Sutcliffe v Hennessy

THE CLAIM

1. The only orders sought by the applicant involve orders for termination and possession under Section 85 of the RT Act.

DOCUMENTS OF THE APPLICANT

1. The applicant's' documents were as follows: 1. An affidavit of the applicant dated 8 March 2017 with documents annexed to the affidavit including: 2. A land titles search. 3. Correspondence between the lawyers of the parties in the period from January 2016 to June 2016. 4. The notice to terminate. 5. A handwritten note of the applicant dated 14 November 2016 containing details of the circumstances in which he asserts he personally served the notice to terminate. 6. A written outline of submissions by Mr N Simpson of Counsel dated 10 April 2017.

DOCUMENTS OF THE RESPONDENT

1. The respondent's documents were as follows: 1. An unsigned, undated written statement of the respondent, which the respondent adopted under oath at the hearing. 2. An unsigned, undated, supplementary written statement of the respondent and his wife, which the respondent and his wife adopted under oath at the hearing. 3. A handwritten statement of the respondent and his wife dated 1 July 2016.

EVIDENCE OF THE APPLICANT

1. The applicant's evidence was given by way of his affidavit, together with his responses to questions from the bench and the respondent during the course of the hearing.
2. The applicant's evidence can be summarised as follows:
3. The property the subject of the dispute was owned by his father until the date of the death of his father on 3 June 2004. The property is comprised of 3 Lots, with a house on one Lot and a shed on one Lot.
4. The applicant's father did not originally reside at the property, but moved to the property in 1993 after the death of the applicant's mother.
5. In the 1980's the shed was erected. The shed has a kitchen, bathroom and bedroom. A friend of the applicant's father resided in the shed for a number of years in the 1980's.
6. In approximately 2000, the applicant's father fell and broke his hip. He also developed pneumonia. For a period of approximately 3 months, the applicant's father resided with his sister (the respondent's mother and the applicant's aunt) in Murwillumbah. The applicant's father returned to the property in approximately March 2001.
7. In September 2001, the applicant spoke to his aunt, who said the applicant's father had asked her to contact him. According to the applicant, his aunt asked whether the respondent could stay at the farm for 6 months because he "needs a place to stay". The applicant replied: "If it's only for 6 months, that's fine".
8. In September 2001 the respondent moved into the shed. The applicant's father told the applicant: "Bruce has moved into the shed. He will be here for a while to look after me."
9. The applicant believed, as of September 2001, that the respondent was to live in the shed without paying rent, to care for the applicant's father.
10. The applicant inherited the property after the death of his father. There was no provision of the will that provided for the continuing occupation of the property by the respondent.
11. Soon after the death of his father, the applicant had a conversation with the respondent. According to the applicant, the respondent asked him: "What is going to happen now?". The applicant told the respondent: "We will keep things as they are for now, but you will have to find somewhere else to live". The respondent replied: "That works for me. I will ensure there is good upkeep on the shed while I stay there and look after the property".
12. Between 2004 and 2014 the applicant resided in Sydney, and visited the property approximately twice per year. According to the applicant when questioned by the bench at the hearing, he had little to do with his cousin, but there relationship was amiable. Nothing was discussed during this period regarding the basis upon which the respondent could continue to reside at the property. Occasionally, the respondent would say he was "Looking for a place", but nothing further was discussed.
13. Between 2004 and 2012, the respondent performed activities to improve and renovate the shed, including the installation of a new septic system; installation of a gas system; and re-wiring of the shed. The respondent also operated a "workshop" at the property, in which he produced horse drays and 'bush furniture'. The applicant asserts he did not give consent to the applicant improving and renovating the shed, and told him to stop or "run it by me". The applicant states that when the respondent asked him how much time he would give him to move out, the applicant replied: "We will work that out later".
14. The applicant states that during the period from 2004 to 2012, the respondent also did work with his consent at the property. Such work involved (a) installing a kitchen and bathroom at the house on the property (the house in which the applicant's father formerly resided in) at no cost to the applicant; (b) installing a satellite dish at the house, at no cost to the applicant; and (c) planting orchards and wiring them, at no cost to the applicant. The applicant claims the respondent told him prior to such works "I'll do this for you and it won't cost you a thing" and the respondent replied: "Oh well, I'm not claiming rent from you, so go ahead".
15. In August 2014, the applicant retired from his employment in Sydney and moved into the house at the property. In September 2014, the applicant spoke to the respondent. The applicant said that he would now be living in the property permanently and "I will give you one more year to move out". The respondent replied: "Yeah, no worries, that's fair enough time".
16. In September 2015, as the respondent had not vacated the property, the applicant spoke to him. According to the applicant, the respondent said he would not leave the property until the applicant paid him for the work he had done on the property. The applicant replied that he owed the respondent nothing as the respondent had been living at the property rent free for 16 years.
17. The applicant sought legal advice, and there was correspondence between the applicant's Solicitor and the respondent's Solicitor.
18. On 14 November 2016 the applicant personally served a notice to terminate under Section 85 of the RT Act on the respondent.

