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The parties entered into a written residential tenancy agreement in or about 21 November 2020 for a fixed term of twelve months at a rent of $900 per week (the agreement). The section in the residential tenancy agreement dealing with the rental bond is left blank. The tenancy was terminated when the tenant gave vacant possession to the landlord on or about 13 November 2021.
The tenant filed application RT 21/47355 on 18 November 2021 seeking an order under section 175 of the Residential Tenancies Act 2010 (the RTA) for the payment of a rental bond. It is the tenant's case that she paid $3600 to the appellant, constituting the bond.
On 1 February 2022, the Tribunal made an order requiring the appellant to pay the respondent $3,600 immediately, by way of refund of a rental bond of $3,600 which the respondent said she had paid to the appellant on 19 November 2021. The hearing proceeded ex-parte, the appellant did not participate in the hearing. He says he did not receive a notice of hearing and so did not attend.
In its published order of 1 February 2021 the Tribunal noted that a tenant's rental bond is held in trust and is to be returned to the tenant at the end of the tenancy unless the landlord can establish that the tenant owes money. In the absence of any evidence to the contrary the Tribunal found that the tenant does not owe any money at the end of the tenancy and there was therefore not any valid reason why the landlord should not return the bond to the tenant. An order was made accordingly.
The landlord appealed by notice of appeal dated 4 February 2022.
During the hearing of the appeal it became apparent that the issues to be tried between the parties had not been heard and the parties, by consent, agreed to have the matter remitted to the Tribunal to have all issues determined.
It was the landlord's submission that the tenant did not pay $3600 at the commencement of the tenancy and that this was reflected in the written residential tenancy agreement. The section entitled "Rental Bond" is silent as to whether a bond was in fact paid, and information from the Rental Bond Board suggests that no bond was lodged with it.
The evidence provided by the appellant, in the form of his rent ledger and photocopies of his bank statements, for the period of the tenancy concerning payments made to him by the tenant is at odds with the ledger provided by the tenant.
The tenant provided a typed spread sheet setting out the amounts, dates and bank payment references of payments the tenant says she made to the landlord from time to time. However the tenant's spread sheet suggests that the tenancy payments were made for 50 weeks yet the fixed term pursuant to the written tenancy agreement was 12 months or 52 weeks, and the payment schedule suggests a duration of 57 weeks. Several of the payments set out in the tenant's ledger do not appear in the landlord's bank statements.
It is therefore unclear to the Appeal Panel whether the bond was in fact paid, whether the tenancy outlasted the duration of the fixed term, and critically, whether the landlords' bank statements account for all of the payments made by the tenant. The tenant has provided a schedule of typed transaction details but bank statements demonstrating that payments were in fact made to the landlord's bank account have not been provided.
[2]
Disposition of the Appeal
The Appeal Panel may exercise all the functions that are conferred by the Civil and Administrative Tribunal Act 2013 and in determining this appeal we have decided to exercise the function conferred by Regulation 9 of the Civil and Administrative Tribunal Regulation 2013 (the Regulation). Regulation 9(1) relevantly provides:
… the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances:
(a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision,
(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
In this instance the parties to the proceedings have consented to the making of the order to set aside the decision pursuant to Regulation (9)(1)(a). In addition, and in accordance with Regulation 9(1)(b) the decision was made in the absence of a party; and that absence resulted in the party's case not being adequately put to the Tribunal. As both requirements pursuant to Regulation 9(1)(a) and (b) are satisfied, the Appeal Panel has a discretion to set aside or vary the decision. There can be no question the decision was made in the absence of the landlord and the landlord provided adequate submissions supporting the application to set aside the original order and we consider that the landlord's absence resulted in his case not being adequately put to the Tribunal.
In these circumstances the appeal should be dismissed because the parties have agreed by consent that the original orders should be set aside under Regulation 9. It is therefore unnecessary to further consider the grounds of appeal. Having set aside the orders, the appropriate course is to remit the matter to be reconsidered by the Tribunal pursuant to section 81(1)(e) of the Civil and Administrative Tribunal Act 2013.
Ms Rao, a tenant advocate representing the tenant, consented to have the original decision set aside and allow the matter to be remitted to the Tribunal for determination. The landlord indicated he intended to seek an order for damages arising from rental arrears and damage to a fence. It was explained to the landlord that, as it is his contention that the tenant did not pay a bond, there can be no claim by him on the bond, and the landlord must file a separate application seeking orders for damages pursuant to section 190 of the RTA in accordance with the Directions below. Any application filed by the landlord seeking an order for damages, and the tenant's claim for the bond may be heard together at the direction of the Registry.
[3]
ORDERS
Accordingly, the Appeal Panel makes the following orders and directions.
1. Appeal dismissed.
2. The matter is remitted to the Tribunal for rehearing pursuant to section 81(1)(e) of the Civil and Administrative Tribunal Act 2013.
3. The order made on 3 February 2022 in RT 21/47355 is set aside.
4. The applicant tenant is to file and serve all bank statements and all other evidence and documents she seeks to rely upon at the hearing of the matter to the Tribunal and respondent within seven (7) days of the orders being published.
5. The respondent landlord is to send a copy of all bank statements and all other evidence and documents he seeks to rely upon at the hearing of the matter to the Tribunal and the applicant within twenty-one (21) days of these orders being published.
6. The applicant tenant is to file and serve evidence in reply, if any, by twenty-eight (28) days of these orders being published.
7. Any cross application by the landlord against the tenant must be filed with the Tribunal and sent to the tenant within seven (7) days of the orders being published.
8. The landlord must send a copy of all documents and evidence he seeks to rely upon at the hearing of the matter to the Tribunal and the tenant within twenty-one days (21) of the orders being published.
9. The tenant must send a copy of all documents and evidence she seeks to rely upon in defence to the landlord's claim to the Tribunal and the landlord within thirty-five (35) days of the orders being published.
10. As the landlord resides overseas the parties are given leave to serve the documents electronically on each other, by email.
11. All documents provided to the Tribunal must be provided in HARDCOPY. The Tribunal will not accept documents provided electronically
12. The documents provided to the Tribunal must be identical to those that are provided to the other party, and must be provided in an indexed and paginated bundle contained in a ring binder or similar device.
[4]
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
[5]
Amendments
18 May 2022 - Pursuant to s63 Civil and Administrative Tribunal Act Date of Orders and Date of Decision amended to 18/5/2022.
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: 18 May 2022