Innes v Hamlin [2025] NSWCATCD 141;

1. The applicant is now in his 80's and suffers from Parkinsons disease He appeared in person at the hearing.
2. His daughter Ms Thun initially made the following submissions on his behalf.
3. The applicant is the stepfather of the respondent. He was formerly a builder and in 1999 he built the house that is currently the subject of these proceedings. He built the premises for the respondent and his wife at cost, as "they were family". In 2000 the respondent wanted to move to an acreage site with his wife, but he also wanted to retain the house which had been built for him and his wife by the applicant.
4. There was an oral agreement reached between the parties. The applicant and his wife would move into the respondent's newly built premises and in exchange the respondent and his wife would take the applicant townhouse. This would "free up" the respondent financially to purchase the acreage.
5. The respondent subsequently sold the townhouse and retained the proceeds from that sale.
6. In exchange for giving the townhouse to the respondent, the applicant said the agreement was that he and his wife would live in the premises for the rest of their lives. They agreed to make some additional financial contributions from time to time to assist the respondent, these contributions were in addition to their giving him their townhouse, which he sold.
7. The applicant said he had raised the respondent from the age of 13 years and he was family. The oral agreement was never reduced to writing as it was thought to be unnecessary as it was an agreement between family members. The applicant and his wife did not foresee any need to change the names on the title deeds because having "gifted" their property to the respondent, it was always agreed the applicant and his wife could remain living in the property which is the subject of this application, for the rest of their lives.
8. The applicant did make payments to the respondent from time to time.
9. The respondent did not live in the townhouse after the swap agreement was made, he sold it and retained the proceeds from the sale. Ms Thun said the townhouse was essentially "gifted" to the respondent by her parents.
10. At an unidentified date, the applicant's wife, the respondent's mother passed away.
11. The property was brand new in 2000. Between 2000 and 2025 the respondent changed a washer on a leaking tap in 2024. The house has fallen into disrepair:

(a) The carpet is now over 25 years old and needs to replaced;

(b) There are leaking taps

(c) The property has not been painted in over 25 years;

(d) There are two showers at the property only one shower is in working order. The other shower is unusable as there are tiles coming off the walls and the waterproofing membrane has been breached. Water is going behind the shower walls;

(e) There are cracks in the walls throughout;

(f) The cornices are coming away;

(g) There is a hole in the kitchen ceiling;

(h) The wallpaper has not been replaced in over 25 years

(i) When it was built in 1999 the garage door was installed as with a manual operation. The opening of the door has never been converted to an automatic opener. The applicant is now unable to open the manual door due to its weight and so has lost use of the garage.

1. The applicant made ad hoc payments over the years to the respondent in accordance with the agreement. Those payments were usually payments of around $500, sometimes he paid him $300. It was an informal arrangement which had remained the same since 2000.
2. In June 2024 the respondent contacted the applicant by telephone and asked him to increase the payments to $1,000. The applicant agreed to assist the respondent and increased the payments. This was agreed to in the course of the conversation. It was never reduced to writing at that time.
3. Without any prior warning to the applicant he received a Notice of Rent Increase issued out of the office of Ray White real estate which was hand delivered to him on the 15 April 2025. The rent was said to increase to $3,000 per month, with the first payment to be made on the 01 July 2025.
4. Even if it were agreed that the existing rent was $1,000 per month, which is not conceded, a $3,000 per month is a huge increase to $3,000. This is especially the case for a property where there has been virtually nil repairs or maintenance undertaken for over 25 years.
5. The applicant has provided photographs of the property in its current state.

1. The applicant confirmed the above history of the agreement between the respondent and himself and his wife. He confirmed they agreed to the arrangement to enable the respondent to purchase the acreage he wanted to buy, and this also allowed the applicant and his wife to occupy the house for the rest of their lives.
2. He said as the respondent was family they did not feel it necessary to formalise the arrangement by putting it into writing.
3. The respondent telephoned him on the 23 June 2024 and said he needed more money. The applicant agreed to pay him an extra $500 per month as requested.
4. In April of 2025 the respondent contacted him again and asked him for an extra $100 per month. The applicant agreed to give him the extra money. These requests were not made in writing. It was just agreed in the telephone calls. There was nothing unusual about that, as there had never been anything in writing since 1999. It was continuation of the status quo.
5. When the real estate agent first contacted him in 2025 he thought she a scammer, and he hung up.