RESPONDENT'S EVIDENCE

1. The respondent's evidence is set out in his written statements, together with his responses to questions from the bench and the respondent during the course of the hearing.
2. The respondent's evidence can be summarised as follows:
3. The respondent and his wife reside in the shed at the property. The respondent's adult sons do not reside at the property.
4. In 2001, the respondent was renting a house in Gerringong. The respondent's mother telephoned him. The respondent's mother asked the respondent and his wife to move into the shed at the property to care for his uncle, who had prostate cancer and had broken his hip. The respondent's mother also mentioned that the property would be "perfect" for the respondent to carry on his bush furniture business.
5. The respondent and his wife moved to the property, and lived in the shed. The shed was "half finished" without a bathroom and awnings. Previously, a woman had been living in a caravan at the rear of the shed.
6. Over the years, the respondent improved the shed by work involving the installation of a bathroom; installation of windows; a toilet with a septic system; plumbing; wall and floor tiles. The applicant also built an extension to the shed to use as a workshop to build horse drays and furniture.
7. Between 2001 and June 2004, the respondent and his wife cared for his uncle by cooking him meals from time to time; checking on him; and driving him into Mudgee for shopping and medical appointments. The respondent stated in oral evidence that he and his wife did not always cook for the respondent's uncle, as he was an independent person, and they would clean the house in which he resided occasionally. The respondent's uncle needed to use a walking frame because of his hip injury.
8. The respondent's uncle never asked the respondent to pay rent. The respondent did not do any fencing work at the property in the period between 2001 and 2004 as there was no damage to fences; and he sprayed weeds occasionally.
9. The respondent stated he was looking after his uncle due to "family responsibility", not so that he could stay at the property rent free. The respondent accepted that he did obtain a benefit by not having to pay rent, but stated that the respondent's uncle obtained the benefit of him and his wife being in close proximity, and assisting his uncle.
10. The respondent stated that, in the last years of his life, his uncle told him on a number of occasions he could remain living in the shed for "as long as you like". The respondent stated that his uncle asked him in early 2004 to drive him to his Solicitor's office so that he could change his will to provide that the respondent could continue to reside in the property for an indefinite period. The respondent drove his uncle to the Solicitors office, and his uncle went inside. The respondent remained in the car. The respondent stated that he presumed his uncle had changed his will, but was informed after his uncle's death that the will did not contain any codicil, or make provision for the respondent. The respondent did not take any legal action to challenge the will.
11. After his uncle's death, the respondent spoke to the applicant about his uncle's will, and asked for a copy. According to the respondent, he was told the will did not provide for him and if he wanted to get a copy he would have to take the applicant to Court. The respondent ultimately obtained a copy of the will. At an unknown date, the applicant had mentioned in a conversation that his father had "changed" the will. The applicant was executor of the estate and sole beneficiary.
12. The respondent stated that, after his uncle's death, there was a conversation between the parties about the respondent continuing to reside in the shed. According to the respondent, the applicant stated: "You can remain living in the shed. You provide security by living there. I will not be moving to the property until I retire". In oral evidence, the respondent stated that that the applicant also told him in that conversation: "I will be coming here to retire when I'm 65".
13. The respondent stated that he had never regarded himself as a tenant, nor had the applicant or his uncle referred to him, or his wife, as a tenant. The respondent stated he never had an intention to enter into a residential tenancy agreement. The respondent stated that the applicant had only referred to him as a tenant retrospectively, to force him to leave the property.
14. The respondent stated that he believed there was a codicil to his uncle's will giving him a life estate or a legal interest in the property which had been kept from him.
15. The respondent had done work at the property in the period up to the applicant moving from Sydney back to the property, including spraying weeds and planting orchards. The respondent stated he did this because it was his "legacy" to the land, not that he believed he was under any obligation to maintain the property in exchange for living at the property.
16. The respondent agreed that he had told the applicant he would start to look for a place to move to, after the applicant had returned to the property and told him he had 12 months to leave. The respondent stated in oral evidence that the applicant had indicated that he may sell one of the Lots. The respondent stated that the applicant had eventually told him he was not interested in selling one of the Lots.
17. The respondent stated in the written documents submitted at the hearing that (i) the applicant had tried to pressure him to leave the property, by actions including "cutting off water"; (ii) the applicant had punched the respondent in the face; and (iii) the respondent would not leave the property until he finds out where is the codicil that he believes proves that his uncle intended to allow him to stay at the property indefinitely.

