Olsen v Lee & Vajopin Pty Ltd trading as LJ Hooker Crows Nest [2010] NSWADT 7 (5 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Olsen v Lee & Vajopin Pty Ltd trading as LJ Hooker Crows Nest [2010] NSWADT 7


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
Applicant:
Gabriella Olsen

First Respondent:
Harry Henry Lee

Second Respondent:
Vajopin Pty Ltd t/as LJ Hooker Crows Nest




FILE NUMBERS:
081030

HEARING DATES:
8 and 9 April 2009

SUBMISSIONS CLOSED:
9 April 2009



DATE OF DECISION:
5 January 2010

BEFORE:
Vass S - Judicial MemberWeule B - Non-Judicial MemberMonaghan-Nagle L - Non-Judicial Member





LEGISLATION CITED:
Anti-Discrimination Act 1977

CASES CITED:


TEXTS CITED:


APPLICATION:


MATTER FOR DECISION:



REPRESENTATION:
Applicant Representative:
In person
First Respondent Representative:
P O'Loughlan- Barrister

Second Respondent Representative:
M. Rosati



ORDERS:
The complaint is dismissed


Reasons for Decision:

REASONS FOR DECISION

Introduction
1 The proceedings concern an alleged contravention of sections 49N and 52 of the Anti-Discrimination Act 1977 (NSW) ("the AD Act"). The Applicant, Gabriella Olsen ("Ms Olsen") claims that she was subjected to discrimination on the grounds of disability leading to two notices to quit being issued in breach of the AD Act by the first respondent, Henry Harry Lee ("Mr Lee") the owner of the premises at Wollstonecraft which Ms Olsen rented. Ms Olsen claims against the second respondent, Vajopin Pty Limited trading as LJ Hooker Crows Nest ("LJ Hooker"), the managing agent that it aided and abetted breaches of the AD Act by Mr Lee.

2 These proceedings were listed for hearing over two days. Ms Olsen represented herself. Mr Lee was represented by Mr O'Loughlin of counsel and LJ Hooker was represented by Mr Mark Rosati, its director.

Background

3 Ms Olsen entered into a residential tenancy agreement with Mr Lee to occupy the premises. The rent was fixed at $2,520 per calendar month for a fixed term commencing on 20 April 2005 and expiring on 19 April 2006. A rental bond was paid. After the expiry of the lease Ms Olsen remained in the premises on a month to month basis. She stated that she made significant improvements to the property and was house proud. She stated that several friends commented on the property when they visited. Ms Olsen does not make a claim in these proceedings for the improvements she made to the property.

4 Ms Olsen stated that during her tenancy, she always paid her rent on time and, on occasions, she contacted LJ Hooker to make arrangements for any late payment of rent which was always accommodated.

5 Ms Olsen suffered a back injury some time in 2001 leading to a severe nerve impingement on her lumbar spine. In or about September 2006, Ms Olsen had advanced L4/L5 disc degeneration with a large posterior disc extrusion and severe disc and degeneration at L5/6 which she complained caused severe pain and loss of the use of her left leg. Ms Olsen stated that she was advised by her orthopaedic surgeon to have surgery. Ms Olsen had arranged to be admitted to hospital in the first week of December 2006.

6 Ms Olsen stated that in or about the third week of October 2006 she had difficulty walking and required the use of crutches to enable her to be more mobile. She stated that she had never met Mr Lee but noticed him in the adjoining property. She stated that an exchange occurred with Mr Lee which was initially pleasant enough. She advised him that she would be undergoing surgery and after a period of recuperation from the surgery she would be conducting her business on the premises. Ms Olsen alleges that Mr Lee informed her that she would have to leave the premises by the end of November 2006 so that he could arrange for renovations prior to Christmas to enable him to move in. Ms Olsen told Mr Lee that she would have difficulty changing her surgery until after she moved.

7 Ms Olsen received a notice to quit from the LJ Hooker dated 25 October 2006 requiring her to vacate by 30 January 2007 ("the October Notice"). This notice was given pursuant to the Residential Tenancy Act 1987. Ms Olsen stated that in or about early November 2006 she attended the offices of LJ Hooker and had a conversation with Ms Lyn Smith, LJ Hooker's accountant regarding a variation to the rental payments during November 2006 from monthly to fortnightly to enable her to arrange her affairs until she became more established. Ms Olsen stated that she would make the November rental payment in 2 lots and the balance at the end of November 2006. Ms Olsen stated that Ms Smith agreed to this arrangement.

