The appellants were the landlords under a residential tenancy agreement between the parties.
By application dated 16 July 2016, the landlords applied to the Tribunal for a total amount of $3,326.10 and an order regarding a payment of the rental bond which was being held with the rental bond board. The landlord's claim was for a break lease fee equivalent to 4 weeks rent and for $240.00 for a chip in the kitchen bench top. The landlord alleged that the tenant had abandoned the lease. The application was heard on 4 July 2016 and the Tribunal delivered reasons for its decision on 1 August 2016. The Tribunal made the following orders:
1. Rental Bond Services is directed to pay the landlords the sum of $240.00 from the tenant's rental bond. The balance of the rental bond is to be paid to the tenant.
2. The Application is otherwise dismissed as lacking in substance.
[2]
The Appeal
The Notice of Appeal was filed with the Tribunal on 4 August 2016.
By the time the matter came for hearing, the Appeal Panel was able to ascertain that the appellants were raising two grounds of appeal:
1. That the Member had erred in finding that the tenancy had come to an end by way of termination by telephone and that the landlord was entitled to rent until the end of the fixed term or for a break lease fee.
2. That the agent, Mr Millane had not been able to attend the hearing and now had significant fresh evidence that was not reasonably available at the time.
This is an appeal pursuant to s80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The appeal was lodged in time, namely 14 days after the date of the decision. There is a right of appeal on a question of law and otherwise with leave. The first ground of appeal raises a question of law. In relation to the second ground of appeal, no question of law is raised. As the proceedings are from a decision of the Consumer and Commercial Division, in accordance with cl12(1)(c) of Schedule 4 of the NCAT Act, leave may be granted if the appellants demonstrate that they may have suffered a substantial miscarriage of justice because:
significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The appellants had not formally sought leave to appeal in the Notice to Appeal. However, at the hearing the respondent agreed that the two grounds as set out in paragraph 4 above were the grounds of appeal as he had understood them and that he had prepared his response on that basis. Accordingly, the Appeal Panel proceeded to decide both grounds of appeal raised.
[3]
Background
The parties had entered into a residential tenancy agreement on 1 July 2015. The agreement was for a fixed term of 12 months until 30 June 2016. The tenant had given possession of the premises on 1 June 2016, 29 days prior to the end of the fixed term.
The landlords had issued a notice of termination of the tenancy dated 14 April 2016. Both parties agreed that on 14 April 2016, Mr John Millane, the agent for the landlord had telephoned the tenant to advise him that the landlords would be requiring vacant possession of the premises. The tenant alleged that he had been advised by telephone by the agent that the landlords required possession by 1 June 2016. He denied having ever received the termination notice.
In its reasons the Tribunal made the following relevant findings:
25. I formally find that the termination notice relied upon by the landlord as terminating the tenancy was either, due to inadvertence or error, not sent, or if in the alternative it was sent, that it went astray and was not delivered to the tenant. The tenant was not served with that notice.
26. I accept the tenant's evidence that on or about 14 April 2016 he was told in a telephone call by Mr Millane on behalf of the landlords that vacant possession of the rented premises was required on 1 June 2016. Mr Fraser disputes Mr Millane made such a statement to the tenant. However, no sworn statement or affidavit of Mr Millane has been submitted to the Tribunal denying the tenant's allegation. While I am not prevented by the rules of evidence from considering Mr Fraser's heresay evidence and Mr Pochin's evidence, which I have been able to directly test, I prefer Mr Pochin's evidence
27. I formally find on the balance of probabilities on the evidence before me that Mr Millane gave the tenant oral notice on or about 14 April 2016 and that he was required to give vacant possession of the rented premises to the landlord by 1 June 2016.
….
32. For the foregoing reasons I am satisfied that it was the Managing Agent on behalf of the landlords that terminated the fixed term agreement before the end of the fixed term. It was not the tenant who did this. The Managing Agent appears to have done so inadvertently and in error. However, it is the landlord and not the tenant that must bear the burden of that error. At all times the tenant acted honestly and sincerely in the belief that he was required to give vacant possession to the landlord by 1 June 2016
[4]
Ground 1 - Error of Law - Termination
The landlords assert that the Tribunal erred in finding that the tenancy could be terminated before the end of a fixed term on the basis of a telephone conversation.
Section 81 of the Residential Tenancies Act 2010 (RTA) relevantly states:
81 Circumstances of termination of residential tenancies
(1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act.
(2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises.
(3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act.
(4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs:
(a) a person having superior title (such as a head landlord) to that of the landlord becomes entitled to possession of the residential premises,
(b) a mortgagee of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant,
(c) a person who succeeds to the title of the landlord becomes entitled to possession of the residential premises to the exclusion of the tenant,
(d) the tenant abandons the residential premises,
(e) the tenant gives up possession of the residential premises with the landlord's consent, whether or not that consent is subsequently withdrawn,
(f) the interests of the landlord and tenant become vested in the one person (merger),
(g) disclaimer occurs (such as when the tenant's repudiation of the tenancy is accepted by the landlord).
At paragraph 34 of the decision the Tribunal stated:
36. On this basis, in the alternative to the finding that the Managing Agent terminated the tenancy on behalf of the landlord, there is sufficient basis for me to find that the tenancy was terminated on the terms described in sub-section 81(4)(d) of the RT Act; that is that the tenant gives up possession of the residential premises with the landlord's consent, in circumstances where that consent was later withdrawn.
It is clear from the quoting of the words of the specific section that the Tribunal reference to section 81(4)(d) was a typographical mistake and meant to be a reference to section 81(4)(e).
