There was considerable animosity between the parties and the Tribunal found the conduct of these proceedings difficult to manage, particularly because of the conduct of Ms Bian.

At the directions hearing, the final hearing and in their various written submissions all of which are set out in full below, the lessors made a series of allegations concerning the bias of the Tribunal and made constant unsubstantiated assertions of dishonesty on the part of the tenant and her parents. Throughout the proceedings before the Tribunal the lessors asserted rights at law against the tenant which not only had no foundation in law but were in fact contrary to law. These issues are identified below.

The allegation by the lessors against the Tribunal essentially stems from the lessors assertion that the Tribunal should not assist the tenant to: * (a) understand the legal framework in which the hearing of the claim is to occur; * (b) understand her rights; and * (c) frame her claims in accordance with the evidence she wished to advance.

The tenant was a young lady with no previous experience in tenancy or in the Tribunal. The lessors, throughout the proceedings, argued that the tenant should be left to run her case as best she can without any assistance by the Tribunal. Upon this premise the lessors contended that it was beyond power for the Tribunal to permit an amendment of the tenant's claim to include grounds not initially raised in her application as filed. For its part the Tribunal rejected the adversarial model of its proceedings advanced by the lessors.

The lessors are experienced lessors and users of the Tribunal process, who have been the subject of strong criticism by another Tribunal member for similar conduct in Spargo v Wang & Bian [2007] ACTRTT 3 in which the member in that case wrote at [87]:

The RTT is of the view that this lessor continues to rent premises in wilful disregard of the provisions of the legislation, with no regard for the rights of the tenants and that his dealing with the tenants who have made application to the RTT have been characterised by bullying and deceit on the lessors' part. In the opinion of the Tribunal both Mr Wang and Ms Bian are witnesses of little credit and their appearance before the Tribunal has been characterised by offensive and insulting behaviour directed at both tenants and Tribunal members.

1. The lessors' frequent and unsubstantiated allegations of dishonesty directed at the tenant and her mother led to a serious credit issue in which the Tribunal informed Ms Bian that it could not discern when she was purporting to make serious factual statements and when she were engaging in purely emotional insults of the tenant and her mother.

2. This case demonstrated the difficulty that can attend controlling litigation between uninformed and unrepresented parties where there is a high level of emotional content and little commitment to objectivity on the part of one party to the dispute.

3. The lessors have sought a statement of reasons for the decision given orally immediately after the hearing on 11 May 2009. The lessors have lodged an appeal with the Tribunal pursuant to s79 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) and have requested the present statement of reasons in that context.

4. Given the nature of the allegations made by the lessors before the Tribunal and in their grounds of appeal, the Tribunal has determined to include in this statement of reasons the whole of the evidence and submissions filed with the Tribunal rather than paraphrase or summarise the content and relevance of the documents concerned. The oral evidence before the Tribunal was the subject of sound recording and the Tribunal cites from a transcript of that recording.

1. The Applicant/tenant filed an application in the Tribunal on 23 February 2009 seeking an order to terminate the tenancy "...as soon as possible within the 26 weeks commencing on 18 February 2009" together with compensation for various defects in the premises that existed at the commencement of the tenancy.

2. In the application the tenant gave the following history of the dispute with the lessors:

On 15th of February 2009 the applicant and the lessor signed a tenancy agreement. Due to the distance (as I was used to live in Victoria until I had to move to Canberra for university) I was requested to pay $2000 to "secure the apartment" (see email attached. Originally it was a deposit until the lessor changed his mind to make it the bond). This was deposited directly into their account. After the signing the rental agreement, when the lessor was paid by cheque rather than cash, the lessor changed the attitude completely. Subsequently the lessor refused to issue the receipts for neither the deposit (later on the bond) nor the rental for the first 4 weeks (paid on the 15th of February by cheque). After the condition report, I requested for the repairs for the unworkable items, such as the dishwasher, the fax machine, the leaking kettle and the broken door etc. It was agreed and then cancelled (please see the email correspondences for details). On 18th February 2009 the lessor informed me that they wished to terminate the agreement without cause, which was agreed, but then they changed again (please see the attached email correspondence for details).

1. Under the heading "Issues In Dispute" the tenant wrote:

The lessor instructed me to leave the apartment on 28th of February 2009 even without offering to refund the already paid rentals. The lessor also instructed me to increase the rental immediately without my agreement.

1. Under the heading "relief sought" the tenant wrote:

3. Stopping the lessor demanding for rental increase without any ground.

4. Demanding for the receipts for the payment of the bond, which was made through bank deposit on 9th February 2009, and the first four weeks of rental payment which was made in person on 16th of February 2009, according to the standard residential tenancy terms (schedule one of the ACT Residential Tenancies Act 1997).

5. Demanding the lessor providing the address for the service according to the standard residential tenancy terms.

1. Annexed to the application, among other documents, was:
   • (a) a copy of the tenancy agreement which contained no entry for the bond;
   • (b) a copy of the in-going condition report signed by both parties on 15 February 2009 containing notations by the tenant relating to a broken fax, broken sofa, broken dishwasher and various notations concerning the lack of cleanliness of the premises; and
   • (c) a series of emails between the parties which are all set out below.

THE HISTORY OF THE CORRESPONDENCE BETWEEN THE PARTIES

1. On 5 February 2009 the tenant emailed the landlord in the following terms:

I am wondering if your apartment in Waldorf is still available for rent please? Furthermore, what is the price for long stay?

1. On 6 February 2009 the landlord emailed the tenant in the following terms:

It is still available. It is $520 for long stay (one year) or $550 for short stay. Please ring me on 0410651518 or 02 62057073, as I will not be able to check my email till 3:00pm today.

1. On 6 February 2009 the tenant emailed the landlord in the following terms:

Thanks you for your prompt response. I have seen two ads which were just leased at the same address with exact same type of property at the price of AUD420.00-450.00/w. As a fresh student, I do not have a too high a budget. My parents is willing to cover my rental at this range. So you have a more reliable guarantee from my parents for your rentals. Would you like to strike a deal for 42 weeks at a price of ? this range? pls? [sic] Please forward me the contract if you agree.

1. On 6 February 2009 the lessors emailed the tenant in the following terms:

I understand your situation. I can stretch to $500 for you and this is the best price you can ever find in city location and as far as I know, mine is the last one available and it is a much quit apartment. ?The one you've mentioned is a studio which is one small room with everything in it. You can hear fridge running in the evening and the cars on the street. I also have some other people interested also. Please let me know if you want to rent ASAP

1. On 6 February 2009 the tenant emailed the lessors in the following terms:

Would you pls allow me talking to my parent when they come back from work today.

1. On 6 February 2009 the landlords emailed the tenants in the following terms:

the size is around 60m2 and yes you can talk to your parent when they come back to work

1. On 6 February 2009 the tenant emailed the lessors in the following terms:

I would also like to know what type of room property is it please?

1. On 6 February 2009 the lessors replied and described the apartment as "a 4.5 star hotel, security box. Indoor heated swimming pool; sauna; table tennis and tennis court. Apartment, 1 br, f/f, c/yard". The tenant replied in a one line email in Chinese which has not been translated. The lessors then email again concerning the court yard saying:

Yes, the little court yard is attached to the apartment and no one else can use it. It is including water bill and others but not the electricity.

1. On 6 February 2009 the lessors emailed back to the tenant in the following terms:

Pls fill in the attached application form to the best of your ability. ?

If you decide to share the apartment with someone else in the future, it will only be $40 extra.

Pls deposit $2000 into our account? to secure the apartment ASAP and let us know when you did the transfer. If you do the transfer today? it will probably show online next Mon or Tue.? Once we have received? your payment,? we will confirm to you by email ASAP.

[Bank account details were included at the end of the email]

1. On 7 February 2009 the tenant emailed the lessors in the following terms:

Because it is the weekend now, all Commonwealth Bank are not open in Victoria.?

Unfortunately, I can't do it over the internet as well, because I cant transfer more than $1000 each day. I will transfer the money first thing on Monday. I? definitely? want the apartment.?

I just want to know? approximately? how many sets of linens and towels I will need to bring.?

1. On 7 February 2009 the lessors emailed the tenant with details of the number of towels, linen etc.

2. On 7 February 2009 the tenant emailed the lessors forwarding the completed application form provided by the lessors and stating that "I will send my ID and bank statement in a separate account".

3. On 7 February 2009 the lessors emailed the tenant in the following terms:

Yes, that's fine. You may present your IDs when your arrive. Please do a cash deposit first thing on Mon so that it will probably show online on the same day.

1. On 8 February 2009 the tenant emailed as follows:

I will give you my IDs when I arrive because it is safer that way.

1. On 9 February 2009 the tenant emailed the lessors advising that the deposit had been lodged into the landlords account and the lessors replied saying "I have already received $2000 deposit".

2. On 9 February the lessors emailed the tenant in the following terms:

Please advise the time and date of your arrival so that we can negotiate a mutually suitable time to meet on the day.

Please bring with you IDs and proof of income. Please also bring $2000 as $2000 will be the bond and $2000 will be rent in advance.

1. On 9 February 2009 the tenant emailed the lessors in the following terms:

I will be arriving on the 15th of Feb at about 5-6pm. Please give me a time when you will be free so we can organise to meet up.

I will bring my ID photos and proof of income on the day together with $2000. Please provide 2 receipts on the day, I showing the bond and the other with the $2000 for the first month of rent.

I would also like to know if there are the following in your apartment.

1. On 10 February 2009 the lessors replied in the following terms:

between 5-6pm on Sun 15 Feb is fine, pls ring 0410651518 at least 15 minutes in advance to advise the exact time as I will not be able to wait for one hour. You can ring me when you enter the border of ACT if you come to City via Barton Highway. I will meet you at the reception of Waldorf Apartment Hotel at 2 Akuna St (corner of London Get) Canberra City. pls take a seat in the corner of the reception.

1. On 10 February 2009 the tenant emailed back in the following terms:

I will call you on the day, at least 15 min before my arrival to notify you about the approximate time I will arrive at the Waldorf. I will wait at the corner of reception.

The next day the lessors replied informing the tenant of parking arrangements.

1. On 11 February 2009 the tenant emailed the lessors saying:

Would you please bring a photo ID on the day as well as a copy of it for me to keep please (for security reasons).

Am I correct in assuming that the sofa in the hotel can be turned into a sofa bed?

1. On 12 February 2009 the lessors emailed the tenant saying:

As the owner and lessor of the property, I do not need to provide you with a copy of my photo ID and I never have to my tenants.

1. On 13 February 2009 the tenant emailed the lessors saying "Will you please bring the lease on Sunday".

2. On 17 February 2009 the tenant emailed the lessors complaining that the kettle did not work and asking for a replacement. The lessors replied saying "It works, just pull the green button up to start".

3. On 17 February 2009 the tenant emailed the lessors advising the kettle was working but "the water cannot be heated. When you come tomorrow please take it back and bring the inventory sheet so that it can be crossed off".

4. On 17 February 2009 the lessors emailed the tenant in the following terms:

I will not be able to come at between 18:00 and 18:30 tomorrow Wed 18 Feb. However, I will come at about 9:30 on Sat 21 Feb.

Also, I acknowledge the payment of $2000 on Mon 9 Feb 2009. I cannot acknowledge the payment of $2000 by cheque on Sun 15 Feb 2009 until it is cleared by the bank in a few days time.

In future, if the payment is made by direct deposit through the bank, I am not required to issue any acknowledgement unless payment is made in cash.

1. On 18 February 2009 the tenant emailed the lessors in the following terms:

Thank you for your email advising me that you could not come to fix the door as promised earlier. I however would appreciate it very much if you could keep your promise to have the technician to fix the dishwasher at your earliest convenience.

I certainly understand that you will only issue the receipt for the payment of the already paid first four weeks rentals after the bank clearance of the cheque. Please issue the invoice upon the clearance of the cheque issued to you on 15th of February, 2009 in your presence.

It is my legal right to demand a tax invoice for the payment of the rentals, no matter it was paid in cash, cheque, or direct deposit as per your previous agreement to the method of payment. My understanding is this, it is my obligation to pay the rental on time; whereas, it is the obligation of the landlord providing the invoice to the tenant for the payment. Like last time when I was demanding your photo ID, it was also per the stipulation of the ACT Residential Tenancy Act.

Thank you for your attention to this, as well as your understanding of this.

1. On 18 February 2009 the lessors emailed the tenant in the following terms:

Can you advise which clause in the ACT Residential Tenancy Act states that lessors have to issue tax invoices if the rent is paid by direct deposit and which clause states that the lessors have to provide photo IDs to tenants? Please go and study the Act carefully before making any unlawfully demands not in accordance with the Act.

We had oral agreement with your mum during her stay in Canberra last weekend that we could terminate the lease at any time. We just contacted your mum who is your guarantor and she agreed to terminate the lease on Sat 28 Feb 2009. A final inspection will be carried out at 9:30 on that day. Please contact your mum with regard to the matter ASAP.

In this regard, we hereby cancel the appointment at 9:30 this Sat 21 Feb 2009.

1. The tenant emailed back in the following terms:

Please take note that the Tenancy Agreement signed on 15th of February, 2009 is between your good self and me. I do not understand why you bother my mother for this?

The signed agreement is a fix term tenancy agreement, according to the ACT Residential Tenancies Act, and therefore according to Clause 94 of this Act, The lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate the premises at the end of the notice provided that the notice is for 26 weeks

Which law gives you the right to instructing "terminate the lease on Sat 28 Feb 2009. A final inspection will be carried out at 9:30 on that day."?

In consideration of your request, I would take your last email requesting termination of the agreement we entered into on 15th February, 2009, as the notice served to me. I therefore will look for an appropriate replacement of the apartment, within 26 weeks starting from 18th February, 2009. I shall give you notice as soon as possible upon finding the right one.

The Tenancy Agreement between you and me is governed by the ACT Residential Tenancies Act. Whereas this Act stipulates that

Article 13, (1) the lessor must provide to the tenant...... (2)

Even at our requests long before we inspect the property. Further, you have broken your promise to bring the receipt to me on 17th of February, 2009.

Please be reminded that you have failed your legal obligation to carry out your duty on this.

I have requested your Photo ID for the correct address according to this article.

Please fulfil your legal obligation according to the Residential Tenancies Act in accordance to the Articles 55, 56, 57, and 60. to do the necessary repairs.

1. On 18 February 2009 the tenant received a text message on her mobile sent from 0410651518. The tenant attended Civic Police Station and had Constable Lee read the message and certify a transcription of the message which read:

Lease will terminate on Sat 28 Feb contact your mum asap

1. On 19 February 2009 the lessors emailed the tenant in the following terms:

I do note the agreement was signed between you and me. I also do not understand why your mother rang me all the time about the apartment and why your mother made the payment to me using her cheque book?

I wish to bring to your attention again that the agreement of $500 PW was reached based on your false and misleading information provided in your email. We reserve the right to demand you to pay the full rate of $550 PW. As you were advised, the agreement is only valid if satisfactory proof of your income and your parents' income, such as tax return, are provided since they are your guarantors to cover your rental payment. You said in your email that you would provide me with the proof of income on the day when we met but you failed. I would like to see your proof of income on Sat 21 Feb.