8 Ms Olsen stated that she also received second a letter dated 17 November 2006 from LJ Hooker requiring her to vacate the premises by 7 December 2006 ("the November Notice"). Ms Olsen complained that there was no notice which accompanied the letter. There were no grounds on which the notice was given. Ms Olsen stated that she contacted various employees of LJ Hooker about the November Notice and requested that she be allowed to remain in the premises until the end of January 2007 in accordance with the October Notice. Ms Olsen stated that she was informed that Mr Lee changed his mind and wanted the premises in order to carry out the work required. Ms Olsen set about finding another place to live and entered into a new tenancy agreement for another property commencing on 4 December 2006. She remained in the premises until 12 December 2006 to finalise the cleaning of the premises.

9 Ms Olsen stated that as a result of the conduct of Mr Lee and LJ Hooker she was required to cancel her surgery which was scheduled to take place in December 2006. She informed Ms Smith that she would vacate the premises by 4 December 2006 however, due to her condition she indicated that she would return the keys on 11 December 2006. She stated that Ms Smith agreed with that arrangement. Ms Olsen stated that she left the premises in good and proper repair. Ms Olsen stated that the receptionist, who she could not name, set out a list of complaints in relation to the premises. Subsequently, Mr Rosati advised Ms Olsen that he would contact her to inspect the premises. Ms Olsen stated that Mr Rosati informed her that he could not find any "fault" and indicated that he would release the bond to her. Ms Olsen stated that the premises were subsequently advertised for lease for sum of $800 per week. She stated that she was never asked to pay a higher rent to remain in the premises. She said that if she was required to pay more rent she would have accepted and that would have obviated the need for moving and suffering from a significant amount of inconvenience.

10 Ms Olsen underwent surgery in or about 30 January 2007 at St Vincent's Private Hospital.

CTTT Complaint

11 Because Ms Olsen was dissatisfied with the way in which she was treated by both Mr Lee and LJ Hooker she lodged a complaint with the Consumer Trader Tenancy Tribunal ("CTTT").

12 The nature of Ms Olsen's complaint related to the reasons why the lease was terminated. The onus was on Ms Olsen to establish on the balance of probabilities that the landlord had breached the tenancy agreement. In her complaint to the CTTT Ms Olsen sought the following orders against Mr Lee:

1. payment of her removalist in the sum of $1,251;

2. payment of truck and storage in the sum of $1,085.27;

3. damages for pain and suffering $3,360; and

4. loss of income $3,333.33.

13 On 10 April 2007 an application was filed on behalf of Mr Lee by Mr Proietti, an employee of LJ Hooker. The orders sought from the CTTT against Ms Olsen were:

1. payment of 21 days rent amounting to $1,739.84;

2. payment by Ms Olsen of the repairs to the property; and

3. payment by Ms Olsen for water usage in the sum of $310.94.

14 Ms Olsen's and Mr Lee's complaints were heard jointly on 21 May 2007.

15 Ms Olsen's complaint was dismissed on the basis that she was unable to prove that Mr Lee had breached the tenancy agreement. Mr Lee's complaint was dismissed for the following reasons:

1. Mr Lee consented to Ms Olsen vacating earlier;

2. there was no evidence provided for the claim for repairs; and

3. there was no evidence that Mr Lee ever pursued water usage charges during the tenancy.

The Complaint to the Anti-Discrimination Board

16 Dissatisfied with the CTTT decision, Ms Olsen lodged a complaint to the Anti-Discrimination Board ("the ADB") against Mr Lee and LJ Hooker on 13 August 2007. The complaint to the ADB is quite detailed and the amount sought against Mr Lee is identical to the amount sought by Ms Olsen in the CTTT complaint.

Referral to the Administrative Decisions Tribunal

17 On 31 March 2008, the complaint was referred to the Administrative Decisions Tribunal.

18 During the course of the hearing Ms Olsen relied on the complaint made to the ADB and her statements filed on 6 April 2009. Mr Lee relied on his statement dated 16 January 2009 and on the statements made by Jin Kwan Kwok Mr Lee's builder, dated 11 January 2009 and Ainsley Lee which are undated but filed on 30 January 2009. The evidence relied on by LJ Hooker was the statement by Mr Rosati dated 6 April 2009 and a statutory declaration by Ms Lyn Smith sworn on 18 February 2009.

The Evidence
19 Mr Lee is the registered proprietor of the premises. The adjoining property is owned by his 2 sons Milton and Ainslie. There is no issue in relation to the lease which was entered into between Mr Lee and Ms Olsen. Mr Lee contends that he made a decision at the time when the lease expired that he would obtain vacant possession of the premises and either demolish or renovate the premises. For that reason he decided not to grant a new lease or to increase the rent.