APPLICANT'S EVIDENCE IN REPLY

1. The applicant stated in oral evidence in reply that (i) he never interfered with, or changed, any aspect of his father's will; (ii) he agreed that he had previously considered selling one of the Lots and had mentioned that to the respondent, but no offer to sell had ever been made by him; and (iii) he denied having pressured the respondent to leave or assaulted him.

RELEVANT STATUTORY PROVISIONS

1. By reason of Section 226 of the RT Act, any residential tenancy agreement in existence prior to the commencement of the RT Act continues under the provisions of the RT Act.
2. Section 13 of the RT Act defines residential tenancy agreement as follows: "(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. Note : See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act. (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.
3. Section 3 of the RT Act contains the following relevant definitions: "landlord" means: (a) the person who grants the right to occupy residential premises under a residential tenancy agreement, or (b) a successor in title to the residential premises whose interest is subject to the interest of the tenant, or (c) a tenant who has granted the right to occupy residential premises to a sub-tenant, and includes a prospective landlord. "periodic agreement" means a residential tenancy agreement that is not a fixed term agreement. "rent" means an amount payable by a tenant under a residential tenancy agreement for the right to occupy premises for a period of the agreement. "tenant" means: (a) the person who has the right to occupy residential premises under a residential tenancy agreement, or (b) the person to whom such a right passes by transfer or operation of the law, or (c) a sub-tenant of a tenant, and includes a prospective tenant.
4. Section 9 of the RT Act refers to the relationship of "caretaker" as follows: 9 EMPLOYEE AND CARETAKER ARRANGEMENTS (1) An agreement or arrangement under which a person is given the right to occupy premises for the purpose of a residence in return for, or as part of remuneration for, carrying out work in connection with the premises or the person's employment is taken to be a residential tenancy agreement. (2) This section applies even if the premises are part of premises referred to in section 7 or other premises exempted from this Act by the regulations, (3) However, this section does not apply to a person employed as a manager or another full-time employee in a community within the meaning of the Residential (Land Lease) Communities Act 2013 .
5. Regulation 19 of the Residential Tenancies Regulation 2010 provides as follows: 19 LIFE TENANCIES (1) Residential premises that are subject to a life tenancy are exempted from the operation of the Act. (2) This clause does not apply to residential premises occupied by a sub-tenant of a life tenant. (3) In this clause: "life tenancy" means a legal or equitable right of a person to occupy residential premises as a tenant for life.
6. Section 7 of the RT Act refers to premises to which the Act does not apply. None of those provisions are relevant to this dispute. Although there is evidence the respondent built an extension to the shed and used it to operate his 'bush furniture' business activities, the main use of the premises was to reside in, not business purposes (Section 7(h) of the RT Act).
7. Section 8 of the RT Act refers to agreements to which the Act does not apply. The purported agreement the subject of this dispute does not fall into any of the categories set out in Section 8 of the RT Act.
8. By reasons of Section 119 of the RT Act, the Tribunal, rather than a Court, has exclusive jurisdiction regarding an order for termination of a residential tenancy agreement.

