon the cold water charge. Mr Tandy told me that because the composite charge for hot water usage was a "value added product", not a simple charge for supply of utilities, GST was payable upon it, but the cold water charge, being nothing more than a charge for the supply of a utility, did not attract GST.

33. Section 52 of the Residential Tenancies Act 1997 ("RTA") governs a tenant's liability for various utility charges. So far as is relevant to this proceeding, s.52 provides:

"A tenant is liable for -

(a)

all charges in respect of the supply or use of .... gas ... in

respect of the tenant's occupation of rented premises that are

separately metered ...;

(b)

the cost of all water supplied to the rented premised during the

tenant's occupancy if the cost is based solely on the amount of water supplied and the premises are separately metered;

(c)

that part of the charge that is based on the amount of water supplied to the premises during the tenant's occupation if the

cost of water supplied is only partly based on the amount of

water supplied to the premises and the premises are separately

metered;

(d)

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

34. Section 3 of RTA defines "separately metered" to mean (so far as presently relevant) ".... that there is, in respect of rented premises, .... a meter ....

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

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

35. Section 53(1) of RTA provides, in contrast to section 52, that a landlord is liable for all charges in respect of the supply or use of gas by the tenant at rented premises that are not separately metered and that a landlord is liable for all costs and charges related to a water supply service to and water supplied to rental premises that are not separately metered.

36. Section 23(1) of the Water Industry Act 1994 ("WIA"), so far as is relevant to this proceeding, provides:

"The occupier of a property is liable for any water usage charge or sewerage disposal charge imposed in respect of the property if -

(a)

the property is occupied by a tenant under an agreement or lease ...; and

(b)

the quantity of water supplied to the premises is measured by a meter provided or installed by the licensee that only measures that quantity; and

(c)

the owner has notified the licensee that the property is so occupied ... and has given the licensee the particulars of the occupier required by the licensee...".

Section 24 of WIA provides that a body corporate of a subdivision to which water is supplied is liable to pay any water usage charge or sewerage disposal charge imposed in respect of land affected by the body corporate. It goes on to provide for an opportunity for the body corporate to request a licensee to apportion the charge on the basis of the number of lots affected by it or the lot liability of each lot affected by it, and upon such apportionment occurring the owners of each lot are liable to pay the apportioned charge. The section also provides (in sub section (10)) that the liability imposed on the body corporate does not relieve any other person from liability to pay a water usage charge or sewage disposal charge payable by that person.

There is nothing in WIA, or in any other legislation so far as I am aware, that specifies whether or how a body corporate may recoup, from a tenant of land affected by the body corporate, a water usage charge or sewage disposal charge.

There is nothing in the Gas Industry Act 2001, or in any other legislation so far as I am aware, that affects the incidence of charges for gas consumption as between an owner and an occupier, or between a landlord and a tenant.

The provisions of WIA referred to above are more general than the provisions of RTA referred to above because the operation of WIA section 23(1) is not confined to tenants of residential premises. WIA section 23(1) is concerned with the relationship of licensee and tenant, whereas RTA sections 52 and 53 are concerned with the relationship of landlord and tenant. RTA was enacted later than WIA. The Gas Industry Act does not seem to bear at all upon the matters in dispute in this proceeding.

It seems to me, therefore, that the legislative provisions that assist in the resolution of the matters in dispute in this proceeding are the provisions of RTA. That is the basis upon which the parties appeared to argue the case and that is the basis upon which I make my decision.

Section 27 of RTA provides that a term of any tenancy agreement is invalid if it purports to exclude, restrict or modify the application to that tenancy agreement of any of the provisions of RTA.

Section 52 of RTA, set out above, appears to be a complete statement of the circumstances in which a tenant is liable for utility charges. Outside of those circumstances, whoever else may be liable for payment of utilities, it is not the tenant, notwithstanding that the tenant had used them. Clause 9 in the "Additional Terms" in the tenancy agreement in this case (set out in paragraph 3 of these reasons) is valid and effective to the extent that it is consistent with RTA section 52, but is invalid to the extent that it purports to impose a greater liability to pay for utility charges than RTA section 52 imposes.

44. The tenants' written submission addressed the law relating to GST. I will be deciding the case in a way that makes it unnecessary to canvass that law.

45. Section 452 of RTA provides that a landlord or a tenant under a tenancy agreement may apply to the Tribunal if a dispute has arisen under the tenancy agreement, and section 472 of RTA empowers the Tribunal, on application to it, to make orders to require any action in performance of a tenancy agreement.

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

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

48. If the tenants, in relation to each of the other parties, may be cast in the role of a purchaser of services supplied, and if that other party may be cast in the role of a supplier of those services to the tenants (both of which conditions I shall discuss below), the Tribunal would have jurisdiction under FTA to determine a dispute between the tenants and that other party about whether the sums claimed in the two invoices are or are not owing and to make a declaration accordingly.

