Henry (previously Holyman) v G and S Houston [2015] NSWCATAP 158

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Henry (previously Holyman) v G and S Houston [2015] NSWCATAP 158 Hearing dates: 6 July 2015 Date of orders: 30 July 2015 Decision date: 30 July 2015 Jurisdiction: Appeal Panel Before: Mr L.P.Robberds QC Senior Member Ms T. Simon Senior Member Decision: Subject to question of costs, appeal dismissed. Catchwords: Alleged repudiation of lease by a co-tenant – alleged acceptance by landlords – did disclaimer occur – apprehended violence order obtained by one co-tenant against the other co-tenant – what effect, if any, did that have on the lease Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancy Act 2010 Texts Cited: Carter on Contract Category: Principal judgment Parties: Karin Henry (previously Karin Holyman) (Appellant) Greg Houston and Sylvie Houston (Respondents) File Number(s): AP15/32912 Publication restriction: No Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 6 May 2015 Before: D Charles, Tribunal Member File Number(s): RT14/52310

REASONS FOR DECISION 1. On 24 October 2014, Greg and Silvie Houston, as landlords, lodged with the Tribunal an application for termination and possession for non-payment of rent, against Craig Holyman and Karin Holyman as tenants, for residential premises at xxxxxx Saratoga NSW, the subject of a residential lease agreement between the parties. 2. The Tribunal Member who heard the application, accepted the evidence relied upon by the landlords, except that he reduced by 15% the amount claimed for the cost of replacement of damaged flooring. The order made by the Tribunal Member was that Ms Henry and Mr Holyman pay to the landlords the sum of $9,583.25 immediately. In calculating that sum, the amount of the bond of $1,780, paid under the lease, was credited against the amount otherwise payable. 3. On 14 May 2015, Ms Henry lodged in the Tribunal a notice of appeal which showed the representative details as a person from the Central Coast Community Legal Centre and the Tenants Advice and Advocacy Service. The notice of appeal challenged the order that Karin Henry and Craig Holyman pay the landlords the sum of $9,583.25 immediately. 4. The grounds of appeal were as follows: 1. The Tribunal made an error of fact in finding that co-tenancy as it related to Karin Henry was not terminated by the agreement of the landlord. 2. The Tribunal made an error of law in not finding that co-tenancy as it relation (sic) Karin Henry was not terminated by disclaimer pursuant to sec 81 (4) (g) of the Residential Tenancy Act 2010 (the Act). 3. The Tribunal made an error of law in finding that Karin Henry (previously Holyman) was jointly and severally liable to the landlord. 1. The hearing of the appeal was conducted by telephone with Ms Henry representing herself and Mrs Houston representing herself and her husband Greg Houston. No one from the Central Coast Community Legal Centre, the Tenants Advice and Advocacy Service or the Women's Domestic Violence Court Advisory Service sought leave to represent Ms Henry even though she stated in effect that one or more of those organisations were treating the appeal as a test case. 2. The manner in which the appeal was argued came down to three main questions: 1. Should Ms Henry be permitted to rely upon additional evidence which was not before the Tribunal Member; 2. Did Ms Henry repudiate the tenancy; and 3. If she did, did the landlords accept that repudiation (see par 81 (4) (g) of the Act). 1. Ms Henry sought to tender additional evidence on the hearing of the appeal. The additional evidence was identified by Ms Henry as an email sent to her on 28 July 2014 at 5.20pm and her reply sent on 29 July 2014 at 9:53:21am. They were marked for identification 1. 2. During the hearing of the application before the Tribunal Member, the co-tenant, Craig Holyman did not appear nor was he represented. 3. During that hearing Ms Henry tendered the following two emails: An email which she sent to [email address xxxx] on 28 July 2014 at 1.47pm. The subject was shown as Website Enquiry. The message was as follows: "Comments: RE Rental xxxx Saratoga I require my name to be removed from the lease as above immediately. I called your office a few weeks ago and was told a form would be sent out. I have still not received same. I have an AVO against Craig Holyman which has been breached I have removed my property via police recovery order. I moved out 17.3.2014. THIS IS URGENT remove my name from the lease immediately, Karin Henry Full Name: Karin Henry Email Address: [email address xxx] Phone Number: [telephone number xxx] The copy of this email which was tendered had the digit 3 written over the digit 4 in the date. It appears that the date typed in the email was 17.4.2014. Century 21 was the agent of the landlords and the email address to which Ms Henry sent that email was apparently the email address of the sales department of Century 21. 1. The second email which was tendered by Ms Henry showed that it was from the sales department of Century 21 at Kincumber with an email address [as in par 9 above]. It was sent to "Rentals" on 28 July 2014 at 1.59pm. The subject was shown as: FW: Website Enquiry. There was no message in the email. 2. During the hearing of the appeal, the Appeal Panel asked Ms Henry to state what was the repudiation that she relied upon for the purpose of par 81 (4) (g) of the Act. Her response was that it was the email which she sent on 28 July 2014 at 1.47pm. 3. Ms Henry was asked to state what was the acceptance of the repudiation which she relied upon for the purpose of par 81 (4) (g) and she stated that it was the email sent to her on 28 July 2014 at 5.20pm, referred to in par 7 above and which was marked for identification. 4. That email was in the following terms: "Dear Karin Thank you for your email today regarding altering the names on the lease for xxxx Saratoga. I have spoken with the Landlord and they have requested further information. They want to know if the children have vacated also or are they still residing at the premises and any other information that may have an affect (sic) on the well being of the property. They also require us to carry out an inspection of the premises to ensure there has been no damage caused due to you vacating. We will arrange an inspection with Craig as soon as possible. I apologise for the delay." It was sent by Leo Francis of Property Management Century 21 EastCoast Properties, with an email address, [email address xxx]. 1. 14 The other email which was part of the document marked for identification was an email from Ms Henry dated 29 July 2014 sent at 9:53:21am and in it she stated that the children were shared, that she had left since 17.4.2014 (which was altered in writing by changing the 4 to 3). It stated that she had a final AVO against Craig Holyman and could not cohabitate. It stated that Craig was also on an 18 month good behaviour bond re death threats against her which he recently breached. She stated: "I require my name off the lease immediately".