Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Loretta Caelli v Robert Cant [2014] NSWCATCD 193 Hearing dates: 11 September 2014 Decision date: 02 October 2014 Before: J Levingston, General Member Decision: 1The respondent is to pay the applicant the sum of $253.75 within 28 days; 2No order as to costs. Catchwords: AGRICULTURAL TENANCY - no written agreement - no condition report - no rent ledger Legislation Cited: Agricultural Tenancies Act 1990 (NSW) ss 5, 12, 13 and 21 Civil and Administrative Tribunal Act 2013 (NSW) ss 28, 36, 38 Civil and Administrative Tribunal Rules 2014 (NSW) rr 31, 32 Category: Principal judgment Parties: The applicant appeared in person Representation: Mr Brigden for the respondent File Number(s): COM 14/04018 Publication restriction: Nil reasons for decision Application 1This is an application by the landowner against the tenant under the Agricultural Tenancies Act 1990 (NSW) (ATA) for arrears of rent (agistment); water usage, slashing; and repairs to gates, fences and yards. Appearances 2Both parties appeared and the application was opposed. The respondent appeared by Mr Brigden Solicitor who was given leave to appear. Legal representation for respondent 3At the hearing, the respondent applied for legal representation by Mr Brigden, Solicitor pursuant to the Civil and Administrative Tribunal Rules 2014 (NSW) ("CATR") r 31 (Application for leave to represent a party). That application was opposed by the applicant on the grounds that she were not represented, parties were not entitled to representation in this hearing, she was at a disadvantage as a lay person without knowledge of legal proceedings; and the solicitor would be able to unfairly influence the Tribunal. 4An examination of the file showed that Mr Brigden had been involved in the respondent's defence and had knowledge of the matter. 5The guiding principle to be applied was whether Mr Brigden was likely to be of assistance to the Tribunal in achieving a 'just, quick and cheap' outcome: Civil and Administrative Tribunal Act 2013 (NSW) ("CATA") s 36 (Guiding principle to be applied to practice and procedure). 6The question of whether leave might be granted for a party to be legally represented in this Tribunal is to be determined by applying the CATA s 38(4), CATA s 45 (Representation of parties); CATR rr 31 (Application for leave to represent a party) and 32 (Granting and revocation of leave for a person to represent party). 7I considered CATR 32 and found that Mr Brigden: (a)had sufficient knowledge of the issues in dispute to enable him to represent the respondent effectively before the Tribunal; (b)had (as a solicitor admitted to practice in the NSW Supreme Court and subject to the ethical obligations of his profession) the ability to deal fairly and honestly with the Tribunal and the applicants; (c)had sufficient authority to bind the respondent; (d)the applicants would not be prejudiced and his appearance would not be unfair to them; and (e)he was likely to assist the Tribunal by bringing focus to the real issues in dispute. 8In the circumstances and pursuant to CATR 32 conditional leave was granted to Mr Brigden to appear at the hearing for the respondent, the condition being that if he ceased to be of assistance to the Tribunal his right of appearance for the respondent would be revoked. The Tribunal had no cause to later revoke Mr Brigden's appearance. Jurisdiction 9This Tribunal has jurisdiction under the ATA s 21, CATA s 28 and Schedule 4 clause 3. The Facts 10The material facts are: (a)The applicant is the owner of a rural property known as Windermere of about 148 acres (the Property). At this time the applicant carried on a business and was registered for GST; (b)The Property was first acquired about 70 years ago by the applicant's grandfather. Fences and gates were repaired from time to time as required, and the yards were believed to be at least 50 years old; (c)The respondent was the owner of cattle which he wished to agist on the Property; (d)On 6 June 2011 the parties made an oral agreement (the Agreement) of no fixed term for the respondent to agist his cattle on the Property. The essential terms of the Agreement were made orally, and there was a draft "Licence for Agistment" produced by the applicant (Licensor) but which was never signed by the respondent (Licensee). The oral terms and unsigned licence together relevantly provided: (i)The Licensor gave the Licensee a "right of grazing"; (ii)The Agreement commenced 6 June 2011; (iii)The agistment rate was $792 (GST included) per month; (iv)The Licensor was to pay all rates, rents, taxes and other impositions, "PROVIDED that the Licensee(s) shall be liable for any such impost ostensibly chargeable against the Licensor(s) by virtue of this agreement"; (v)... (vi)The Licensor was to have all the fencing in good order when the stock enter, and the Licensee was responsible to "...leave all improvements on the said land in the same condition as when they enter the said land, reasonable wear and tear and damage by fire, flood, lightning, storm or tempest excepted." (e)In addition, the parties orally agreed that the respondent would pay the water rates; and the respondent would slash the paddocks prior to Christmas; (f)On 8 June 2011 the respondent paid the applicant three months fees in advance by cheque in the sum of $2,024.00. The respondent also says (which the applicant disputes) he paid $500.00 in cash towards the three month's rent (total $2,520.00); (g)The respondent would pay rent by cheque and the last payment was by a bank transfer, and he would complete a form entitled "tax invoice" (actually