ISSUES FOR DETERMINATION

1. The issues for determination in this dispute relevantly are: 1. Is there a life tenancy? If so, the Tribunal does not have jurisdiction. 2. Is there a residential tenancy agreement between the parties? If so, the Tribunal has jurisdiction. If not, the Tribunal does not have jurisdiction and any proceedings to evict would likely involve a writ of possession in the Supreme Court of NSW. 3. If there is not a residential tenancy agreement, is there a caretaker agreement? If so, the Tribunal has jurisdiction. 4. If there is a residential tenancy agreement or caretaker agreement, is the notice to terminate under Section 85 of the RT Act a valid notice. If so, the Tribunal must terminate the tenancy. 5. If the Tribunal has jurisdiction and terminates the tenancy, what is the appropriate date of vacant possession?

IS THERE A LIFE TENANCY?

1. The respondent states that the applicant's uncle told him on a number of occasions he could live in the shed "as long as he likes" and the applicant's uncle intended to add a codicil to his will to this effect. The respondent implies that the applicant supressed this document in some way or destroyed it, which the applicant denies.
2. I am not satisfied on the oral evidence of the respondent that a life tenancy was created. The applicant's father died in 2004, and the respondent has not taken any legal proceedings to challenge the will over a considerable period of time, despite continuing to reside at the property. There is no contemporaneous documentary evidence to support an inference that a life tenancy was created prior to the death of the applicant's father. The applicant denies that his father told him he intended that the respondent could remain in the property until his death as a life tenant. Further, the words that the respondent states were used by the applicant's father ("You can stay in the shed as long as you like") do not clearly state the respondent can reside in the shed until death, but for an indefinite period.

