Duncan v Freeman

Application

1. This is an application by the landlord filed 12 January 2015 under the Residential Tenancies Act 2010 (RTA) pursuant to ss11 for determination of whether there is a residential tenancy agreement and 87 for termination of the agreement.

Appearances

1. Both parties appeared and the application was contested.

Jurisdiction

1. This Tribunal has jurisdiction under CATA ss 28, 29 and Schedule 4 (CONSUMER AND COMMERCIAL DIVISION ), Part 3 (Functions of Division), cl 3 (Functions allocated to Division) which includes the Residential Tenancies Act 2010, and by cl 3(2) provides: (2) Subclause (1) extends to: (a) any functions conferred or imposed on the Tribunal by statutory rules made under legislation referred to in that subclause, and (b) any functions conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of proceedings for the exercise of functions allocated by that subclause (including the making of ancillary and interlocutory decisions of the Tribunal).
2. The Tribunal has power to make orders under the RTA.
3. The limit of jurisdiction is $30,000 for a bond claim and $15,000 for arrears of rent and water: RTR clause 23 and RTA s 187(4)(a).

Facts

1. The material facts are that parties both reside at the premises of which the applicant is the landlord and registered proprietor and the respondent is the tenant. There is a written agreement referred to as House Rules but no residential tenancy agreement in the form of the Regulations Schedule 1. There was no fixed term of the agreement; the premises are fully furnished including linen and eating utensils; the landlord provides all cleaning products, cooking facilities; utilities such as electricity, internet are included in the rent; rooms do not have door locks; tenants also have access to common areas. The tenant pays rent and paid a bond of two weeks rent: see the statement of facts in the application. On 29 December 2014 the applicant landlord gave written notice to the tenant to vacate on or before 10 January 2015, with no reason given, see exhibit A.
2. In identifying the relevant facts for the decision and reasons I have been guided by the following principles: 1. Relevant or material facts are the facts essential to making the determination and which are the facts which the tribunal based its decision; [9] 2. Applied the test of "materiality": [10] 3. Considered the material or relevant facts on which the decision is made: [11] 4. The process involves identification of the factual elements in the relevant section of the statute which the applicant must prove to obtain a determination. This includes facts which are not controversial as they are not in dispute, and other facts which are in dispute. The tribunal has to determine the disputed facts on the balance of probabilities, and the process involves weighing the evidence, and drawing conclusions or inferences; [12] 5. Include references in the reasons to the sources of the relevant evidence; [13] 6. Avoid errors of law or jurisdiction in giving reasons: [14] 7. It is not necessary to deal with or dispose of every fact that was not material to the determination. [15]

Law

1. The first issue is whether there is a residential tenancy agreement. The RTA s3 relevantly defines "landlord", "rent" and "tenant". The facts show that the premises are residential premises and the definition of tenant is sufficiently wide to include an arrangement such as in this matter where the respondent is a tenant with exclusive use of a bedroom with shared use of common facilities and common areas in the premises. The premises are used for the purpose of a residence. The tenant's exclusive use of the bedroom is an interest in land that operates against the world at large as a right in rem (the thing). This is more than an interest which might be described as a mere licence giving non-exclusive use of the bedroom. The facts show that the tenant has exclusive use of the bedroom as a right in rem to the exclusion of the landlord, which is a residential tenancy right: see Bruton v London and Quadrant Housing Trust [1999] 3 All ER 481 (HL). I am satisfied that there is a residential tenancy agreement, albeit not reduced to writing in the standard form appearing in Schedule 1. However, by the Act, certain terms in the standard form of agreement are part of every tenancy agreement and cannot be excluded. The agreement between the parties incorporates the terms in the standard form.
2. The second issue is whether the notice of termination is effective. RTA s82 sets out the requirements for a valid termination notice. The notice given by the landlord does not satisfy all the formal requirements: s82 (1)(c) as it does not refer to the relevant section relied on, for example a breach of the tenancy agreement by the tenant, or otherwise give any ground for the notice.
3. In addition, the notice gives 12 days' notice which is insufficient as the minimum time for notice if there was a fixed term is 30 days: RTA s84; and if there is a periodic agreement without a fixed term it is 90 days: RTA s85; and if the landlord relies on a breach of the agreement it is 14 days: RTA s87. The landlord does not specify the grounds, and presumably it is to be treated as a "no grounds" notice which requires 90 days' notice: RTA s85. The notice period of 12 days is clearly too short and non-compliant for the notice to be a valid notice of termination.

Conclusion

1. In all the circumstances the facts support a residential tenancy agreement, and the application must be dismissed. J Levingston General Member Civil and Administrative Tribunal of New South Wales 21 January 2015

Endnotes

1. Kendell v BMW Finance Australia Pty Ltd (Unreported NSWDC 1114099/2010 Balla DCJ 25/11/10).
2. CATA s62(1) (Tribunal to give notice of decision and provide written reasons on request).
3. Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [55].
4. Commonwealth v Pharmacy Guild of Australia (1989) 19 ALD 510 at 514 per Sheppard J.
5. Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500.
6. Minister for Immigration and Ethnic Affiars v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272-273 at [30]; approving McAuliffe v Secretary, Department of Social Security [1993] FCA 456; (1993) 43 FCR 280 at 287, (1992) 28 ALD 609 at 616.
7. Minister for Immigration and Ethnic Affiars v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272-273 at [31]; approving McAuliffe v Secretary, Department of Social Security[1993] FCA 456; (1993) 43 FCR 280 at 287 (1992) 28 ALD 609 at 616.
8. Spencer v Bamber [2012] NSWCA 274 per Campbell JA at [137] to [153]; Kendell v BMW Finance Australia Pty Ltd (Unreported NSWDC 1114099/2010 Balla DCJ 25/11/10).
9. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [136]; (2001) 206 CLR 323 at 346.
10. Singh [2000] FCA 845; (2000) 98 FCR 469 at 482 [56]- [57]; approved in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [137]; (2001) 206 CLR 323 at 346.
11. McEvoy v McEvoy [2012] NSWSC 1494 at [41] per Pembroke J; see also Minister for Immigration v Pochi (1980) 4 ALD 139 at 159-160.
12. Ansett Transport Industries (Operations) Pty Ltd v Taylor (1987) 18 FCR 498.
13. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
14. Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.
15. Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 at 417-418 per McHugh J. 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: 23 April 2015