Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Craig Kentell v Oliver Steele Oliver Steele v Craig Kentell [2014] NSWCATCD 102 Hearing dates: 15 January 2014 Decision date: 23 January 2014 Before: S Westgarth, Deputy President Decision: 1.Craig Kentell of [...] Redfern is to pay Oliver Steele of [...] Alexandria the sum of $3,520.00 within 21 days of the date of this order. 2.The Residential Tenancy Agreement is hereby terminated in accordance with s 87 of the Residential Tenancies Act 2010 as the tenant has breached clause 32 of the agreement. 3.The tenant is to give possession to the landlord immediately. 4.The landlord is to advise the tenant of these orders in writing by delivery of a letter to the premises within 24 hours of the making of these orders. 5.The order for possession is suspended until 10 February 2014. 6.The tenant Oliver Steele shall pay to the landlord Craig Kentell a daily occupation fee at the rate of $128.57 per day from the date of termination namely 22 January 2014, until the date vacant occupation is given to the landlord. 7.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: Compensation and termination Legislation Cited: Residential Tenancies Act 2010 Category: Principal judgment Parties: Craig Kentell (Applicant / cross respondent) Oliver Steele (Respondent / cross applicant) File Number(s): RT 13/61056 RT 13/63865 RT 13/47032 RT 13/54522 reasons for decision APPLICATIONS and JURISDICTION 1These applications were heard together and the parties appeared in person. The landlord is Mr Craig Kentell (the landlord) and the tenant is Mr Oliver Steele (the tenant). The disputes arise out of a Residential Tenancy agreement and I am satisfied the Tribunal has jurisdiction to determine the matters in dispute. Jurisdiction is given by the provisions of the Civil and Administrative Tribunal Act 2013 (CAT), the Consumer Trader and Tenancy Tribunal Act 2001 (CTTTA) and power to make orders in connection with a residential tenancy dispute is given to the Tribunal by the Residential Tenancies Act 2010 (RTA). HISTORY 2The tenant commenced proceedings (RT 13/47032) which were determined on 20 November 2013 by orders which provided for the tenant to receive compensation from the landlord. The Tribunal had previously extended time to permit the tenant to file the application out of time. The landlord has made an application under section 68 of the CTTTA for a rehearing of the tenant's application. The application for a rehearing file is RT 13/61056. 3In addition, the landlord commenced proceedings for orders for termination (RT13/54522). These proceedings were heard on 25 November 2013 and an order for termination was made. The tenant has made an application for a rehearing under section 68 of the Act: see proceedings RT 13/63865. SECTION 68 APPLICATIONS 4The tenant gave sworn evidence in support of his application for a rehearing of proceedings RT 13/54522. The basis for the application was that the tenant had had no notice of the hearing and, in any event, had he had notice, he would not have been able to attend by reason of a medical condition. A Statutory Declaration was produced in support of the submission that he was not able to attend for medical reasons when the hearing occurred on 25 November 2013. 5Having heard the tenant's evidence, I concluded that it was in the interests of justice that the landlord's application ought to be re-heard and I granted the tenant's application for a rehearing. In particular, my decision was based upon the fact that procedural fairness had not been afforded to the tenant by reason of the fact that he was not aware of the proceedings on 25 November 2013 and was not able to adduce evidence in opposition to the landlord's application. 6I then dealt with the landlord's application for a rehearing of proceedings 13/47032 which had been determined on 20 November 2013. The landlord gave sworn evidence and the landlord's application was based upon the submission that the landlord was not aware of the hearing on 20 November 2013. I had some doubt about the landlord's assertion that he had no notice of the hearing because it was sent to his home address and he had received other notices, such as the notice of an earlier hearing on 25 September. However, faced with the landlord's assertion that he did not receive notice of the hearing and no evidence to the contrary, I formed the view that it was in the interests of justice that the tenant's case be re-heard. In addition, I formed the view that it was in the interests of justice that all of the matters in dispute between the parties ought to be re-heard and an injustice might arise by reason of denying one application for re-hearing but permitting the other. Accordingly, I also made an order that the landlord's application for a rehearing should be granted. THE RE-HEARINGS 7I then re-heard the tenant's application for compensation and orders to effect repairs (formerly on file 13/47032) and following that, re-heard the landlord's application (formerly on file 13/54522). Both landlord and tenant gave sworn evidence. 