20 Mr Lee recalls that sometime in October 2006, he met Ms Olsen for the first time. A conversation took place at approximately 10.00 in the morning and he observed Ms Olsen to be moving items between the garage at the front of the premises and in her car. There was a pleasant exchange and introductions took place. Mr Lee stated that Ms Olsen asked him whether he wanted the property back. Mr Lee stated that he was on his way to instruct the agent to give her notice because he needed the property for renovations. At that point, Ms Olsen advised Mr Lee that she had a sore back and had booked herself in for an operation. Mr Lee stated that he had intentions to renovate the property. Ms Olsen stated that she could stay in the premises while the renovations were taking place as she had moved her business from the shop at the Rocks and had been running her business from the house. Mr Lee stated that the renovations would be extensive. Ms Olsen stated that she needed time to move as she would be having an operation and needed time to recuperate. She stated that she sought 6 months however Mr Lee told her he could give her only 3 months. Ms Olsen stated that Mr Lee could not do that. Mr Lee stated everyone had problems and he lost his wife in May. Ms Olsen stated she was sorry to hear that. Mr Lee states that he instructed the agent that he wanted vacant possession of the premises and would require possession by 30 January 2007. Mr Lee accepted that the October Notice was sent to Ms Olsen.

21 There are conflicting views about the conversation which took place on that day in October 2006. Mr Lee was told by Ms Olsen that she had a back condition which required surgery. The question to be considered is whether Mr Lee's actions in his decision to obtain possession of his property were triggered by Ms Olsen's disability.

22 Ms Olsen contends that she had a "feeling" that Mr Lee discriminated against her and his whole demeanour changed when she told him about her back condition. She was unable to prove how that constituted an act of discrimination.

23 There is no evidence that Mr Lee's decision to have vacant possession was in any way discriminatory. Indeed, Mr Lee provided Ms Olsen with almost 3 months notice under the October Notice to vacate rather than 60 days notice which is what was required to be provided pursuant to section 7 of the lease once the lease had expired.

24 Ms Olsen accepted in cross examination that she has never read a lease and it was common knowledge that 60 days notice was required to be given once a lease expired. She stated that when she received the October Notice she understood that she had to vacate the premises by the end of January 2007. She also agreed in cross examination that Mr Lee did not seek vacant possession because of her disability. She stated that she felt it was his body language. Unfortunately for Ms Olsen that is not sufficient.

The October Notice
25 Ms Olsen stated after the conversation with Mr Lee in October 2006 she received a letter in or about 25 October 2006 from LJ Hooker, Mr Lee's agent, requiring her to vacate the premises by 30 January 2007. Ms Olsen stated that she arranged to have a conversation with Ms Smith, LJ Hooker's accountant, seeking her assistance to find her alternative accommodation. Ms Olsen alleges that she received no assistance from Ms Smith and had a subsequent conversation with Ms Bianca Farr, Ms Smith's colleague, making a similar request. Ms Olsen alleged that Ms Farr stated words to the effect:

"No we cant help you as we choose our customers. People like you, we don’t need on our books".

26 Ms Farr denied making that statement to Ms Olsen. Indeed Ms Olsen seemed somewhat confused in her questioning of Ms Farr. Ms Olsen did not seek to challenge the October Notice on the basis that she was treated less favourably because of her disability. Instead she sought assistance from LJ Hooker to find her alternative accommodation.

The November Notice

27 The November Notice sent to Ms Olsen by LJ Hooker required vacant possession by 7 December 2006. The reason for the termination relates to Ms Olsen's failure to pay the rent by the due date. Ms Olsen stated that prior to receiving the November Notice she contacted Ms Smith to make arrangements to vary her rental payments so that she could pay 2 instalments, the first in the sum of $1,570.00 and the second instalment in the sum of $1,000.00. Ms Smith swore in her statutory declaration that upon receipt of the November Notice, she had a conversation with Ms Olsen and confirmed that this notice was invalid and that Mr Lee was content for Ms Olsen to remain in the premises pursuant to the October Notice namely to vacate by 30 January 2007. Ms Smith's evidence was unchallenged.

