Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ryan v Stanford [2021] NSWCATCD 149 Hearing dates: 19 October 2021 and 17 November 2021 Date of orders: 17 November 2021 Decision date: 17 November 2021 Jurisdiction: Consumer and Commercial Division Before: D Barnetson, General Member Decision: 1. The Residential Tenancy Agreement is terminated in accordance with s 85 of the Residential Tenancies Act 2010 as the landlord has served a 90 day notice for termination of a periodic tenancy. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 1 December 2021 4. The tenant shall pay the landlord a daily occupation fee at the rate of $30.00 per day from the day after the date of termination, namely 18 November 2021 until the date vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Termination Legislation Cited: Residential Tenancies Act 2010 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Stephanie Ryan (First Applicant) Mitchell Ryan (Second Applicant) Carmel Sandford (Respondent) Representation: Applicant (Self-represented) Respondent (Self-represented) File Number(s): RT 21/40811 Publication restriction: None REASONS FOR DECISION: 1. The applicant/landlord made an application to the NSW Civil and Administrative Tribunal (the Tribunal) on 28 September 2021, seeking an order for termination and possession following a 90 day "no grounds" termination notice. 2. The matter came before the Tribunal on 19 October 2021. The parties were unable to reach a settlement. 3. At that hearing, the tenant asserted that she had resided in the property for more than 20 years and consequently the tenancy could only be terminated in accordance with s 94 of the Residential Tenancies Act 2010 (the Act). The tenant submitted that there was no written agreement with the then landlord when the agreement started, some twenty years earlier. She did not have any relevant record of rent or other payments for the property. 4. The landlord's agent agreed that the tenancy was a long one, of at least ten years, but neither party had evidence indicating the length of the tenancy. The landlord submitted that there was no previous written residential tenancy agreement and that the property had changed owners during the tenancy. 5. The hearing was adjourned with procedural directions in preparation for a contested hearing. The directions included that the tenant provide any documents "which show the length of time she has resided at the rented premises by 9 November 2021". 6. No documents were received from the tenant during the adjournment. 7. The matter came before the Tribunal again on 17 November 2021. Both parties attended and gave oral submissions and evidence. The Tribunal's decision is based on those submissions and the written evidence submitted by both parties. 8. Oral reasons were given at the hearing. Jurisdiction: 1. The Tribunal is satisfied that it has jurisdiction to hear and determine the application. Evidence, findings and application of the law: 1. The landlord submitted a Residential Tenancy Agreement dated 6 November 2011 and a notice of termination dated 23 June 2021, giving a possession date of 27 September 2021. The notice was given under the provisions of s 85 of the Act, which relevantly states: 85 Termination of periodic agreement--no grounds required to be given (1) A landlord may, at any time, give a termination notice for a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given. 1. The Tribunal was satisfied that this notice was valid and was served in accordance with the Act. 2. The landlord asserted that the tenant did not in fact reside at the property at this time and submitted a copy of a water account from Edward River Council for the rented property showing nil water usage for the period 30 June 2021 to 30 September 2021. 3. The tenant argued that she had provided a letter from "the RSL Club" to the Tribunal by Express Post to the Post Office box. She did so "last week". The Tribunal notes that no documents had been received. The tenant did not have a copy so the Tribunal could not facilitate a quick electronic submission of the claimed document. 4. The Tribunal determined that the tenancy was to be terminated under the provisions of s 85(3): The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. 1. The landlord requested vacant possession in 14 days. 2. The Tribunal asked the tenant about her current circumstances and the tenant indicated that she lived alone. When asked about the landlord's statement that she had alternative accommodation which she had been using, the tenant became upset, stating that this had nothing to do with the situation; she had a lease and was entitled to stay at the rented premises. 3. The Tribunal endeavoured to explain the position in relation to the legal obligations under s85 of the Act, in that the Tribunal must terminate the tenancy; its only discretion was in relation to the length of time for possessions. 4. The tenant did not make any submissions in relation to a date for possession, arguing only that she had a lease for over 20 years and did not have to move at all. 5. In all the circumstances, significantly the length of time since the date for possession specified in the notice, together with the fact that the tenant had alternative accommodation she could readily access, the Tribunal allowed the 14 days proposed by the landlord. ********** 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 March 2022