Darius v Aron

NCAT Consumer and Commercial|2022-01-31|Before: Blake AM

Overview

In these proceedings the applicant, Emilie Darius, who is the former tenant, seeks relief under s 175 of the Residential Tenancies Act 2010 (NSW) (RT Act) against the respondent, Ronnie Aron, who is the former landlord, of premises at Vaucluse (the premises) under an agreement between them (the agreement).
I have decided that the respondent owes the applicant $1,540.00.

The factual background

On 25 February 2021, the parties entered into agreement in respect of the premises for a period of six months commencing on 7 March 2021 at a rent of $355.00 per week and a rental bond of $1,540.00.
The respondent did not lodge the rental bond received from the applicant with Rental Bond Services.
On 5 September 2021, the applicant vacated the premises.
Subsequent to 5 September 2021, the respondent has retained the rental bond.
There is a dispute between the parties as to whether the applicant paid the balance of $830.00 of the rental bond to the respondent, and whether the respondent is entitled to claim $1,450.00 from the applicant for the payment of utility expenses and damages for breaches of the agreement.

The history of the proceedings

On 21 October 2021, the applicant commenced proceedings RT 21/43706 against the respondent who was named as Aron Allen by filing an application in which she sought an order under s 175 of the RT Act regarding the payment of the rental bond, and provided the following reasons for this order: "I lived for 6 months at XXX Military Road in Vaucluse. Before I moved in, the landlord, Aron Allen, asked me to pay 2 weeks bond to secure the place, which was $710. This money has been transferred to his account from my account on February 25. I moved on March 7. The landlord asked me to pay him the balance of the bond plus one week rent on this date by cash. Which I did. The balance was $830 and the week rent $355 which made it to $1185. After 5 months, I gave him one month notice, which was on August 3, that I will move out on September 5. On the date I moved, he said he will gave me my bond, $1540, when the new tenants will be here. New tenants never arrived. On September 6, we talked face to face and he said he was currently facing financial hardship with his wife and he didn't have the money to give me my bond. He asked if I could leave him some time until the end of the month. To be nice and comprehensive, I agreed. But since this day, I never had any news from him. I recently texted him and called him few times and I never got a reply back. I have all the text messages that we exchanged from the beginning. My bank account can show the transfer and all the money I withdraw from the bank to pay the balance of the bond and every week the rent. I also have friends that can testify I was leaving there, I received mails and 2 friends can testify the day I moved out and that the landlord started to be dodgy about the bond."
On 3 November 2021, the respondent provided the following documents to the Tribunal: 1. a letter dated 1 November 2021 (the 1 November 2021 letter) which relevantly provides: " … 2. $710 was transferred to my Bank Account on February 25 which was for 1 week Bond + 1 Week Rent. … … 4. On the 29/08 Emilie Darius texted me agreeing for me to deduct $200 from her Bond for Electricity usage. Text message attached from Emilie as supporting evidence." 1. a screenshot of a undated text message from the respondent to the applicant in August 2021 (the undated August 2021 text) which provided: "received our highest ever electricity bill and I am hoping you could pay a portion. This bill is the highest I have ever seen and while I cant monitor, I am thinking amount of $200 should cover it." 1. a screenshot of an electricity bill for $1,067.87 for electricity for the billing period from 3 May 2021 to 3 August 2021; 2. a screenshot of a text message sent on 29 August 2021 from the applicant to the respondent (the 29 August 2021 text) which provided: "Well, as you know I was working a lot and was not usually home during the day. I'm more at home since July. But, well ok. I will pay it. You can deduct it from my bond" 1. an original cash receipt book (the cash receipt book).
On 11 November 2021, the Tribunal at a directions hearing relevantly made the following procedural directions (the 11 November 2021 orders): "NOTE: This is the tenant's application; there is a dispute about the amount of rent; each party has provided documents but in the circumstances of this case the appropriate course is to have each party lodge and serve afresh their documents and any other documents they intend to rely on in accordance with the directions below; and the parties should include any documents to confirm at hearing the correct name of the landlord, whether it is Aron Allen or Ronnie Aron. 1 By 2 December 2021, the landlord is to POST/ HAND DELIVER to the Tribunal and the tenant any documents he intends to rely on including a ledger setting out, in respect of bond, the date/son which it was paid and how much, and in respect of each payment of rent, the period for which the rent is paid and the date up to which the rent is paid, the date on which the rent is paid, and the amount of rent paid. 2 By 23 December 2021, the tenant is to POST/ HAND DELIVER to the Tribunal and the landlord, any documents on which she intends to rely, and if she challenges the ledger she is to itemise and evidence each challenge."
On 17 November 2021, the Tribunal sent a notice of a hearing by telephone on 10 January 2022 to the parties.
On 10 January 2022, the Tribunal adjourned the proceedings, amended the name of the respondent, and published reasons for its decision to adjourn the proceedings which relevantly provided: "The Tribunal has received copies of both parties' documents. The landlord's documents include a tenant ledger that is different to the position that the tenant contends for. It shows that the landlord received bond of only $710 whereas the tenant argues that she paid a total bond of $1,540. The landlord's documents also show that the landlord wishes to claim against the bond for electricity usage, gas usage, cleaning costs and locksmith costs, totalling $1,450. Separately, I am conscious that the tenant is out of pocket for the bond that she has paid. The tenant is entitled to expect that the proceedings be brought to an end as soon as practicable in order to refund to her the amount properly repayable to her. Section 36 of the Civil and Administrative Tribunal Act requires the Tribunal to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings. There is a justiciable issue between that parties on (firstly) the amount of the bond paid by the tenant; and (secondly) whether the landlord is entitled to claim the above amounts against the bond under ss 51(3) and 166 of the Residential Tenancies Act 2010 (NSW)."