8The tenant's evidence was that the lease was signed 5 November 2012 and that it contained an annexure (marked annexure A), the substance of which was an email from the tenant to the landlord's agent dated 3 November 2012 stipulating a number of matters which the landlord was required to undertake. The document constituting the lease, namely a Residential Tenancy Agreement, was in evidence. Having heard both landlord and tenant in relation to the circumstances in which the lease came to be signed, I am satisfied that annexure A forms part of the lease. The lease was signed by the tenant at the agent's premises and annexure A was annexed to the lease at that time. The landlord did not provide any evidence disputing that annexure A was annexed to and formed part of the lease. The lease was for 2 years from 5 November 2012 and the rent $900.00 per week. 9The tenant gave evidence that the premises consisted of a two storey residential building containing four bedrooms with one bathroom upstairs. The tenant had sub-leased three of the bedrooms to three separate tenants. The rent paid was $230.00 per week from each of two tenants and the third tenant paid $300.00 per week. From approximately 18 August 2013 the tenant left the premises and leased the fourth bedroom to a fourth tenant. However, the tenant gave evidence to the effect that he continued to visit the premises and claimed a right to use the shared common rooms in the premises and had also left his personal property at the premises with the consent of the sub-tenants. 10The evidence from the tenant was that the sub-tenants were sourced by him from advertisements he had placed, and that he had the general permission of the landlord's agent to sub-lease the premises. The tenant claimed that when he signed the lease, he asked the agent whether any further consent to sub-tenancies was required and that the agent said that, as the landlord had already consented, no further consent was required. The tenant said that he had had the landlords consent to sublet and that this had been confirmed by him in an email to the agent and the landlord dated 19 September 2012, a copy of which was included in the evidence filed by the tenant. His evidence was also to the effect that the landlord (who lived opposite the leased premises) was aware of the sub-tenancies and did not object to any of them (other than the last subtenancy) until the later part of 2013 and then only in the context of responding to the tenant's application for compensation. The landlord did not dispute the fact that he was generally aware of the sub-tenants and had made no objection to their presence. However, both landlord and tenants agreed that the landlord had not been asked to give written permission to any of the sub- tenancies. 11The tenant's claim for compensation concerns 7 items. The first item concerned a claim that the ground floor bedroom door was unable to be shut and that the landlord had an obligation to repair it so that it would shut. There is no evidence that the tenant or any sub-tenant was particularly inconvenienced by the failure of the door to shut. The tenant conceded that the door did shut during the winter months and that his claim in this respect was therefore limited to the summer period from when the lease commenced in November 2012 to the period when the weather cooled down in approximately April 2013. The tenant claimed $510.00. The landlord has obligations to repair as contained in s.63 of the RTA but in the case of this item, the failure is inconsequential and the amount claimed grossly excessive. As the tenant is unable to prove any loss, I reject this claim. 12The tenant's second claim (item 2) concerned an undertaking by the landlord to install a wardrobe in the first floor front bedroom. Annexure A to the lease identified this to be built within 8 weeks of the commencement of the lease. It was agreed by both parties that it had never been completed. There was no evidence that any sub-tenant had paid less for the affected room than would have been the case had the wardrobe been completed. The tenant claimed $1,020.00 which, again, in my view is excessive, given the lack of supporting evidence. I reject this claim. 13Item 3 concerned an undertaking by the landlord to install a powder room, namely a second bathroom on the ground floor under the staircase. This item was referred to in annexure A and the landlord agreed to undertake the work within 12 weeks of the commencement of the lease (i.e. by approximately February 2013). It was agreed by both parties that the work has not been started. The tenant said that the premises had only one bathroom upstairs and the presence of a second bathroom downstairs would have substantially increased the value of the sub-tenancies. However, the tenant had no evidence to establish what that value would have been in the sense of an increased level of sub-tenancy income. The tenant claims $100.00 per week from February 2013 by way of reduction of rent. Again, the tenant's claim suffers by reason of lack of supporting evidence for the amount claimed. Nevertheless, the landlord did agree to install the powder room and has breached his obligation by not doing so. Common sense suggests that the additional bathroom was a significant potential benefit to the tenant, had it been installed as agreed. In the circumstances, I conclude that the tenant is entitled to compensation and I assess the compensation at $45.00 per week from February 2013 to the end of the lease. 