Mrs Hunt (the landlord) appeals from a decision of the Tribunal which awarded her a total amount of $585 payable from a rental bond at the end of a tenancy. This amount did not include any amount in respect of a claim for unpaid rent and some additional items. Her claims were made following the termination of a tenancy at residential premises owned by her and her husband in the Lower Portland region near Sydney.
For the reasons set out below, we have decided that the appeal should be allowed in part and that particular claims by the landlord should be re-determined by the Tribunal.
[2]
The Tribunal's decision
The landlord's claim was made by a rental bond application lodged in the Tribunal. However, it was clear from the terms of that application that the claims extended beyond the amount of the bond.
The Tribunal's orders appealed from were as follows:
1. The tenant, Trish Heydon and Barry Heydon, PO BOX 264, WINDSOR NSW 2756 Australia, is to pay the landlord, Larraine Hunt, 233 Greens Road LOWER PORTLAND NSW 2756 Australia, the sum of $585.000 immediately.
2. The Rental Bond Services is directed to pay the landlord, Larraine Hunt, 233 Greens Road LOWER PORTLAND NSW 2756 Australia the sum of $585.00 from the Rental Bond number E780281-X. Any balance of the bond is to be paid to the tenant. Trish Heydon and Barry Heydon, PO BOX 264 WINDSOR NSW 2756 Australia.
It can be seen from the reasons that the amount of $585 was calculated as the total of separate amounts assessed by the Tribunal in respect of six items, namely, a towel rack, flurotube, broken window, shower caddy, stove cleaning, and yard maintenance.
As we interpret the orders, Order 2 was an order that covered both the means by which the tenants were to satisfy payment of the amount referred to in Order 1 and also the payment out of the balance of the bond to the tenants. Accordingly, no amount was awarded to the landlord in respect of the claim for unpaid rent and in respect of other items as referred to below.
In short reasons for decision the Tribunal:
1. In rejecting the landlord's claim for unpaid rent, noted that there was a significant dispute about when the tenancy ended and as to quantum of rent owing, concluded that it was satisfied on the evidence that it was the intention of the parties that the tenancy ended on the date of the inspection on or about 7 April 2017 and concluded that the landlord's evidence did not persuade the Tribunal that any rent was owing beyond 7 April 2017. However, the Tribunal did not explain how and why it resolved the issues between the parties about unpaid rent in the way that it did.
2. In rejecting the landlord's claim beyond that allowed in respect of the six items we have referred to, said that with respect to the claim for painting no order was to be made because of vine damage as the dwelling was painted some six years ago and that:
The absence of an outgoing inspection report made it difficult for the landlord to prove other aspects of the claim including the laundry tub, internal cleaning and gutter cleaning.
Mr Hunt was a party to the residential tenancy agreement as one of the landlords but had not been a party to the application. He was joined as a party to the appeal by orders made on 9 January 2018.
[3]
Orders sought on appeal
In the Notice of Appeal the following orders are sought on appeal:
1. Loss of rent up to 26 May 2017.
2. The sum of $169.00 in respect of a fire screen.
3. The sum of $132.00 in respect of replaced keys.
4. The sum of $30.00 in respect of broken tiles.
5. The sum of $300.00 in respect of missing shelves and a bench.
6. An unspecified amount in respect of damage to paintwork, for clearing and cleaning.
[4]
Consideration - inadequate reasons
Given the small size and lack of complexity of the landlords' claim, the reasons for the Tribunal's decision could be relatively short and concisely expressed provided the essential grounds for the decision were set out: Hernady v Raccani [2016] NSWCATAP 67 at [37] and [43]; Patrizi t/as Patrizi Motor Repairs v Garstang [2016] NSWCATAP 114 at [18]-[20].
In our opinion, the reasons for decision were insufficient to meet this requirement for the reasons we now give. The Tribunal made an error of law in this respect.
It was common ground that the tenants had ceased to live at the rented premises long before 7 April 2017 but it was also common ground that the tenancy had continued after the tenants had stopped living at the premises.
On the facts, it would seem that the only two potentially applicable circumstances constituting termination as required by Residential Tenancies Act 2010 (Act) were either giving up of possession with the landlords' consent or the tenants abandonment of the premises: see s 81(4)(d) and (e) of the Act. There was no suggestion that any relevant written notices had been given.
The Tribunal's reasons suggest that it had in mind the first circumstance we have referred to, namely the giving up of possession with the landlord's consent. However, as we have mentioned, the reasons do not explain why it concluded that such a circumstance occurred on 7 April 2017, particularly in circumstances where even on the tenants' version of events the set of keys that they had was not returned to the landlords until 7 May 2017 on which day they rehung some curtains at the premises. It also seems that the tenants did some other work on the premises after 7 April 2017 and before 7 May 2017.
We note that on the appeal the landlords said that in the Tribunal hearing the tenants had said they "moved out" on 27 April 2017 but were now saying on the appeal that this was 7 April 2017 in accordance with the finding of the Tribunal. This was not accepted by the tenants and we are not able to determine the correctness of this contention by the landlords.
In this context, a significant fact in respect of either of these circumstances constituting termination was the time when the tenants returned the keys but the reasons do not address that dispute other than to note there was a dispute about it. As we have said, the tenants contended that they returned the keys on 7 May 2017. According to the landlords, the keys kept by the tenants were not returned until 24 June 2017 but they had changed the locks on 16 June 2017.
In the face of this material, in our opinion, the Tribunal's reasons needed to address how and why it came to the conclusion that it did about the intention of the parties to end the tenancy on the date of inspection on 7 April 2017 and why the tenancy did not terminate when the tenants returned the keys.
In addition, the reasons for decision did not refer to the claims in respect of the fire screen, the broken tiles and missing shelves and bench in circumstances where it was common ground on the appeal that in the hearing before the Tribunal there was no dispute between the parties that some compensation in respect of these items was due to the landlords and the only issue was as to quantum.
The Tribunal also needed to give reasons why the claim for a replacement set of keys was rejected. Again, it was common ground that this claim had been made in the Tribunal. The tenants' position was that they had returned the keys before they were replaced and so they were not responsible for that cost.
On the other hand, we think that the balance of the landlords' claims on which it did not succeed in respect of painting, clearing and cleaning were sufficiently dealt with in the reasons. It is implicit from the reasons that these were rejected because in circumstances where there was no outgoing inspection report the landlords had not discharged their onus of establishing that these were items of compensation for which the tenants were responsible at the end of the tenancy.
[5]
Orders on appeal
For the above reasons, we make the following orders (noting that there was no order dismissing the landlords claims that needs to be set aside):
1. The appeal is allowed in part.
2. Remit the following claims by the landlord for re-determination by the Tribunal:
1. The claim for rent due up until the date when the tenancy terminated.
2. The claims in respect of a missing Fire Screen, missing shelves and bench and broken tiles.
3. A claim for the cost of a set of replacement keys.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Principal Registrar
[7]
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: 09 March 2018