The hearing

The hearing took place on 31 January 2022. The applicant represented herself, and the respondent represented himself.
The applicant relied on a bundle documents which had been provided to the Tribunal on 30 December 2021, was admitted into evidence (Ex A1) and comprised the following documents: 1. the unsigned witness statement of the applicant dated 5 November 2021 (the Darius statement); 2. the unsigned witness statement of Arturo Fernando Cifuentes Laffertte (Mr Laffertte) dated 5 November 2021 (the Laffertte statement); 3. the unsigned witness statement of Yacine Baha (Mr Baha) dated 5 November 2021 (the Baha statement); 4. text messages between the applicant and the respondent; 5. records relating to the applicant's Westpac bank account.
The respondent relied on a bundle documents which had been provided to the Tribunal on 4 January 2022, was admitted into evidence (Ex R1) and comprised the following documents: 1. the letter dated 30 November 2021 of the respondent to the Tribunal (the 30 November 2021 letter); 2. a document entitled "rental ledger" (the rental ledger); 3. four emails sent by AGL Energy to the respondent (the AGL Energy emails);
In circumstances where the respondent accepted that copies of the receipts had not been provided to the applicant as part of his evidence in the proceedings as required by order 1 of the 11 November 2021 orders, I rejected the tender of the cash receipt book by the respondent and delivered oral reasons for my decision.
The applicant, Mr Laffertte, and the respondent gave oral evidence.
The applicant and the respondent made oral submissions.
At the conclusion of the hearing, I reserved my decision.

The issues

The following issues arise for determination in the proceedings: 1. whether the Tribunal has jurisdiction to determine the proceedings; 2. whether there was a residential tenancy agreement between the applicant and the respondent; 3. whether the applicant paid a rental bond of $1,540.00 to the respondent; 4. whether the respondent is entitled to recover gas and electricity charges from the applicant; 5. whether the applicant breached the agreement, and if so whether the respondent is entitled to recover any damages for any such breaches.
Before considering these issues it is appropriate to set out the applicable statutory provisions and legal principles, and to summarise the evidence and the submissions of the parties.

