Summerill v Pelle

NCAT Consumer and Commercial|2023-05-17

Introduction and procedural background

This is an application lodged by Mr Summerill (the applicant) seeking orders principally under the Residential Tenancies Act 2010 (NSW) (the RTA).
The hearing took place on 17 May 2023.
Ms Bouchier, a solicitor from the Homeless Persons Legal Service, represented the applicant.
The matter was listed for hearing on 17 May 2023 at 10:45am. Ms Pelle (the respondent) did not appear at the hearing room. Shortly after 10:45am I called the matter outside the hearing room. I did so again a few minutes later. There was no appearance by, or for, the respondent.
The Tribunal's file disclosed that a notice of hearing was posted to ** Maroubra Road, Maroubra.
During the hearing the applicant relied on a statement of Ms Boucher dated 18 April 2023. Ms Boucher adopted that statement on oath and the statement was marked exhibit 1. Ms Boucher records at paragraph 5 of the statement that on 14 February 2023 she called and spoke with the respondent. During the hearing Ms Boucher gave oral evidence that the telephone number she called was 0459 *** ***. Before the Tribunal there was evidence that this telephone number was the respondent's telephone number.
Ms Boucher said that during her conversation with the respondent, the respondent confirmed that she resided at ** Maroubra Road, Maroubra (Ex 1, para 5). This is the same address to which the notice of hearing was posted by the Tribunal.
Based on the above, I was satisfied that the Tribunal's notice of hearing had been posted to the respondent's residential address and having regard to section 36(1) of the Civil and Administrative Tribunal Act 2013 (the CAT Act), including the fact that community resources were allocated for the hearing of the matter, I determined that it was appropriate to proceed with the hearing.

Evidence of the applicant

In addition to the statement of Ms Bouchier the applicant relied on the following evidence: 1. a folder of documents filed 8 February 2023 (exhibit 2). Exhibit 2 included the applicant's submissions, receipts, internet searches of items of furniture, a report from a psychologist and copies of telephone and social media messages; 2. statement of the applicant dated 20 February 2023 and filed 2 March 2023 (exhibit 3); and 3. statement of the applicant dated 8 February 2023 and filed 9 February 2023 (exhibit 4).

