Fok v Thompson - [2022] NSWCATCD 72 - NSWCATCD 2022 case summary — Zoe

Fok v Thompson - [2022] NSWCATCD 72 - NSWCATCD 2022 case summary — Zoe

[5]

JURISDICTION

The Tribunal raised with the parties the issue of jurisdiction particularly as the Landlords resided in Victoria, the Tenant resided in New South Wales until 18 January 2022 and the residential premises were situated in New South Wales. There was some discussion at the directions hearing on 15 February 2022 about the diversity issue but no finding was made by the Member.
In Almaty v Jones [2020] NSWCATAP 69 at [19]-[24] the Appeal Panel stated: 19 The Tribunal does not have jurisdiction to hear disputes between residents of different States (Attorney General for NSW v Gatsby [2018] NSWCA 254; (2018) 99 NSWLR 1; Burns v Corbett (2018) 92 ALJR 423). This is because the Constitution provides, in s 75(iv), that the High Court has original jurisdiction in "all matters between ... residents of different States" and, pursuant to s 77(iii) of the Constitution and s 39 of the Judiciary Act 1903 (Cth), that jurisdiction is invested in certain State courts. The Tribunal is not a "court of a State" (Attorney General for NSW v Gatsby [2018] NSWCA 254; (2018) 99 NSWLR 1) meaning that the High Court's original jurisdiction is not invested in the Tribunal. 20 The time at which jurisdiction is determined is the commencement of the proceedings. That is, the Tribunal does not have jurisdiction to hear or determine proceedings if the parties were residents of different States when proceedings were commenced (Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621 at 623-624; Momcilovic v The Queen (2011) 245 CLR 1, Gummow J at 80 [134]). 21 The question arises as to which party, if any, has the onus to establish the facts on which the Tribunal's jurisdiction depends (that is, that the parties are not residents of different States). 22 As the Appeal Panel has stated, "in residential tenancy proceedings in the Tribunal, usually there is a legal burden upon the party seeking relief to prove its case which is not removed merely because the rules of evidence do not apply. Further, where the dispute involves civil proceedings, as is the present case, this is the ordinary standard of proof, namely the balance of probabilities" (Bull v NSW Land and Housing Corporation [2016] NSWCATAP 266 at [49]). This might suggest that the landlord, who seeks to invoke the Tribunal's jurisdiction, must prove the necessary facts on which that jurisdiction is founded. However, the Tribunal assumed the existence of those facts at first instance and, in an appeal, the appellant usually has the onus of proving the appellant's case. 23 In circumstances where it was necessary to establish that the parties were residents of different States for the High Court to have jurisdiction, the plaintiff was required to establish the facts which gave the High Court jurisdiction (Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621 at 623). However, the High Court has also held that, "[i]n the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal" (R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-3). That is, where a court has undertaken an inquiry as to facts relevant to jurisdiction, and determined them, a person asserting that the factual findings are wrong has the onus of establishing that. The situation here could be seen to be different, because the Tribunal simply assumed that it had jurisdiction, without examining the relevant facts. 24 The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (NCAT Act, s 38(2)). We consider that, in circumstances where the Appeal Panel has raised the issue of the Tribunal's jurisdiction and has provided the parties with opportunities to provide evidence relevant to the jurisdictional issue, it is appropriate to resolve the issue by asking ourselves whether we are satisfied that we have jurisdiction, and without applying an onus.
The evidence establishes that the Landlords ordinarily reside in the State of Victoria. The Tenant was a resident of New South Wales until the tenancy agreement was terminated. The residential premises are situated in New South Wales. The application was filed on 21 January 2022 by which time the tenancy had terminated. The Tenant confirmed in his evidence that as at 21 January 2022 he was residing in Victoria.
The time at which jurisdiction is determined is the date the application was filed. The Tribunal is satisfied that both the Landlords and Tenant were residents of Victoria when the application was filed on 21 January 2022. Accordingly the Tribunal finds that as that both parties were residents of Victoria when the application was filed, it has jurisdiction to hear and determine the dispute.