NCAT Act

Part 3 (ss 28-34) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) contains provisions dealing with the jurisdiction of the Tribunal. Section 28 deals with the jurisdiction of the Tribunal generally, and relevantly provides: 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction - (a) the general jurisdiction of the Tribunal, …
Section 29 deals with the general jurisdiction of the Tribunal, and relevantly provides: 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. …
Schedule 4 contains provisions dealing with the Consumer and Commercial Division of the Tribunal (the CC Division). Clause 3 deals with the functions allocated to the CC Division, and relevantly provides: 3 Functions allocated to Division (1) The functions of the Tribunal in relation to the following legislation are allocated to the Division - … Residential Tenancies Act 2010 …

RT Act

Part 2 Division 1 (ss 13-18) contains general provisions relating to residential tenancy agreements. Section 13 specifies agreements that are residential tenancy agreements, and relevantly provides: 13 Agreements that are residential tenancy agreements (1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence. (2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. …
Section 15 deals with standard residential tenancy agreements, and relevantly provides: 15 Standard residential tenancy agreements … (5) Residential tenancy agreement taken to include standard terms A residential tenancy agreement of a kind for which a standard form is prescribed is taken to include the terms of the standard form. …
Part 2 Division 2 (ss 19-22) contains provisions dealing with terms of residential tenancy agreements. Section 21 specifies that certain terms are void, and relevantly provides: 21 Inconsistent and prohibited terms void (1) A term of a residential tenancy agreement is void to the extent to which it - (a) is inconsistent with any term included in the agreement by this Act or the regulations, or
Part 3 Division 2 (ss 32-48) contains provisions dealing with rent and other payments. Section 38 deals with utility charges payable by a tenant, and relevantly provides: 38 Utility charges payable by tenant (1) A tenant must pay the following charges for the residential premises - (a) all charges for the supply of electricity, gas (except bottled gas) or oil to the tenant at the residential premises if the premises are separately metered, … (e) any other charges prescribed by the regulations. … (2) This section is a term of every residential tenancy agreement.
Section 40 deals with payment of rates, taxes and certain utility charges by a landlord, and relevantly provides: 40 Payment of rates, taxes and certain utility charges by landlord (1) A landlord must pay the following charges for the residential premises - … (c) all charges for the supply of electricity, gas (except bottled gas) or oil to the tenant at the residential premises that are not separately metered, … (h) any other charges prescribed by the regulations. (1A) The regulations may exempt a landlord, or class of landlords, in specified circumstances, from the requirement to pay a charge under this section. (2) This section is a term of every residential tenancy agreement.
Part 3 Division 3 (ss 49-54A) contains provisions dealing with the occupation and use of residential premises. Section 51 deals with the use of premises by a tenant, and relevantly provides: 51 Use of premises by tenant … (3) On giving vacant possession of the residential premises, the tenant must do the following - … (b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into, (c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, … (4) In this section - residential premises includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant. (5) This section is a term of every residential tenancy agreement.
Part 3 Division 7 (ss 70-73) contains provisions dealing with the security and safety of residential premises. Section 71 deals with changes of locks and other security devices, and relevantly provides: 71 Changes of locks and other security devices (1) A landlord or tenant may alter, remove or add or cause or permit the alteration, removal or addition of a lock or other security device for the residential premises only if - (a) the other party agrees, or (b) with a reasonable excuse. … (3) If a lock or other security device is altered, removed or added by a landlord or the tenant without the consent of the other party, it is presumed, in the absence of evidence to the contrary, that it was altered, removed or added by the landlord or tenant without reasonable excuse. … (5) This section is a term of every residential tenancy agreement.
Part 8 Division 1 (ss 157-158) contains provisions dealing with preliminary matters in relation to rental bonds. Section 157 contains definitions, and relevantly provides: 157 Definitions In this Part - … landlord includes a former landlord. rental bond means an amount of money paid or payable by the tenant or another person as security against any failure by a tenant to comply with the terms of a residential tenancy agreement. … tenant includes a former tenant.
Part 8 Division 3 (ss 163-176) contains provisions dealing with the release of rental bonds. Section 166 deals with the matters that may be subject of rental bond claim, and relevantly provides: 166 Matters that may be subject of rental bond claim (1) A landlord is entitled to claim from the rental bond for the residential tenancy agreement any of the following - (a) the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee of the tenant, (b) any rent or other charges owing and payable under the residential tenancy agreement or this Act, (c) the reasonable cost of cleaning any part of the premises not left reasonably clean by the tenant, having regard to the condition of the premises at the commencement of the tenancy, (d) the reasonable cost of replacing locks or other security devices altered, removed or added by the tenant without the consent of the landlord, …
Section 175 deals with the powers of the Tribunal, and provides: 175 Powers of Tribunal (1) The Tribunal may, on application by a landlord or tenant or any other person (including a former co-tenant) who has an interest in the payment of a rental bond, make an order as to the payment of the amount of the rental bond. (2) The Tribunal may make an order whether or not the amount of a rental bond has been paid by the Secretary. (3) An application for an order must be made within the period prescribed by the regulations.
Part 9 Division 2 (ss 190-191) contains provisions dealing with the powers of the Tribunal relating to breaches of residential tenancy agreements. Section 190 deals with applications relating to breaches of residential tenancy agreements, and relevantly provides: 190 Applications relating to breaches of residential tenancy agreements (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. …