Relevant Legal Principles

1. A residential tenancy agreement can be an oral agreement. Determination of whether or not there is a residential tenancy in the circumstances of this matter is not assisted by the lack of any contemporaneous documentary evidence, such as letters, emails or even 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 other relationship over which the Tribunal has no jurisdiction.
2. In determining whether or not there is a residential tenancy agreement between the parties, the relevant principles may be summarised as follows:
3. The intention of the parties must be must be assessed objectively, from the perspective of a reasonable person in the position of the party. The assessment is made prospectively, not retrospectively, taking into account all the facts and circumstances, including the words and conduct of the parties. The subjective beliefs of the parties are relevant to the extent that it assists in determination of the objective intention of the parties.
4. For there to be a residential tenancy agreement, the Tribunal must be satisfied that there was an intention to create a legal relationship which objectively assessed is a residential tenancy, rather than an informal or domestic relationship that is not legally enforceable.
5. The Tribunal must be satisfied that the essential terms of a residential tenancy exist with sufficient certainty. Such essential terms are: (i) the parties to the agreement; (ii) the premises in question; (iii) the duration of the tenancy; (iv) the rent, or mechanism for determining rent; and (v) the date of formation and commencement of the agreement (Anforth, Christensen and Adkins, Residential Tenancies Law and Practice NSW 7th ed (2017) Federation Press p 54).
6. If there is a residential tenancy agreement between the parties, other types of legal relationships between the parties may also exist. As Barrett J stated at para [19] in Cohen-Hallaleah v Cyril Rosenbaum Synagogue [2003] NSWSC 395, referring to the definition of "residential tenancy agreement" under Section 3 of the Residential Tenancies Act 1987 (which was relevantly the same as the definition in the Residential Tenancies Act 2010): "The definition does not attempt to deal with anything beyond the existence of an agreement, the status of that agreement as the source of a grant of right from one person to another, the requirement that the grant be for value, the nature of the right as a right of occupation, the nature of the premises as residential premises, and the existence, as the purpose of the occupation of a purpose of use as a residence. If all of these elements are found to exist, the parties agreement is a "residential tenancy agreement" regardless of any other relationship that may exist between them".
7. The provision of services may constitute "value" for the right to occupy premises within the meaning of Section 13(1) of the RT Act (Church of England Homes Burwood Inc v Muldoon [2008] NSWCTTT 1329; McLeod v McLeod [1999] NSWRT 32; Cohen-Hallaleh v Cyril Rosenbaum Synagogue [2002] NSWSC 395; King v Cursten Pty Ltd [2012] QCATA 127). Payment of water rates may be sufficient to constitute "value" under Section 13(1) of the RT Act (Grundel v Registrar General (1990) NSW ConvR 55-548 at 59,056; Buono v Mazzella [2012] NSWCTTT 479 at [26]). Payment of rates, land tax and a promise to keep a property in a good state of repair may be sufficient to constitute "value" under Section 13(1) of the RT Act (Lawrence v Gunner [2015] NSWSC 944 at [504])
8. In respect of domestic or family relationships, there is a difference of judicial opinion as to whether or not the High Court decision in Ermogenuous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 ('Ermogenuous') overturned the rebuttable presumption at common law that there was no intention to create legal relations in domestic or family relationships. In Ermogenuous, Gaurdon, McHugh, Hayne and Callinan JJ stated (at [24]-[26], citations omitted): [24] "It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty." To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts". [25] Because the inquiry about this last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties. [26] In this context of intention to create legal relations there is frequent reference to "presumptions". It is said that it may be presumed that there are some "family arrangements" which are not intended to give rise to legal obligations and it was said in this case that it should not be presumed that there was an intention to create legal relations because it was a matter concerning the engagement of a minister of religion. For our part, we doubt the utility of using the language of presumptions in this context. At best, the use of that language does no more than invite attention to identifying the party who bears the onus of proof. In this case, where issue was joined about the existence of a legally binding contract between the parties, there could be no doubt that it was for the appellant to demonstrate that there was such a contract. Reference to presumptions may serve only to distract attention from that more basic and important proposition."
9. In Darmanin v Cowan [2010] NSWSC 1118 (Ward J) and Ashton v Pratt (No 2) [2012] NSWSC 3 (Brereton J), the Supreme Court held that the rebuttable presumption that there was no intention to create a legal relationship involving a domestic or family relationship continued to apply. When considering this issue in MacPhail v MacPhail [2017] NSWSC 942, Davies J stated (at paras [72]): "It is not strictly necessary to reach a final view about whether there is such a presumption although I incline to the view that the High Court was disapproving of the use of such terminology (with all due respect to Ward CJ in Eq and Brereton J). What is clear, however, that whether the matter is approached from the perspective of presumption or from the starting point of an inquiry (referred to in Ermogenous at [25]), the determination is one of fact. What evidence is considered, given emphasis or not considered of importance is part of the fact-finding exercise."
10. A contractual term that a person can occupy land for "as long as you wish to stay" is sufficiently certain to be contractually valid, if the other requirements of a contract are met that constitute a residential tenancy agreement (Dayeian v Davidson [2010] NSWCA 42 at [60]).
11. Conduct of parties subsequent to the time the contract was alleged to be entered into can be used to determine whether a contract was in truth entered into (Franklins v Metcash Trading Ltd [2009] NSWCA 407 at [326])

