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". Repudiation of a contract 1. A party to a contract repudiates the contract when they clearly indicate an absence of readiness and willingness to perform contractual obligations, satisfying the requirement of seriousness (see Carter on Contract page 88021). 2. Here Ms Henry relied upon her email dated 28 July 2014 in which she said that she required her name to be removed from the lease immediately, as constituting her repudiation of the lease. However that email only indicated that her required result was removal of her name from the lease as opposed to a statement by her that she was no longer ready and willing to perform her contractual obligations under the lease. However, for the purposes of this appeal, we will proceed on the basis that that email did amount to a repudiation by her of the lease. 3. We then turn to consider whether the email to Ms Henry sent by Leo Francis on 28 July 2014 at 5.20pm was an acceptance by the landlords of the repudiation. 4. In our view it is abundantly clear that that email was not an acceptance of the repudiation. There is nothing in the email which speaks of "acceptance" of the repudiation. The email makes it clear that before the landlords will consider altering the names of the tenants on the lease, they want further information. The email also states that the landlords want an inspection to take place and it is clear that they want that inspection to take place before they give consideration to the alteration of the names of the tenants on the lease. 5. We are therefore of the opinion that even if the email dated 28 July 2014 sent by Ms Henry is admitted into evidence and even if it was a repudiation by her of the lease, the landlords did not accept that repudiation. Accordingly the Appeal Panel finds that Ms Henry has not made out ground of appeal number 2. 6. No argument was presented to the Appeal Panel by Ms Henry that ground of appeal number 3 relied upon anything other than par 81 (4) (g). Accordingly that ground of appeal also fails. 7. Ms Henry did not make any submissions to the Appeal Panel concerning ground of appeal number 1. 8. Ms Henry did make submissions that the Tribunal decision was not fair and equitable and that it was against the weight of evidence. 9. Ms Henry also made submissions that she left the premises on 17 March 2014; that the routine inspection report which was completed after the inspection carried out on 4 April 2014, by Century 21, who were new agents, showed that the "tenant/s" was "Craig" and that it concluded with the words: "Retaining wall needs attention, tenant is not worried. See photos attached." 10. Ms Henry also relied upon the fact that a notice of rent increase given by Century 21 on 29 May 2014 was addressed to Craig Holyman only. His name was inserted in that part of the form which required the "name of tenant/s" to be inserted. 11. Ms Henry also relied upon a letter from Century 21 dated 29 May 2014 addressed only to Craig Holyman advising of a rent increase. The submission made by Ms Henry was that those documents showed that she was no longer the tenant and that the landlords agreed that that was the position. 12. However Mrs Houston drew attention to a series of emails between Mr Houston and Century 21 in which reference is made by Mr Houston and employees of Century 21 to tenants (in the plural) as opposed to a tenant (singular). Those emails are dated 30 June and 11 July 2014. There were 3 emails where the word "tenants" is used. There was is a fourth email where the word "they" is used which is clearly a reference to the tenants. 13. The Appeal Panel is of the view that nothing relied upon by Ms Henry shows that the decision of the Tribunal under appeal was not fair and equitable or that it was against the weight of evidence. 14. As we understand it the reason why the emails which have been marked for identification, were not placed before the Tribunal Member was because Ms Henry overlooked them. In our view those two emails are not significant new evidence which has arisen which was not reasonably available at the time the proceedings under appeal were being dealt with (see Civil and Administrative Tribunal Act 2013, Schedule 4 clause 12 (1)). 15. Ms Henry requires leave of the Appeal Panel to appeal in respect of an alleged error of fact. The Appeal Panel can only grant leave to appeal if it is satisfied that Ms Henry may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable, or 2. The decision of the Tribunal under appeal was against the weight of evidence, or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (Civil and Administrative Tribunal Act 2013, Schedule 4 clause 12 (1)). 1. Ms Henry submitted that she left the tenanted premises on 17 March 2014 because of domestic violence and that from that date all correspondence from Century 21 was directed to Craig Holyman and not to her. She submitted that Century 21 and the landlords were fully aware that she was not occupying the premises after 17 March and that because she obtained the AVO, her name should have been removed from the lease. 2. The Appeal Panel is not satisfied that the tenancy was terminated by agreement nor that the landlords knew Ms Henry had left the premises prior to 28 July 2015. The Appeal Panel is of the view that the fact that Ms Henry obtained an AVO, did not mean that her name should have been removed from the lease. 3. For the reasons set out above the Appeal Panel is of the view that none of the matters raised by Ms Henry show that any of the grounds of appeal should be accepted. The Appeal Panel is therefore of the view that the appeal should be dismissed. Costs 1. In their reply to the appeal the landlords requested an order that they be paid $218 being the costs of photocopying documents for the purpose of the appeal. Attached to the reply to appeal is a receipt issued by Paper Pens & Printing dated 2 June 2015 for photocopying totalling $218. This matter was not argued on the appeal. If it is still pressed, the landlords should so inform the Registrar within 10 days from the date of publication of these reasons and if they wish to make any written submissions as to why an order for $218 should be made, then those written submissions should also be filed within 10 days. 2. If such a claim is pressed then Ms Henry should file written submissions in reply within 20 days from the publication of these reasons. At the expiration of that time the Appeal Panel will consider the submissions if any, and will decide on the papers what order, if any, should be made. 3. If submissions on costs are to be filed, they should include submissions on s60 of the Civil and Administrative Tribunal Act 2013 and whether the fact that this appeal was run as a test case, is a relevant matter for the Appeal Panel to take into consideration. 4. Subject to the question of costs, the Appeal Panel orders that the appeal be dismissed. 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: 30 July 2015