Findings

The Tribunal makes the following findings of fact.
The applicant and respondent were friends, having met in 2022 whilst working together.
In March 2022 the applicant inspected **/11 Market Street, Randwick (the Property) "for the purpose of checking whether [he] wanted to move in there" (Ex 3, para 5).
At that time, the respondent resided at the Property as a tenant.
On 31 March 2022 the applicant and respondent exchanged a series of text messages on Instagram as follows (omitting emojis) (Ex 4, para 7): Applicant: also, Bella, I've decided I would be really keen to move in with you at Randwick. I hope it's still available. Respondent: That's good. Respondent: Yesssss it is. Respondent: Soo happy Respondent: You can move in straight away whenever you want Applicant: okay awesome it will probably be this month sometime Respondent: Awesome let me know and did you need anything added to your room Respondent: I have the bed all sorted Respondent: And bed sheets cover everything Respondent: But up to you if you want to bring your own bed sheets and cover and pillow etc Respondent: And did you need help moving everything as well cause I have the car.
Later on 31 March 2022 the applicant and respondent exchanged further text messages on Instagram as follows (ex 4, para 8): Respondent: Hey with the rent, It will be $280 pw but excluding bills once we get the bill we can split in half are you happy with that Respondent: Also the bills come in every three months really good Respondent: I have gas, electricity and wifi Respondent: And water is free Applicant: yeah sure that's fine, how come the rent is more expensive than originally ? did the real estate agent advise [sic] you ? Respondent: Yeah originally it was 475 now they put it up 50 dollar so annoying Respondent: Sorry about this Respondent: I hope its all good Applicant: omg that's annoying lol yeah all good
The applicant moved into the Property on 16 May 2022 and paid $280.00 rent per week into the respondent's bank account. He also paid half of the utilities bills as agreed.
The applicant had a bedroom to himself at the Property.
The applicant also purchased a number of items of IKEA furniture to use in his bedroom as follows (Ex 4, para 12): 1. a wardrobe with 3 doors for a cost of $299.00; 2. a Billy bookcase which cost $99.00; and 3. two panes for the bookcase which cost $80.00 each;
The finding recorded in the preceding paragraph is also corroborated by a tax invoice from IKEA dated 21 June 2022 (Ex 2, tab 8).
The applicant also incurred delivery cost for the IKEA furniture of $69.00 and furniture assembly cost was $148.12.
In about September 2022 the respondent informed the applicant that she was considering leasing out the Property to someone else. The Respondent also said that if she did so, she would give the applicant 2-3 weeks' notice.
On the afternoon of Sunday 18 September 2022 the applicant and respondent exchanged the following SMS text messages (see Ex 2, tab 11): Respondent: Hey Justin how are you going xx Respondent: I'm really sorry about this but the person that wants to move in she wants to move in by next Monday so I was hoping you can find somewhere and move out by the end of next week I'm really sorry about this ….. Applicant: oh my God Simona this is unbelievable. I thought you said at least 2-3 weeks. Where am I supposed to go ? this is slightly unfair. I spent so much money on furniture for my room as well and have to find a place and move everything into…..Where are you going to live ? …Sorry I'm being like this, this just feels so unfair….
There were numerous further text messages exchanged. Those text messages provided some further clarity on the arrangement between the applicant and respondent. One matter that the respondent communicated was that she was not moving out of the Property.
One of the matters which the respondent complained concerning sharing the residence with the applicant was the mess created by the applicant. The applicant's response to this complaint was as follows (Ex 2, tab 11): Simona, the mess was mainly in my bedroom and going into the living room, I am not sure as to why it affects you but I always cleaned the kitchen and the bathroom and I even washed your sheets for you. This is not fair. I bit my tongue when you used my things and helped yourself to my stuff, like 'accidently' moving my tv into your room and eating all my food.
