Qin v Billings

Qin v Billings - [2015] NSWCATAP 105 - NSWCATAP 2015 case summary — Zoe

[3]

Legislative scheme

The Boarding Houses Act regulates the delivery of services to residents of boarding houses. Section 3 sets out the object of the Act: The object of this Act is to establish an appropriate regulatory framework for the delivery of quality services to residents of registrable boarding houses, and for the promotion and protection of the wellbeing of such residents, by: (a) providing for a registration system for registrable boarding houses, and (b) providing for certain occupancy principles to be observed with respect to the provision of accommodation to residents of registrable boarding houses and for appropriate mechanisms for the enforcement of those principles, and (c) providing for the licensing and regulation of assisted boarding houses and their staff (including providing for service and accommodation standards at such boarding houses), and (d) promoting the sustainability of, and continuous improvements in, the provision of services at registrable boarding houses.
The legislative scheme is based on the "occupancy principles:" Boarding Houses Act, Sch 1. The principles relevant to these proceedings are principle 1 and principle 8: 1 State of premises A resident is entitled to live in premises that are: (a) reasonably clean, and (b) in a reasonable state of repair, and (c) reasonably secure. 8 Payment of security deposits (1) The proprietor may require and receive a security deposit from the resident or the resident's authorised representative only if: (a) the amount of the deposit does not exceed 2 weeks of occupancy fee under the occupancy agreement, and (b) the amount is payable on or after the day on which the resident (or the resident's authorised representative) enters the agreement. (2) Within 14 days after the end of the occupancy agreement, the proprietor must repay to the resident (or the resident's authorised representative) the amount of the security deposit less the amount necessary to cover the following: (a) the reasonable cost of repairs to, or the restoration of, the registrable boarding house or goods within the premises of the boarding house, as a result of damage (other than fair wear and tear) caused by the resident or an invitee of the resident, (b) any occupation fees or other charges owing and payable under the occupancy agreement or this Act, (c) the reasonable cost of cleaning any part of the premises occupied by the resident not left reasonably clean by the resident, having regard to the condition of that part of the premises at the commencement of the occupancy, (d) the reasonable cost of replacing locks or other security devices altered, removed or added by the resident without the consent of the proprietor, (e) any other amounts prescribed by the regulations. (3) The proprietor may retain the whole of the security deposit after the end of the occupancy agreement if the costs, fees or charges referred to in subclause (2) (a)-(e) are equal to, or exceed, the amount of the security deposit. (4) In this clause: "security deposit" means an amount of money (however described) paid or payable by the resident of a registrable boarding house or another person as security against: (a) any failure by the resident to comply with the terms of an occupancy agreement, or (b) any damage to the boarding house caused by the resident or an invitee of the resident, or (c) any other matter or thing prescribed by the regulations.
An "occupancy principles dispute" is a dispute between relevant parties about the application of the occupancy principles in relation to a resident or former resident of a registrable boarding house.
A resident or a proprietor may apply to the Tribunal for the resolution of an "occupancy principles dispute": s 32. A "relevant party" is defined in s 32(2): (2) A "relevant party" is: (a) a resident or former resident of a registrable boarding house (or an authorised representative of the resident or former resident), or (b) a proprietor or former proprietor of a registrable boarding house.
The Tribunal may make various orders in relation to occupancy principles disputes. Those relevant to these proceedings are set out in s 32(4): … (c) an order for the payment of an amount of money (including an order for the refund or repayment of some or all of an amount paid as an occupancy fee or security deposit), (d) an order as to compensation,

[4]

Tribunal's decision

In the reasons for decision, the Tribunal characterised the application as an application for orders pursuant to s 32 of the Boarding Houses Act for the refund of monies paid to a boarding house operator for a bond, rent, rebate of rent and other compensation.
The residents provided a report from a real estate agent stating, in part, that: "I inspected the above property today at Daniel's request. In my opinion the 2 bedrooms I inspected would not be of a suitable standard for renting in their present condition. The carpet in both are sub-standard but specially in the room nearer the kitchen presents a health risk and needs to be replaced. A strong damp smell is present in both bedrooms. While the common areas are in line with the style and age of home the bathroom does not offer adequate privacy. The bathroom door has a section missing and would not be in line with NSW rental conditions."
Photographs of the property and email correspondence between the parties were also in evidence. The proprietor provided evidence suggesting that the property was available to be rented to university students.
The Tribunal made the following finding in relation to the proprietor's evidence: "He provided documents that the premises were able to be utilised by university students, but no details of the process which enabled that. The documents provided by the Respondent showed he has little or no knowledge of the legislation he is operating under. He seemed to expect the NCAT to gather evidence on his behalf and contended on the basis of an alleged interview with the receptionist at the real estate agency of the agent who provided the report that either the agency did not know she was doing the report or that she was not qualified to do so."
In support of the observations about the proprietor's lack of knowledge of the legislation, the Tribunal found that the proprietor demanded four weeks occupancy fee as a security deposit, despite the fact that the statutory limit provided in Schedule 1, cl 8(a) is the equivalent of two weeks occupancy fee for a security deposit.
The Tribunal accepted the residents' evidence in relation to the condition of the premises and their attempts to remedy the situation.
The Tribunal joined the company to the proceedings because receipts for some of the monies paid were on the company's letterhead. The Tribunal ordered that Mr Qin and the company pay the residents a total of $8,900 made up of $4,800 being the refund of the security deposit, $3,600 refund of three weeks' occupancy fee for both residents and compensation of $500.
The Tribunal stated that it had queried the amount of the security deposit and that Mr Billings' evidence was that he and Mr Mendoza had paid $2,400 each.

[16]

Costs

Mr Qin applied for costs in the sum of $3,050.
Under s 60 of the Civil and Administrative Tribunal Act, the general rule is that parties pay their own costs. There must be "special circumstances" justifying an award of costs before the Appeal Panel will make a costs order. (1) Each party to proceedings in the Tribunal is to pay the party's own costs . (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs . (3) In determining whether there are special circumstances warranting an award of costs , the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
The special circumstances are said to be that the Tribunal made an error when finding that the residents had paid a total of $4,800 as a security deposit when they had only paid a total of $2,400. It was submitted that that error was occasioned by Mr Billings agreeing to the incorrect amount in relation to the security deposit.
As the extract from the transcript reproduced above at [27] demonstrates, the error in relation to the amount of the security deposit was the Tribunal's error. Mr Billings repeatedly quoted the correct amount. By indicating that the total figure of $8,900 "sounds correct" he did not give the Tribunal false evidence or make any incorrect submissions to the Tribunal about the amount that he and the other resident had paid. There are no special circumstances warranting an award of costs against Mr Billings. The application for costs is therefore refused. 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. 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: 04 June 2015

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (6)

Cited By (1)