Since you do not agree to your mother's suggestion to terminate the lease on Sat 28 Feb, you need to stay for 42 weeks as per agreement until both parties reach a new agreement or until I serve you a formal notice to vacate.

I will bring a hard copy of ACT Residential Tenancies Act with me at about 9:15 on Sat 21 Feb to discuss the legal issues raised.

In the meantime, please provide the name and contact details of your family lawyer as you said so that my legal representative and I can get in touch with him/her.

1. On 20 February 2009 the tenant emailed the lessors in the following terms:

As you have cancelled the appointment on Sat 21 Feb. I have other plans. Please make another time.

1. On 20 February 2009 the lessors email the tenant in the following terms:

As you suggested in your email, please provide the name and contact details of your family lawyer ASAP.

Since you claim I have "caused too much inconvenience" to you (although I am carrying out my duties as the owner and lessor of the property in accordance with the Act), as from now on, all my contact and/or correspondence will be forwarded to your family lawyer as you suggested in your email. I would also like to discuss the legal issues you raised with your family lawyer as you suggested in your email. Likewise, if you wish to contact me, please also do so through your family lawyer as you are the one who has really caused too many troubles to me by providing false and misleading information when applying for the apartment as well as by misquoting and misinterpreting the Act and creating rules and stipulations at your own will. Please take note that I will not take your personal calls and/or emails anymore except the name and contact details of your family lawyer. Alternatively, your family lawyer can reach me by phone on 0410651518 or email ...at any time.

Since you have other plans and have cancelled the appointment to provide your proof of income, to discuss the legal issues with me, and for me to carry out the repair work this Sat 21 Feb, please instruct your family lawyer to schedule another appointment. With proof of income, please instruct your family lawyer to provide me with certified copies of your notice of assessment of tax return and your parents' notice of assessment of tax return by close of business on Fri 27 Feb. I shall provide your family lawyer with a mailing address as soon as I receive the name and contact details of your family lawyer.

I sought legal advice today and was advised that with regard to your case, the full rate of $550 is payable as from the commencement of the agreement. In my face to face and phone conversation with your mother, she said she had never said "she is willing to cover the rental at this range". Therefore, you need to pay the rent in arrears of $200 immediately. Your next rent payment on or before Sun 1 Mar will be $1100. If you fail to pay the amount by that date or do not instruct your family lawyer to contact me, legal proceedings will be initiated in due course and you will be totally responsible for the costs thus incurred or deemed as appropriate by the court.

I wish to bring to your attention that if you do not provide the name and contact details of your family lawyer or if your family lawyer does not contact me by close of business on Mon 23 Feb, appropriate and relevant actions related to the apartment in question may be taken accordingly without any notice and your knowledge.

1. On 22 February 2009 the lessors emailed the tenant in the following terms:

I don't understand the "Article" you selected from "ACT Residential Tenancies Act" (Is this the story made up by you again?). First of all there are only sections in ACT Residential Tenancies Act not "Article". Second, there is no "Article 98(1)" in the Act. I Pasted and copied the original ACT Residential Tenancies Act in sections compare to your "Articles" as following:

Tenancy Agreement between you and me is governed by the ACT Residential Tenancies Act. Whereas this Act stipulates that

Article 13, (1) the lessor must provide to the tenant...... (2)

The tenant must provide the lessor with the tenant's full name. (and there is no.2)

Even at our requests long before we inspect the property. Further, you have broken your promise to bring the receipt to me on 17th of February, 2009.

A lessor may only require or accept as a bond an amount of not more than the first 4 weeks of rent payable under the residential tenancy agreement.

Please be reminded that you have failed your legal obligation to carry out your duty on this.

(1) A lessor must, not later than the day after the tenant takes possession of the premises, give the tenant 2 copies of a report about the state of repair or general condition of the premises, and of any goods leased with the premises, on the day the tenant is given the report.

(2) A report under subsection (1) must be signed by the lessor.

_(3) The tenant must, within 2 weeks after receiving the copies of the report mentioned in subsection (1), return 1 copy to the lessor, either - _

• (a) signed by the tenant; or

• (b) endorsed with a statement, signed by the tenant, indicating whether the tenant agrees or disagrees with the whole of the report or with specified parts of it.

(4) If the tenant returns the copy signed but without further endorsement, the tenant is taken to have agreed with the whole of the report.

A lessor is entitled to deduct from the bond paid under the residential tenancy agreement any of the following:

(a) the cost of repairs to, or the restoration of, the premises or goods leased with the premises as a result of damage (other than fair wear and tear) caused by the tenant;

(b) any rent owing and payable under the residential tenancy agreement at the time the agreement terminates or is terminated;

(c) the cost of replacing any fuel (such as gas, oil or wood) supplied to the premises by the lessor at the commencement or during the course of the tenancy;

(d) any reasonable amount (not greater than the costs incurred) for the cost of legal fees incurred by the lessor in assigning or transferring a tenant's rights under a residential tenancy agreement;

(e) any amount expressed in a term of the agreement to be deductible by the lessor from the bond, if the term is endorsed by the ACAT under section 10.

I have requested your Photo ID for the correct address according to this article.

Please fulfil your legal obligation according to the Residential Tenancies Act in accordance to the Articles 55, 56, 57, and 60. to do the necessary repairs.

_On application by a lessor, the ACAT may make a termination and possession order if - _

(a) the tenant repudiates the residential tenancy agreement in writing; and

(b) the lessor accepts the repudiation as proposed by the tenant; and

(c) the tenant fails to vacate the premises on or before the date specified for vacation in the notice of repudiation.

If a person to whom a termination and possession order is directed fails to vacate the specified premises in accordance with the order, the ACAT may, on application made within 4 weeks after the date when the person was to vacate the premises, order the person to pay to the applicant such of the following as it considers appropriate:

(a) an amount equal to the rent that would have been payable to the applicant if the premises had been tenanted during the period for which the person was in possession of the premises after termination of the residential tenancy agreement;

_(1) This section applies if - _

• (a) a lessor has applied for a termination and possession order under this part; and
• _(b) the tenant presents evidence that - _
  1. the tenant applied to the ACAT for an order in relation to the lessor; or
  2. the tenant complained to a governmental entity in relation to the lessor; or
     1. the tenant took reasonable action to secure or enforce the tenant's rights; or

1. the ACAT made an order in favour of the tenant against the lessor.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

_(2) The ACAT must refuse to make the termination and possession order - _

• (a) if satisfied that the circumstance mentioned in subsection (1)(b) exists; and

• (b) in the absence of proof to the satisfaction of the ACAT that the lessor was not motivated to apply for a termination and possession order by the circumstance.

(3) Subsection (2) applies despite any other provision of this part.

I warn you, it is illegal to make up Laws for any reasons or purpose. I also remained you that your rent is $550. The discounted rent of $500 which you paying now was based on the false information you provided in your email "property at the price of AUD420.00-450.00/w. As a fresh student, I do not have a too high a budget. My parents is willing to cover my rental at this range. So you have a more reliable guarantee from my parents for your rentals_". I rang you mum on 17/2/2009 morning and she said she had never told you the budget rang and she can afford to pay you normal rent as your family is quite wealth. We remain our rights to asking you to pay the full rent from the beginning._

You lease is based on your parent as your guarantor. Now your guarantor wants you to move out and suggested us to inform you by email. We can give you an extra week or two to move out. We will still come to check the dishwashers and the other things on this Saturday morning round 9:15 am if it is ok with you. We can have a talk then if there are any questions in regarding of this matter.

1. On 22 February 2009 the lessors emailed the tenant in the following terms:

Probably we both need to cool down. I want to Clearfield some misunderstanding between us. First, I wasn't happy about your dishonesty. You emailed me says you are on budget and your parent only cover on the rang of $420-$450. Even thought there are people willing to pay original of $550. I still let you have the apartment with discounted rats of $500. Second, you attitude is very negative started from the very beginning. This is Australia and this is Waldorf, most of the landlords are high classes and also attack high class tenants. There are strong bond between the tenants and landlords even beyond the law. There is love, faith and trust between them, this is why I gave you the discount without to check your parent's income at the first place, (To be honest this is the first time we've be cheated in Waldorf.) and this is why I tried to get your parent park their car in the car park which was not my responsibility. We did not made it clear in our email to you (the date was wrong as the problem of computer) it is your mum suggested us to email you to move out. I'll rang you mum to find a solution and also, we may need a good talk if you have the intention to sort out the problem. Believe me, We never afraid of the tough one and we always help the weak ones

1. The tenant subsequently filed further correspondence between the parties which are recited directly hereunder for continuity of history.

2. On 23 February 2009 the lessors emailed the tenant's solicitor, Mr Negro of Brand Partners, in the following terms:

I am Leon Wang, owner and lessor of Room 225 Waldorf Canberra Apartment Hotel.

I have been advised by Elena Xia, who is currently staying at the above mentioned address, that you are her family lawyer. She requests me to contact you as her contact and legal representative,

Please ask your client to supply me with proof of income.

I would like to have certified copies of 2 most recent notices of assessment of tax return of your client and her parents who are her guarantors by close of business on Fri 27 Feb.

1. On 24 February 2009 Mr Negro responded and asked Mr Wang for the identity of his solicitor. On the same date the landlord replied by email to send all correspondence direct to him.

2. On 25 February 2009 the tenant's solicitor emailed the lessors in the following terms:

We are instructed to confirm that our client agrees to your request to vacate the premises on 28 February 2008, subject to your refund of the bond monies ($2000) and the balance of the rent paid for the period 15 February 2009 to 14 March 2009 being $1036.98 (14 days at $74.07 per day). On this basis our client will vacate the premise at 6:00pm on 28 February 2009.

We are also instructed that the address to the premises you have supplied in your email below has been leased to a third party. We request that you supply us with an address to premises in the ACT that is occupied by you.

1. On 26 February 2009 the lessors emailed the tenant's solicitor stating "Please notify your client that the first inspection of the property will be carried out at 11.00am on Sat 7 Mar"

2. On 26 February 2009 the tenant's solicitors replied by email which read:

1. There is no legal basis for your request for tax assessment notices and they will not be provided to you.
2. Your allegation that our client's parents have guaranteed the residential lease is fanciful. If you possess duly signed personal guarantees executed by Ms Xia's parents, then please supply us with a copy.
3. The emails passing between you and our client on 18 February 2009 which are extracted below constitute an agreement for the termination of the lease on 28 February 2008:

"We had oral agreement with your mum during her stay in Canberra last weekend that we could terminate the lease at any time. We just contacted your mum who is your guarantor and she agreed to terminate the lease on Sat 28 Feb 2009. A final inspection will be carried out at 9:30 on that day. Please contact your mum with regard to the matter ASAP."

"In consideration of your request, I would take your last email requesting termination of the agreement we entered into on 15th February, 2009, as the notice served to me. I therefore will look for an appropriate replacement of the apartment, within 26 weeks starting from 18th February, 2009. I shall give you notice as soon as possible upon finding the right one."

Our client subsequently gave you notice that she would be vacating on 28 February 2009. Our client therefore re-iterates her demand for repayment of the balance of the rent and the bond in the amount set out in our email to you yesterday by 6:00pm on 28 February 2009, failing which, recovery proceedings will be initiated against you without further notice.

1. Your client agreed to supply proof of income as part of the agreement on the day of her arrival. Please refer to her email to me at 16:48 on Sat 7 Feb and at 22:48 on Mon 9 Feb. 2. I have a copy of your clients' application with her signature to show that she has nominated her parents as her guarantors. 1 also received a cheque paid to me in the name of her parents. 1 shall present the evidence to the court in due course if necessary. 3. Your client has rejected the suggestion by her mother (which I agreed) to vacate the premises on Sat 28 Feb. I therefore withdrew my agreement to your client's mother's suggestion. Please refer to my email to your client at 6:09 on Thurs 19 Feb. 4. If your client decides to break the fixed term contract, she will be totally responsible for the legal consequences thus incurred. I wish to bring to your attention that your client is legally bound to pay the rent until the lease ends in early December.

2. On 27 February 2009 the tenant's solicitors emailed the lessors in the following terms:

I refer to and re-iterate our client's position as set out in my email to you yesterday.

I strongly recommend that you consult your solicitor about this matter to gain a better understanding of the legal issues involved and the associated implications. To be clear, our client will be vacating the premises on 28 February 2009 in accordance with the email exchange on 18 February 2009. The concluded agreement as to termination was reached on 18 February 2009. Please return the bond and the balance of the rent paid for the period 15 February to 14 March 2009 by 6:00pm tomorrow following your inspection of the premises, failing which, legal proceedings will be initiated.

We confirm our client's previous advice to you that upon taking possession of the premises on 15 February 2009, our client found the oven, carpet, fridge and bathroom to be in a dirty condition. You have not arranged for those items to be cleaned to date. Our client has also reported to you that the dishwasher, the door to the laundry and the kettle were in a state of disrepair on 15 February 2009. You have not arranged for those items to be repaired.

In respect of your statement as to proof of income, we note that you entered into the tenancy agreement on 15 February and accordingly take it that you were satisfied in this regard. The tenancy agreement does not require the provision of such information and it will not be provided.

Again, in respect of the guarantee position you are asserting, in the absence of a signed guarantee deed, our client's parents have not guaranteed the lease. A nomination by a third party does not amount to a guarantee. Furthermore, payment of the rent by our client's mother is irrelevant to the question of the guarantee.

Again, we urge you to satisfy yourself of the matters put by our clients above by consulting your solicitor

1. On 28 February 2009 the tenant vacated the premises.

2. The matter was listed before the Tribunal on 19 March 2009 and the parties were invited to file any further evidence and submissions by 12 March 2009.

3. On 10 March 2009 the tenant filed a series of emails between her solicitors and the lessors which are set out above. In addition she filed an account dated 25 February 2009 from Brand Partners Commercial Lawyers, addressed to herself, in the sum of $2048.20 for their costs in advising the tenant on the tenancy dispute with the lessors and various correspondence.

4. On 17 March 2009 the lessors filed a Response which was a document that included the text of various emails, set out above, followed by the lessors' comments on the facts. The document reads in full:

Response to applicant from Yaoxiang Wang and Shefang Bian (Lessor)

We did not receive the notice until 16th March 2009 and, were given additional days to respond. We will also contact our solicitor, Bruce Vincent, who may be our legal representative during the hearing on the 19th March 2009. We have only noticed that the applicant filed her application on 23rd of February - prior told us that she wanted to end the lease, which does not follow the legal processions.

The applicant was "seeking for confirmation by tribunal's judgment on agreeing to lessor's request for termination without cause."

The applicant already moved out of the apartment by 28th February (see attached email from the lawyer of the applicant.), before she lodged this claim, and hence, is no longer valid. (See attached email )

From: Tino Dal Negro [mailto:tino.dalnegro@brand partners.com.au]

We are instructed to confirm that our client agrees to your request to vacate the premises on 28 February 2008, subject to your refund of the bond monies ($2000) and the balance of the rent paid for the period 15 February 2009 to 14 March 2009 being $1036.98 (14 days at $74 07 per day). On this basis our client will vacate the premise at 6:00pm on 28 February 2009.