a notice of payment to the applicant) recording the payment, exhibit A; (h)During 2013 the Property was flooded and the parties agreed that the respondent would not have to pay one month's fees for April 2013; (i)On 15 May 2013 the respondent recorded in invoice no 187644 that he had paid water of $186.20; (j)Later in 2013 the Property was again flooded, and although there was no agreement the respondent assumed the applicant would allow one month's fees as a result (the applicant denies any agreement on this matter); (k)Late in 2013 the applicant decided to put the Property on the market for sale; (l)On 29 November 2013 the applicant had the Property slashed at a cost of $760, exhibit C; (m)On 20 January 2014 the respondent ceased using the Property and gave vacant possession to the applicant; (n)The applicant had not kept a rent ledger recording payments from the respondent and the best record she had was a summary of bank statements which she said totalled $23,210.00. 11At the end of the hearing the parties were invited to submit evidence of the rent payments, which they did by email to the Registry. The applicant says the receipts totalled $23,210.00 and the respondent says he paid $24,782.20. The difference cannot be reconciled. The respondent has not brought a claim for a refund of any overpayment. 12In providing the rent payments, the respondent's solicitor also took the opportunity to submit further submissions, which were not requested. In my opinion, sending uninvited submissions to the Tribunal without leave or the consent of the applicant is improper and should not have been done. Those submissions have not been read and form no part of the consideration or the Tribunal's determination. The dispute 13The applicant claims unpaid agistment of $594.00; water usage $253.75; slashing $720.00; and the cost of repairs to fences, gates, and yards quoted at $2,705.00; total $4,576.75. 14The respondent says he paid $500.00 cash for agistment and is entitled to a credit for that amount; denies liability for the water usage; slashing; and repairs to the fences, gates and yards. The law 15The purpose of the ATA is to be found in the Long Title and its Objects are in s3, which includes encouragement of written agreements for agricultural tenancies: ATA s 3(b). ATA s 4 (Definitions) defines 'agricultural purposes', 'exercise', 'farm', 'function', ' improvement', 'owner', 'sustainable agricultural production', 'tenancy', tenant' and 'Tribunal'. The Properties exceeded one hectare, was used for an agricultural purpose and a tenancy was created by an oral licence which was never reduced to writing. Part 2 (General rights of tenants and owners) sets outs a regime of the rights and obligations of the parties relevantly in ss 5 (Agreements in writing), 12 (Record of condition of farm), and 13 (Accounts). Part 4 (Dispute resolution and remedies) s 21 (Orders that may be made by Tribunal) sets out a wide range of orders including orders in (3)(a) for payment of money and (f) for compensation. 16The dispute arises for the following reasons: there was no written tenancy or agistment agreement as required by ATA s 5; no record of the condition of the farm, s 12; and the applicant did not keep accounts in the form or style of a rent ledger. 17The applicant has the onus of proving her claims. If she had complied with the requirements of ATA this dispute is unlikely to have arisen. Having regard to the context of the agreement, the applicant's unsuccessful attempt to have the respondent sign the draft agreement (exhibit 1) and the power of the Tribunal in ATA s 5 I find that the oral terms provide the missing (and essential terms) of the draft licence. The licence at (4) requires the respondent to pay all rents and other impositions (amongst other things) and the question is whether water usage comes within rents. However, the respondent's own records show that he had previously paid for water on 15 May 2013 and for that reason I find there was an agreement that he would pay for water and he is liable for $253.75. The parties had agreed that the respondent would do the slashing before Christmas, but this term is imprecise, the applicant's claim for slashing done on 29 November 2013 is almost four weeks before Christmas, it was done without warning to the respondent, and was done because the applicant had put the Property on the market for sale. The claim for slashing at a cost of $720.00 fails. The claim for repairs to the fences, gates and yards is based on an obligation on a tenant to return the premises in good repair at the end of a tenancy, fair wear and tear excepted, which also appears at Licence clause (6). These improvements were old, the respondent had done work to make them serviceable (particularly the yards), there was no condition report as required by ATA s 12 to enable a reconciliation of an ingoing and outgoing condition of these improvements, identification of how and to what extent there was a difference, and whether that difference arose from fair wear and tear and this claim fails. The claim for unpaid rent also fails as there was no accounts ledger as required by ATA s 13, no previous demand for unpaid rent and the applicant's reliance on her bank statements is unsatisfactory. Conclusion 18The applicant is entitled to an order for payment of water in the sum of $253.75, but has failed to prove the balance of her claims on the balance of probabilities and they are dismissed. J Levingston General Member Civil and Administrative Tribunal of New South Wales 2 October 2014 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: 10 December 2014