In some further SMS exchanges on 18 September 2022 the applicant complained that during the time he resided at the Property the respondent "helped [herself] to [the applicant's] things". The respondent reply to this complaint was "exactly" and "we Sharing (sic)" (Ex 2, tab 11).
Another matter made clear in the SMS exchanges was that the respondent was unhappy that the applicant slept in her room when she was not there, although she accepted that she "said it was ok at the start" (Ex 2, tab 11).
Based on the above matters I make the following further findings as to the agreed living arrangements between the parties: 1. The respondent was not required to maintain the tidiness of the bedroom that the applicant occupied and further the applicant did not consider the respondent had any interest or say in the state of tidiness of the bedroom that he occupied; 2. Although the bedroom that the applicant occupied had some initial furniture prior to the applicant commencing to reside at the Property, including a bed, the applicant brought with him significant items of furniture for the bedroom; 3. The parties shared household items such as furniture in the living areas and consumables such as food and toiletries and the respondent's comment "we Sharing" indicates that she considered that to be an incident of their arrangement; 4. The respondent considered she had a right to exclusive possession of the bedroom that she occupied and even though she had permitted the applicant to sleep in her bed that was a permission that was revocable at any time.
From all the above, I infer that the applicant was granted exclusive possession of the bedroom that he occupied and a non-exclusive licence in respect of the living room, kitchen and bathroom areas of the Property.
The further SMS text messages exchanged between the parties on 18 September 2022 became more unpleasant and relevantly culminated in the respondent sending a message as follows (Ex 2, tab 11): You know what actually I want you out by Tuesday please Pack you stuff up I don't want to see you.
Later on 18 September 2022 the applicant attended the Property. The respondent was there and there were two men who the applicant describes as "big and burly" (Ex 4, para 20). The applicant felt intimidated by these men. The applicant and the respondent then argued about the events that had transpired and the respondent called the police. The applicant felt distressed and left the Property prior to the police arriving.
A short time afterwards the applicant received a call from the police who informed him that the respondent intended changing the locks and that the applicant should call the respondent to arrange collection of his things.
On 20 September 2022 there were a number of heated SMS text messages exchanged between the applicant and the respondent's boyfriend. Those SMS text messages included the following messages from the respondent's boyfriend (Ex 2, tab 12): Your stuff will be outside today Your stuff will be outside
Also on 20 September 2022 the following SMS text messages were exchanged between the applicant and the respondent (Ex 2, tab 12): Respondent: ok well I throw your stuff on the street then. If your gonna be like that Respondent: can you please organise a truck Thursday to come pick up all your things Applicant: [expletive] off I will organise wht I can with the resources I have no stop texting me Respondent: If your not gonna come and pick your things up I have ever right to put on the street as I've notified the police
On 19 September 2021 the applicant tried "contacting the real estate of the Property" to obtain assistance but they refused as he was not a "party to lease agreement" (Ex 4, para 29).
As at 20 September 2022 the applicant had not returned to the Property since 18 September 2022 and was couch surfing at Mova Vale. He was feeling distressed by the events that had occurred and his situation. He did not have access to a car.
On 21 September 2022, around midday, the applicant returned to the Property to retrieve his things. The locks had been changed. He entered through an open window into his bedroom. He collected his clothes and some personal belongings. He had to leave his furniture behind.
At around 2pm on 21 September 2022 the applicant informed Maroubra Police that he had moved some of his things from the Property.
A few days later the applicant was served with an interim Apprehended Violence Order (interim AVO). On 24 November 2022 the interim AVO was dismissed.