The question for the Tribunal was not whether the tenancy had been terminated by phone, but was a broader question. In this case, the Tribunal was required to identify the mechanism for termination. The Tribunal concluded, in the alternative to the conclusion that the Managing Agent had terminated the tenancy on behalf of the landlords, that the tenancy had terminated when the tenant had given up possession with the consent of the landlord (at [36]).
The Appeal Panel finds that given the Tribunal's earlier findings that the written termination notice was not received and that the agent gave the tenant notice by telephone that he was to give possession of the premises by 1 June 2016, there can be no error of law. The Tribunal held, consistently with its findings, that termination happened when the tenant gave possession with the consent of the landlord.
S110 of the RTA states
(1) A tenant who is given a termination notice by the landlord, or who gives a termination notice, may give vacant possession of the residential premises at any time before the termination date.
(2) If a termination notice is given by a landlord, the tenant is not liable to pay any rent for any period after the tenant gives vacant possession of the residential premises and before the termination date.
(3) Subsection (2) does not affect the liability of a tenant under a fixed term agreement to pay rent in respect of a period after the tenant gives vacant possession of the residential premises and before the end of the fixed term, if the termination notice is given by the landlord in accordance with section 84.
In the case of Willis v Charles [2016] NSWCATAP 164, the Appeal Panel stated in relation to s 110:
Section 110 of the Act allows a tenant who is given a termination notice by the landlord to give vacant possession of the residential premises at any time before the termination date. If a termination notice is given by a landlord, the tenant is not liable to pay any rent for any period after the tenant gives vacant possession of the residential premises and before the termination date: section 110(2) of the Act. However, section 110(3) of the Act provides that the liability of a tenant under a fixed term agreement to pay rent in respect of a period after the tenant gives vacant possession of the residential premises and before the end of the fixed term is not affected "if the termination notice is given by the landlord in accordance with section 84". The question for the Tribunal therefore, is whether the termination notice dated 19 October 2015 served by the Respondent was a termination notice given in accordance with section 84 of the Act.
The termination notice relied on by the appellants was issued pursuant to s 84 of the RTA as the tenancy was in a fixed term period of 12 months until 30 June 2016. Had the Tribunal found that the termination notice dated 14 April 2016 had been the basis for ending the tenancy, s 110(3) requires that a tenant under a fixed term agreement would be liable to pay rent after they give vacant possession of the residential premises up until the end of the fixed term.
The Tribunal ultimately found (albeit in the alternative) that the tenant had been advised by the agent by telephone that he should vacate on 1 June 2016 and the tenancy subsequently came to an end by consent of the parties as contained in s81(4)(e). That section applies whether or not the consent is subsequently withdrawn. S81(4)(e) makes no reference to the consent being required in writing and the Appeal Panel finds no reason why consent cannot have occurred pursuant to an oral telephone conversation between the parties. In circumstances where the Tribunal found that the termination occurred when the tenant gave up possession of the residential premises with the landlord's consent, s 110 does not apply.
Similarly s 107 of the RTA refers to a landlord's remedies on abandonment by the tenant. In circumstances where the Tribunal found that the tenancy came to an end by the consent of the parties, it cannot be said that the tenancy was abandoned by the tenant.
Accordingly, this ground of appeal fails.
[5]
Procedural Fairness
In the case of John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel stated:
In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent
While the issue of procedural fairness was not expressly raised by the appellant as an appeal ground, we have given it some consideration. The appellants' application initially came before the Tribunal for conciliation and hearing in a Group List. At paragraph 4 of the reasons for decision the Tribunal relevantly stated:
The Tribunal explained the time constraints that applied to the hearing of matter in a Group List. Both parties indicated that they would be able to present their cases to the Tribunal within these time constraints
The opportunity was available for the agent to seek an adjournment on the grounds that the Managing Agent was not available and the Appeal Panel finds nothing which gives rise to procedural unfairness.
[6]
Ground 2 - The Fresh Evidence of the Agent Mr Millane
The appellant sought leave to appeal on the basis that he now had significant evidence which was not reasonably available at the time.
The appellant sought to rely on the new evidence of the agent Mr Millane. The Appeal Panel heard sworn oral evidence from the Mr Millane at the appeal panel hearing.
Mr Millane stated to the Appeal Panel that he could not attend the Tribunal hearing because he had been suffering from vertigo. He also stated that he believed, as did Mr Fraser the agent that did appear at the Tribunal hearing, that it was unnecessary for him to appear at the hearing because they did not believe that the Tribunal could find termination on the basis of a telephone conversation. He stated that if he had attended the hearing he would have given evidence about the sending of the notice and about his telephone conversation with the respondent regarding termination.
In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 in relation to clause 12(1)(c), the Appeal Panel said:
23. The test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.
24. Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).
25. Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence.
26. In our opinion the intent of cl 12 of Sch 4 of the NCAT Act is to impose additional limitations on a party's entitlement to seek leave to appeal under s 80(2) of the NCAT Act from a decision of the Consumer and Commercial Division.
On the relevant test, the appellants' have not established that the evidence was not reasonably available at the time. Rather, the appellants' case is that they did not regard it to be relevant. On an objective standard that is not a satisfactory ground to adduce fresh evidence. Further, Mr Fraser gave hearsay evidence of, at least, some of Mr Millane's conversation which the Tribunal took into account (at [26]).
Accordingly, leave to appeal is refused as it has not been demonstrated that significant new evidence has arisen. This appeal ground also fails.
[7]
Orders
The Appeal Panel makes the following orders:
1. Leave to Appeal is refused
2. The Appeal is dismissed
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
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Decision last updated: 30 November 2016