O'Keefe v Davies

Jurisdiction

1. The NSW Civil and Administrative Tribunal, ("the Tribunal"), has jurisdiction to hear and determine an application by a Landlord seeking an order of termination of a residential tenancy agreement, after the giving of a 90 day notice, pursuant to Section 85 of the Residential Tenancies Act 2010, ("the Act"). The Act applies to tenancy agreements in respect of residential premises in NSW, whether made before or after the commencement of the Act.
2. The parties entered into a residential tenancy agreement in June 2014. The residential tenancy agreement gives the Tenant the right to occupy residential premises at Killarney Vale NSW. The rent is $200.00 per week.
3. The Tribunal has jurisdiction to hear and determine this matter.

The hearing

1. The matter was heard on 8 December 2015. The Landlord appeared in person. Ms Grey, Solicitor, appeared for and with the Tenant.
2. The Landlord gave oral evidence and also relied upon a folder of documents.
3. A folder of evidentiary documents was tendered on behalf of the Tenant.
4. Submissions were made by the Landlord and on behalf of the Tenant.

The Landlord's evidence

1. The Landlord purchased the residential premises with his brother, as joint Tenants, in 2001.
2. The Landlord's brother lived in the premises from the date of settlement until October 2013. In October 2013, the Landlord's brother moved into the Landlord's home, so that the Landlord could care for him as he was suffering from cancer.
3. The Landlord is an independent contractor working on the installation of the National Broadband Network. In June 2014, an employment agency referred the Tenant to the Landlord. The Landlord gave the Tenant a job.
4. In June 2014, the Tenant did not have a permanent place to live and the Landlord allowed him to stay in the residential premises. There was no written residential tenancy agreement.
5. The Landlord was undertaking repairs and renovations of the residential premises and told the Tenant that when the premises were in a liveable state, the rent would be $200.00 per week, increasing to $250.00 per week. The Landlord also said that the Tenant would have to pay for water and electricity.
6. In October 2014, the Landlord started to take $200.00 per week from the Tenant's wages as rent.
7. In January 2015, the Tenant ceased working for the Landlord. The Tenant continued to pay the Landlord $200.00 per week rent, however, he began to fall behind.
8. The Landlord's brother's health deteriorated and he was admitted to hospital in April 2015.
9. On 24 April 2015 the Landlord visited the Tenant and said: "(My brother) has gone into hospital and doesn't look like he will live much longer. I just wanted to keep you updated. My sister has been causing problems and demanding money from his estate. I think we may have to sell the house and you will have to move out soon."
10. The Landlord's brother died that night.
11. On 26 April 2015 the Landlord visited the Tenant and said: "(My brother) has passed away. My sister's going to want money and she is going to want to sell the house. You are going to have to move out as soon as you can. I'm upset about this all. I'm going to have to ask you to pay $250.00 per week soon too."
12. The Landlord sent the Tenant a text message on 30 May 2015 that read: "we need the premises empty so everything can be finalised."
13. On 10 June 2015 the Tenant sent the Landlord a text message that read: "We have been to the nsw rental tenants agency … this is now a matter for the NSW rental courts."
14. The Landlord contacted NSW Fair Trading to obtain information on how to end a tenancy agreement.
15. On 12 June 2015, the Landlord had the Tenant personally served with a 90 day notice of termination of residential tenancy agreement. The notice specified 10 September 2015 as the date for return of vacant possession of the premises.
16. The Tenant has not paid rent since 11 September 2015. The Tenant has not paid the last water usage account. The Landlord suspects that the Tenant has caused damage to the premises, namely a hole in the front wall. The Landlord requires vacant possession for personal, health and financial reasons.