14The fourth item (item 4) concerns a telephone cable in respect of which there was an argument as to whether it was appropriately installed according to building standards. There seemed to be agreement that some minor work needed to be undertaken in respect of properly installing the telephone cable. In absence of evidence from the tenant as to the extent of the tenant's loss, I reject this claim. 15Item 5 concerned the tenant's complaint that the range hood light had not been repaired. The landlord asserted that it had been repaired but could not say when. The tenant said it had not been repaired on 18 December 2013 when he was last there. I prefer the tenant's evidence. The tenant claimed $510.00 which I regard as excessive. I think fair compensation would be approximately $5.00 per week for the loss of the use of that facility and therefore assess the claim as worth $5.00 per week from the commencement of the lease. 16The sixth item (item 6) concerns an assertion by the tenant that the dishwasher should have been repaired. The landlord appears to have agreed with this but says it was repaired. Again, the tenant says it was not done as at 18 December 2013. Again, I prefer the tenant's evidence as being more reliable and therefore find that compensation ought to be payable. I assess the loss of the use of that facility as worth $10.00 per week from the commencement of the lease. 17Finally, the tenant complains that the work agreed to be undertaken with respect to the balcony was not undertaken. Annexure A referred to the agreement of the landlord to fix the front balcony within 8 weeks. The parties agreed that the work has been done but disputed when it had been completed. The tenant says that it was not done by 20 September 2013. The landlord says it was completed in August 2013. The balcony was used by the occupant of one of the upstairs bedrooms. The tenant had no evidence as to whether any sub-tenant complained about the balcony not being available for use. Nevertheless, the tenant is entitled to some compensation for the loss of that facility. I assess the amount of compensation at $10.00 per week from January 2013 until August 2013 (7 months). 18Accordingly, the tenant is entitled to compensation calculated as follows: (1)Powder room: $45.00 per week for one year $2,340.00 (2)Range hood light: November 2012 to February 2014 (15 months) at $5.00 per week $300.00 (3)Dishwasher: 15 months at $10.00 per week $600.00 (4)Balcony: 7 months at $10.00 per week $280.00 Total $3,520.00 Orders will be made in the above terms. 19The landlord gave sworn evidence in respect of his claim that the tenancy should be terminated on the basis that clause 32 of the lease has been breached by the tenant in that the tenant has sublet the premises. The facts concerning the subletting are described above. Given these facts and, in particular the landlord's awareness of the sub-tenants coupled with his lack of objection, I do not consider the tenant has breached the lease by the first three sub-tenancies. Even if the tenant was in breach, I do not consider the breach to be sufficient to justify termination. S 87(4) of the RTA requires the Tribunal to be satisfied that the breach, in the circumstances of the case, is sufficient to justify termination. I am not so satisfied. However, in August 2013 the tenant moved out and sublet his room. The facts described above concerning the tenant's conversation with the agent and the landlord's lack of objection to subtenancies did not extend to a subtenancy of the whole of the premises with the tenant residing elsewhere. 20I note the tenant claims he has not departed entirely. However, the tenant's decision to sublet his room is in breach of clause 32 and, as stated, I do not think the agent's representations or the landlord's failure to object to the other sub-tenants, excuse the tenant in relation to his decision to give up his own occupation by subleasing the bedroom he had occupied. In other words, in my view, the tenant's decision to sublet his bedroom without the landlord's written permission constitutes a breach of the lease. Clause 32 requires the tenant to obtain the landlord's written permission to sublet. The landlord may not withhold permission unreasonably except where the subletting is of the whole of the premises (clause 32.2) in which case the landlord may refuse permission whether it is reasonable or not. Here the landlord was not asked for permission in respect of the last subtenancy. Had he been asked, he could have refused. Further, the breach is sufficient to justify termination. 21The Notice of Termination was in evidence. There was no issue raised as to its validity or as to its valid service. 22In all the circumstances, the Tribunal is satisfied that the tenant has breached the lease and that the landlord is entitled to an order under s 87 of the Residential Tenancies Act. Orders will be made accordingly. S Westgarth Deputy President Civil and Administrative Tribunal of New South Wales 23 January 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 04 September 2014