RT Regulation

Clause 4 of the Residential Tenancies Regulation 2019 (NSW) (RT Regulation) prescribes the standard form of residential tenancy agreement, and relevantly provides: 4 Standard form of residential tenancy agreements - s 15 of Act (1) The standard form of residential tenancy agreement is the form set out in Schedule 1. …
Clause 34 deals with electricity supply charges payable by a tenant pursuant to s 38(1)(e) of the RT Act, and provides: 34 Electricity supply charges payable by tenant - ss 38(1)(e) and 40(1A) of Act (1) For the purposes of section 40(1A) of the Act, a landlord is exempt from the operation of section 40(1)(c) of the Act, in relation to the payment of charges for the supply of electricity to the tenant at the residential premises that are not separately metered if the premises have a meter that - (a) measures the supply of electricity that satisfies paragraphs (a)-(d) of the definition of separately metered, and (b) does not have an NMI assigned for the purpose of paragraph (e) of the definition of separately metered because it is located in an embedded network, and (c) the meter is not required to have an NMI assigned. (2) For the purposes of section 38(1)(e) of the Act, a tenant must pay any charges for the supply of electricity to the tenant at the residential premises that are not separately metered if the circumstances specified in subclause (1)(a)-(c) apply to the premises. Note. Embedded electricity networks are common in high density apartment buildings, strata schemes, residential land lease communities and residential villages. (3) In this clause - NMI has the same meaning as in the National Energy Retail Law (NSW).
Clause 35 deals with non-bottled gas charges payable by a tenant in particular circumstances, and provides: 35 Non-bottled gas charges payable by tenant in particular circumstances - ss 38(1)(e) and 40(1A) of Act (1) For the purposes of section 40(1A) of the Act, a landlord is exempt from the operation of section 40(1)(c) of the Act, in relation to the payment of charges for the supply of gas (except bottled gas) to the tenant at the residential premises that are not separately metered if the premises have a meter that - (a) measures the supply of gas that satisfies paragraphs (a)-(d) of the definition of separately metered, and (b) does not have an MIRN or a delivery point identifier assigned for the purpose of paragraph (f) of the definition of separately metered because it is located in an embedded network. (2) For the purposes of section 38(1)(e) of the Act, a tenant must pay any charges for the supply of gas (except bottled gas) to the tenant at the residential premises that are not separately metered if the circumstances specified in subclause (1)(a) and (b) apply to the premises. Note. Embedded gas networks are common in high density apartment buildings, strata schemes, residential land lease communities and residential villages. (3) In this clause - delivery point identifier has the same meaning as in the National Energy Retail Law (NSW). MIRN has the same meaning as in the National Energy Retail Law (NSW).
Clause 39 deals with times for the making of applications to the Tribunal, and relevantly provides: 39 Times for making applications to Tribunal - ss 44(2), 83(2)(a), 98(4), 115(3), 125(3), 134(3), 141(2), 175(3) and 190(1) of Act … (8) For the purposes of section 175(3) of the Act, the prescribed period is within 6 months after the rental bond is paid out. …
Schedule 1 sets out the terms of the standard form of residential tenancy agreement, and relevantly provides: Schedule 1 Standard Form Agreement … PAYMENT OF COUNCIL RATES, LAND TAX, WATER AND OTHER CHARGES 10. The landlord agrees to pay - … 10.3 all charges for the supply of electricity, non-bottled gas or oil to the tenant at the residential premises that are not separately metered, and Note 1. Clause 10.3 does not apply to premises located in an embedded network in certain circumstances in accordance with clauses 34 and 35 of the Residential Tenancies Regulation 2019. … 11. The tenant agrees to pay - 11.1 all charges for the supply of electricity or oil to the tenant at the residential premises if the premises are separately metered, and … USE OF THE PREMISES BY TENANT … 18. The tenant agrees, when this agreement ends and before giving vacant possession of the premises to the landlord - … 18.2 to leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy, and 18.3 to leave the residential premises reasonably clean, having regard to their condition at the commencement of the tenancy, and … LOCKS AND SECURITY DEVICES … 33. The tenant agrees - 33.1 not to alter, remove or add any lock or other security device without reasonable excuse (which includes an emergency, an order of the Civil and Administrative Tribunal, termination of a co-tenancy or an apprehended violence order prohibiting a tenant or occupant from having access) or unless the landlord agrees, and …