The Tenant's evidence

1. The Tenant met the Landlord in June 2014 when the Tenant began working in the Landlord's business, performing labouring work installing the National broadband Network.
2. The Tenant was homeless and was looking for accommodation for himself, his partner and his 13 year-old son.
3. The Landlord allowed the Tenant and his family to move into the residential premises in June 2014. The premises were in need of repair.
4. The Landlord agreed that the Tenant could reside in the premises rent free, in exchange for carrying out renovation and refurbishment work on the premises. The Landlord agreed to pay for materials. The parties agreed that once the premises were habitable, the Tenant would start paying rent.
5. From June to September 2014, the Tenant carried out extensive renovation and refurbishment work on the premises. The Landlord paid for materials and also personally carried out some work.
6. In October 2014, the Landlord began withholding $200.00 per week from the Tenant's wages for rent. The Tenant did not agree to this.
7. The Tenant suffered an injury in December 2014 and could no longer work for the Landlord.
8. On or about 26 April 2015 the Landlord told the Tenant that the Landlord's brother was very ill and was expected to die soon. The Landlord also informed the Tenant that the rent would be increased to $250.00 per week and that Tenant and his family would have to vacate the premises immediately.
9. On 30 May 2015 the Landlord sent the Tenant a text message that read: "Letting. You. Know took brothers name of electricity. They will be turning off power sometime. Since my brothers death rent money will be banked and you will receive. A receipt. Until. Estate is finalized. Rent as from today will be 250 dollars per week. As discussed. With you on 26 April. We need premises. Empty so everything can be finalized."
10. In June 2015, the Tenant received legal advice about his rights. On 10 June 2015, the Tenant sent the Landlord a text message that read: "We have been to the nsw rental tenants agency of nsw about this matter and you are to provide your bank details to us and we will pay via your account witch will be deposited 200 a week on Friday of every week until official notice of rent increase so on Friday we will deposit the sum of $600 for the amount of 3 weeks rent you are not to turn up and have any personal contact with me or any of my family as directed by the nsw Tenants Agency as this is now a matter for The NSW rental courts. Please text your bank details for rental payments."
11. The Tenant was personally served with a notice of termination of residential tenancy agreement on 12 June 2015.
12. On 10 July 2015 the Tenant filed an application for orders by the Tribunal.
13. On 24 September 2015 the Tenant's application was dismissed.
14. On 12 October 2015 the Tenant filed a Notice of Appeal against the Tribunal's decision to dismiss his application. The appeal has not been determined.
15. Both parties are currently involved in proceedings before the Tribunal Appeal Panel. The Landlord's notice of termination and/or application for termination is wholly or partly motivated by the matters specified in Section 115(2)(b) of the Act; namely the Tenant had taken or proposed to take action to enforce a right under the residential tenancy agreement, the Act or any other law.

Tribunal's findings of fact:

1. The Landlord purchased the residential premises with his brother, as joint Tenants, in 2001.
2. The Landlord's brother lived in the premises from the date of settlement until October 2013 when he moved into the Landlord's home, so that the Landlord could care for him while he was suffering from cancer.
3. In 2014 and 2015, the Landlord was an independent contractor working on the installation of the National Broadband Network. In June 2014, an employment agency referred the Tenant to the Landlord. The Landlord gave the Tenant a job.
4. In June 2014, the Tenant did not have a permanent place to live. The residential premises were in need of repair. The Landlord agreed that the Tenant could reside in the premises rent free, if the Tenant carried out repairs and renovations on the premises. The parties agreed that once the premises were habitable, the Tenant would start paying rent of $200.00 per week.
5. The Tenant, his partner and his 13 year-old son moved into the residential premises in June 2014.
6. From June to September 2014, the Tenant carried out repairs and renovations on the premises. The Landlord paid for the materials and also undertook some work himself.
7. In October 2014, the Landlord started to deduct $200.00 per week from the Tenant's wages as rent.
8. The Tenant suffered an injury in December 2014 and could no longer work for the Landlord. The Tenant paid the Landlord $200.00 per week rent, however, he began to fall into arrears.
9. The Landlord's brother and joint owner of the residential premises died on 24 April 2015.
10. On 26 April 2015 the Landlord visited the Tenant and said words to the effect of: "(My brother) has passed away. My sister's going to want money and she is going to want to sell the house. You are going to have to move out as soon as you can. I'm upset about this all. I'm going to have to ask you to pay $250.00 per week soon too."
11. On 30 May 2015 the Landlord sent the Tenant a text message that read: "Letting. You. Know took brothers name of electricity. They will be turning off power sometime. Since my brothers death rent money will be banked and you will receive. A receipt. Until. Estate is finalized. Rent as from today will be 250 dollars per week. As discussed. With you on 26 April. We need premises. Empty so everything can be finalized."
12. On 10 June 2016 the Tenant sent the Landlord a text message that read: "We have been to the nsw rental tenants agency of nsw about this matter and you are to provide your bank details to us and we will pay via your account witch will be deposited 200 a week on Friday of every week until official notice of rent increase so on Friday we will deposit the sum of $600 for the amount of 3 weeks rent you are not to turn up and have any personal contact with me or any of my family as directed by the nsw Tenants Agency as this is now a matter for The NSW rental courts. Please text your bank details for rental payments."
13. The Landlord then contacted NSW Fair Trading to obtain information on how to end a tenancy agreement.
14. On 12 June 2015 the Landlord personally served the Tenant with a 90 day notice of termination of residential tenancy agreement. The notice specified 10 September 2015 as the date for return of possession of the premises to the Landlord. The notice complied with the provisions of the Act.

Does Section 115 apply in the case of an application under Section 85?