Residential Tenancy Agreement

The first issue in these proceedings is whether there is a residential tenancy agreement within the meaning of the RTA.
Section 13 of the RTA provides the following in relation to the meaning of a residential tenancy agreement: 13 Agreements that are residential tenancy agreements (1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence. (2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. (3) An agreement may be a residential tenancy agreement for the purposes of this Act even though - (a) it does not grant a right of exclusive occupation, or (b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities. (4) For the purpose of determining whether an agreement is a residential tenancy agreement, it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person.
Section 10 of the RTA provides: 10 Application of Act to occupants in shared households A person who occupies residential premises that are subject to a written residential tenancy agreement, is not named as a tenant in the agreement and who occupies the premises together with a named tenant is a tenant for the purposes of this Act only if - (a) a tenant under that agreement transfers the tenancy to the person or the person is recognised as a tenant (see Part 4), or (b) the person is a sub-tenant of a tenant under a written residential tenancy agreement with that tenant.
The relationship between ss 10 and 13 was considered by the Appeal Panel in Rogers v Vinloy [2016] NSWCATAP 2. In that case the Appeal Panel said at [24] - [26]: 24. The Appeal Panel is satisfied that s 10 overrides s 13, notwithstanding that s 13 is expressed to be in exclusive terms rather than inclusive terms. This is for the reason that s 10 expressly states that, when the circumstances identified in its chapeau are met, a person is only a tenant for the purposes of the Act when the circumstances described in s 10(a) or (b) are satisfied. In other words, where the enlivening circumstances described in s 10 are satisfied, the general definition of tenant does not apply and one must, relevantly to this case, be a tenant under a written agreement as required by s 10(b) of the Act. 25. In this case, the circumstances enlivening s 10 were satisfied: the appellant occupies residential premises; the residential premises are subject to a written tenancy agreement between the respondents and the landlord (the appellant accepted this to be the case); the appellant is not named as a tenant in the written residential tenancy agreement; the appellant occupies the premises together with the named tenants (i.e. the respondents). In those circumstances the appellant could, relevantly to this case, only be a tenant for the purposes of the Act if paragraph (b) of s 10 was satisfied…. 26. Whatever the ambit of the expression residential tenancy agreement, in order to be a tenant once s 10 is engaged, as here, there must be a written residential tenancy agreement between the named tenant (the respondents) and the other person (the appellant).
In these proceedings there is no direct evidence of a written residential tenancy agreement between the respondent and a landlord (or a person claiming through the landlord).
On the other hand, there are references in the evidence to the involvement of a real estate agency. The text messages between the applicant and respondent on 31 March 2022 refer to rent being $500.00 per week rather than $475.00 per week due to a communication or action attributed to the real estate agent. Also, on 19 September 2022 the applicant tried "contacting the real estate of the Property" but they refused as he was not a "party to lease agreement" (Ex 4, para 29). That evidence suggests that there is a "lease agreement", whatever that phrase may have meant, to which the applicant was not a party.
I am not satisfied that the evidence has established, on the balance of probabilities, that the applicant occupied residential premises that were subject to a written residential tenancy agreement as that term is used in the RTA. Further, I am not satisfied that the evidence has established, on the balance of probabilities, that the respondent was a tenant named on a written residential tenancy agreement. It follows that the circumstances identified in the chapeau to s 10 have not been met with the consequence that s 10 is not engaged.
The next issue in these proceedings is whether the agreement between the applicant and the respondent is properly characterised as a sub-lease, in which case the RTA would apply, or an agreement under which a person boards or lodges with another person. If the proper characterisation of the agreement is that the applicant was a boarder or lodger then the applicant would not be entitled to relief under the RTA because of sub-section 8(1)(c) of the RTA.
Section 8 of the RTA relevantly provides: 8 Agreements to which Act does not apply (1) This Act does not apply to the following agreements - (a) …. (b) …. (ba) … (bb) short-term rental accommodation arrangements, within the meaning of section 54A of the Fair Trading Act 1987, under which the person given the right to occupy the residential premises to which the arrangement relates does not occupy the premises as the person's principal place of residence, (c) an agreement under which a person boards or lodges with another person, (d)-(j)
The issue of whether the relationship is a tenancy or some other occupancy is determined objectively by reference to the rights conferred: Bruton v London and Quadrant Trust [1993] 3 All ER 481. It is also important to observe that the question is the application of s 13 of the RTA, which in important respects differs from the common law concepts of leases and tenancies. Significantly, s 13 makes clear a residential tenancy agreement may subsist even though the agreement does not confer exclusive possession.
In these proceedings, the matters which point to the relationship being one where the applicant is properly characterised as a boarder or lodger are the absence of a bond and the provision of some furniture in the bedroom occupied by the applicant.
On the other hand, the matters which point to the relationship being one where the applicant's occupation is properly characterised as a tenancy falling within s 13 of the RTA are as follows: 1. The applicant was granted exclusive occupancy of his bedroom; 2. The equal sharing of all utilities expenses except those borne by the landlord; 3. The payment of his share of rent being calculated apparently as more than half the rent payable under the head lease, indicating a significant responsibility for the total rent payable; 4. The parties' own characterisation of the applicant's payment for occupation of the Property as "rent" as distinct from "board" or "lodging"; 5. The applicant's involvement in furnishing of the Property, including the items for his bedroom and also other items such as the television.
Weighing up the competing considerations identified above, I find that the agreement between the applicant and respondent was a residential tenancy agreement within the meaning of s 13 of the RTA. In particular, I find that the communications and conduct of the parties constituted a residential tenancy agreement between the parties whereby the applicant and respondent agreed that the applicant would be granted exclusive possession of his bedroom and a non-exclusive licence to use the kitchen, living area and bathroom, to use those areas as a residential premises, in consideration for payment of the agreed rent of $280.00 per week and agreed share of utilities expenses.
It also follows that I find the Tribunal has jurisdiction under the RTA to hear and determine the application.