Application of the Law to the Facts

49. The cold water supplied to and use by the tenants, and charged for in the invoices, was measured by a meter which was supplied, and so approved, by City West Water as the relevant supply authority and which measured, in relation to apartment no. 103 only, that cold water so the premises were separately metered, as defined, for cold water. The cost of cold water supplied to apartment no. 103 was based upon the amount of water supplied, and upon nothing else. Insofar as the charges in the invoice for cold water usage included a disposal charge, the charge corresponded to the charge imposed by City West Water as the holder of a water and sewerage licence. All the elements of RTA section 52(b) and (d) have been satisfied, in my view, in respect of the cold water usage charges in the invoices.

50. The tenants submitted that RTA section 52 (d) had not been satisfied because it was Energy Plus that imposed the charges but Energy Plus did not hold a water and sewerage licence. I do not accept that submission. The section does not require that the licence holder charge the tenants directly. It covers the case where, as here, the licence holder has charged the body corporate and, through the intervention of an administrator, the tenants have been asked to meet the charge. In my view, a tenant may under RTA section 52 (d) become liable for a charge which the licence holder has imposed upon somebody else.

51. Accordingly I consider that the tenants are liable under RTA section 52 (b) and (d) for the cold water usage charges, totalling $93.86, made in the two invoices.

52. Insofar as the charges made for hot water usage and disposal include the component of $1.53 per kilolitre of water used, the same analysis applies and the same conclusion follows, in my opinion. Apartment no 103 was separately metered for that water. The only point of difference is that, whereas there was evidence that City West Water had approved the cold water meter, there was no direct evidence that it had installed or approved the hot water meter. The inference is open that City West Water, by charging the body corporate for water as measured by that meter, was thereby approving the meter. In my opinion the tenants, by bringing their application to the Tribunal and challenging their liability to pay the charges made in the invoices, assumed the onus of proving that the facts fell outside RTA section 52. As part of this onus they were required to prove that the hot water meter was not installed or approved by the relevant supply authority and that the rented premises were therefore not separately metered as defined; none of the respondents bore an onus of proving that the premises were separately metered. Because of the open inference the tenants have not discharged the onus.

53. Insofar as the charges made for hot water usage and disposal include that component of $1.53 per kilolitre, all the elements of RTA section 52 (c) and (d) have been satisfied, in my view.

54. Otherwise, however, the charge of $10.00 per kilolitre for hot water usage and disposal does not satisfy the elements which under RTA section 52 must exist before the tenants are liable for that charge. Insofar as the charge included a component for gas supplied to apartment no. 103, the supply of gas was not separately metered for that apartment.

55. For hot water usage and disposal, therefore, I consider that the tenants are liable not at the rate of $10.00 per kilolitre but at the rate of $1.53 per kilolitre, or for 15.3% of the charges made in the invoices: the calculation is $69.16.

56. As to the service charges of $10.00 each, there was no agreement by the tenants to pay those charges and no request by the tenants to Energy Plus to perform any services for them. The fact that the body corporate and Energy Plus agreed between themselves that Energy Plus could include a service charge in invoices directed to the tenants does not mean that the tenants thereby become liable to pay the service charge. Energy Plus might well be entitled to claim the service charges from the body corporate, but I cannot see any basis, under the general law, let alone under RTA section 52, for holding the tenants liable for those charges. I consider that they are not liable for them.

57. Because the only amounts in respect of which Energy Plus purported to charge GST are amounts for which I have already said that the tenants are not liable (GST not having been attracted by the mere water and disposal charge of $1.53 per kilolitre), it follows that the tenants are not liable for the GST component of the invoices.

58. Clause 9 in the "Additional Terms" of the tenancy agreement does not affect the above conclusions. It provided that the tenants are liable for the utility charges mentioned in that clause where the rented premises were separately metered for the services to which the charges related. To the extent that I have mentioned above, the rented premises were separately metered in respect of water. They were not separately metered in respect of gas. I do not think that the clause does restrict or modify RTA section 52. So it is valid. But it achieves the same legal result as RTA section 52 achieves, except that clause 9 binds only the parties to the tenancy agreement.

59. In their written submission made at the hearing the tenants put forward an alternative argument based upon a hypothesis of an agreement of some kind between themselves and the body corporate which had become assigned by the body corporate to Energy Plus. That hypothesis simply does not correspond to the facts. There was no such agreement. The only agreement the tenants had was with the landlords. There was no assignment of anything, simply an engagement of Energy Plus as a contractor by the body corporate.

60. My conclusion is, therefore, that the total sum for which the tenants are liable under the two invoices is $163.02 ($93.86 plus $69.16).

Jurisdiction

61. What I have said so far is based upon an assumption that the Tribunal has jurisdiction to decide, as between the tenants and all other parties, the dispute with which this proceeding is concerned. During the hearing I raised the issue of jurisdiction to determine the dispute as against Energy Plus and the body corporate. No party has submitted that the Tribunal does not have jurisdiction. Nevertheless I think that I need to address the issue.