The applicable legal principles

In Macionis v Franklin [2021] NSWCATAP 367 (Macionis) at [44]-[46] an Appeal Panel summarised the applicable principles with respect to an alleged breach of s 51(3)(b) or another provision of the RT Act in proceedings for the recovery of a rental bond: "[44] If the amount claimed by the landlord for repairs and/or cleaning expenses exceeds the rental bond amount, the landlord can also claim under ss 187 and 190 of the RT Act (subject to the monetary jurisdiction of the Tribunal and limitation periods that are unnecessary to discuss for the purpose of this decision). [45] Applicable principles regarding breach are discussed by the Appeal Panel in Pancio v Crompton & Jennings [2015] NSWCATAP 110 at [18]-[24] and Vasales v Li [2021] NSWCATAP 295 at [29]-[31]. The landlord bears the onus of proving breach of s 51(3)(b) of the RT Act in the sense that there is damage to the property beyond fair wear and tear. Fair wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces. The issue is to be considered objectively. The requisite standard is that commonly prevailing among tenants of comparative premises, and the issue should not be approached from the subjective perspective of a fastidious and obsessive landlord. The Tribunal compares the condition of the property at the commencement of the tenancy and the condition of the property at the end of the tenancy. The absence of ingoing and outgoing inspection reports compliant with ss 29 and 30 of the RT Act is not fatal to the landlord's application, but is relevant to the weight given to the other evidence given as to the condition of the premises at those two points in time. [46] Further, the bond is a payment by the tenant held as security. The onus is upon the landlord to prove an entitlement to the bond or any part of it at the end of the tenancy by way of proving breach of a relevant provision of the RT Act or the residential tenancy agreement by the tenant, and that the breach causes loss to the landlord (Tang v Zhao [2020] NSWCATAP 243 at [22]-[23])."
In Knezevic v KIrby [2017] NSWCATAP 190 (Knezevic) an Appeal Panel relevantly considered an appeal from the decision of the Tribunal that the landlord to pay the tenants $1,151.11, being a refund of certain electricity and gas charges of $1,657.97, less rent owed in the sum of $542.86. The Appeal Panel at [36] set out ss 38 and 40 of the RT Act, and at [48] found that there was no evidence of readings from separate electricity meters. The Appeal Panel at [50] found that the Tribunal had not erred in its conclusion.

The Darius statement

In the Darius statement the applicant gave the following evidence: "3. On 24 February 2021 Ron Allen asked me to pay the bond to secure the place. 4. On 25 February 2021 I told Ron Allen I could transfer half of the bond now to secure the place and pay the other half the day I was going to move in. 5. On 25 February 2021 I transfer from my bank account to Ron Allen's bank account $710. 6. On 7 March 2021, I withdraw $900 in cash. I couldn't take the full amount of the balance of the bond plus the first week rent as my bank account weekly withdraw limit was reached. 7. On 8 March 2021 I withdraw $285 in cash. On this date I paid Ron Allen $1,185.00 in cash, which correspond to the balance of the bond, $830, and $355, which is one week rent. Total bond paid was therefore $710 + $830 = $1540."