APPLICATION OF LEGAL PRINCIPLES TO THE FACTS OF THIS MATTER

1. It is clear that the shed in which the respondent has been residing since 2001 is residential premises.
2. In respect of the legal status in which the respondent has been in occupation of the shed, there are two separate periods to consider. The first is the period in which the applicant's father (the respondent's uncle) was the owner of the property. The second is the period in which the applicant has been the owner of the property.
3. In respect of the period in which the applicant's father was the owner of the property, I am not satisfied that an intention to create legal relations has been established. The evidence of the applicant was that his father told him that the respondent had moved into the shed "to look after me". Whether the applicant's aunt told him the respondent "needed a place to stay" and would only be staying for "6 months" is peripheral to the determination of whether the applicant's father, as owner of the property, intended to create the legal relationship of a residential tenancy agreement, rather than an informal domestic relationship that was not in the nature of a residential tenancy agreement (Buono v Mazzella [2012] NSWCTTT 479 at [36]-[37]).
4. I am not satisfied, assessed objectively and in all the circumstances of the matter, the applicant's father intended to create a legal relationship, rather than a domestic or family relationship that was not a residential tenancy agreement, in circumstances where the applicant's father stated only that the respondent and his wife were living in the shed to "look after" the applicant's father.
5. However, when the applicant became owner of the property in June 2004, the nature of the relationship changed. At that point in time, the respondent and his wife were not providing care and assistance to the applicant's father. They were, however, maintaining the shed and the surrounding property. Both the applicant and respondent agree that they had a conversation in June 2004 regarding the basis upon which the respondent and his wife could remain at the property. The respondent does not dispute that the applicant told him he could remain on the property with "things as they are for now" but that, at a point of time in the future, the respondent would need to move from the property.
6. Assessed objectively, I am satisfied that there was an agreement that the respondent could continue to reside at the property for an indefinite period provided he maintain the shed and its surrounding property, in lieu of rent. I am satisfied that when the respondent spoke to the applicant in June 2004 he understood and agreed that, at a point of time in the future he would have to move out of the property, but could remain at the property at least until the applicant retired and returned to live at the house on the property.
7. Further, in either 2012 (on the applicant's evidence) or in June 2004 (on the respondent's evidence) both parties understood that when the applicant retired and moved back to the house on the property, the respondent would be obliged to leave the property after notice had been given by the applicant. The respondent does not deny that he inquired of the applicant how much time he would be given to vacate the property. Such conduct of both parties is consistent with an intention to create a legal relationship, rather than an informal domestic relationship that was not legally enforceable. There is no contemporaneous evidence that the respondent told the applicant, or wrote to the applicant, stating that the applicant could not direct him to leave the property as he had a right to remain at the property indefinitely on the basis of the wishes of the applicant's father, or on any other basis. Rather, the respondent accepted that the applicant could direct him to leave the property.
8. Being satisfied that there was, in June 2004, an intention to create a legal relationship, I am further satisfied that the other elements of a residential tenancy agreement exist. The shed was used as a residence. The respondent provided services of value, being the maintenance of the shed and the physical area of the 3 Lots, as the basis upon which he could continue to reside in the shed, in lieu of the monetary payment of rent. The respondent had a right to occupy the shed, on the basis of the provision of such services. The fact that the respondent performed improvements to the shed and also performed improvements to the house does not, assessed objectively, change the nature of the legal relationship between the parties.
9. In respect of the duration of the tenancy, I am satisfied that, as of June 2004, the parties had agreed the tenancy was for an indefinite period. As discussed previously, a tenancy can be for an indefinite period, constituting a periodic tenancy rather than a fixed term agreement.
10. In respect of the respondent's argument that there exists a codicil to his late uncle's will that gives him a legal interest in the property that allows them both to remain on the property, no evidence exists of any such document other than the evidence of the respondent that his uncle intended to change his will and he drove his uncle to the Solicitors office. The respondent has resided on the property since June 2004.
11. For reasons set out previously, I am satisfied that the basis upon which he remained on the property was the agreement of the parties in June 2004 that he could reside at the shed without paying a monetary amount for rent, provided he continue to maintain the shed and the property that surrounded it. The respondent has taken no legal action to challenge his uncle's will despite over 13 years elapsing since his death.
12. The respondent's subjective belief that his uncle intended for the respondent and his wife to be able to continue to reside at the shed until they decided it was time to leave, or provide a life estate to the respondent, does not alter the construction of the legal relationship between the parties as that of a residential tenancy agreement. Further, the respondent's subjective belief that his cousin may have been offering for sale part of the property does not change the nature of the legal relationship.
13. I am satisfied the applicant has established, when assessed objectively and taking into account the conduct of both parties, the essential terms of a residential tenancy agreement exist and there was an intention to create legal relations. Accordingly, there is a residential tenancy agreement within the meaning of Section 13 of the RT Act.

