KOLE MURGOSKI AND DANICA MURGOSKI -v- WILLS PARTNERS PTY LTD TRADING AS H T WILLS & CO [2014] NSWCATAP 82

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: KOLE MURGOSKI AND DANICA MURGOSKI -v- WILLS PARTNERS PTY LTD TRADING AS H T WILLS & CO [2014] NSWCATAP 82 Decision date: 13 November 2014 Jurisdiction: Appeal Panel Before: Hon Graham Mullane, Senior Member Ms Christine Paul, Senior Member Decision: 1. The Appeal of Cole Murgoski and Danica Murgoski against the decision of the Consumer & Commercial Division of the Tribunal of 3 June 2014 is dismissed. Legislation Cited: Residential Tenancies Act, 2010 Consumer Claims Act, 1998 Category: Principal judgment Parties: KOLE MURGOSKI AND DANICA MURGOSKI (Appellants) WILLS PARTNERS PTY LTD TRADING AS H T WILLS & CO (Respondent) File Number(s): AP 14/46459 (AP 14/0281) Publication restriction: Nil Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-06-03 00:00:00 Before: F E Gray General Member File Number(s): Gen 14/05556

reasons for decision

INTRODUCTION 1The Appellants owned a residential property in Punchbowl. The parties entered into an exclusive agency agreement on 11 May 2013 appointing the Respondent as the exclusive agent for the sale of the property ("the sale agreement"). 2The parties entered into an exclusive management agency agreement on 23 July 2013 ("the management agreement") for the Respondent to manage the property for the Appellants. The Respondent located tenants, David and Feda Bowens, and they entered into a Residential Tenancy Agreement with the Appellants to lease the property for 6 months from 26 July 2013 for $500 per week. They paid a bond of $2,000 which was deposited with the Rental Bond Board. 3It is common ground that neither party informed Mr & Mrs Bowens before they entered the lease that the property was for sale. Section 26 of the Residential Tenancies Act, 2010 ("the Act") required the landlord to disclose to the tenant the proposed sale of the property before the tenant entered into the lease if a contract for the sale had been prepared. 4Subsequently, Mr Bowens became unemployed and his wife faced serious financial difficulty. Mrs Bowens wrote to the Respondent on 19 September 2013 advising that she and her husband wished to terminate the lease on 18 October 2013 because Mr Bowens had lost his job. She proposed that a friend of theirs take over the leasing of the property at the same rental from 19 October and gave details of the proposed replacement tenant, who was married, without children and in full time employment as a telecommunications engineer. 5The Tribunal found that the Appellants had "entered into an agreement to sell the premises before the Residential Tenancy Agreement was entered into", and that the Respondents notified the landlords after the letter of 19 September 2013 that they were terminating the lease pursuant to s.100 of the Act. 6Section 100 of the Act provides: 100 Early termination without compensation to landlord (1) A tenant may give a termination notice for a fixed term agreement on any of the following grounds: (a) that the tenant has been offered, and accepted, accommodation in social housing premises, (b) that the tenant has accepted a place in an aged care facility or requires care in such a facility, (c) that the landlord has notified the tenant of the landlord's intention to sell the residential premises, unless the landlord disclosed the proposed sale of the premises before entering into the residential tenancy agreement as required by section 26, (d) that a co-tenant or occupant or former co-tenant or occupant is prohibited by a final apprehended violence order from having access to the residential premises. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement. (4) The tenant is not liable to pay any compensation or other additional amount for the early termination of the agreement. 7The Respondent gave the appellants notice on 17 October 2013 terminating the management agreement . 8The tenants vacated the property on 22 October 2013 and paid rent until then. The tenants subsequently took proceedings against the Appellants in the Tribunal regarding the bond. Correspondence for the Appellants from the Tribunal in relation to the Application of the tenants was sent to the Respondent by post addressed to the Appellants at care of the Respondent at its address. It appears there was no appearance by or on behalf of the Appellants at any stage of the bond proceedings. The tenants were successful in obtaining orders for the whole of the bond to be paid to them and it appears that it was.