1. Section 85 of the Act provides that a landlord may give a tenant a notice of termination to end a periodic agreement at any time. The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given. Unless the tenant had been in continual possession of the same residential premises for a period of 20 years or more, the Tribunal must make a termination order if it is satisfied that the termination notice was given in accordance with Section 85 and the tenant has not vacated the premises as required by the notice. (Emphasis added).
2. The intention of the legislature is clear. If the conditions set out in Section 85 of the Act are met, the Tribunal must make an order of termination.
3. In my view there is one exception to that general rule - Section 115, retaliatory evictions. The Tribunal may refuse to make an order of termination if the Tribunal is satisfied that the notice of termination was a retaliatory notice or if the Tribunal is satisfied that the application was a retaliatory application.
4. In the case of Howard v B. Miles Womens Foundation In [2012] NSWC 1173, Schmidt J considered the provisions of Section 115 in a case involving an end of fixed term notice under Section 84. The provisions of Section 84 are very similar to the provisions of section 85. Both sections require mandatory termination if the conditions set out in the sections are met. His Honour said: "18. The question is thus whether, in those circumstances, notwithstanding the mandatory terms of s84(3), the general discretions given the Tribunal by s 115 to declare that a notice of termination which has been given has no effect, or to refuse to make such a termination order, are available to be exercised by the Tribunal, even though the landlord has established that the requirements of s84(3) have been met."
5. His Honour stated in his judgment that: "22. The apparent statutory purpose that in the case of a fixed term agreement, subject only to the giving of a statutory notice, a landlord is entitled to recover possession of the property at the end of the agreed term, may not be overlooked." His Honour then answered the question about the relationship between Section 85 and Section 155 in the following manner: "25. It appears that it is conceivable that there may have been a statutory intention that the mandatory terms of s84 would be subject to the general discretion given by s 115."
6. It was helpfully submitted by the Solicitor for the Tenant that Clause 22 of the Residential Tenancies Regulation 2010 provides that the prescribed period for the making of an application by a tenant for a declaration that a termination notice has no effect, on the ground that it is a retaliatory notice, is within 30 days after being served with the termination notice. This is a clear indication by the legislature that the mandatory terms of Section 85 are subject to the discretions that may be exercised under Section 115.
7. In my opinion, the provisions of Section 115 apply to all notices of termination, including 90 day notices to terminate periodic agreements. Section 85 is therefore subject to the general provisions of Section 115.

Was the notice of termination or the application for termination retaliatory?