62. As between the tenants and the landlord, there is no doubt that the Tribunal has jurisdiction to decide any dispute, not only under RTA but also under FTA because by letting the rented premises to the tenants the landlords were conferring a right upon them in trade or commerce and so were supplying services to them as purchasers of the services. There is no provision of RTA that confers upon the Tribunal expressly a power to make a declaration that any of the charges in the two invoices is or is not owing, but FTA section 108 (2) (i) does expressly confer such a power. There is a controversy between the tenants and the landlords because in the event that I decide (as I do) that the tenants are not liable for all the charges in the invoices it is likely that the body corporate will call upon the landlords to pay the charges for which the tenants are not liable. Because of that controversy I consider that there is a dispute between the tenants and the landlords which enlivens the Tribunal's jurisdiction.

63. As between the tenants and Energy Plus, I am satisfied that the Tribunal has jurisdiction under FTA to decide the dispute as to liability to pay the charges in the two invoices. By virtue of having claimed from the tenants in those invoices service charges of $10.00 each, Energy Plus implicity asserted that it had provided for them some facility or conferred upon them some benefit for which the service charge ought to be payable. Arguably Energy Plus was providing a facility to them in the form of a reading of the water meters that would enable them to learn how much water they had consumed during the period between the date of the meter readings. Whether or not such an argument is correct, my view is that the very fact that Energy Plus claimed service charges from the tenants, and thereby asserted that it had provided services to the tenants, means that the dispute between the tenants and Energy Plus concerning the invoices is a dispute in relation to the (purported) supply of services and so is a "consumer and trader dispute" which the Tribunal has jurisdiction by reason of Part 9 of FTA to determine.

64. My conclusion expressed in the previous paragraph depends upon the fact, as I consider and find it to have been, that the invoices were invoices from Energy Plus, not from the body corporate, notwithstanding that the body corporate's name appeared on them as well as Energy Plus's name. The invoices included a direction to make payment to Energy Plus. The written agreement between the body corporate and Energy Plus provided for Energy Plus to prepare and deliver the invoices, demonstrating, in my opinion, an intention that they should be Energy Plus's invoices.

65. The answer to the questions of whether the Tribunal would have had jurisdiction to determine any dispute between the tenants and the body corporate, and has jurisdiction to determine a dispute between the tenants and others in such a way as to bind the body corporate once it had been joined as a party to a proceeding between the tenants and others, is much less clear. Behind those questions is a larger issue of whether a body corporate ever supplies, in trade or commerce, services (as defined in FTA) to any unit owner, let alone to any tenant of a unit owner. To my knowledge that larger issue has not been decided by the Tribunal or by a court. This proceeding is not an appropriate one in which to decide it. For the dispute in this proceeding is principally between the tenants and Energy Plus and then, at one step removed, between the tenants and the landlords. Moreover the larger issue has not been argued before me, by parties with competing submissions or at all. I may and shall determine the dispute irrespective of whether there is jurisdiction to determine any dispute between the tenants and the body corporate.

66. If, contrary to my finding, the invoices were indeed invoices from the body corporate to the tenants, there would be no difficulty; the "service charge" in each invoice would have been a claim made against the tenants by the body corporate, and there would have been the implicit assertion that the body corporate had supplied services to the tenants that justified the imposition of the charges. But, in the light of my contrary finding, that solution to the jurisdictional question is not available.

67. No party has argued that the Tribunal does not have jurisdiction vis-à-vis the tenants and the body corporate. Arguably the body corporate, in the circumstances of this case, did provide a facility to the tenants in trade or commerce in that it made available to them the services of a contractor, Energy Plus, for meter reading. For those reasons I propose to assume that the Tribunal has jurisdiction vis-à-vis the tenants and the body corporate under FTA without deciding whether it does have jurisdiction.

The Effect of the Decision in the Earlier Proceeding

68. The Tribunal's determination on 3 February 2004 in proceeding no R2004/1534, dismissing the tenants' application and giving as a reason that the landlords were not liable to indemnify the tenants from liability to pay the amounts specified in the two invoices, demonstrated an underlying assumption that the tenants were obliged to pay those invoices. For without such an obligation there would have been no need for the tenants to seek an indemnity from the landlords or for the Tribunal to consider whether there should be an order for an indemnity.

69. I have already indicated, that I have concluded that the tenants were and are liable to pay only part of the amounts demanded of them in the two invoices. So the underlying assumption was incorrect, in my opinion. To the extent that the invoices included charges for which the tenants are not liable by virtue of RTA section 52, no question of indemnity need arise because there is nothing from which the tenants require an indemnity. To the extent that the invoices included charges for which the tenants are liable by virtue of section 52, it is right to say that the landlords are not liable to indemnify them, because section 52 does not impose that liability upon the landlords and there is nothing else in RTA that could justify a claim for indemnity.

So, one way or another, the Tribunal's conclusion in proceeding no. R2004/1534 that the landlords are not liable to indemnify the tenants was correct and the conclusions I have reached are consistent with it. Furthermore, the findings that Member Kirmos made on 17 September 2004 in this proceeding were correctly made.

As FTA section 108 (2) (i) permits me to do in the light of the conclusions I have reached, I will make the following declaration. The Tribunal declares that, of the debts totalling $613.07 which Energy Plus has claimed in two invoices that the tenants owe, the only amount owing by the tenants is $163.02 and the balance is not owing by them.