We are also instructed that the address to the premises you have supplied in your email below has been leased to a third party. We request that you supply us with an address to premises in the ACT that is occupied by you.

1. The 4.5 star hotel-apartment was in its standard condition, as was checked and approved by the applicant before she signed the lease. However, she had issues concerning the operation of the kettle and we emailed her (see her attached email insert 3, page l).We also arranged a time to meet her and show her how to use the dishwasher as well as checking the laundry door after the applicant complained that one of the nine screws seemed to be loose, but the applicant cancelled the appointment. Please refer to the attached email. All of this was arranged within one week

I will not be able to come at between 18:00 and 18:30 tomorrow Wed 18 Feb. However, I will come at about 9:30 on Sat 21 Feb.

Also I acknowledge the payment of $2000 on Mon 9 Feb 2009. I cannot acknowledge the payment of $2000 by cheque on Sun 15 Feb 2009 until it is cleared by the bank in a few days time.

In future, if the payment is made by direct deposit through the bank, I am not required to issue any acknowledgement unless payment is made in cash.

(Apologies, our computer sometimes has problem with dates. The actual date for this email is 17th of February 2009).

As you have canceled the appointment on Sat 21 Feb. I have other plans. Please make another time.

(The applicant addressed wrong date of Sat 21 Feb which should be 18 Wed)

2. The applicant demanded an invoice for rent payment via bank transfer for every payment, which is explained earlier in the above email.

[A letter from the tenant's solicitors to the landlords]

I refer to and re-iterate our client's position as set out in my email to you yesterday.

I strongly recommend that you consult your solicitor about this matter to gain a better understanding of the legal issues involved and the associated implications.

To be clear, our client will be vacating the premises on 28 February 2009 in accordance with the email exchange on 18 February 2009. The concluded agreement as to termination was reached on 18 February 2009. Please return the bond and the balance of the rent paid for the period 15 February to 14 March 2009 by 6:00pm tomorrow following your inspection of the premises, failing which, legal proceedings will be initiated.

We confirm our client's previous advice to you that upon taking possession of the premises on 15 February 2009, our client found the oven, carpet, fridge and bathroom to be in a dirty condition. You have not arranged for those items to be cleaned to date. Our client has also reported to you that the dishwasher, the door to the laundry and the kettle were in a state of disrepair on 15 February 2009. You have not arranged for those items to be repaired

In respect of your statement as to proof of income, we note that you entered into the tenancy agreement on 15 February and accordingly take it that you were satisfied in this regard. The tenancy agreement does not require the provision of such information and it will not be provided.

Again, in respect of the guarantee position you are asserting, in the absence of a signed guarantee deed, our client's parents have not guaranteed the lease. A nomination by a third party does not amount to a guarantee. Furthermore, payment of the rent by our client's mother is irrelevant to the question of the guarantee.

Again, we urge you to satisfy yourself of the matters put by our clients above by consulting your solicitor.

From: Yaoxiang Wang [mailto:yaoxiangwang@bigpond.com]

1. Your client agreed to supply proof of income as part of the agreement on the day of her arrival. Please refer to her email to me at 16:48 on Sat 7 Feb and at 22:48 on Mon 9 Feb.

2. I have a copy of your clients' application with her signature to show that she has nominated her parents as her guarantors. I also received a cheque paid to me in the name of her parents. I shall present the evidence to the court in due course if necessary.

3. Your client has rejected the suggestion by her mother (which I agreed) to vacate the premises on Sat 28 Feb. I therefore withdrew my agreement to your client's mother's suggestion. Please refer to my email to your client at 6:09 on Thurs l9 Feb.

4. If your client decides to break the fixed term contract, she will be totally responsible for the legal consequences thus incurred. I wish to bring to your attention that your client is legally bound to pay the rent until the lease ends in early December.

3. The apartment is in excellent condition, and fully renovated two years ago through "Waldorf Management" to meet the standard of a 4.5 hotel. The applicant had been very difficult to deal with.

After having tolerated four days of constant emails, phone calls and text messages from the applicant, on 18th February, we rang her mother to discuss her behaviour, and was advised by her to terminate her lease if she agreed. We decided to email her our intention of ending the lease on 28th February, which was rejected by her. Instead, she requested that she would move out within 26 weeks, which we did not agree to. We emailed her on 19th February to cancel our offer and therefore the original lease would have to be followed- that she should stay until the end of the lease (see the attached emails).

Since you do not agree to your mother's suggestion to terminate the lease on Sat 28 Feb, you need to stay for 42 weeks as per agreement until both parties reach a new agreement or until I serve you a formal notice to vacate.

I will bring a hard copy of ACT Residential Tenancies Act with me at about 9:15 on Sat 21 Feb to discuss the legal issues raised.

In the meantime, please provide the name and contact details of your family lawyer as you said so that my legal representative and I can get in touch with him/her.

From: Mi Chen [mailto:mi615999@hotmail.com]

To: yaoxiangwang@bigpond.com

Please take note that the Tenancy Agreement signed on 15th of February, 2009 is between your good self and me. I do not understand why you bother my mother for this?

The signed agreement is a fix term tenancy agreement, according to the ACT Residential Tenancies Act, and therefore according to Clause 94 of this Act, the lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate the premises at the end of the notice provided that the notice is for 26 weeks

Which law gives you the right to instructing "terminate the lease on Sat 28 Feb 2009. A final inspection will be carried out at 9:30 on that day." ?

3. As the applicant had obtained discounted rent through false and misleading information via email, which was later verbally denied by her mother. She also rejected our request of checking her proof-of-income as well as that of her parents' (as she told us they supported her financially) to be eligible for the discounted rent. After having sought legal advice, we emailed her, asking for the full rent of $550/week on 20th February as follows:

"I sought legal advice today and was advised that with regard to your case, the full rate of $550 is payable as from the commencement of the agreement. In my face to face and phone conversation with your mother, she said she had never said "she is willing to cover the rental at this range". Therefore, you need to pay the rent in arrears of $200 immediately. Your next rent payment on or before Sun 1 Mar will be $ 1100".

I understand your situation. I can stretch to $500 for you and this is the best price you can ever find in city location and as far as I know, mine is the last one available and it is a very quiet apartment. The one you've mentioned is a studio which is one small room with everything in it. You can hear fridge running in the evening and the cars on the street. I also have some other people interested also. Please let me know if you want to rent ASAP

Thanks you for your prompt response. I have seen two ads which were just leased at the same address with exact same type of property at the price of AUD420.00-450.00/w. As a fresh student, I do not have a too high a budget. My parents is willing to cover my rental at this range. So yo have a more reliable guarantee from my parents for your rentals. Would you like to strike a deal for 42 weeks at a price of this range pls? Please forward me the contract if you agree.

On the 10th March 2009, the applicant sent us the invoice of her lawyer (whom she decided to call upon to act on behalf of herself) - of the professional fees, which was originally sent to the applicant, and was charged to her. Her request to the tribunal was for us to pay the invoice of her lawyer for her. The services and fees of her lawyer should not concern us at all, as it is a personal agreement between herself and her lawyer. (See attached email from the applicant)

Having said all the above, I would like to make this clear that! entered into the Tenancy Agreement with the purpose of studying in a quiet and pleasant environment. Unfortunately, you have already caused too many inconveniences to me. Should you choose not to perform your duty, and/or continue causing inconveniences to me, I would suggest you contact my family lawyer at your own cost to resolve this.

B. Charge the applicant with the full rent of $550 p/week for the remainder 38 weeks of the lease coming to a total of $20900.

1. On 17 March 2009 the tenant lodged the following letter sent by the lessors to the tenant's parents (the letter was written in Chinese but an unofficial translation was provided):

Your daughter Elena moved out of the apartment 225 Waldof. without our permission last Saturday has broken the agreement. From the legal point of view, she has seriously violated the ACT Residential Tenancies ACT.

On 18th of Feb., we had taken your advice, sent her an email wanting her to terminate the contract on 28th Feb., which was refused by her. We had dropped this proposal on 19th Feb., since she did not agree to our proposal. We requested that she stay until the end of the term. Meanwhile, based on our lawyer's proposal, we had increased the rent to $550.00, because Elena did not present us the evidence of your family income, proving that your have economic difficulties in your family.

On 25th of Feb., she had through Lawyer Tino, sending us email advising us that she was moving out on 28th of Feb. which was rejected by us. On 27th of Feb., she again through Tino sending us another email telling us that she was moving out on 28th of Feb., we found out on 29th of Feb., that she had already moved out.

What she had done has seriously violated the ACT law;

02) She made up laws to cheat us for our private information

03) She made up laws in order to obtain the receipt which she should not have. (According to the ACT Residential Tenancies Act, Lessor does not need to issue receipt when the payment was done through bank transfer)

04) Only when both Lessor and Lessee agree, can the contract be terminated. Should one side did not agree, then the contract can not be terminated. But Elena voluntarily terminated the contract even without our agreement.

We had consulted our lawyer, he told us we had the right to demand for the rental ($550.00 X 38 =$20900.00 plus all the court costs and legal expenses and any other relevant costs through legal procedure. Since you are her Guarantor, we are sending you this letter with the good will of settling this case by accepting $19,000.00. We wish to have your letter or email by 05:00 PM next Thursday (12th of March), otherwise, we will present this case to the court on Friday.

I wish to tell you that she has zero chance of winning this case. Further, she is going to be black listed. If we decide to hire a lawyer, we may demand her paying the lawyer's fee. This is about $4,000.00- 5,000.00 (He is the best lawyer in ACT for residential tenancy case)

Our email address is yaoxiangWang@bigpond.com, T: 02-62420896, M; 0410651518

1. At the directions hearing on the 19 March 2009 the tenant appeared assisted by her father and both lessors appeared in person.

2. The tenant provide the Tribunal with the following further submission:

On 15th of Feb., 2009, the Applicant and the Respondents have entered into a Residential tenancy agreement for the apartment on 225 Waldof.

The Applicant has requested for the receipt for the $2,000.00 which was deposited into the Respondents' Bank a/c on 9th Feb., according to the email request by the Respondents on 6th Feb as "to secure the apartment ASAP". The Respondents refused to do so. The Applicant was refused by the Respondents for the residential address in the agreement. (Please see the email request on 12th Feb., the Respondents disclosed that he never have presented the address to his tenants) When the Applicant asked for a receipt for the first 4 weeks rental payment, she was again refused. The Applicant then requested her mother to issue a cheque of $2,000.00 which was withdrawn on 16th Feb., instead paying in cash as so demanded by the Respondents.

When entering the apartment, the Applicant, found that it was not like a 4.5 star fully furnished as advertised on the internet. There was no kettle, the dishwasher, the fax machine do not work, the door in the bathroom to the laundry was not properly screwed, the sofa was broken. Further, the Applicant found that the bed size is smaller.

On 17th of Feb., the Respondents came to deliver a leaking kettle. The Applicant requested again for the receipt of the payment, upon hearing this, the Respondents became dismayed and all the problems occurred.

The Respondents cancelled the appointments for the repair for their proposed time on both 18th and 21 of Feb., further, the Respondents initiated the termination of the Lease, and set a final inspection at 09:30AM on Sat. 28th Feb. by email, together with phone message informing the Applicant to terminate the Lease on 28th of Feb. 2009.

The Applicant, in her response email, accepted the proposed termination by saying that "I would take your last email requesting the termination of the agreement as the notice served to me, I therefore will look for an appropriate replacement...I shall give you notice as soon as possible upon finding the right one" Meanwhile she reminded the Respondents to pay attention to the Schedule one (the Standard Residential Tenancy Contract, which protects the Lessee for 26 weeks on fix term Lease.

Email from the Respondents to the Applicant at 13:14 on 191 Feb., has seen their determination of letting the Applicant moving out definitely, by offering to the Applicant extra one or two weeks after 28th of Feb., is necessary.

Such determination is also evidenced by the fact that the Respondents put the advertisement again on ANU's web page, stating the availability of the apartment was from 28th of Feb. 2009 (Please see the attached copy of the advertisement)

The Respondents informed the Applicant that the legal advice they have got confirmed that they can increase the rental to $550.00 from the contracted $500.00. The Respondents further alleged the Applicant "making up the laws". In order to avoid any further inconveniences from the Respondents, and concentrating on her study, the Applicant had no way but suggested the Respondents to contact her lawyer at their own cost for the interpretation of the law. Having no objection to this proposal, the Respondents strongly requested the contact details of the lawyer, even with the threat of "If you do not provide the contact details of your lawyer, by close of business on 23rd of Feb. appropriate and relevant actions related to the apartment in question may be taken accordingly without any notice and your knowledge"

The lawyers, that the Applicant has consulted, recommended the Applicant to seek for the legal protection from ACAT. The Applicant hereby request the order to the Respondents for refunding of the two weeks unused rental payment; releasing the bond of $2,000.00; a reduction of $280.00 (being $20.00 per day for two weeks) from the already used part of the rental due to the above mentioned condition of the apartment, and the payment of the Lawyer's cost of $2,048.20 per their agreement.

SUMMARY OF THE EVIDENCE TO THE POINT OF THE DIRECTIONS HEARING ON 19 MARCH 2009:

1. The above was the state of the evidence and submissions at the commencement of the directions hearing on 19 March 2009 from which it is relevant to note the following.

In the claim filed by the tenant she complained of: * the attempted unlawful eviction by the lessors: [15] above; * the unlawful rent increase that the lessors attempted to impose on her: [15] above; * the lessors' refusal to provide a receipt for the $2000.00 of rent paid in advance: [14] and [16] above; and

• the lessors' declared intention to retain the rent and bond paid by the tenant upon her eviction: [15] above.

The tenant sought an early termination of the fixed term tenancy on the basis of her grievance with the manner in which she had been treated by the lessors. However the tenant vacated the premises before her application came on for hearing in the Tribunal which rendered this part of her application redundant.

In their email of 6 February 2009 (para 21 above) the lessors agreed to a rent of $500 per week which was ultimately recorded in the written tenancy agreement. This became the contractual rent agreed between the parties to which Part 5 of the Act applied. But in their later email of 6 February 2009 the lessors then informed the tenant that if the tenant has any one staying with her the rent will be increased by an extra $40 per week. This later statement by the lessors is unlawful. It is inconsistent with the terms of Part 5 of the Act and with prescribed terms 34-37 of the schedule to the Act, dealing with rent increases. It is also inconsistent with the tenant's right to quiet enjoyment of the premises under prescribed term 52 of the schedule to the Act.

Once a tenancy has commenced the tenant has the exclusive right of possession (prescribed term 53) and it is a matter for the tenant whether she has family, visitors or boarders staying with her, subject to the requirement that she not cause damage to the premises and returns the premises in the condition in which she received it minus fair wear and tear (prescribed terms 63-64 of the schedule to the Act).

Terms inconsistent with the statutory terms are required to be endorsed by the Tribunal pursuant to s10 of the Act, which has not occurred in the present case.

In the email of 6 February 2009 (para 26 above) the lessors required the tenant to deposit $2000 into their account "to secure the apartment". This requirement was made prior to the meeting of the parties and the execution of the tenancy agreement. This sum was required as a "holding deposit" within the meaning of s18 of the Act and is unlawful. In fact s18 provides that the holding deposit is recoverable as a debt owed by the lessors to the tenant.