28 Ms Olsen decided to move from the premises and entered into a new tenancy agreement in relation to another property on 4 December 2006. She remained in the premises until 12 December 2006 to finalise the cleaning of the premises. It is unusual that an arrangement to make 2 separate payments would be disputed. Ms Smith does not deal with this issue in her statement. The Tenant Trust Ledger Report which was tendered by LJ Hooker illustrates that the rent was not paid on the first day of each calendar month. Although the rental payments up until November 2006 are for the full amount of $2,520, the amounts were paid on irregular days, for example on 6 July 2005, 2 August 2005, 1 September 2005. The next instalment after 6 October 2005 was for a sum of $1,520 on 17 November 2006. It is curious that the November Notice was sent to Ms Olsen on 17 November 2006 being the same day that she attended LJ Hooker's premises to make the payment.

Relevant Provisions
29 For present purposes it is instructive to set out the definition of disability as set out in section 4 of the AD Act:

"disability" means:

a total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

b the presence in a person's body of organisms causing or capable of causing disease or illness, or

c the malfunction, malformation or disfigurement of a part of a person's body, or

d...

e...

S.49A of the AD Act provides as follows:

49A Disability includes past, future and presumed disability

A reference in this Part to a person's disability is a reference to a disability:

a that a person has, or

b that a person is thought to have (whether or not the person in fact has the disability), or

c that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

d that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

S.49B of the AD Act provides as follows:

49B What constitutes discrimination on the ground of disability

1a A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability the perpetrator:

i treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability ..., or

ii....

a. For the purposes of subsection (l)(a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3A) For the purposes of, but without limiting this section, the fact that a person who has a disability:

i. is accompanied by ...mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

ii. is taken to be a characteristic that appertains generally to persons who have that disability.

a. A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

S.49N of the AD Act provides as follows:

49N Accommodation

a. It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability:

i. by refusing the person's application for accommodation, or

ii. in the terms on which the person is offered accommodation, or

iii. by deferring the person's application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.

b. It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability:

i. by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or

ii. by evicting the person, or

iii. by subjecting the person to any other detriment.

c. Nothing in this section applies to or in respect of the provision of accommodation in premises if:

i. the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and

ii. the accommodation provided in those premises is for no more than 6 persons.

d...

e...

f...

Section 52 – Aiding and Abetting etc

S. 52 of the AD Act provides as follows:

It is unlawful for a person to do an act to cause, instruct, induce and/or permit another person to do an act that is unlawful by reason of a provision of this Act.

30 During the course of these proceedings Ms Olsen relied on a contravention of sections 49N and 52 of the AD Act.

Establishing the claim
31 Ms Olsen satisfies the test that she has a disability, namely advanced L4/5 disc degeneration with a large posterior disc extrusion and severe disc and facet degeneration at L5 / S1 with considerable instability and Grade 2 anterolisthesis. This amounts to a malfunction of the body. This was not in dispute.

32 The allegation is that Mr Lee discriminated against Ms Olsen on the ground of her disability by evicting her from the premises as proscribed by s.49N(2)(b) of the AD Act and Ms Olsen was treated less favourably in the circumstances, than a person who did not have the disability and at least one of the reasons for the treatment was her disability.

33 On the basis that there was a disability then, was there discrimination? We are satisfied that:

a. Mr Lee had, by the time he became aware of Ms Olsen's disability, made the decision not to relet the property;

b. Mr Lee was, on the day the critical conversation took place in October 2006, on his way out to tell the agent to take steps to obtain vacant possession.

c. Ms Olsen was holding over on a monthly basis and had no current lease term and was liable to be given notice to vacate on 60 days notice.

d. Mr Lee, as a result of the conversation, became aware that Ms Olsen had a disability, but his decision to obtain vacant possession was based upon his own economic interests unaffected by her disability or his knowledge of it.

e. The tenancy records from LJ Hooker establish that Ms Olsen had a good rental payment record.

f. Ms Olsen was not treated any less favourably in the same circumstances as would any other tenant have been. In respect of the October and November Notices, it is not established that the treatment of Ms Olsen was on the ground of her disability.

g. The fact is that Mr Lee required possession of the property and acted sympathetically toward Ms Olsen in giving her 3 months to vacate.

h. Mr Rosati agreed that Ms Olsen was a good tenant and Ms Olsen agreed with Mr Rosati's comments that his staff did not say anything discriminatory to or against her.

i. Ms Olsen stated it was the way staff spoke to her and she felt that the agent "did not work for her they did not have a duty of care to her as a client". This does not provide a ground for discrimination.

Conclusion

34 Ms Olsen has not succeeded in her complaint that Mr Lee had discriminated against her pursuant to s.49N of the AD Act. S52 of the AD Act only operates where there has been a finding of unlawful discrimination. Because there was no discrimination there can be no finding that LJ Hooker aided and abetted Mr Lee in breaching the AD Act. Accordingly, the complaint is dismissed.