The text messages between the applicant and the respondent

On 25 February 2021 at 8.08pm, the respondent sent a text to the applicant in which he specified a bank account and stated (the 25 February 2021 at 8.08pm Aron text): "$710 2 weeks bond"
On 5 March 2021, the respondent sent the following text to the applicant (the 5 March 2021 Aron text): " … Can we organise your move tomorrow? Ten we can go through everything and give you the keys…just to confirm. Can you pay me the balance of the bond and the first week rent tomorrow in cash as you move in?"
On 5 March 2021, the applicant sent the following text to the respondent in response to the 5 March 2021 Aron text: Ok no worries. … Yes I will pay you the balance of the bond and the first week."
On 6 March 2021, the respondent sent the following text to the applicant (the 6 March 2021 Aron text): "Just to confirm balance of one months bond and 1st week rent is $1185 as you have paid $710 already."
On 6 March 2021, the applicant sent the following text to the respondent in response to the 6 March 2021 Aron text: "It should be $1065? $355 rent + $710 balance of the bond"
On 8 March 2021 at 2.02pm, the applicant sent the following text to the respondent: " … I have the money. Let me know when we can see each other to have a chat so if you can show me the laundry and few things. …"
On 18 April 2021, the respondent sent the following text to the applicant (the 18 April 2021 Aron text): "Hi Emilie, got the $355. Just reminder you were $5 short last week. …"

The oral evidence of the applicant

In her evidence in chief the applicant confirmed the truthfulness of the Darius statement.
In her cross-examination by the respondent the applicant gave the following evidence: 1. she left the premises in a better state of cleanliness than when she moved in; 2. she did not use the lock to the gate, but only the key to her room; 3. she did not damage the garden.

The Laffertte statement

It is unnecessary to summarise the evidence of Mr Laffertte in the Laffertte statement as this evidence has no bearing on the determination of the issues in these proceedings.

The oral evidence of Mr Laffertte

It is unnecessary to summarise the oral evidence of Mr Laffertte as this evidence has no bearing on the determination of the issues in these proceedings.

The Baha statement

It is unnecessary to summarise the evidence of Mr Baha in the Baha statement as this evidence has no bearing on the determination of the issues in these proceedings.

The 30 November 2021 letter

The 30 November 2021 letter relevantly provides: "As per the Order that was made on 11th November 2021 to provide a ledger detailing the amounts that were paid by Emilie Darius - Tenant. I have also included expenses that have been incurred during and after the tenancy that are owing to - Ronnie Aron - Landlord. As Emilie rented a Private Room, a portion of the electricity and gas usage charges are payable which were verbally agreed upon during the tenancy and I have taken the liberty to attach those bills. Other costs incurred were for cleaning and Garden which were left in am unsatisfactory state which needed to be addressed. The Tenant has also locked the gate with a Passcode intentionally and a locksmith needed to be used to break the lock to enter the premises. These charges are also payable. In the ledger, I have deducted the bond from the amount owing and am requesting payment of $740 which is owed to me to cover these costs."

The AGL Energy emails

The AGL Energy emails were sent as follows: 1. on 17 June 2021 for $299.95 for gas for the billing period from 13 March 2021 to 15 June 2021 (the 17 June 2021 gas bill); 2. on 7 August 2021 for $1,067.87 for electricity for the billing period from 3 May 2021 to 3 August 2021 (the 7 August 2021 electricity bill); 3. on 16 September 2021 for $400.19 for gas for the billing period from 16 June 2021 to 10 September 2021 (the 16 September 2021 gas bill); 4. on 3 November 2021 for $1,151.98 for electricity for the billing period from 4 August 2021 to 31 October 2021 (the 3 November 2021 electricity bill).