In the email of 8 February 2009 (para 34 above) the lessors required the tenant to produce "proof of income" at their meeting and to bring a further $2000 cash for the bond. There is no requirement in the Act or in any other law that provides that a tenant must produce "proof of income".

By return email the tenant agreed to produce proof of income and requested a receipt for both the $2000 holding deposit and the $2000 bond to be paid in cash (but actually paid by cheque) at the meeting of the parties. The tenant repeated the request for a receipt in her email of 18 February 2009 (para 45 above). The Act provides for the issue of a receipt for cash or cheque payments whether those payments are treated as bond (prescribed term 20) or rent in advance (prescribed term 29). The tenant was entitled to a receipt and the lessors have persistently and unlawfully failed to provide the receipt.

In their email of 18 February 2009, at para 46 above, the lessors informed the tenant that her mother was her "guarantor' of her obligations under the tenancy. Whilst s16 of the Act does make provision for guarantors, the right to require a guarantor in addition to a bond is limited by s16(2) to a guarantee for the difference between the bond actually paid by the tenant and the maximum bond permitted under the Act i.e. 4 weeks of bond pursuant to s20. In the present case the tenant paid the maximum 4 weeks bond and therefore the lessors had no right to require the mother as a guarantor.

Not only was any alleged guarantee by the mother unenforceable under s16(2) of the Act, the fact is that the mother at no point assented to this arrangement. The assertion of the guarantee by the lessors was wrong at law and untrue in fact.

In the same email (para 46 above) the lessors advised the tenant that they had contacted the tenant's mother and reached agreement with the mother to terminate the agreement on 28 February 2009. A date for a final inspection was indicated to the tenant, being 9.30am on that day. The lessors had no right at law to contact the tenant's mother to negotiate such a termination. The lessors had no right under the Act or at law generally to serve a notice of termination on the tenant during the fixed term except where the lessors allege breach by the tenant, which was not presently the case. The lessors notice to the tenant of the intended termination was either an unlawful termination notice or at the very least an unlawful declaration of the lessors intention to repudiate the tenancy agreement.

The lessors followed up this email with a text message to the tenant's mobile phone that stated in direct terms that the tenancy would terminate on 28 February (para 48 above).

The tenant pointed out the unlawfulness of the lessors action in her email of the same date and pointed to prescribed term 94 which the tenant asserted required 26 weeks notice by the lessors to terminate a fixed term tenancy (para 47 above). Actually the 26 week notice only applies to periodic tenancies. There is in fact no power for a lessor to serve a notice of termination for no cause in the fixed term of a tenancy. The tenant said that she accepted the termination but would only move as soon as she could within the 26 weeks required by prescribed term 94.

In response the lessors emailed the tenant (para 49 above) making a demand for a rent increase to $550 pw and accusing the tenant of "false and misleading information" concerning her financial status. This demand for a rent increase is unlawful in breach of Part 5 of the Act.

The lessors then demanded proof of the income of the tenant's parents, including their tax returns and asserted that both parents were guarantors. These demands have no foundation in law or fact.

The lessors then informed the tenant that she was to stay in the premises until they served her with a "formal notice to vacate" and then required the tenant to provide details of her family lawyer so that the lessors' lawyer could contact them. The purpose of the lessors' threats and demands were unstated but presumably they were intended to connote some form of legal action against the tenant.

The lessors emailed the tenant again on 21 February 2009 (para 51 above) and accused the tenant of having "caused too much inconvenience" and of "providing false and misleading information". The lessors told the tenant that they would henceforth only communicate with the tenant through her family's lawyer "as you suggested in your email". There is no email before the Tribunal were the tenant made this suggestion or anything of the kind.

The lessors told the tenant not to contact them except through her family's lawyer and that they would not take any calls or emails from the tenant personally. This demand by the lessors is inconsistent with s12(3) of the Act and caused the tenant to run up a substantial account with her lawyer (para 64 above).

The lessors then accused the tenant of "misquoting and misinterpreting the Act and creating rules and stipulations at your own will". As indicated above, in relation to most issues of the dispute it has been the lessors who have breached the Act and failed to understand or comply with their duties as lessors.

The lessors then required the tenant to provide certified copies of her parents and her own tax returns through her family's lawyer. This demand has no basis in law.

In the same email (para 51 above) the lessors then made a further demand for the rent increase to $550 per week but this time made the demand retrospective to the commencement of the tenancy with a demand for a sum of $200 back rent to be paid immediately. This demand is unlawful in all respects.

The lessors then told the tenant that if she did not comply with this rent increase demand or if her family's lawyer did not contact the lessors that "legal proceedings will be initiated in due course" for which the tenant "will be totally responsible for the costs". The lessors then said that these proceedings would be commenced without any further notice to the tenant.

This is an unwarranted and unjustified threat of litigation by the lessors based on totally spurious grounds at law. Even if there were any cause of action based on the tenant's refusal to pay the unlawful rent increase, retrospectively or otherwise, no costs are awarded in the Tribunal.

On 22 February 2009 the lessors emailed the tenant again (para 52 above), notwithstanding their previously declared intention of only communicating through the tenant's family's lawyer. After reciting various provisions of the Act the lessors again demanded rent of $550 pw. The lessors said that they had agreed to $500 per week based on false and misleading information from the tenant concerning her capacity to pay. What ever basis is used to arrive at the contractual rent is a matter for the parties in their bargaining process. The lessors agreed to $500 pw and the issue of the tenant's capacity to pay, or that of her parent, is thereafter irrelevant.

The lessors then said that the tenant's parents were "quite wealthy" and could therefore afford to pay more rent. Upon this premise the lessors again demanded the unlawful rent increase and re-iterated the demand retrospectively. The lessors' demands are without any basis in law and are in fact unlawful.

The lessors then said in the same email that the tenant should move and said "we can give you an extra week or two to move out". This statement by the lessors is not consistent with the lessors position that they had rescinded the earlier notice for the tenant to vacate by 28 February 2009. In saying this the lessors were affirming their earlier notice to the tenant that they wished the tenant to move.

The lessors emailed the tenant again on 22 February 2009 (para 53 above) accusing her of being "dishonest" and "negative".

On 23 February 2009 the lessors re-iterated to the tenant's solicitors their demand for certified copies of the tax returns of both the tenant and her parents (para 55 above). Not only were the lessors making repetitive unlawful demands on the tenant but they were causing the tenant to incur a substantial legal costs bill.

On 25 February 2009 the tenant's solicitors advised the lessors that the tenant was intending to vacate on 28 February 2009 (para 57 above).

On 26 February 2009 the tenant's solicitors emailed the lessors and made it clear that the demands for the tax returns, rent increases and guarantors were "fanciful" (para 59 above).

The lessors responded with a demand for rent until early December 2009 should the tenant vacate on 28 February 2009 (para 60 above). The highest the lessors case rises in the event of an abandonment of the fixed term by the tenant is for rent until a new tenant is found, up to a maximum of 26 weeks and then subject to the lessors' duty of mitigation (s62). Notwithstanding this the lessors made a demand for rent until December 2009 which is: * beyond the 26 weeks limitation period; and * takes no account of the requirement to find a new tenant, which in the tight Canberra rental market would not be difficult.

The lessors demands are beyond that which is even possible at law let alone possessing any rationale basis in law.

On 27 February 2009 the tenant's solicitor made demand upon the lessors for return of the over paid rent and bond upon termination of the tenancy due to occur on 28 February (para 61).

35. The lessors response to the tenant's claim (para 65) filed in the Tribunal on 17 March 2009 asserted that the tenant's claim was no longer valid because the tenant had moved out. But of course the tenant's application to the Tribunal raised the issue of the return of her over paid rent and bond which her solicitor reminded the lessors of in his email of 27 February 2009.

36. In the same response the lessors claim the right to the bond of $2000 and rent of $550 per week for another 38 weeks being $20,900. This constitutes a total sum of 42 weeks rent being the whole of the original fixed term period without any allowance for the rent actually paid. It fails to take any account of the 26 week limitation period in the Act or the very real possibility that the lessors would find new tenants (which in fact they did by 1 April 2009). The claim is simply without any foundation in law and is avaricious.

37. The lessors then wrote to the tenant's mother on 17 March 2009 (para 66 above) and accused the tenant of "cheating" and threatening to "black list her". The lessors then demanded $19,000 from the mother as an expression of good will. The lessors concluded by threatening further action in the Tribunal which the lessors said would result in the tenant being ordered to pay their legal costs. Even putting the lessors' case at its highest there is no possibility that the Tribunal could, let alone would, order $19,000 against the tenant and could not order costs.

38. The threat of black listing the tenant is a threat by the lessors to breach s107D of the Act.

The lessors appeared in person and the tenant appeared with her father at the directions hearing.

The lessors immediately made an application for adjournment of the directions hearing on the basis that they had only recently received the tenant's application. The Tribunal informed the lessors that the matter was not being heard on that day and would be adjourned for hearing on a later date, but that it would still be necessary to identify the issues in dispute and made orders for the filing of the evidence (T3-30) to which Mr Wang responded "Yes, that's fine". Ms Bian renewed her request for an adjournment on two more occasions (T9-8; T20-15) to which the Tribunal again explained the need to identify the issues and make the orders for the filing of evidence.

The Tribunal first went through the tenant's claims in an endeavour to understand her grievances; it then went through the lessors' claims for the same purpose and finally the issue of an agreed resolution of the dispute was unsuccessfully addressed.

The tenant raised the issue of the holding deposit (T5-30) and the Tribunal advised the parties of the unlawful nature of such a deposit (s18 of the Act).

The issues of cleaning, the missing keys and the rent reduction for failure to repair the defective items in the premises were addressed.

The Tribunal then addressed the tenant's claim for unlawful eviction at length in order to understand what the tenant was asserting. The Tribunal explained the following to the parties: * within the fixed term neither party can serve a notice of termination on the other except where a serious breach is asserted * if a notice of termination is in fact served by the lessors within the fixed term then the tenant does not have to move in response to the notice (T10-25) * if the parties reach agreement for the tenant to move in the fixed term then this is called a "surrender" and it brings the tenancy to an end without any obligation on the tenant for further rent beyond the date that vacant possession is given to the lessors (T10-15) * if a lessor serves an unlawful notice of termination in the fixed term then the tenant can elect to move in response to the notice and claim compensation for the unlawful termination (s58 of the Act) (T11-20) * the compensation extends to compensation for distress and inconvenience suffered by the tenant (T11-30). * an unlawful notice of termination by a lessor is an act of repudiation of the tenancy agreement by the lessor (T11-15).

The tenant, through her father, said that they wished to pursue the claim for unlawful eviction (T13-35; T14-35).

The tenant, through her father informed the Tribunal that the tenant's primary concern was the lack of "peaceful mind" she had suffered in the tenancy and this was why she had to move (T12-5).

The Tribunal explained to the parties the concept of "quiet enjoyment" and the relevance of a claim for breach of quiet enjoyment (pages 33-34 of the transcript). It was explained why such a claim was open to the tenant for the inconvenience and distress suffered, but was not open to the lessors.

The Tribunal explained that if the tenant chooses to move at her own convenience rather than in response to the lessors' unlawful notice of termination then s58 would not apply and she would be guilty of an abandonment (pages 21-22 of the transcript).

The lessors' counter claims were addressed including the claim for abandonment. The lessors indicated that they wished to counter claim for the whole of rent for the balance of the fixed term of 38 weeks, plus keep the rent paid and the bond (T15-45).

The Tribunal explained, several times: * the 26 week limitation on compensation for abandonment (T23-35; T24-5, page 26) * the need for the lessors to mitigate their losses by searching for a new tenant (page 22) and if a new tenant is found then the lessors do not recover double rent.

The parties were told that the hearing would be scheduled for about 4-6 weeks to provide time for the parties to file and serve their evidence (T27-20).

Procedural orders were then drafted and read to the parties.

At the end of the directions hearing Ms Bian took issue with the Tribunal providing "legal advice" to any party before the Tribunal (T38-35). In particular Ms Bian contended that the tenant should not be allowed to advance any claim beyond the scope of her application as filed and that she should not be able to bring any claim for stress and inconvenience (pages 39-40). There followed discourse in which the Tribunal said, inter alia:

MEMBER: ...It's a statutory obligation to make sure that everybody understands the issues, they understand the case that they've got to make, the case they've got to answer. Its an unqualified statutory obligation particularly with unrepresented people to explain to them the framework in which I'm going to---

MS BIAN: Yes, because it was like-there is kind of things that you know, tell us that the tribunal in which not suppose to give legal advice to people they're supposed to go seeking their own legal advice through their lawyers.

MEMBER: ...that's game playing to me and not only is it game playing, its game playing that says let the rich have their privileges. You know as far as I'm concerned every citizen that comes here is entitled to know how I'm going to determine the case, to understand my frame of mind, to understand what I'm looking for, to have an opportunity to present the evidence and an opportunity to test the other party's evidence. I am absolutely not into judicial game playing. I just want to get at the truth and get the answers. There won't be any tactical devices or ---

MEMBER: ...I go through every claim - every case lodged particularly with unrepresented people, I try to look to what is the substance of what they're complaining about. What is, in truth, what it is they're saying and what claims are open to them as a matter of law, both ways for landlords and tenants.

And I go through and I bring to their attention and I ask them, is this a claim you seek to make, because I'm defining the claim, defining the ambit of it today, that's what orders 1 and 2 are about...

Upon hearing Elena Xia the Applicant and Yao Xiang Wang and She Fang Bian the Respondents, Senior Member Allan Anforth of the Tribunal made the following ORDERS:

(a) the issue of rent receipts;

(b) a refund of overpaid rent 2 weeks beyond the date of vacation of the premises on 28th of February, 2009;

(c) a refund of bond;

(d) a rent decrease for defects to the washing machine, fax, kettle and door;

(e) compensation for unlawful eviction

(a) abandonment on 28th of February, 2009;

(b) cleaning;

(c) advertising cost;

(d) cost of re-keying the unit

3. That the Tenant is to file and serve by the 14th of April, 2009:

(a) a statement in chronological form setting out the history of the events leading to the creation of the tenancy and the termination of the tenancy including

• (i) details of the communication from the Lessor said to constitute the notice of termination

• (ii) details of any permission the Tenant gave for her mother to act as her agent

• (iii) details of efforts to find a new tenancy, the rent at the new tenancy and any costs incurred in the moving to the new tenancy

• (iv) description of any inconvenience and distress arising out of the termination of her tenancy

• (v) details of when the Tenant advised the Lessor of the defects to the appliance and door and when these were fixed.

• (vi) details of rent paid and the manner in which it was paid

(b) a statement from any witnesses relied upon including her mother. The statement from the mother should include details of all communication between the mother and the Lessor.

4. That the Lessor is to file and serve by the 30th of April, 2009:

(a) response to the issues raised in the Tenants material filed

(b) details of efforts to find a new Tenant from 28 n of February, 2009 including:

• (i) advertisements placed
• (ii) the content of those advertisements
• (iii) all people who responded to the advertisement and why they were not accepted
• (iv) cleaning costs
• (v) re-keying costs
• (vi) invoiced for the above

5. That the matter is listed for a hearing for one day before Senior Member Allan Anforth on Monday the 11th of May, 2009 at 10.00am.