[6]

LANDLORDS' CLAIM FOR RENT ARREARS

The Landlord claimed the sum of $1733.33 for outstanding rent. The Landlords tendered a rent ledger from Elders Real Estate Albury which showed the rent was paid to 18 December 2021 ("the Elders Ledger").
The Landlords terminated the management agreement with Elders Real Estate Albury on or about mid-November 2021 and took over the management themselves. The Landlords did not provide their own rent ledger as the Tenant made no further payments of rent after 18 November 2021. The Elders Ledger showed the rent was paid to and including 18 December 2021.
In their submissions the Landlords argued they are entitled to the rent for the period from 18 December 2021 to 17 January 2022. The Tenant returned the keys to the Landlords on 18 January 2022. The Landlords claim the Tenant conceded the rent arrears at the Tribunal directions hearing before Member Harvey on 15 February 2022. The Tenant denied making this concession.
The Tenant disputed the Landlords' claim. He submitted his mother had attempted to return the keys to the Landlords on 22 December 2021 which was when he vacated the premises. The Landlords had served a termination notice on 9 November 2021 which required vacant possession on 1 December 2021. The Tenant argued he vacated the premises pursuant to that notice and was not liable for rent after 22 December 2021.
The Tenant's mother sent an email about vacating the premises and returning the keys to the Landlords on 23 December 2021 but received no response. The Landlords reside in Melbourne which is a 3-hour drive from the residential premises. The Tenant was not prepared to return the keys to the Landlords at their home address.
On 12 January 2022 the Tribunal heard and determined an application filed by the Landlords for termination of the residential tenancy. Member Barneston made orders by consent terminating the tenancy. Section 81(3) of the Residential Tenancies Act 2010 provides that "a residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act".
The Tribunal finds that the residential tenancy agreement terminated on 12 January 2022 by order of the Tribunal. The orders did not provide for the payment of an occupation fee. The Tenant conceded he owed 3 days rent for the period 19 to 22 December 2021 and was prepared to pay that amount.
The Tribunal rejects the Tenant's submission that the tenancy ended on 22 December 2021. The Tribunal finds the tenancy ended on 12 January 2022 even though the keys were not returned until 18 January 2022. The Tribunal finds that the Landlord is entitled to the payment of rent for 25 days from 19 December 2021 to 12 January 2022 ($57.14 per day x 25 days) being an amount of $ 1428.50.

[21]