The rental ledger

The rental ledger relevantly contains the following entries: 1. the receipt of $710 as bond on 25 February 2021; 2. the receipt of $355 as rent per week commencing on 7 March 2021 and ending on 29 August 2021; 3. the following claims for outgoings totalling $1,450: 1. $267 for the 7 August 2021 electricity bill; 2. $288 for the 3 November 2021 electricity bill; 3. $100 for the 16 September 2021 gas bill; 4. $75 for the 17 June 2021 gas bill; 5. $150 for cleaning on 6 September 2021; 6. $320 for a locksmith on 14 September 2021; 7. $250 for a gardener on 12 September 2021; 1. a claim of $740 (outgoings totalling $1,450 less the bond received of $710).

The oral evidence of the respondent

In his evidence in chief the respondent confirmed the truthfulness of the 30 November 2021 letter.
The respondent was not cross-examined by the applicant.

The submissions of the applicant

In her oral submissions the applicant made the following submissions: 1. she disputed the accuracy of the rental ledger; 2. she was claimed the return of the bond of $1,540 which she paid to the respondent; 3. she left the premises including the garden in a good state; 4. she is not liable to pay electricity and gas charges and relies on s 38 of the RT Act.

The submissions of the respondent

In his oral submissions the respondent made the following submissions: 1. he relied on the accuracy of the rental ledger; 2. the bond paid was $710; 3. he was entitled to recover expenses for the gardener and the locksmith.

Whether the Tribunal has jurisdiction to determine the proceedings

I am satisfied that the applicant as a former tenant and the respondent as a former landlord are the tenant and the landlord within the meaning of s 157 for the purposes of Part 8 of the RT Act.
I am satisfied that the applicant has made an application within s 175(1) of the RT Act, and that the applicant commenced the proceedings with the time specified in s 170(3) of the RT Act when read with cl 39(8) of the RT Regulation. The Tribunal is able to determine the claims of the respondent for the retention of the rental bond pursuant to s 166(1) (a) to (d) of the RT Act.
If the applicant paid a rental bond of $1,540.00, then I am satisfied that the respondent can claim $1,450.00 from the applicant for the payment of utility expenses and damages for breaches of the agreement. If, however, the applicant paid a rental bond of $710.00, then the respondent's claim for the payment of utility expenses and damages for breaches of the agreement is limited to $710.00 as the respondent has not brought a cross application against the applicant to claim $1,450.00 under s 190(1) of the RT Act. This in consistent with the principles set out in Macionis at [44].
I am satisfied that the Tribunal has jurisdiction to determine the proceedings pursuant to ss 28(1) and (2)(a) and 29(1)(a) of the NCAT Act as s 175(1) of the RT Act enables the Tribunal to make decisions in relation to the application of the applicant. It follows that the functions of the Tribunal in relation to the RT Act have been allocated to the CC Division pursuant to Sch 4 cl 3(1) of the NCAT Act.

Whether there was a residential tenancy agreement between the applicant and the respondent

I am satisfied that there was a residential tenancy agreement between the applicant and the respondent which was partly oral and partly in writing as contemplated by s 13(1) and (2) of the RT Act. I accept that the evidence of the applicant in the Darius statement as to the conversations between the applicant and the respondent. I infer that there were other conversations between the applicant and the respondent. The writing was comprised by the 25 February 2021 at 8.08pm Aron text. By these conversations and writing the applicant and the respondent on 25 February 2021 entered into a residential tenancy agreement in respect of the premises for a period of six months commencing on 7 March 2021 at a rent of $355.00 per week and a rental bond of $1,540.00.

Whether the applicant paid a rental bond of $1,540.00 to the respondent

I am satisfied that the applicant paid a rental bond of $1,540.00 to the respondent for the following reasons: 1. the evidence of the applicant in the Darius statement at [3]-[7] was not challenged in her cross-examination; 2. the rental ledger is unreliable record of payments received by the respondent from the applicant as: 1. it failed to record the short payment of rent on 11 April 2021 from the applicant as set out in the 18 April 2021 Aron text; 2. there was an inconsistency in the categorisation of the payment of $710 received on 25 February 2021 between paragraph 2 of the 1 November 2021 letter and the rental ledger; 1. there is no evidence of the respondent chasing $830.00, being the unpaid balance of the rental bond. In view of the concern of the respondent about the payment by the applicant of the unpaid balance of the rental bond as recorded in the 5 March 2021 Aron text and the 6 March 2021 Aron text, and the request of the respondent about the underpayment of $5.00 in rent as recorded in the 18 April 2021 Aron text, it is inconceivable that the respondent would not have demanded the payment of unpaid balance of the rental bond if it had not been paid; 2. respondent chasing an underpayment of $5.00 in rent as recorded in the 18 April 2021 Aron text, the most likely explanation of the absence of any record is that the balance of the rental bond was paid by the applicant.