FURTHER SUBMISSIONS FILED AFTER THE DIRECTIONS HEARING;

1. In response the above orders on 16 April 2009 the tenant filed and served the following submissions and witness statements:

After some exchanges of email with the Respondent for about a week, the Applicant deposited on 9th Feb. 2009 into the Respondent's CBA a/c, as instructed by the Respondent through email on 5th Feb "to secure the apartment ASAP" which was deposited into the Respondents' Bank a/c

On 15 of Feb., 2009, the Applicant and the Respondent have entered into a Residential tenancy agreement for 42 weeks at $500.00 per week for the apartment on 225 Waldorf.

The Respondent had refused the Applicant for the residential address for service in the agreement.

Having been also refused to issue receipt for the payment, the Applicant requested her mother to issue a cheque of $2,000.00 which was withdrawn on 16th Feb., instead paying in cash as so demanded by the Respondent.

When entering the apartment, the Applicant, found that it was not like a 4.5 star fully furnished as advertised on the internet. There was no kettle; the dishwasher, and the fax machine do not work, the door in the bathroom to the laundry was loose, and the sofa was broken. The apartment was lack of proper cleaning. Further, the Applicant found that the bed size is smaller than the picture on the internet.

On 17th of Feb., the Respondent came to deliver a kettle, which was found to be leaking. Upon hearing the request for replacing the kettle, and the request for the receipt of the first 4 weeks rental payment, the Respondent became dismayed and all the problems occurred. Ms. Bian called the Applicant's mother complaining the Applicant too fussy and too demanding.

The Respondent cancelled the appointments for the repair at their proposed time on both 18th and 21 of Feb., further; the Respondent informed Applicant to terminate the Lease, and set a final inspection time at 09:30AM on Sat. 28th Feb. by both email and phone message.

The Applicant, in her response email, accepted the proposed termination by saying that "I would take your last email requesting the termination of the agreement as the notice served to me, I therefore will look for an appropriate replacement...I shall give you notice as soon as possible upon finding the right one" Meanwhile she reminded the Respondent to pay attention to the Law and the Schedule One (the Standard Residential Tenancy Contract), which protects the Lessee for 26 weeks on fix term Lease.

Emails from the Respondent to the Applicant at 13:14 on 19th Feb., has seen their determination of letting the Applicant moving out definitely, by offering to the Applicant extra one or two weeks after 28th of Feb., if necessary.

Such determination is also evidenced by the fact that the Respondent put the advertisement again on ANU's web page, stating the availability of the apartment was from 28th of Feb. 2009.

The Respondent informed the Applicant that the legal advice they have got confirmed that they can increase the rental to $550.00 from the contracted $500.00. The Respondent further alleged the Applicant "making up the laws". In order to avoid any further inconveniences from the Respondent, and concentrating on her study, the Applicant had no way but suggested the Respondent to contact her lawyer at their own cost for the interpretation of the law. Having no objection to this proposal, the Respondent strongly requested the contact details of the lawyer, even with the threat of "If you do not provide the contact details of your lawyer, by close of business on 23rd of Feb. appropriate and relevant actions related to the apartment in question may be taken accordingly without any notice and your knowledge"

The Applicant has lodged the application to seek for the legal protection from ACAT. The relevant documents has been posted to the address (a leased out property) provided by the Respondent timely. The Respondent lodged their response to the application on 16th of March 2009, which was 4 days late to the official response date. At the first hearing on 19th March 2009, the Respondent accused the Applicant for "taking away the mail" which was why they did not received the documents from ACAT earlier.

It is obvious that the Respondent, being the frequent respondent to the Tribunal, did all these purposely, since they started renting properties at least since 2003. A comment from the Member of RTT is a true reflection of the Respondent.

The RTT is of the view that this lessor continues to rent premises in wilful disregard of the provisions of the legislation, with no regard for the rights of the tenants and that his dealing with the tenants who have made application to the RTT have been characterised by bullying and deceit on the lessors' part. In the opinion of the Tribunal both Mr Wang and Ms Bian are witnesses of little credit and their appearance before the Tribunal has been characterised by offensive and insulting behaviour directed at both tenants and Tribunal members. (Member: Jan Leonard ,Thursday the 21st day of September, 2006) From Spargo v Wang & Bian [2007] ACTRTT 3 (19 February 2007)

The Applicant is therefore, seeking the legal protection of an order to the Respondent by AC AT for the following;

Paid of $2000 into Mr. Wang's CBA A/C on 9th of Feb. 2009

Paid of $2,000 for 4 weeks rental by cheque No. 000008 (the Applicant only stayed in the apartment for 13 days from Feb. 15 to 27th Moved out on 28th Feb. 2009)

3. Compensation for the Increased the financial cost due to Respondent's accusation of the Applicant "making up the law"

I have to spend time (about 20 hours) in talking to lawyers and checking the law because the Respondent failed to provide me any information of the Residential Tenancy Act and money on phoning to learn the law, and relevant implications

4. Compensation for Time Lost in finding the replacement apartment due to the unlawful eviction

It costed me in accumulation of around 36 hours in visiting different agencies and contacting them through emails and phones to look for the replacement apartment caused by the unlawful eviction. Plus 60 hours in total of extra time in commune to and from the residence to the University every day.

Deduction of the rental due to the lack of repair of alliances such as kettle, dishwasher, and fax machine, etc.

Cleaned the floor (vacuumed the whole floor, thanks to Mr. Wang of showing how to use his vacuum machine)

The oven was very dirty (Showed in the presence of Ms. SS BIAN, wife of Mr. Wang)

8. The receipt of the payment of the first 4 weeks.

I had requested for many times that the Respondent issue the receipt of the payment made by cheque.

Both emails and the phone message instructing the Applicant to move out on 28th of Feb. and final inspection at 09:30 AM It is further confirmed by an advertisement by the landlord saying the availability of the apartment on 28th of Feb.

9-1 Time and the relevant costs of the Applicant's father traveling to Canberra for both 19th of April and 11th of May

9-2 Compensation to the stress caused by the Respondent's phone calls and the letter to the Applicant's mother.

9-3 Compensating the Applicant for lost of income due to the sudden change of the residence which prevented the Applicant from working (the new place is about 40 minutes bus travel and there was no bus service to there in the evening)

9-4 Demanding an apology for accusing the Applicant "took the mail" from ACAT to the Respondent at the hearing on 19th of April.

9-5 Compensation to the stress such as encountering sleeping difficulties caused to the Applicant by the Respondent.

9-6 Compensation to the time that friend has to pick up the Applicant on 28th of Feb. and the moving out the apartment and staying at the friend's house

1. The tenant filed an undated statement by her father, Mr David Xia:

On 15th of February, 2009, I was sending my daughter to Canberra. Upon entering into the rented apartment, my daughter Elena found that the room was not professionally cleaned. We checked around; found that there are a number of the items in the room were not working, such as fax, etc. Having seen the oven was even not cleaned, I started to help do the cleaning. Mr Wang even demonstrated me how to use the vacuum machine in the room since there is no manu [sic] to it.

I spend in total about 2 and half an hour with my wife to clean up everything in the room. When we wanted to have some tea, we only to find there was no kettle. So my daughter requested the landlord to provide a kettle.

1. The tenant filed an undated statement from her mother, Ms Hanny Mi Chen:

I recall the following conversation with Ms. Bian when she called me on 17th, 18th and 19th of February 2009.

I got a call from Ms. Bian at around 07:45 AM of 17th of Feb. complaining that Elena was very fussy and too demanding (NOTE, because she asked the Lessor for a kettle and requested them to have professional repair of the fax and dishwasher)

I told Ms. BIAN that Elena has been educated in Australia. She has been educated in such a way that when doing things, it should be by the law. So it better to carry out your duty as the Lessor. I would talk to her as well.

On 18th of Feb., (can not remember the exact time) I received another call from Ms. Bian saying that she never came across such a Tenant, and she does not wish to lease the apartment to Elena any more. I told Ms. Bian again that Elena has been educated here in Australia, and everything is by the law. It is not like that in China parent can force kids to do anything. As her mother I can not force her to move out. Further Elena had told me that the Lease was signed between the Lessor and Elena, and this should be governed by the law, not by the mother.

On 19th of Feb., (can not remember exact time) I got a third call from Ms. Bian alleging Elena "making up laws", (NOTE, this is in reflection to Elena's email on 18th of Feb. to the Lessor pointing out they had broken the law by asking her to move out now) and she told me to let Elena move out by 28th of Feb. and if necessary, she can give 1-2 weeks more to Elena. I responded Ms. Bian that it is better to discuss with her directly. As to "making up law" or not, it is better to check with the law.

1. The tenant filed a copy of the response from the tenant's mother to the lessors letter addressed to her:

It was surprising to have received a letter from you without even a proper postal address. I have to use the address you had provided to Elena's Lawyer to respond you.

As a reminder, and for your easy references, please find the copy of the correspondences between you and the lawyer, who with respect, urged you to consult your solicitor about the matter to gain a better understanding of the legal issues involved and the associated implications.

In response to your letter, I wish to advise you the following;

Your correspondences with Elena have evidenced that you had not for the first time broken the law. It is better that you consult your lawyer with these. As to your request for Elena paying your lawyer for settle this dispute, I would like to make this clear to you; it is entirely your own decision to hire or not the "best lawyer". Neither I nor Elena will agree to pay any of your lawyer's fees or any legal fees relevant to this case.

To people like you, who do not wish to understand and respect the law, it is only right to solve the problem through legal procedure. In this law governed society, in settling this dispute with you through legal procedure, my daughter Elena has my full support.

Is there any ACT Residential Tenancy Law or Australia Tax Law to prevent you from issuing receipt/invoice against payment in cheque or cash please?

By the way, I have been advised that Elena had paid the electricity for the period from 15th Feb. to 28th of Feb. 2009, though you had told her in my presence that you cleaned the apartment on 15th of Feb.2009, I will not ask Elena to charge you for the electricity used on 15th of Feb. I however, wish to draw your attention that even you had told me in person at the time of your signature for the contract, that you have paid the electricity until 13th of Feb.2009, it is in fact, not paid from the 2nd of Feb, 2009, when Elena was presented the bill by The Waldorf Apartment today.

Please find the attached invoice from the lawyer whom Elena had recommended you to contact at your own cost, and without any objection to that, you had communicated with the lawyer - Mr. Tino Dal Negro. Failing this, recovery proceedings will be initiated without any further notice.

1. The tenant filed an undated statement from Elizabeth Reside which read:

On the 21st of February 2009 I went with another student to Elena's Xia's apartment to accompany her because she did not want to receive a visit from her landlord on her own.

On that same date I was informed of various irregularities with the apartment, including a broken dishwasher, and of the continuing unpleasant nature that the landlord displayed when dealing with Elena, including threatening:

• to increase the rent
• to evict her if she did not pay increased rent
• to make her pay the full lease if she moved to another place

I was with her at the apartment on the day she moved out, and testify that the apartment was in the same condition that it was in on the day of my first visit, which was earlier in the week of the 20th of February.

1. The tenant also filed a statement from Priscilla Shu Yii Lim, dated 10 April 2009, which read:

I, Priscilla Shu Yii Lim, first visited my friend Elena Xia's apartment at Waldorf Apartments, Canberra on the 20th February 2009. I was notified that the dishwasher was broken, kettle was leaking, dysfunctional facsimile machine and laundry door which was unscrewed. Furthermore, I saw dirty carpet.

On the 28th February 2009, I went to her apartment to accompany her while she waited for the landlord until 6p.m. for the final inspection. The landlord did not show up for the whole day. Before we left, Elena gave back the keys to concierge.

1. On 29 April 2009 the lessors filed the following submissions:

A. Response to the issues raised in the hearing on 19th of March 2009.

After having attended the hearing on 19th March 2009, we sought legal advice from our solicitor and the solicitors from the Law Society, and were guided to write the response statement as following in regard to the issues raised in the hearing. Unfortunately, our solicitor isn't able to attend the upcoming hearing on 11th May, but he will look into the matter afterwards, should there be any concerns:

In Residential Tenancies Act 1997

29 If rent is paid in person to the lessor or a real estate agent, a receipt must be given at that time.

30 In other circumstances where rent is paid to the lessor, a receipt must be provided or sent by post within 1 week of its receipt.

31 (1) A receipt for payment of rent must specify the amount paid.

(b) the period in relation to which the payment is made;

(c) the premises in relation to which the payment is made;

(3) If these particulars are not included in the receipt, the lessor must provide this information to the tenant within 4 weeks of a request by the tenant.

32 A receipt is not required if the rent is paid by the tenant directly into an account nominated by the lessor or real estate agent.

The method of payment we requested was a direct bank transfer to our account; rent was never paid in cash as we use internet banking methods only, for convenience as well as for security reasons (please refer to our email exchange regarding the method of payment and Bank statements).

2. Refund of over paid rent 2 weeks beyond the date of vacation of the premises on 28th of February 2009and a refund of bond. The applicant's lease started at 15 February 2009 and ended on 6th of December 2009 for 42 weeks but tenant moved out on 28th of February 2009. According to the Residential Tenancies Act 1997, the applicant abandonment during fixed term and we should be compensated for the loses of the rent for 25 week and all the costs associated with it.

Residential Tenancies Act 1997,

(1) If a tenant abandons premises before the end of a fixed term agreement, the former lessor may apply to the ACAT for the following compensation:

(a) compensation for the loss of the rent that the former lessor would have received had the agreement continued to the end of its term;

(b) compensation for the reasonable costs of advertising the premises for lease and of giving a right to occupy the premises to another person.

(2) On application, the ACAT may award compensation of the kind mentioned in subsection (1) (a) and (b).

_(3) The amount of compensation the ACAT may award - _

(a) under subsection (1) (a) must not exceed an amount equal to 25 weeks rent; and

(b) under subsection (1) (b) must not exceed an amount equal to 1 week's rent.

_(4) In deciding the amount of compensation that may be awarded under subsection (2) in relation to costs, the ACAT must have regard to when, apart from the abandonment of the premises - _

(b) the lessor would have incurred the costs mentioned in subsection (1) (b).

3. A rent decrease for defects to the washing machine (dish washer), fax, kettle and door.

Residential Tenancies Act 1997,

1. (1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.

(2) The tenant must notify the lessor of any need for repairs.

(3) This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse.

56 The lessor is not obliged to repair damage caused by the negligence or wilful act of the tenant.

57 Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).

Firstly, none of the critical repairs of urgent and immediate restoration, and according to the Residential Tenancies Act 1997, section 57 Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs

The kettle and dishwasher are both working; please see the attached statement from the maintenance staff. I also emailed the applicant instructions to using the kettle. The laundry had two doors with four hinges on each door and seven screws on each hinge. The applicant complained that one of the seven screws on the middle hinge appeared to be loose. According to the Residential Tenancies Act 1997 section 55 verse, it quotes: (3) This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse.

And part of section 56 The lessor is not obliged to repair damage caused by the negligence or wilful act of the tenant.

The tenant has never asked us to repair the fax machine, which is broken, and told us she did not need it. In the Residential Tenancies Act 1997 section 55 verse (2) The tenant must notify the lessor of any need for repairs. Tenant moved out with in two week.

