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.