LANDLORDS' CLAIM FOR DAMAGE TO PREMISES

The Landlords have claimed various amounts for damage to the residential premises caused by the Tenant. The various amounts are set out in the Summary of Claims.
The Landlords rely on the ingoing report, outgoing inspection report, ingoing and outgoing photographs, quotes, statutory declarations and email correspondence to prove their claims. The Tenant has conceded some items but disputes the remainder of the claims made by the Landlords.
There was a dispute between the parties about the correct ingoing inspection report. The Landlords submitted that the ingoing inspection report dated 5 March 2021 signed by the agent Michael Tilders and a representative of the Tenant (1st Condition Report) should be accepted by the Tribunal a correct statement of the condition of the premises. That report includes printed comments by the agent as to the condition of the premises but no comments by the Tenant.
A second version of the Ingoing Inspection Report dated 10 March 2021 and signed by the Tenant (2nd Condition Report) was tendered. It is identical to the 1st Condition Report except that the Tenant has added his comments and signed the document. The 2nd Condition Report does not bear the signature of Michael Tilders.
A third version of the Ingoing Inspection Report dated and signed by both the Tenant and Michael Tilders (3rd Condition Report) was tendered. The 3rd Condition Report is the same as the 2nd Condition Report except it bears the signature of Michael Tilders.
The printed comments in the column headed "Lessor/agent" are the same on the 3 Ingoing Inspection Reports. The Tenant's handwritten comments in the column headed "Tenant/s" are the same on the 2nd and 3rd Condition Reports.
The Landlords argued the Tribunal should reject the 2nd and 3rd Condition Reports as they had not been provided by the first agent Buy Sell Rent to Elders Real Estate Albury when the management of the property was transferred. They say they had not previously seen the ingoing inspection reports with the Tenant's comments until commencement of these proceedings. Sue Ritchie advised the Landlords "there is something suspect going on with the condition report" in an email to Ellen Fok on 19 October 2021.
During the hearing Tribunal asked the Tenant about the discrepancies between the 3 versions of the Ingoing Inspection Report. He stated that his employee collected a copy of the report from Michael Tilders who provided him with a copy. He made his comments on the report about the condition of the property and returned it on Michael Tilders on 10 March 2021. The agent signed a copy on behalf of the Landlords and returned it to him. In an email dated 10 March 2022 (page 6 in the Tenant's bundle) Michael Tilders corroborates the Tenant's oral evidence. The explanation given by Mr Tilders is plausible and I have no reason to doubt that he is telling the truth. The Tribunal accepts the statements made in his email.
The Tribunal is satisfied that the ingoing inspection report described as the 3rd Condition Report (pages 54 -57 in the Landlords' bundle) is the correct version. For the sake of convenience, the 3rd Condition shall hereinafter be referred to as "ICR".
The Outgoing Inspection Report /Exit Report completed by the Landlords at the outgoing inspection is not the prescribed form used in New South Wales. The report is the Form 14a prescribed under the Residential Tenancies and Rooming Accommodation Act 2008 possibly used in Queensland. Notwithstanding that the report is not the prescribed form, the Tribunal accepts the document as evidence of the condition of the premises at the end of the tenancy.
The rental bond of $1600.00 is currently held by Rental Bond Services. Section166 of the RTA set out the matters which can be the subject of a rental bond claim. That section 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, (e) any other amounts prescribed by the regulations. (2) This section does not limit the matters for which the landlord may claim from the rental bond for a residential tenancy agreement.
The Landlords claim for various repairs set out in 4 invoices of Border Maintenance and Construction ("BMC"). Adopting the BMC invoice numbers in the Landlords Summary of Claims, the Tribunal will consider each of the items and amounts claimed by the Landlords.

[22]

BMC Invoice#1

The invoice is dated 6 October 2021 and is for repairs undertaken by the Landlords during the tenancy. The invoice amount is $435.00. The Landlords state that all repairs referred to in that invoice have been completed. The rely on the ICR, the Exit Condition Report, photographs and the statutory declaration of Peter Clemson from BMC dated 15 December 2021 to prove their claim.
The repairs and amounts claimed for each item are set out in the invoice. Mr Clemson of BMC states in a statutory declaration that he carried out repairs to the rented premises and "many damages I had to repair appeared to be intentionally caused".
The Tenant concedes the cost of $55.00 to replace the damaged outside switch. The Tribunal allows the Landlords $55.00 for that item.
The Tenant argues that the repairs to the toilet light, hot water tap in the shower, kitchen tap and clearance of blocked pipe under the sink are general maintenance items. After reviewing the evidence, the Tribunal accepts the Tenant's submission that the repairs are general maintenance and dismisses the Landlords' claim for those items.
The Landlords' claim for replacement of the light in the ceiling fan is rejected. The Tenant has an obligation under clause 17.4 of the tenancy agreement to replace light globes on the residential premises. The claim made by the Landlords is for the replacement of light globes during the tenancy. There is no evidence that the Tenant requested the Landlords to replace the light globe. The Tenant's obligation was to return the premises in the same condition they were at the commencement of the tenancy. The Landlords could make a claim for the replacement of the light globe if at the end of the tenancy it had not been replaced. As the cost was incurred by the Landlords during the tenancy, the claim is not allowed.
The Landlords make a claim for $70.00 to replace the antenna cable to make the TV aerial functional. The Tribunal allows the claim of $70.00 for this item. In reaching its decision the Tribunal relies on the evidence in the statutory declaration of Peter Clemson and the photograph showing the damaged cable. The Tenant does not deny causing the damage in his submissions.
The Tribunal allows the Landlords a total amount of $125.00 being for the damage to the outside light switch and the cable of the TV aerial. The other claims on the invoice are dismissed.