The applicant put in an application to the ACAT before asking us to reactivate the invalid termination notice (see 4. The Lease), and moved out two days later both Solicitors are very concerned of this is because the definition from "tenant break the lease" to "Unlawful eviction by landlord" is totally opposite. The definition for "Unlawful eviction" which should including one or all the following action conducted by the landlord:

a. Changing the locks so that tenants can not enter the property

b. Removing tenants or tenants' belongings from the property

c. Stopping tenants from using their home (or any part of it)

And noon of the above action were not occurred in this case.

Both of the solicitors were also concerned with the following issues which had occurred during the hearing on 19th March 2009:

1. If a request of "adjourning the matter to another date" is granted then the case should be remained untouched till the next hearing. We requested an adjourning of the matter to another date in order for time to seek legal advice (this was advised by our lawyer Bruce Vincent prior to the hearing). Mr Allan Anforth granted our request, but said he would like to go check the documents for about ten minutes. However, Mr. Anforth spent an approximately an hour checking the documents, asked questions and it tern to a hearing. Our request of adjourning the matter to another date was granted at first but not granted in fact.

2. The applicant's mothers' letter must not be considered as "evidence".

3. Apart from the solicitors of both parties, no one should give advice or legal counsel to any of the parties during the hearing. (References in 24/01/03 RT03/00151 and 21/09/06 RT06/02132 quoted by Ms Jenn Lennard Member of Tribunal)

4. Judgment should be based on evidence only, not on fictitious stories, and none of the parties should be encouraged to be dishonest in any form for any purpose.

5. Only the original claim should be discussed during the hearing. Another claim should be lodged to ACAT if any of the parties want to add additional claims (References in 24/01/03 RT03/00151 and 21/09/06 RT06/02132 quoted by Ms Jenn Lennard Member of Tribunal)

B. Response to the issues raised in the some of Tenants material filed (most of them have been responded to in Section A)

The bond was lodged with the ORS on 23rd Feb, the Bond No. being 342854-6. Please refer to Point 4 of the applicant's "nature of relief you seek" and email from the applicant at 10:48 PM on Mon 9 Feb and email from me, 19:12 Mon 9 Feb.

in the Residential Tenancies Act 1997 section 12 verse

(3) The lessor must provide the tenant with the following information:

(b) an address for service on the lessor and at which the lessor can be contacted by the tenant;

A mailing address was provided to the tenant's representative. Please take note that the applicant took away the letter from my nominated address sent by ACAT without my knowledge and permission and mailed it to another address, thus causing the late arrival of the mail. Waldorf manager Steven Rush reported to us that the applicant threatened and insulted him as well as another staff member in an attempt to obtaining our home address

As the applicant had obtained discounted rent through false and misleading information via email, which was later verbally denied by her mother. The applicant also rejected our request of checking her proof-of-income as well as that of her parents' as she previously agreed to be eligible for the discounted rent. After having sought legal advice from our solicitor who mentioned it has broken the Contract Law, which should be in conjunction with the Residential Law, and suggested that we emailed her, requesting for the full rental price and await her response. However, we never received a response from her.

I understand your situation. I can stretch to $500 for you and this is the best price you can ever find in city location and as far as I know, mine is the last one available and it is a very quiet apartment. The one you've mentioned is a studio which is one small room with everything in it. You can hear fridge running in the evening and the cars on the street. I also have some other people interested also. Please let me know if you want to rent ASAP

Sent: Friday, 6 February 2009 8:57 AM To: yaoxiangwang@bigpond.com

Thanks you for your prompt response. I have seen two ads which were just leased at the same address with exact same type of property at the price of AUD420.00-450.00/w. As a fresh student, I do not have a too high a budget. My parents is willing to cover my rental at this range. So yo have a more reliable guarantee from my parents for your rentals. Would you like to strike a deal for 42 weeks at a price of this range pls? Please forward me the contract if you agree.

The lease is a fixed term for 42 weeks as of 15th Feb 2009. A termination agreement was discussed with the tenant on 18th February, which was rejected on the 19th of February and so the agreement was withdrawn.

Background of an unreached termination agreement On 18th February:

After having tolerated four days of continuous emails, phone calls and text messages of wilful act from the applicant, we thought that the tenant may want to move out (her mother told us that she was interested in a studio apartment which is much cheaper, and available around the end of February). On 18th February, we rang her mother, and were advised by her to terminate her lease if the applicant agreed so that she could move out and stay elsewhere. According to Residential Tenancies Act 1997 section 36 verse (g) 36 Termination (g) if the tenant and lessor agree in writing to terminate the agreement and the tenant vacates the premises in accordance with the agreement to terminate; For her best interests, we decided to email her our intention of ending the lease on 28th February, which was rejected by her. Instead, she requested that she would move out within 26 weeks, which we did not agree to. We emailed her on 19th February to cancel our offer and therefore the original lease would have to be followed- that she should stay until the end of the lease (see the attached emails). According to Residential Tenancies Act 1997 section 36 verse (g): We and the applicant did not reach an agreement to terminate the lease. As the result, the offer on 18th February was no longer valid since 19th February.

C. The applicant only staved two weeks out of the 42 weeks of the leasing period.

According to the Residential Tenancies Act 1997, the actions of the applicant did not fit into any of the following two categories of termination acts

1) Termination where premises are not fit for habitation

The apartment is about ten years old and in excellent condition. It was fully renovated and refurnished two years ago through the "Waldorf Management" to meet the standards of a 4.5 star hotel. The carpet had also been dry-cleaned three days before the tenant moved in (see the attached receipt). We also advised the applicant and her parents that they can contact the Waldorf Management Team for any needs in regard to the maintenance and security of the apartment. The applicant and her parents checked the apartment, and were happy with the condition prior to signing the lease.

_90 If the lessor breaches the tenancy agreement, and the tenant wishes to terminate the tenancy agreement, the tenant may either - _

(a) apply to the tribunal for an order terminating the tenancy; or

(b) give the lessor written notice of intention to terminate the tenancy, in accordance with clause 91.

91 If the tenant decides to proceed by way of notice to the lessor, the following procedures apply:

(a) the tenant must give the lessor a written notice that the lessor has 2 weeks to remedy the breach if the breach is capable of remedy;

(b) if the lessor remedies the breach within that 14-day period - the tenancy continues;

(c) if the lessor does not remedy the breach within the time specified in the notice, or if the breach is not capable of remedy - the tenant must give 2 weeks notice of intention to vacate;

(d) the tenancy agreement terminates on the date specified by the tenant;

(e) rent is payable to the date specified in the notice or to the date that the tenant vacates the premises, whichever is the later;

(f) if the lessor remedies the breach during the period of the notice of intention to vacate - the tenant, at the tenant's option, may withdraw the notice or may terminate the tenancy agreement on the date specified in the notice by

As Lessor, we had not breach the agreement. For her best interests, we decided to email her our intention of ending the lease on 28th February, which was rejected by her and accusing us of breach the agreement. According to Residential Tenancies Act 1997. We remedy the breach within that 14-day period - the tenancy continues. But 7 days later she Lodged to AT AC for reactivate the invalid termination notice which was originally accused by her of us "breach the agreement" before notified us and moved out two days later (see 4. The Lease; and the attached statement which she lodged to ACAT)

According to Residential Tenancies Act 1997,

62 Abandonment during fixed term (the contents was listed in the previous page)

The actions of the applicant on 28 of February can be defined as Abandonment during fixed term, which caused a significant hassle, inconvenience and financial loss for us. All landlords and agents know that February is the best season for the rental market. We did offer her to terminate the lease for her interests earlier on (see 4. The Lease), but had been rudely rejected by her. 9 days after we closed the offer, she moved out. The applicant's behaviour gave us much trouble in finding a new tenant. It took us five weeks to find new tenants, who were only staying for 3 months.

According to Residential Tenancies Act 1997,

(1) If a tenant abandons premises before the end of a fixed term

agreement, the former lessor may apply to the ACAT for the following compensation:

(a) compensation for the loss of the rent that the former lessor would have received had the agreement continued to the end of its term;

(b) compensation for the reasonable costs of advertising the premises for lease and of giving a right to occupy the premises to another person.

Since you do not agree to your mother's suggestion to terminate the lease on Sat 28 Feb, you need to stay for 42 weeks as per agreement until both parties reach a new agreement or until I serve you a formal notice to vacate.

I will bring a hard copy of ACT Residential Tenancies Act with me at about 9:15 on Sat 21 Feb to discuss the legal issues raised.

In the meantime, please provide the name and contact details of your family lawyer as you said so that my legal representative and I can get in touch with him/her.

To: yaoxiangwang@bigpond.com

Please take note that the Tenancy Agreement signed on 15th of February, 2009 is between your good self and me. I do not understand why you bother my mother for this? The signed agreement is a fix term tenancy agreement, according to the ACT Residential Tenancies Act, and therefore according to Clause 94 of this Act, ,The lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate the premises at the end of the notice provided that the notice is for 26 weeks

Which law gives you the right to instructing "terminate the lease on Sat 28 Feb 2009. A final inspection will be carried out at 9:30 on that day."?

From: Yaoxiang Wang [mailto:yaoxiangwang@bigpond.com]

1. Your client agreed to supply proof of income as part of the agreement on the day of her arrival. Please refer to her email to me at 16:48 on Sat 7 Feb and at 22:48 on Mon 9 Feb.

2. I have a copy of your clients' application with her signature to show that she has nominated her parents as her guarantors. I also received a cheque paid to me in the name of her parents. I shall present the evidence to the court in due course if necessary.

3. Your client has rejected the suggestion by her mother (which I agreed) to vacate the premises on Sat 28 Feb. I therefore withdrew my agreement to your client's mother's suggestion. Please refer to my email to your client at 6:09 on Thursl9 Feb.

4. If your client decides to break the fixed term contract, she will be totally responsible for the legal consequences thus incurred. I wish to bring to your attention that your client is legally bound to pay the rent until the lease ends in early December.

C. Details of efforts to find a new Tenant from 28th of Feb 2009

Advertisements have been placed on the website of allhomes.com.au, on the website of ANU Housing Online, on the website of UC Off-Campus Accommodation and in The Canberra Times.

Please refer to attachments both from the applicant's previous submissions and me.

3. all people who responded to the advertisement and why they were not accepted

$60 @ $20/hour for cleaning the dirty bath tub, the toilet and the wet and dirty plates and bowls the cupboard and the fridge.

Credit card statement will only be provided to ACAT for personal reasons.

C. I would also like to make a few more things clear in regard to the applicant's latest statement.

1. I made three phone calls to the applicant's mother. The first one was made in the evening of 15th February 2009.1 received a call of complaint from my tenant in unit 224 after the parents of the applicant went into her apartment and even to her bedroom for a comparison to the unit their daughter was staying in. They asked her some personal questions and left her feeling very distressed. The second call was made on 18th February 2009 at about 4:00 pm, after having endured four days of constant emails, phone calls and text messages from the applicant. The third call was made on 19th of February 2009 at about 5:00 pm to tell the applicant's mother that her daughter had rejected our offer of terminating the lease, so she should stay until the end of the lease.

I noticed that the applicant as well as her parents have fabricated more stories this time- she may be lucky, but she will not always be so fortunate. It is a crime to bear false witness in court and I am appalled at the parents, who are acting as terrible examples for their daughter in such a trivial matter.

I have one last comment to make about something mentioned in applicant's latest summary about our past experiences with the Tribunal. The applicant has made unlawful judgment and has used discriminating words to insult us. I have to warn the applicant that in Australia everyone respects everyone's rights. Regardless of who you are, where you come from and what you do, we all equal. No one can twist, manipulate or change the law; no one can break the law and still escape punishment whether one is a police officer, a judge or a cleaner. This was the result of a portion of our efforts in the past to push the legislative in making changes to the hearing and appeal procedures, as well as the recording system. There is still more that needs to be done, and we will work on that.

[Whereafter follows various provisions of the Act set out in full by the lessor.]

1. In the above submissions of 29 April 2009 the lessors:
   • contended that they had not failed to issue a receipt because the rent was paid directly into their account by direct transfer. Notwithstanding the regular reminders from the tenant and her solicitor, the lessors appear to have forgotten about the cheque for $2000 for which no receipt was issued, irrespective of whether it was characterised as rent or bond.
   • recognised the statutory 26 week cap on compensation following abandonment, albeit that they still claimed the whole 26 weeks even though they had in fact had a new tenant since 1 April 2009!
   • contended that they had no duty to repair broken items in the premises (namely the fax, fridge, washing machine and door) unless and until the tenant notified the lessor of the need for the repair. Prescribed term 54 of the Act required that the lessor deliver the premises in a reasonable state of repair. The requirement for tenant notice of the need for repairs (prescribed term 55(2)) only applies in respect of defects that arise during the tenancy. The lessors were under a duty to use reasonable care to ensure that the various pieces of equipment worked when the premises were handed over to the tenant.
   • contended that there could not be an unlawful eviction without the physical removal of the tenant from the premises and the changing of locks. This is not the law. A constructive termination can occur where the lessors engage in repudiatory conduct that has the effect of forcing the tenant to vacate the premises.
   • alleged that the tenant's parents entered uninvited unit 224 of the Waldof and questioned the occupant about her personal affairs causing her distress. This unit is also one that belonged to the lessors. This is a serious allegation against the parents which the lessors had not raised at any previous point in time and did not put to the parents at the hearing.
   • accused the tenant and her parents of "fabricating stories": accused the parents of bearing false witness and described them as "terrible examples for their daughter".
   • accused the tenant of using "discriminating words to insult us"

2. In these same submissions the lessors asserted that at the directions hearing the Tribunal declined an application by the lessors for an adjournment and proceeded to hear the matter at that time. This is completely untrue. The directions hearing was just that, and procedural orders were made at that directions hearing for the amendment of claims and counter claims and for the filing of evidence for a future hearing of the matter. The Tribunal had explained this process to Ms Bian on several occasions at the directions hearing.

At the hearing of the matter on 11 May 2009 the tenant's father appeared on her behalf and the lessors appeared in person.

The tenant tendered a copy of an advertisement on ANU University Accommodation Service relating to the premises and advertising it for lease from 28 Febraury 2009 at a rent of $550.00 per week (nor $500 per week).

The hearing commenced with the Tribunal asking the lessors for an explanation of why they had complained in their submissions that they had been refused an adjournment of the hearing at the directions hearing (T2-20). The lessors claimed that by virtue of the directions given for amendment of claims and counter claims that this constituted some form of hearing of the matter during the directions hearing (T2-40). The lessors again renewed their objections to the Tribunal procedural orders and maintained that the matter should be heard on the basis of the tenant's claim as filed with no other matters considered (T3-40; T4-5).

The Tribunal, in some irritation and frustration with the lessors' attitudes, informed the lessors that this objection by the lessors had been considered and rejected at the directions hearing and the matter would proceed on the basis of the amended claims and counter claims (T4-10).

The lessors renewed their objection to the Tribunal rendering any assistance to the tenant in understanding her rights (T4-35). The Tribunal again informed the lessors that this objection had been considered and rejected at the previous directions hearing (T4-40).