1. Ms Neville the managing agent represented the respondent, pursuant to a managing agency agreement date 07 March 2025.
2. She confirmed there was no agreement in writing. The respondent submitted the parties had entered into a periodic residential tenancy agreement 1999. There was no rent specified in this periodic agreement. Ms Neville was unaware if the periodic agreement specified the frequency of the payments.
3. She said there was no start date for the agreement. The respondent denied the agreement entitled the applicant to remain at the property for life.
4. In 2024 the respondent approached the applicant and requested more money. The respondent did not specify the quantum of the sum he wanted, but when the applicant offered to pay $1,000 per month this was agreed to by the respondent. In April 2025 the amount increased to $1,100.
5. Ray White does not keep a trust ledger for the periodic tenancy. Ms Neville was unable to make any comment on the conversations between the applicant and the respondent.
6. She said the applicant provided her with his email in March 2025.
7. Ms Neville said the applicant pays the money directly to the respondent. There is a ledger created by Ray White before the Tribunal but it is not a trust ledger and apparently records monies paid by the applicant to the respondent directly. The accuracy of the amounts received by the landlord are not confirmed. No receipts are issued for the payments. The ledger only starts in April 2025.
8. The respondent submitted that rent was never specified under the terms of the periodic agreement. Notwithstanding that on the respondent's evidence rent was never specified, he served a Notice of Rent Increase on the 15 April 2025, some 25 years after the commencement of the alleged periodic agreement.
9. Ms Neville said she had nothing further to add as to whether there was a periodic tenancy agreement dating back to 2000.
10. She acknowledged that the proposed increase is in the order of 200% increase. She agreed with the applicant's evidence in relation the very poor condition of the premises. The respondent has failed to provide any evidence of his outgoing expenses. There is no evidence from the respondent setting out what repairs he has undertaken over the last 20 years or even over the last 12 months.
11. Ms Neville said the respondent is proposing to undertake some repairs, but no scope of works was placed before the Tribunal.
12. She agreed the respondent did repair some taps in 2024. The respondent also did some plumbing work in 2025 after the service of the Notice of the Rent Increase.

1. There is no medical evidence before the Tribunal that the applicant suffers from any cognitive impairment as a result of his disease. There was no appearance by the respondent. Nor was there any statement from him setting out what he asserts was the arrangement between the parties dating back to 1999. Ms Neville made no submissions as to the arrangement between the parties dating back to 2000.
2. The only evidence before the Tribunal as to the arrangement between the parties in 1999/2000 is that of the applicant, supported by the submissions made by Ms Thun.
3. What Ms Neville did say was that there was no start date for the alleged agreement. No rent was specified under the agreement and no frequency of payments was ever stipulated under the terms of the agreement.
4. A residential tenancy agreement can be an oral agreement. In this case there is no contemporaneous documentary evidence, such as letter, emails or text messages to assist in the objective determination of whether or not the relationship between the parties gives rise to a residential tenancy agreement or some agreement or domestic arrangement between family members.
5. The respondent has not provided any evidence before the Tribunal as to what he says the actual arrangement between the parties was in 2000. That evidence is critical. He was a party to what the applicant says was a family agreement in so far as he received a property from the applicant and his mother, which he subsequently sold and retained the proceeds from that sale. In exchange his mother and stepfather were given a right to live in the house.
6. I am satisfied on the uncontroverted evidence from the applicant that as part of the agreement the applicant and his wife were allowed to remain living at the house for the rest of their lives. The applicant's evidence is the only contemporaneous evidence of the arrangement the parties entered into in 1999/200. This is very powerful evidence. He was a party to the agreement. And this evidence has not been controverted by the respondent.
7. I am satisfied on the applicant's evidence that at the time the agreement was made there was no intention by either party to create a legal relationship which objectively assessed was a residential tenancy agreement. This was a private agreement made between family members.
8. The respondent cannot subsequently and unilaterally create a residential tenancy agreement by retaining a real estate agent and serving a Notice of Rent Increase.
9. For these reasons I find there is no residential tenancy agreement between the parties, and accordingly, the Tribunal does not have the jurisdiction to make orders sought in the application.

1. For the reasons set out above, the Tribunal make the following orders:

(1) The application is dismissed as the Tribunal does not have the jurisdiction to make the orders sought.

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.