Does Section 9 Of The Rt Act Apply?

1. Having found that there is a residential tenancy agreement, it is unnecessary to determine whether Section 9 of the RT Act applies.
2. However, even if there is no residential tenancy agreement, the relationship between the parties falls within Section 9 of the RT Act. The definition under Section 9 of the RT Act is not limited to a person who resides in residential premises as part of a contract of employment. It extends to persons who are given the right to reside in residential premises "in return for…carrying out work in connection with the premises". Such a relationship is deemed to be a residential tenancy agreement.
3. I am satisfied that, when the parties had a discussion regarding the basis upon which the respondent could remain living in the shed, both parties intended that the respondent could remain if he did maintenance work on the shed and the property that surrounded it, rather than paying a monetary amount for rent. For the period from June 2004, the applicant has performed such work. Assessing the words and conduct of the parties objectively, Section 9 of the RT Act is engaged, even if there is not a residential tenancy agreement within Section 13 of the RT Act.

Is the Termination Notice a Valid Notice?

1. The evidence of the applicant is that the termination notice was personally served by the applicant on the respondent on 14 November 2016. The respondent did not dispute the notice had been personally served on him on that date. Under Section 223 of the RT Act, a notice of termination can be personally served.
2. The notice is signed; identifies the property the subject of the residential tenancy agreement; and gives a date of vacant possession of 13 February 2017. 13 February 2017 is 91 days from 14 November 2017. The notice identifies that the grounds of termination are under Section 85 of the RT Act.
3. The notice to terminate complies with Section 82 of the RT Act, and has been validly served. Under Section 85 of the RT Act, if there is a residential tenancy agreement and the notice to terminate under Section 85 of the RT Act has been validly served, the Tribunal must terminate the tenancy if vacant possession has not been given, and the proceedings have been taken within the relevant limitation period. The proceedings have been filed within the limitation period in Regulation 22 of the Residential Tenancies Regulation 2010. Accordingly, the Tribunal terminates the tenancy.

Date of Vacant Possession

1. The Tribunal has discretion to suspend or delay the date of vacant possession. At the hearing, the respondent submitted he would require at least 6 months to vacate the property, due to the belongings of he and his wife have at the property, and that he has no private rental history because he has been living at the shed for the last 13 years.
2. A further 6 months to vacate the property is not appropriate, considering the notice that has previously been given and that no children reside at the property. Considering the fractured relationship between the parties, it serves no purpose for either party to remain living in close proximity to each other for an extended period of time after a termination order has been made.
3. Taking into account the rural location of the property, and that the respondent has belongings at the shed relating to his business making drays and bush furniture, I am satisfied that it is appropriate that the date of vacant possession be 1 November 2017.

CONCLUSION

1. Being satisfied there is a residential tenancy agreement between the parties and the notice to terminate under Section 85 of the RT Act is a valid notice that has been served in accordance with provisions of the RT Act, the tenancy is terminated and the date of vacant possession is 1 November 2017. G.J. Sarginson Senior Member Civil and Administrative Tribunal of New South Wales 21 September 2017

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 November 2017 - uploaded in replacement of another decision which was published in error 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 November 2017