The lessors informed the Tribunal of representations they had made to the Attorney General concerning their view of the unsatisfactory nature of the processes with the Tribunal in relation to other cases in which they had been involved (T5-10).

The first issue addressed at the hearing was the tenant's claim that the premises were not clean when she moved in, and the counter claim by the lessors for cleaning costs when the tenant vacated.

After hearing both parties and viewing their photographs and other documents the Tribunal found as a fact that the premises were not cleaned prior to the tenant moving into the premises and that the tenant had not cleaned prior to leaving. The Tribunal concluded that the extent of the lessors' breach in failing to hand over the premises in a clean state was not such as to constitute a major breach of the tenancy agreement that could afford the tenant the right to terminate the tenancy. At best, it was a matter for minor damages.

The Tribunal determined that one breach concerning the lack of cleaning effectively neutralised the other.

The Tribunal then heard the parties on the issue of the defective fax, fridge, kettle, sofa bed, door and dishwasher. Ms Bian accused the tenant of "making up all those things" notwithstanding that they were expressly noted on the ingoing condition report by the tenant at the commencement of the tenancy (T10-15).

At this point the Tribunal cautioned Ms Bian about continuing the pattern from the directions hearing and her submission of make baseless allegations of this kind and warned her that it raised a serious issue of credit on her part (T10-30).

Notwithstanding this Ms Bian continued in the same vein saying that the tenant's honesty need to be questioned (T11-5) and accusing of breaking the sofa bed without any evidence at all to support the allegation (T11-35; T12-5). Again the Tribunal warned her about making such allegations and told her that nothing she said would now be taken at face value (T12-10).

The Tribunal heard the parties on the dishwasher and came to the finding that the dishwasher had probably never been broken, rather it was a case that the tenant did not know how to use it. Similarly with the kettle.

In relation to the fax the lessors asserted that the tenant's mother gave them permission not to repair at the commencement of the tenancy. The tenant was present during the conversation and did not countermand her mother on the point. The Tribunal found that the tenant consented to the non-repair of the fax.

The Tribunal then found as a fact that there were no breaches on the lessors part of the duty to repair and thus no basis for the tenant terminating a fixed term lease on this ground.

The hearing then moved onto the issue of the termination of the tenancy. The Tribunal re-iterated what had been explained at the directions hearings and pointed out that neither party has the right under the Act to serve a notice of termination on the other during the fixed term except if the notice alleges a serious breach on the part of the other party. The 26 week notice period to which the tenant referred is the period of notice a lessor is required to give a tenant to terminate a periodic tenancy, not a fixed term tenancy. Therefore the lessors' notice telling the tenant to vacate by 28 February 2009 was unlawful.

The Tribunal pointed out to the parties that had the tenant actually acceded to that demand by the lessors and moved on 28 February 2009 then the fixed term tenancy would have come to an end by way of a surrender i.e. by agreement between the parties. Section 36(g) of the Act provides that if the parties agree to terminate the tenancy and the tenant in fact vacates in accordance with the agreement then the tenancy ends.

But unfortunately for the tenant this was not what in fact happened. The tenant explicitly rejected the lessors demand to vacate on 28 February 2009 and said she would move when she found other suitable accommodation. The lessors then purported to retract their notice. Then on 28 February 2009 the tenant did in fact vacate the premises but she did not do so in accordance with any agreement with the lessor as required by s36(g).

Any reliance by the tenant on s58 must also fail because the tenant did not in fact vacate the premises in response to the unlawful notice of termination.

For this reason the Tribunal found that the tenant had abandoned the premises on 28 February 2009.

The Tribunal heard evidence concerning the efforts that the lessors had made to find new tenants. The lessors affirmed that they had a new tenant by 1 April 2009 albeit that it was only a fixed term of 3 months. The lessors wanted rent from the tenant for the whole of the residue of the 42 weeks of the original tenancy notwithstanding that a new tenant was in residence at the same rent (T33-40). The Tribunal pointed out the unlawfulness of such a claim and the obvious double rent being sought by the lessors. At this point the tenant made the only potentially offensive comments that the Tribunal heard from her throughout, she said "it clearly shows the greediness of the landlord" (T34-5).

The Tribunal informed the lessors that if the new tenant in fact vacated at the end of his fixed term; and if this were still within the tenant's original fixed term of 42 weeks fixed term then the lessors could make another claim at that time against the present tenant for the balance of the fixed term. But such a circumstance was completely speculative at this time.

The Tribunal allowed the lessors compensation for abandonment to 1 April 2009 together with advertising costs in the sum of $1908.78.

1. The Tribunal then heard the parties on the various complaints by the tenant concerning the lessors conduct including: * the unlawful notice of termination; * the unlawful rent increases; * the unlawful refusal to provide a receipt; * the unlawful holding deposit; * the unlawful assertion that the parents were guarantors; * the unlawful demands for tax returns and other proof of income; * the delay in providing a copy of the lease to the tenant; * the approach to the tenant's mother; * the insults levelled at the tenant and her parents; * the threats of litigation;

• the large lawyers account the tenant was forced to incur

24. At this point Ms Bian renewed her objections to the Tribunal entertaining any claim by the tenant for breach of quiet enjoyment (T44-25).

25. The Tribunal found that these various actions by the lessors, but particularly the unlawfulness notice of termination and the unlawful rent increases, caused the tenant substantial distress that was the cause of her choosing to vacate the premises which amounted to a breach of quiet enjoyment on the lessors' part (prescribed term 52 of schedule to the Act). The Tribunal accepted that in the tenant's mind she felt forced out of the premises.

26. The Tribunal assessed the tenant's compensation at the same sum of $1908.78 such that there was no balance to be paid by either party.

27. When making this order the Tribunal understood, and in fact was told by the parties, that the bond was still in the Office of Rental Bonds (T46-40). The Tribunal ordered the release of the bond to the tenant.

28. On 15 May 2009 the Office of Rental Bonds advised the Tribunal that it had already released the bond to the lessor in the sum of $2000 on 1 April 2009. Thus the lessors would have been aware of the inaccuracy of the advice to the Tribunal at the end of the hearing on 11 May 2009 to the effect that the bond was still in the Office of Rental Bond and yet said nothing about it. Had the Tribunal known this fact at the time then orders would have been made for its repayment by the lessors.

29. Accordingly the Tribunal amended its original orders to give effect to this fact. The orders were amended to substitute new order 3:

3. The lessors has the bond of $2000 from the Office of Rental Bond. The lessor is to pay the bond to the tenant within 14 days.

1. On 25 May 2009 the lessors sought a statement of reasons for the above decision. The request did not identify any particular aspect of the decision in respect of which reasons were sought. However the nature of the lessors' grievance may in part be discerned from the terms of the application filed by the lessors with the Tribunal by way of appeal from the above decision pursuant to s79 ACT Civil and Administrative Tribunal Act 2008 (ACT). The grounds of that application read:

The tenant entered into a fixed term lease from the middle of February 2009 to early December 2009 for 42 weeks at the rate of $500 per week, but terminated the lease at her own will after staying for only 2 weeks without any legitimate reasons.

There was no mention of the disturbance of the "quiet enjoyment" in the original written application by the tenant. Neither was the issue discussed at the hearing. Further more, there was no evidence to suggest that there was breech of "quiet enjoyment", which was only a rent reduction as stated in the law even if the claim warranted such a decision. However, we were ordered to pay $1908.78 for breech of "quiet enjoyment" for only two days Mr Allan Anforth said we disturbed the tenant's "quiet enjoyment" by sending her an email to terminate the lease suggested by her mother, which the tenant admitted. We withdrew the offer the following day when the tenant did not agree to the suggestion. However, the tenant lodged an application with ACAT to terminate the lease trying to make the withdrawn offer still valid.

(1) While Mr Allan Anforth admitted the applicant breeched the tenancy agreement by moving out 40 weeks before the end of the lease, is Mi-Allan Anforth's decision for us to pay the tenant $1908.78 for "disturbing the "quiet enjoyment"" for two weeks' stay against the GENERAL PRINCIPLES in the FAIRNESS section of the CODE OF CONDUCT FOR MEMBERS OF THE CONSUMER, TRADER AND TENANCY TRIBUNAL?

(2) The applicant didn't authorise Mr Allan Anforth to act on her behalf. However, as a member of the Tribunal, Mr Allan Anforth assumed the role of the applicant's legal representative at the hearing. Did this behaviour seriously breech the CODE OF CONDUCT FOR MEMBERS OF THE CONSUMER, TRADER AND TENANCY TRIBUNAL?

(3) There was no mention of the disturbance of the "quiet enjoyment" in either written application by the tenant. Neither was the issue discussed at the hearing. It was a sudden decision made by Mr Alien Anforth without any awareness by both parties. Furthermore, there was no evidence to suggest that there was breech of quite enjoyment. Did Mr Allan Anforth's decision totally deny the natural justice of both parties?

3. Any additional evidence you wish to introduce

Please refer to the original application lodged by the tenant and our additional statement as well as the video recording of the hearing. Please also refer to the attached GENERAL PRINCIPLES of CODE OF CONDUCT FOR MEMBERS OF THE CONSUMER, TRADER AND TENANCY TRIBUNAL.

Mr Anforth breeched the CODE OF CONDUCT FOR MEMBERS OF THE CONSUMER, TRADER AND TENANCY TRIBUNAL at both two hearings he conducted. He misled the applicant to claim for "unlawful eviction" and to get as much as the applicant wanted by providing "evidence" which was strongly questioned by our solicitors. He never mentioned "unlawful eviction" again at the second hearing.

I wish to emphasize one important fact of unfairness of his decision, i.e. the tenant only stayed in the apartment for 2 weeks at the weekly rate of $500. Mr Allan Anforth admitted the applicant breeched the tenancy agreement by moving out 40 weeks before the end of the lease. According to the Residential Tenancy Law, we should be compensated for 26 weeks of rent, but instead, we were ordered to pay $ 1908.78 for breeching of "quiet enjoyment".

• That the statement of reasons be send to us as requested ASAP
• That the decision for us to pay the tenant $1908.78 be withdrawn
• That the tenant should pay us $1908.78 which was ordered by Mr Allan Anforth in the hearing
• We keep the bond which was already released to us by the Bond Office
• The tenant to pay 19 weeks of rent in the amount of $9500 according to Residential Tenancy Law for breeching the lease.
• That the application fee for the appeal in the amount of $393 be waived.

GENERAL PRINCIPLES of CODE OF CONDUCT FOR MEMBERS OF THE CONSUMER, TRADER AND TENANCY TRIBUNAL

In the performance of their duties Members must demonstrate fairness, integrity, impartiality, expertise and timeliness.

At the most basic level, fairness refers to the obligation of Members to give all parties the opportunity to present their respective positions and to receive an unbiased determination. More broadly, all of the concepts addressed by this Code of Conduct contribute to the fairness of the process.

• abide by the principles of natural justice and procedural fairness, in particular, by giving each party a reasonable opportunity to present their case and to answer the case against them,
• ensure the Tribunal is accessible by being aware of barriers such as language, cultural background, literacy or disability which may impede a party in presenting their case,
• control the proceedings in order to create an environment which is courteous and respectful of all participants,
• communicate in a clear, plain manner which can be understood by the parties,
• ensure proceedings are conducted in a manner which is transparent and seen to be

"Tribunal members always seek to act in accordance with the highest standards of personal and professional conduct. The Lord Chancellor and the Lord Chief Justice take seriously any complaint that a Tribunal member has in some way fallen short of these standards". (References from Judicial Appointments and Conduct Ombudsman.)

1. In the appeal notice the tenant has raised the issues of:
   • (a) The Tribunal's power to amend the tenant's claim to permit the issues of unlawful termination and breach of quiet enjoyment to be argued on behalf of the tenant;
   • (b) The role of the Tribunal in assisting parties to re-formulate their claims;
   • (c) whether the issue of unlawful termination was ever before the Tribunal and whether there was in fact any unlawful termination:
   • (d) whether the issue of breach of quiet enjoyment was ever before the Tribunal and whether there was in fact any breach of quiet enjoyment

The power of the Tribunal to permit amendment of claims and counterclaims (para 162(a) above):

1. The Tribunal's jurisdiction is to resolve tenancy disputes (ss 71H and 73 of the Act). Section 73 requires the application to be in writing.

2. If the dispute is not solved by the Registrar via mediation it is referred to the Tribunal (s78) for hearing (s90).

3. Section 99 of the Act deals with amendment of claims and reads as follows:

(a) on application by a party or of its own motion, order that any document in the hearing be amended; or

(b) with the consent of the parties, give leave to any party to amend any document of that party in the hearing.

1. Section 99 permits the Tribunal to either amend a document, including a claim as filed, of its own motion to permit a party to amend the document.

1. This power is to be exercised in accordance with the principles set out in ss 6 and 7 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) namely with the objective of resolving disputes in a manner that is: * quick * simple * inexpensive * informal and * fair

subject to the rules of natural justice and procedural fairness (s7(b) of the ACAT Act).

The rules of evidence do not apply (s8 of the ACAT Act) and the Tribunal is the architect of its own processes (s23 of the ACAT Act).

The purpose of permitting amendments to claims and counter claims is to permit the Tribunal to deal with the true essence of the dispute between the parties including those issues that are set out in the claims and counter claims as filed, and those issues that emerge during the directions hearing and other processes in the Tribunal. If such amendments were not permitted then an aggrieved party would simply lodge another claim containing the content of the proposed amendment and all related claims would then be heard concurrently.

The power for the Tribunal to amend claims of its own motion is particularly relevant in the case of unrepresented parties who often lack the background understanding to perform this task for themselves.

In Holden Australia Ltd v Eagleston [2004] NSWSC 779 the NSW Supreme Court held that a similar power in section 28(3) Consumer Trader and Tenancy Tribunal Act 2001 (CTTT Act) permitted the NSW Consumer and Trader Tribunal to make orders in accordance with the justice of the case, not limited to granting only orders sought in the application as filed.

Section 92 permits the Tribunal to adjourn any hearing "on the terms the Tribunal considers just" which includes adjournments to permit amendments to documents and to file and serve relevant evidence.

For these reasons the Tribunal rejects the lessors contention that it lacks the power to either amend claims of its own motion or to permit amendments by parties, and to adjourn proceedings for this purpose.

After the directions hearing of 19 March 2009 it was entirely apparent to the Tribunal that the essence of the tenant's complaint was that she had been effectively forced out of the premises by the lessors' conduct at para 156 above and the effect it had on her quiet enjoyment of the premises. Hence the terms of the procedural orders made on that date which specifically included a claim by the tenant for compensation for unlawful eviction; and the orders for filing evidence relating to the inconvenience and distress suffered by the tenant (para 70 above).

The lessors were on notice of the tenant's complaints via her correspondence with them and submissions to the Tribunal. But even if the lessors had not gleaned the essence of the tenants complaint set out immediately above, the matter was the subject of explicit discussion and orders at the directions hearing, was then the subject of submissions filed prior to the hearing and argument at the hearing. The Tribunal rejects any suggestion that the lessors were taken by surprise by these issues such as could amount to a denial of procedural fairness.