[23]

BMC Invoice #2

The Landlords claim $595.00 for the items listed in invoice no 41 dated 5 February 2022. The amount charged for each item is not particularised in the invoice.
The Landlords rely on the ICR and ingoing photographs, the Exit Condition Report and photographs of the premises taken on or about 18 January 2022. The Exit Report includes the following notations: "Mowing to be completed within 1 week of vacate date MT"; "Rubbish to be removed 1 week after vacate date MT" and "Tenant understands what is documented today though will not take liability". The Tenant was present during the outgoing inspection on 18 January 2022.
The Landlords claimed the cost of mowing the lawns and garden maintenance, removal of spider webs, placing of bins out the front, drilling out plastic inserts in the shower and laundry, replace the toilet cover and replacing missing vanity knobs.
The Tenant contended in his submission that he agreed with the Landlords at the final inspection to have the lawns mowed and the gardens weeded and cleaned out within a week. He tendered invoices from Civil Waste collection dated 15 February 2022 for waste collection and Mils mow n Maintenance dated 6 February 2022 for $112.50 in respect of "Yard/Property maintenance, edge mow, Remove grass landlfill ..." undertaken on 24 January 2022. The garden maintenance was completed prior to the work referred to in the BMC invoice and within 6 days of the Tenant vacating the premises. The Tribunal prefers the Tenant's evidence and is satisfied the premises were left reasonably clean and tidy. The claim is dismissed.
As regards the plastic inserts in the shower, the Tenant referred to the ICR photos and a photo from Real Estate .com taken in 2013 showing the plastic inserts in the shower area. The Tenant's evidence is persuasive. The Tribunal is not satisfied the Tenant placed the plastic inserts in the shower and laundry. The evidence indicates the plastic inserts were present at the commencement of the tenancy. The claim is dismissed.
The Landlords claimed the Tenant removed knobs from the vanity. The Tenant asserted that the knobs were missing at the commencement of the tenancy. The ICR recorded the agent's comment for the bathroom vanity as follows: "no cracks or chips chrome hot and cold water taps laminate drawers in aged and worn condition-1 x missing handle to drawer, inside all marked and worn." The Tenant made the following comment: "marked and stained missing knobs"
The Tribunal finds the knobs were missing from the vanity at the commencement of the tenancy. The vanity appears to be old and at the end of its serviceable life. The claim is dismissed.
The Landlords submitted the Tenant did not remove spider webs from the house surrounds and left leaves on the driveway. They rely on 2 photographs taken on or about 18 January 2022. The first photograph purports to show a spider web on the hot water service and the second is photograph of the driveway. The ICR noted the garden shed was full of cobwebs.
The Tenant contends that he gave the Landlords vacant possession on 18 January 2022 and left the premises in a reasonable state of cleanliness. BMC did not attend the premises until 5 February 2022. The Landlords' photographic evidence is not persuasive.
The Tribunal accepts the Tenant's submission the premises were left reasonably clean. It is difficult to ascertain from the 2 photographs that the premises were not left reasonably clean by the Tenant. The Landlords evidence does satisfy me that the Tenant breached his obligation to return the premises in a reasonable state of cleanliness. The Tribunal finds the Tenant left the premises reasonably clean at the end of the tenancy having regard to their condition at the commencement of the tenancy. The claim is dismissed.
The Landlords claimed for the replacement of the toilet seat. The Tenant conceded that he may have damaged the toilet seat and offered $20.00. In view of the concession and the photographs tendered by the Landlords, I find that the Tenant is responsible for the damage to this item.
As I noted earlier this invoice was not itemised. There is no independent evidence from either party as to the cost of purchasing and installing a new toilet seat. The Tribunal has undertaken its own assessment and allows the Landlords $100.00 for this item.

[24]

BMC Invoice #3

The Landlords claimed the sum of $880.00 for the items in this invoice. The 4 items listed are: Replacement of 6 door, shed, gate locks; Touch up painted several scratches on doors, toilet, wall and surrounding door locks; Cleaned the kitchen silicone; Replaced the dining room flyscreen
The Landlords have tendered photographs which appear on pages 82-84 of their submission, the ICR and the Exit Inspection Report. The cost to replace or repairs each item is not particularised in the invoice. The repairs referred to in the invoice have been completed.
The Tenant disputed the amount claimed and denied liability except for the damage to the toilet wall. The Tenant has offered $50.00 for the painting and patching.
The Tenant admitted changing the locks throughout the premises so that one key would open all house locks. The Tenant stated that at the end of the tenancy the Landlord was provided with a key to open all locks in the house. The Tenant states the shed key was returned to the Landlords' agent Michael Papallo.
The evidence in respect of this item is inconclusive. There is no invoice from a locksmith for any work carried out to re-key the locks. The Exit Report makes no comment about the non-return of keys by the Tenant. The Landlords did not seriously challenge the Tenant's statements in his submission that "the landlord was provided with a key that would open all house locks". Andrew Papallo provided a statutory declaration dated 22 February 2022 which confirms that 1 working key was returned to the Landlords.
The Landlords bear the onus of proof. The evidence does not satisfy me on the balance of probabilities they have proved this claim. The Tenant returned a key which fitted all locks within the premises. I dismiss the claim for keys.
The ICR confirmed from the comments made by the agent Michael Tilders that the general condition of the painting throughout the premises was poor. The paint on the walls, doors and skirtings was heavily marked and damaged. The evidence satisfies me that some of the damage claimed by the Landlords to have been caused by the Tenant was pre-existing.
In view of the concession made by the Tenant that he damaged the toilet wall, as best I can, I allow the Landlords $200.00 for this item.
The Landlords' claim for cleaning the kitchen silicone is dismissed. The Tenant commented in the ICR that there was mould present in the silicone on the benchtop.
The Landlords' claim for replacement of the flyscreen is dismissed. The Tenant noted in the ICR that: "Mesh screen damaged; not installed; sat on sill"

[31]

Claim for Replacement Roller Shutters

The Landlords claimed $3,300.00 being the depreciated cost for new roller shutters. The Landlords submitted the Tenant did not return the remote control for the roller shutters. They made enquiries through D.I.Y. Ezy-Fit Rollershutters about a replacement remote and were advised that due to the roller shutters being a discontinued product, it was not possible to source a replacement. The Landlords tendered a letter from D.I.Y. Ezy-Fit Rollershutters dated 28 February 2022 confirming the above and providing a quote of $6600.00 for new shutters.
The Landlords depreciated the cost of installing new shutters by 50%. Their claim was reduced to $3,300.00. The only evidence provided by the Landlords in support of the claim is the letter from D.I.Y. Ezy-Fit Rollershutters. There is no evidence that the Tenant was provided with a remote for the shutters, the Landlords made any enquiries with other suppliers or the manufacturer of the roller shutters that a remote is not available, the rollershutters are no longer serviceable or the age of the shutters.
The Tenant stated the roller shutters were not used during the tenancy. He said the roller shutters were not mentioned in the ICR and there was no evidence of their age.
The Tribunal rejects the Landlords claim. On page 82 of the Landlords' bundle is a copy of the acknowledgement dated 5 March 2021 signed on behalf of the Tenant for the keys to the premises. The document includes the following statement: "I/We acknowledge receipt of the photocopied keys and access items for the above property address."
Significantly although 8 keys were handed to the Tenant's representative, there is no mention of a remote control for the roller shutter on the acknowledgement. There is no evidence that the Tenant received a remote control at the commencement of the tenancy. The Landlords could have obtained a statement from Michael Tilders. There is no explanation as to why that evidence is not available.
In the absence of evidence to the contrary the Tribunal accepts the Tenant's unchallenged evidence that he did not use the roller shutter during the tenancy. The Tribunal is satisfied the Tenant did not at anytime during the tenancy have a remote control for the rollershutters. The Landlords have not discharged their onus of proof and I dismiss their claim.