1. The Tenant alleges that the notice of termination and/or the Landlord's application for an order of termination is motivated by matters specified in s 115(2)(b) of the Act and is therefore retaliatory.
2. Section 115 provides that: 115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice: (a) declare that a termination notice has no effect, or (b)refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons: (a) the tenant has applied or proposed to apply to the Tribunal for an order, (b)the tenant has taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord or the tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.
3. The Tenant submits that the Tribunal should find that the termination notice is a retaliatory notice and/or the application is a retaliatory application in accordance with Section 115(2)(b), as the Landlord was wholly or partly motivated to give the notice or to make the application because the Tenant had taken, or proposed to take action, to enforce a right under the residential tenancy agreement, the Act or any other law.
4. At the time the notice of termination was given, the Tenant had not applied to the Tribunal for an order and had not given the Landlord any indication that he proposed to apply for an order. When the notice of termination was given, no order was in force.
5. On 10 July 2015, the Tenant lodged an application with the Tribunal seeking compensation for rent paid while the premises were not habitable and an order setting aside the 90-day termination notice served on 12 June 2015.
6. The Tenant's application was heard by the Tribunal on 24 September 2015. The Tribunal found that the application was filed out of time and declined an application to extend the time for bringing the application. The Tenant's application was dismissed. On 12 October 2015, the Tenant filed a notice of appeal against that decision. As at the date of the hearing of the present matter, the appeal had not been determined.
7. The Landlord denies that the notice of termination and/or the application for an order of termination were retaliatory. The Landlord gave evidence that he decided to end the residential tenancy agreement in April 2015, because his brother, the joint tenant, died and for personal, health and financial reasons.
8. The Landlord told the Tribunal that he is nearly ready to retire and has significant debts, including a large mortgage on his own home and a large mortgage over the residential premises. The reasonable market rent for the premises is $350.00 per week. The Tenant has not paid rent since 11 September 2015 and has not paid the last water usage account.
9. The Landlord said that he decided to end the tenancy because he is extremely stressed about how he can afford the mortgage repayments and provide for his family. The Landlord wants to sell the residential premises, repay the debts and move on with his life. The Landlord also suffers a number of health problems that are exacerbated when he is under stress.
10. The following is a short chronology of relevant events: 24-Apr-2015 The Landlord's brother (the joint tenant) died. 26-Apr-2015 The Landlord verbally advised the Tenant that the Tenant would have to vacate the premises as soon as he could. 30-May-2015 The Landlord sent a text message to the Tenant stating: "We need premises empty so everything can be finalised." 10-Jun-2015 The Tenant sent the Landlord a text message stating: "We have been to the nsw rental tenants agency of nsw about this matter and you are to provide your bank details to us and we will pay via your account witch will be deposited 200 a week on Friday of every week until official notice of rent increase so on Friday we will deposit the sum of $600 for the amount of 3 weeks rent you are not to turn up and have any personal contact with me or any of my family as directed by the nsw Tenants Agency as this is now a matter for The NSW rental courts. Please text your bank details for rental payments." 12-Jun-2015 The Landlord served the Tenant with a 90 day no grounds notice of termination. 10-Jul-2015 The Tenant lodged an application with the Tribunal seeking compensation for rent paid while the premises were not habitable and sought orders setting aside the 90-day termination notice served on 12 June 2015. 11-Sep-2015 Rent was last paid by the Tenant. 24-Sep-2015 The Tenant's application was dismissed. 08-Oct-2015 The Landlord filed the application for termination. 12-Oct-2015 The Tenant filed a Notice of Appeal.
11. I am satisfied that the Landlord purchased the residential premises, as a joint tenant with his brother, in 2001. The premises were the Landlord's brother's primary residence until he moved in with the Landlord in 2013, as he was suffering from cancer. The Landlord allowed the Tenant to move into the premises in 2014, because the Tenant was homeless.
12. I accept the evidence of the Landlord that he decided that the Tenant should vacate the residential premises upon the death of his brother, the joint tenant, on 24 April 2015. On 26 April 2015, the Landlord informed the Tenant that he would have to vacate the premises, "as soon as he could", because the Landlord's brother had died.
13. The Tenant did not give the Landlord any indication that he proposed to take action to enforce his rights under the residential tenancy agreement until 10 June 2015, approximately 6 weeks later.
14. The tenancy arrangement between the Landlord and the Tenant had been somewhat informal. When it became apparent to the Landlord that the Tenant was not going to vacate the premises, a formal written notice of termination was given.
15. I accept the Landlord's explanation that his decision to give the Tenant a notice of termination was based on genuine personal, health and financial reasons and not in retaliation because the Tenant sought to enforce his rights.
16. I am not satisfied that the notice of termination was retaliatory. I am not satisfied that the Landlord was wholly or partly motivated to give the notice because the Tenant had applied or proposed to apply to the Tribunal for an order or because the Tenant had taken or proposed to take any other action to enforce a right under the residential tenancy agreement, the Act or any other law.
17. I am also not satisfied that the application for an order of termination was retaliatory. The notice of termination specified the 10 September 2015 as the date vacant possession of the premises was to be delivered up to the Landlord. The Tenant did not deliver up possession of the premises to the Landlord in accordance with the notice. The Landlord was entitled to file an application for an order of termination. I am satisfied that the Landlord had genuine personal, health and financial reasons for bringing the application.
18. In accordance with Section 115 of the Act, the Tribunal has a discretion to declare that a termination notice has no effect or to refuse to make a termination order if it is satisfied that the termination notice or the application for an order of termination were retaliatory. Even if I were satisfied that the termination notice and/or the application were retaliatory, I would not exercise my discretion in this case to declare that the termination notice has no effect or to refuse to make the termination order.
19. The residential tenancy agreement should be terminated. The Tenant has not paid rent since 11 September 2015. The Landlord is extremely stressed about how he can manage two mortgages and provide for his family. The Landlord's financial position is taking a toll on his health. The Landlord wants to sell the premises, pay down his debt and get on with his life. He is entitled to do so.
20. The Tenant is unemployed and separated from his partner. He cares for his 13 year old son who attends school near the residential premises. It is coming up to Christmas. The Tenant has nowhere else to go and has limited financial means.
21. I am satisfied that, on 12 June 2015, the Landlord gave the Tenant a notice to terminate the periodic tenancy on no grounds, (as he was entitled to do). The notice specified a date for return of possession that was not earlier than 90 days from the date the notice was given. The notice complied with the provisions of the Act. The Tenant has not given possession of the premises to the Landlord in accordance with the notice.
22. I am not satisfied that the notice of termination given on 12 June 2015 was retaliatory.
23. I am not satisfied that the application made on 8 October 2015 was retaliatory.
24. The interests of justice require that the residential tenancy agreement be terminated.
25. The residential tenancy agreement is terminated in accordance with Section 85 of the Act. Possession of the premises is to be given to the Landlord on 4 January 2016. D Moss General Member Civil and Administrative Tribunal of New South Wales 19 January 2016 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: 07 April 2016