Whether the respondent is entitled to recover gas and electricity charges from the applicant

The respondent adduced no evidence that the premises were separately metered for electricity and gas. It can be inferred from the undated August 2021 text that the premises were not separately metered for electricity. In the absence of the premises being separately metered for electricity and gas, then the applicant had no obligation to pay electricity and gas charges pursuant to s 38(1)(a) of the RT Act and cl 10.3 of the standard form of residential tenancy agreement which was a term of the agreement pursuant to s 15(5) of the RT Act and cl 4 and Sch 1 of the RT Regulation. This finding is consistent with the findings in Knezevic at [48] and [50].
The respondent adduced no evidence that the premises located in an embedded electricity and gas networks. In the absence of the premises being located in an embedded electricity and gas networks, then the applicant had no obligation to pay electricity and gas charges pursuant to s 38(1)(e) of the RT Act when read with cll 34 and 35 of the RT Regulation.
In these circumstances, having regard to s 40(1)(c) of the RT Act and cl 10.3 of the standard form of residential tenancy agreement which was a term of the agreement pursuant to s 15(5) of the RT Act and cl 4 and Sch 1 of the RT Regulation, the respondent was bound to pay for electricity and gas charges. The exceptions to this obligation under cll 34 and 35 of the RT Regulation were not applicable. The agreement between the applicant and the respondent in the undated August 2021 text and the 29 August 2021 text for the payment of $200.00 of the 7 August 2021 electricity bill is not enforceable because it is contrary to the obligation of the respondent for the payment of electricity and gas charges. To the extent that the respondent may have contended that there was a variation of the agreement, then the agreement was void pursuant to s 21(1)(a) of the RT Act.

Whether the applicant breached the agreement, and if so whether the respondent is entitled to recover any damages for any such breaches

Having regard to the principles in Macionis at [45]-[46], I am satisfied that the respondent has not established that the applicant breached one or more of ss 51(3)(b) and (c) and 71(3) of the RT Act, and cll 18.2, 18.3 and 33.1 of the standard form of residential tenancy agreement which were terms of the agreement pursuant to s 15(5) of the RT Act and cl 4 and Sch 1 of the RT Regulation for the following reasons: 1. he adduced no evidence as to the condition of the premises at the commencement of the agreement; 2. he adduced no evidence as to the condition of the premises at the end of the agreement other than the conclusory evidence in the 30 November 2021 letter; 3. he adduced no evidence as to the tampering of the lock to the gate of the premises by the applicant other than the conclusory evidence in the 30 November 2021 letter; 4. the evidence of the applicant as to the condition of the premises at the commencement of the agreement was uncontradicted; 5. the evidence of the applicant as to the condition of the premises at the end of the agreement was uncontradicted other than by the conclusory evidence in the 30 November 2021 letter; 6. the evidence of the applicant as to not using the gate of the premises was uncontradicted.
It follows that the respondent is not entitled to recover damages for breach of the agreement. If the respondent had established that the applicant breached one or more of ss 51(3)(b) and (c) and 71(3) of the RT Act, and cll 18.2, 18.3 and 33.1 of the standard form of residential tenancy agreement, then I would not have awarded any damages to the respondent as he did not adduce any invoice for the expenses of cleaning, a locksmith or a gardener.

Order

I am satisfied that the applicant is entitled to the return of the rental bond of $1,540.00. Accordingly, I make the following order: 1. the respondent is to pay the sum of $1,540.00 to the applicant immediately.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2022

At a glance

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Judgment (28 paragraphs)

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Legislation Cited (3)

Cases Cited (5)