Invalid Notice of Termination

The applicant alleges that the respondent breached s 85(2) of the RTA by the SMS text messages send by the respondent requiring on Sunday 18 September 2022 requiring the applicant to vacate the Property by Tuesday.
Section 85(2) of the RTA which requires 90 days' notice for termination of a periodic tenancy.
The Tribunal finds that the SMS text messages on 18 September 2022 purporting to give the applicant notice of termination and requiring the applicant to vacate breached s 85(2) of the RTA. There will be a declaration pursuant to s 111(2) of the RTA to this effect.

Quiet Enjoyment

Section 50 of the RTA provides as follows: 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. Maximum penalty - 10 penalty units. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement.
I find that the following conduct breached the applicant's right to quiet enjoyment of the premises: 1. The invalid notice of termination by SMS messages on 18 September 2022; 2. The conduct on 18 September 2022 which involved (i) two "big and burly" men being present, which I find intimidated the applicant; and (ii) the respondent hindering the applicant's access to the Property' 3. The change of locks on the Property.
In Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302 the Appeal Panel observed at [26] that the principles concerning the assessment of damages for disappointment from a breach of promise set out in Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17 are applicable to a landlord's breach of the obligation to provide quiet enjoyment of residential premises.
In Moore v Scenic Tours Pty Ltd the High Court held at [41] (footnotes omitted): Disappointment at a breach of a promise to provide recreation, relaxation and peace of mind is not an "impairment" of the mind or a "deterioration" or "injurious lessening or weakening" of the mind. Frustration and indignation as a reaction to a breach of contract under which the promisor undertook for reward to provide a pleasurable and relaxing holiday is, of itself, a normal, rational reaction of an unimpaired mind…
At [46] the High Court also said: …At common law, "pain and suffering" was understood to mean actual physical hurt occasioned by the accident or its aftermath; and damages for emotional harm were not recoverable unless a psychiatric injury was suffered. Similarly, the assessment of damages for "loss of amenities of life" invites a comparison between the ability of a person to enjoy life before and after the personal injury. But in the present case, no physical injury was alleged and no psychiatric illness was alleged to have resulted from the breach of the consumer guarantees in the ACL. The exception to the general rule relating to promises of enjoyment, relaxation or freedom from molestation, breach of which results directly in disappointment and distress, compensates a plaintiff for what he or she was promised where the expectation of a peaceful and contented holiday has been unfulfilled. The comparison between "the expectations against the reality" does not involve any reference to, or assessment of, an impairment to the plaintiff's mental condition.
After the events of 18 September 2022 the applicant went through a very distressing period. He found himself couch surfing, coping with a lack of security. He gave up a job that was too difficult to keep because he had no car and was 'residing' some distance away. He constantly faced the prospect of homelessness.
A psychologist's report concludes that the applicant "presents with an extremely severe level of emotional distress, severe depression and stress" (Ex 2, tab 15). The report sets out how the events since 18 September 2022 have been a material factor in the events leading to the applicant's distress and trauma.
The applicant seeks $1,500.00 for the stress, trauma and anxiety arising from the breach of his right to quiet enjoyment of the Property. I consider this amount to be reasonable in the circumstances.
The applicant also claims the loss attributable to not being able to retrieve his furniture. The Tribunal finds this loss arose because the applicant was not permitted to access the Property in accordance with his entitlement as a tenant. Had he been given 90 days' notice of termination it is likely, on the balance of probabilities, that the applicant would not have suffered this loss. The Tribunal will award the loss attributable to the IKEA furniture. That amount is $775.12, including GST (see Ex 2, tab 8).
I have considered whether an allowance for depreciation of the IKEA furniture is appropriate. I do not think it is appropriate. The furniture was only about 3 months old.
The applicant had received some items of furniture by way of donation and other items for which he did not have receipts or evidence that satisfied me, on the balance of probabilities, that he suffered loss in this respect.
I am not satisfied that the applicant's missed work shifts were attributable to the respondent's breaches of the RTA.
I am also not satisfied that the applicant's claimed travel expenses are attributable to the respondent's breaches of the RTA.
Further, and for the avoidance of doubt, I do not consider that it is appropriate to award any compensation for the breach of s 85(2) relating to inadequate notice of termination because those damages are subsumed by the subsequent exclusion from the Property which founds the compensation for the breach of s 50.

Change of Locks

The applicant contended that the change of locks was not in accordance with s 70 of the RTA. I agree that there was such a breach.
However, and for the avoidance of doubt, I do not consider that it is appropriate to award any compensation for the beach of s 70 relating to change of locks because those damages are subsumed by the subsequent exclusion from the Property which founds the compensation for the breach of s 50. To illustrate the matter another way, if the applicant were given a key after the locks were changed and permitted to enjoy the premises as was his right under s 50, then he would not have suffered economic loss or non-economic loss.

Extension of time

Section 190 of the RTA provides as follows: 190 Applications relating to breaches of residential tenancy agreements (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. (2) An application may be made - (a) during or after the end of a residential tenancy agreement, and (b) whether or not a termination notice has been given or a termination order made. (3) A landlord's agent may make an application on behalf of a landlord.
Regulation 39(9) of the Residential Tenancies Regulation 2019 prescribes that for the purposes of s 190 of the RTA an application must be brought within 3 months after the applicant becomes aware of the breach.
The first breach of the RTA occurred with the invalid notice of termination by SMS text message on 18 September 2022.
On 18 December 2022 the applicant tried to lodge an application online with NCAT but was not able to upload the documents that he wanted to include.
On 20 December 2022 the application was filed with NCAT with the assistance of the Homeless Persons Legal Service.
On one view, the reckoning of time would require that the application be commenced by 19 December 2022.
During the hearing Ms Bouchier made an oral application for an extension of time pursuant to s 41 of the CAT Act and I determined that, in light of the very short period of time by which the application may have been filed outside the 3 month period, to the extent necessary, I would extend the time for filing the application.

Orders

The Tribunal orders: 1. To the extent necessary, pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW), extending the time for the filing of the application to 20 December 2022; 2. Pursuant to section 111(2) of the Residential Tenancies Act 2010, declare that the respondent's purported notice of termination of the residential tenancy agreement comprised of the communications on 18 September 2022 breached s 85(2) of the Residential Tenancies Act 2010; 3. The respondent pay the applicant $2,275.12 within 14 days; 4. The application is otherwise 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

Amendments 22 September 2023 - Typographical/grammatical errors amended. 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: 22 September 2023

Residential Tenancy Act 2010(NSW)

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Judgment (11 paragraphs)

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