Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Van Der Wielen v Highfield JV Pty Ltd [2021] NSWCATCD 130 Hearing dates: 19 October 2021 Date of orders: 19 October 2021 Decision date: 19 October 2021 Jurisdiction: Consumer and Commercial Division Before: S Sutherland, Tribunal Member Decision: The application is dismissed. Catchwords: LEASES AND TENANCIES – Retaliatory Eviction Legislation Cited: Residential Tenancies Act 2010 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Michelle Van Der Wielen (Applicant) Highfield JV Pty Ltd (Respondent) Representation: Applicant (Self-represented) T Tipper (Agent) (Respondent) File Number(s): RT 21/40567 Publication restriction: Nil WRITTEN REASONS 1. This is a claim brought by the tenant pursuant to Section 115 of the Residential Tenancies Act, 2010 that the termination notice is retaliatory and a further claim pursuant to Section 104 of the Residential Tenancies Act 2010 for the termination of a residential tenancy agreement by a tenant where there is undue hardship. 2. The tenant does not seek to terminate the tenancy and claims that the termination notice issued by the landlord is invalid pursuant to Section 115 of the Residential Tenancies Act, 2010. The documents of the tenant are marked Exhibit A1. The relevant section is 115 of the Residential Tenancies Act, 2010. It provides the following: 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 had applied or proposed to apply to the Tribunal for an order, (b) the tenant had 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 and 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. 1. On 10 September 2021 the tenant was issued a termination for the end of fixed term of the tenancy pursuant to Section 84 of the Residential Tenancies Act, 2010. The tenant was to provide vacant possession on 9 November 2021. 2. On 10 September 2021 the tenant sent an email to the landlord's agent that she had been a good tenant for three and a half years and wished to be advised of the reasons for the termination. An email on 10 September 2021 from the agent to the tenant claims that the tenancy was being terminated as the landlord wished to sell the property. 3. There is no requirement on the landlord to provide a reason if the tenancy is terminated at the end of a fixed term, pursuant to Section 84 of the Residential Tenancies Act, 2010. If there is a valid termination notice and the tenant has not vacated the Tribunal must terminate the tenancy: Section 84 (3) of the Residential Tenancies Act, 2010. 4. The landlord's agent agreed that the tenant was a good tenant, and that she had been a tenant for three and half years and the agent offered to assist the tenant to find alternative accommodation. 5. The tenant in her oral evidence and which is contained in her documents, Exhibit A1 referred to a breach notice that was issued to her by the agent on 31 May 2021 and that her motor vehicle had been recorded parking constantly in the visitor space and that she was to remove her car immediately from the visitor space. The tenant replied the same day and advised that she had recent surgery and was unable to drive the car. Her car space was near the wall and she was unable to get into her car from that car is space and was therefore using the visitor car space while incapacitated. She is unable to bend her leg or weigh bare, she was using a wheel chair and the car was placed in the visitor's parking by her daughter and the tenant's car space was being used by her carers to take her shopping, personal care and medical appointments. There was an additional disability parking space however, that was used regularly by another resident. The car was moved by the tenant's daughter. 6. The landlord's agent told the Tribunal that the breach notice was removed and there were no further breaches. The tenant believes that this breach of parking policy had led to the termination being issued. Consideration 1. The oral evidence of the landlord's agent is that the landlord was considering selling the property and that the decision to terminate the tenancy after a fixed term was not due to a breach of the parking policy. 2. The onus is on the tenant to prove the retaliatory eviction claim to the civil standard. The tenant is required to prove to the Tribunal's satisfaction 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 had applied or proposed to apply to the Tribunal for an order, (b) the tenant had 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 and tenant. 1. There is no evidence before the Tribunal that the tenant applied or proposed to apply for a Tribunal order, or that the tenant proposed to take any action to enforce a right of the tenant under the residential tenancy agreement, the Residential Tenancies Act, 2010 or any other Act. There was no order by the Tribunal in force at the time of the application. 2. The claim by the tenant that the termination notice was retaliatory is based on the premise that the breach issued for the parking was the reason the termination notice was issued. I do not accept that this was the case on the evidence that I heard from the landlord's agent, the breach was withdrawn, the landlord intended to sell the property and the fixed term of the tenancy had come to an end. 3. The tenant's claim fails as the tenant has not proved on balance that landlord was motivated or partially motivated to issue the notice by way of the provisions in Section 115 (2) of the Residential Tenancies Act, 2010. For these reasons the application is 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 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: 14 February 2022