The role of the Tribunal in assisting parties to re-formulate their claims (para 162(b) above)

The Tribunal must actively assist parties to understand the hearing process and present their cases.

1. This section requires that the Tribunal "must" undertake this task i.e. it is not option for the Tribunal.

2. Secondly, this power requires that the Tribunal undertake this task 'actively" and merely nominally.

3. In Weinstein v Medical Practitioners Board of Victoria (2008) VCA 193 the Victorian Court of Appeal held that a provision identical to sections 8 and 26 of the ACAT Act was sufficient to indicate a legislative intend that the proceedings of the Board were "inquisitorial" and not "adversarial" in nature.

4. In Bates v Port Stephens Holiday Park Pty Ltd (1996) NSWRT 208, the NSW Residential Tenancies Tribunal had the following to say concerning the mix of adversarial and inquisitorial processes in the Tribunal:

It is of course one of the great difficulties for the Tribunal as it is for a number of similar bodies that generally speaking parties are not represented. Whilst the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit, it is extremely difficult when dealing with applications such as the current ones to draw a line between giving guidance and direction to each of the parties and actively stepping into the arena of evidence. The easy path would be for the Tribunal to lean heavily on parties and to dismiss applications if evidence was not readily produced. However, in practice this would have the alarming consequence that the number of dismissals would exceed the number of cases heard. It could also mean that people from different cultural, social and educational backgrounds would be disadvantaged.

It is clear that the discretion given to the Tribunal must be exercised judicially. His Honour confirmed the former chairman of the Tribunal Mr Harley Rustin's comments in an Addendum to his (Mr Rustin's) decision in that case ... 'The Tribunal (is not entitled) to act according to some arbitrary concept of its own or to ignore the legal rights and liabilities of the parties assuming a new and undefined power to decide the matter in dispute according to what it thinks is fair and proper. (Ex parte Herman; Re Mathieson (1960) 78 WN NSW 6).'

The Tribunal does not in practice sit back and wait as parties attempt to do their best. It advises; it raises issues, asks questions and suggests hypotheses. Within the framework of natural justice and conventional legal procedures it actively intervenes in an attempt to adduce the relevant evidence which it finds to be admissible. The words of Deane J in Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 342 are apposite.

'In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case'.

1. In NSW Department of Housing v Szilagy (1997) NSWRT 182 a similarly constituted Tribunal said:

There are circumstances where the Tribunal does not sit back and wait as parties attempt to do their best. Instead it raises issues, asks questions and suggests hypotheses. Within the framework of natural justice and procedural fairness it actively intervenes to adduce the relevant admissible evidence. If it did not do so in a forum where parties appear in person and rights of representation are restricted the majority of applications would be dismissed.

1. In APA Life Insurance Ltd v Charles (1981) 2 NSWLR 352, when speaking of the role of referees in the Consumer Claims Tribunal, Hunt J stressed the need for referees to ensure that unrepresented litigants were assisted by the referee in understanding how to present their case and in understanding the case they had to answer.

2. The duty for presiding officers to intervene in proceedings to ensure justice is done has been affirmed by the High Court in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571:

It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated ...

1. Similar views were expressed by the NSW Court of Appeal in Galea v Galea (1990) 19 NSWLR 263 at 281-282.

2. In Malaxetxebarra v The State of Queensland [2007] QCA 132 the Court of Appeal made the following observation about the role of Anti Discrimination Tribunal in Queensland when dealing with unrepresented litigants:

It is also important to bear in mind that, while it may be desirable to eschew undue formality and technicality in proceedings under the Act_, the more informal the conduct of proceedings may be, the more important is the need to ensure that all parties have a precise understanding of just what is being alleged: natural justice requires no less._

1. In Nippress v Military Rehabiliation and Compensation Commission [2006] FCA 943 Cowdroy J was critical of Administrative Appeals Tribunal's decision to limit consideration of the issues before by reference to concession extracted from an unrepresented litigant who did not understand the legal significance of those concessions. Cowdroy J said the Tribunal should have taken up any issues which arose in the course of the proceedings which appeared relevant to a determination of the substantive merits of the case.

2. In Marblecraft & Granite Supplies v Pratezina and ors [2005] NSWCTTT 558 the presently constituted tribunal sitting in the NSW Consumer Trader and Tenancy Tribunal made the following observations about the difficulties tribunals members sometimes face with unrepresented litigants:

108 By way of final comment the Tribunal draws attention to the difficulties incumbent in conducting defended hearings by unrepresented parties in emotionally charged circumstances. The Tribunal was set up, inter alia, for the purpose of facilitating unrepresented litigation. Section 28 of the CTTT Act provides that the Tribunal is not bound by the rules of evidence and is given power to determine its own processes consistent with the dictates of natural justice. The Tribunal is required to act with expedition and informality in an endeavour to determine cases according to their substantive merit without regard to technicalities.

109 The Tribunal is required by section 28(4) CTTT Act to ensure that each party understands the nature of the case against them and the legal implications of any assertions made. Section 35 requires the Tribunal to ensure that each party has a fair chance to call the evidence required to reasonably put their case, and to make whatever submissions they wish on the evidence and issues of law raised in the case.

110 In order to achieve these outcomes the Tribunal must often engage in strong case management in the preparatory stages of the proceedings and must often take active involvement in the examination of witnesses at the hearing. This approach will on some occasions result in tension between the Tribunal member and unrepresented parties. This possibility is simply a risk inherent in the quasi-inquisitorial nature of the proceedings.

111 In order for the Tribunal to discharge its duty to the unrepresented parties it is often necessary for the Tribunal to explain legal concepts to the parties in non-legalistic terms. The language needed depends on the level of familiarity with the law possessed by the parties and their general capacity to grasp the concepts. The language of necessity must be tailored to the lowest common denominator in order that all the parties understand what is being said. This can sometimes lead to inaccuracies and sometimes to basic street level language. This cannot always be avoided.

112 The situation can then be further complicated by tension arising between the involvement of the Tribunal Member with the parties in the above manner. In order to control the proceedings and avert deterioration into episodes of verbal aggression between the parties, the Tribunal Member must sometimes exercise a firm hand on the conduct of the parties which can in turn exacerbate emotions.

113 These problems presented themselves to varying degrees in the present case. Ms Pratezina was constantly angry and often provocative and discourteous to the other parties, and to the Tribunal. This factor made it difficult to probe the facts of the case and to solicit compromise and co-operation from the parties. Her tendency to exaggerate things made it difficult to determine what was truly significant in an objective sense and what was her simply over reacting.

Whether the issue of unlawful termination was ever before the Tribunal and whether there was in fact any unlawful termination (para 162(c) above):

1. The issue of an unlawful termination was explicitly made the subject of an amendment in the orders issued after the directions hearing on 19 March 2009 and was therefore clearly before the Tribunal.

2. At the hearing on 11 May 2009 the Tribunal examined this issue and came to a finding that although the lessors had attempted an unlawful termination, the tenant ultimately vacated the premises on her own terms and not in accordance with the unlawful termination notice issued by the lessors.

3. Although it is too late for the Tribunal to revisit this finding, upon reflection in composing these reasons for decision, the Tribunal is concerned that it may have given insufficient weight to section 58 of the Act in favour of the tenant. At the hearing the Tribunal decided against the tenant on the issue of an unlawful termination on the grounds that the tenant initially refused to vacate on 28 February 2009 and informed the lessors that she would vacate when she found suitable accommodation.

4. It was open to the Tribunal at the hearing to have found that the actual vacation of the premises by the tenant on 28 February 2009 may not have been inconsistent with the tenants declared intent to leave when she found suitable accommodation in that she may have decided that she had found suitable accommodation on 28 February 2009. Certainly the lessors had advertised the premises at the ANU as of this date indicating their expectations on the matter.

Whether the issue of breach of quiet enjoyment was ever before the Tribunal and whether there was in fact any breach of quiet enjoyment (para 162(d) above)

1. A tenant's right to "quiet enjoyment" is a term of art used in tenancy law. In the context of the Act it is embodied in prescribed term 52 which reads:

The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.

1. The interference caused to the tenant's use of the premises must be substantial and not trivial (Worrall v Commissioner for Housing of the ACT [2002] FCAFC127 but it does not have to be so severe as to deprive the tenant of the whole of the benefit of the tenancy (Hawkesbury Nominees P/L v Battik P/L [2000} FCA 185; Byrnes v Jokana P/L [2002] FCA 41).

2. The right to quiet enjoyment can be breached by the actions of a lessor falling short of an unlawful termination of the tenancy, but an unlawful termination is just the extreme case of a breach of quiet enjoyment, i.e. the whole the quiet enjoyment of the premises has been lost. A loss of quiet enjoyment is a matter of degree.

3. Thus by way of example in Davies v Cantoni [1998] NSWRT 41 and in Sheridan v Griffith [1999] NSWRT 22 the Residential Tenancies Tribunal in NSW held that unsuccessful endeavours by a lessors to coerce a tenant to vacate the premises were a breach of quiet enjoyment.

4. The right to quiet enjoyment is an absolute and therefore a breach of that right occurs whether or not the lessors intended to cause the breach (Worrall (supra); Coles Myer ltd v Volley Investments P/L [2003] WASC 254).

5. The Tribunal found as a fact that each of unlawful or inappropriate actions carried out by the lessors at para 156 above constitute breaches of the tenant's quiet enjoyment. Even if these actions fell short of a constructive unlawful eviction they were so severe as to in fact cause the tenant to vacate the premises. These issues were before the Tribunal from the first day and were amply ventilated in the correspondence, submissions, discussion at the directions hearing, orders made at the directions hearing, submission filed post directions hearings and at the hearing. It is simply disingenuous of the lessors to say that they were unaware of the issues.

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Residential Tenancies Act 1997:

30(1) If section 29 (1) and (3) have been complied with, a statement in a report mentioned in section 29 about the state of repair or general condition of the premises, and of any goods leased with the premises, (other than a statement in relation to which the tenant, by endorsement, has indicated disagreement) is evidence of that state of repair or general condition on the day the tenant was given the report.

38. A person who, apart from this section, would be entitled to compensation under this Act is not entitled to the compensation, or part of it, if the loss, or part of the loss, to be compensated could have been reasonably avoided.

71(1) On application by a tenant, the tribunal must order a reduction in the rental rate payable under a residential tenancy agreement if it considers that the tenant's use or enjoyment of the premises has diminished significantly as a result of any of the following:

(a) the loss or diminished utility of an appliance, furniture, a facility or a service supplied by the lessor with the premises as a result of -

(i) the withdrawal of the appliance, furniture, facility or service by the lessor; or

(ii) the failure by the lessor to maintain the premises and any appliance, furniture or facility supplied with the premises in a reasonable state of repair, having regard to their condition at the commencement of the residential tenancy agreement; or

(iii) the failure by the lessor to provide and maintain the locks or other security devices necessary to ensure that the premises are reasonably secure;

(b) the loss of the use of all or part of the premises;

(c) interference with the tenant's quiet enjoyment of the premises or the tenant's ability to use the premises in reasonable peace, comfort and privacy by the lessor or anyone claiming through the lessor or having an interest in, or title to, the premises.

(2) To remove any doubt and for subsection (1), a tenant's quiet enjoyment of premises is interfered with if there is substantial interference with, or a significant lessening of freedom in exercising, the tenant's rights.

(3) A reduction in the rental rate ordered under subsection (1) -

(a) takes effect from the day the tenant's use or enjoyment of the premises diminished, or the later date that the tribunal specifies; and

(b) remains in force for the period, not longer than 12 months, specified by the tribunal.

(4) The tribunal may order a lessor to pay to the tenant the difference between the rent paid and the rent payable as a result of an order for a rental rate reduction.

(5) Any purported increase in the rental rate in relation to premises for which a reduction order is in force is void and any amount paid above and beyond the reduced rental rate in accordance with a purported increase is a debt owing by the lessor to the tenant.

104. The tribunal may, in addition to any other order it is empowered to make, make the following orders in relation to an application about a tenancy dispute or occupancy dispute:

(b) an order requiring performance of a residential tenancy agreement or occupancy agreement;

(c) an order requiring the payment of money to the Territory or a person;

(d) an order requiring the payment of compensation for loss of rent or any other loss caused by the breach of a residential tenancy agreement or occupancy agreement;

(i) an order terminating a residential tenancy agreement or occupancy agreement and granting vacant possession of the relevant premises to the applicant for the order;

(l) any other order the tribunal considers appropriate.

115(1) The tribunal has exclusive jurisdiction to hear and decide any matter that may be the subject of an application to the tribunal under -

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

(2) However, the tribunal does not have jurisdiction to make an order for -

(a) the payment of an amount greater than $25 000; or

120(1) If this Act does not prescribe a procedure for a matter in a hearing or a step in a proceeding, the tribunal may decide its own procedure for the matter or step.

121(1) In the exercise of a function, the tribunal must have regard to the rules of natural justice.

(a) must proceed with as little formality and technicality and with as much expedition as the requirements of this or any other Act and a proper consideration of the matter allow; and

(b) is not bound by rules of evidence but may inform itself of any matter in any way it considers appropriate.

Prescribed terms of the Schedule to the Act forming the terms of the residential tenancies agreement:

3. A party to this tenancy agreement cannot contract out of it or out of the provisions of the Residential Tenancies Act, except as provided in that Act.

52 The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.

53. Unless otherwise agreed in writing, the tenant has exclusive possession of the premises, as described in the agreement, from the date of commencement of the tenancy agreement provided for in the agreement.

54(1) At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings and appliances (unless excluded from the tenancy agreement), are -

55(1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.

(2) The tenant must notify the lessor of any need for repairs.

(3) This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse.

56 The lessor is not obliged to repair damage caused by the negligence or wilful act of the tenant.

57 Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).

59. The tenant must notify the lessor (or the lessor's nominee) of the need for urgent repairs as soon as practicable, and the lessor must, subject to clause 82, carry out those repairs as soon as necessary, having regard to the nature of the problem.

1. The following are urgent repairs in relation to the premises, or services or fixtures supplied by the lessor:

(j) a failure or breakdown of any service on the premises essential for hot water, cooking, heating or laundering;

61 If the lessor (or the lessor's nominee) cannot be contacted, or fails to effect the urgent repairs within a reasonable time, the tenant may arrange for urgent repairs to be effected to a maximum value of up to 5% of the rent of the property over a year.

62 The following procedures apply to urgent repairs arranged by the tenant:

(a) the repairs arranged by the tenant must be made by the qualified tradesperson nominated by the lessor in the tenancy agreement;

(b) if the lessor has not nominated a tradesperson, or the nominated tradesperson cannot be contacted or is otherwise unavailable - the repairs must be performed by a qualified tradesperson of the tenant's choosing;

(c) if the repairs are arranged by the tenant in accordance with these procedures - the lessor is liable for the cost of repairs and the tradesperson may bill the lessor direct;

(d) if the tenant does not act in strict compliance with this clause - the tenant is personally liable for the cost of any urgent repairs arranged by the tenant.

(a) not intentionally or negligently damage the premises or permit such damage; and

(b) notify the lessor of any damage as soon as possible; and

(c) take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living.

DATE OF HEARING: 11 MAY 2009 PLACE: CANBERRA

DATE OF DECISION: 20 JULY 2009 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )