Jurjieian v Rajal [2015] NSWCATCD 112

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jurjieian v Rajal [2015] NSWCATCD 112 Hearing dates: 13 August 2015 Decision date: 09 September 2015 Jurisdiction: Consumer and Commercial Division Before: P French, General Member Decision: 1. Ms Shanele Joseph is added as an Applicant.

2. Mr Samir Rajal is added as a Respondent.

3. The Respondents, Mr Ali Rajal and Mr Samir Rajal are to pay the Applicants, Mr Daron Jurjieian and Ms Shanele Joseph, $1,600.00 within seven days of the date of these Orders, being a full refund of the Applicants' rental bond. Catchwords: RESIDENTIAL TENANCY – rental bond, not paid to rental bond services, claim for breach of the agreement, early termination of fixed term agreement, unpaid electricity charges, unpaid water usage, damage to property, failure to remove rubbish Category: Principal judgment Parties: Daron Jurjieian in person (applicant) No attendance (respondent) File Number(s): RT 15/45567 Publication restriction: Nil

REASONS FOR DECISION 1. This is an application by Mr Daron Jurjieian (the tenant) for orders from the Tribunal that will require Mr Ali Rajal and Mr Samir Rajal (the landlords) to repay to the tenants the whole of the Rental Bond. This application was made to the Tribunal on 30 July 2015. 2. The tenant brings this application on his own behalf and on behalf of another tenant, Ms Shanele Joseph, who attended the hearing with Mr Jurjieian and indicated her consent to Mr Mr Jurjieian acting on her behalf. For the purpose of the orders the Tribunal will make in the proceedings, Ms Joseph will be added as a party. 3. At the commencement of the hearing of the matter, the tenant advised the Tribunal that he sought to amend his application include a further claim for compensation in relation to the landlord's alleged breach of tenant's quiet enjoyment of the tenancy. 4. The Tribunal indicated to the tenant that it would be prepared to grant leave for such an amendment to be made, but this amended claim would need to be served on the landlords before the matter could be dealt with. The tenant decided not to make this application at this time so that his claim in relation to the rental bond could be dealt with at this listing of the matter. 5. Neither Mr Ali Rajal nor Mr Samir Rajal attended the hearing. The tenant's application only refers to Mr Ali Rajal as Respondent and the notice of the hearing was only sent to Mr Ali Rajal. The Tribunal notes the address of both landlords is the same. The tenant gave sworn evidence that his only dealings were with Mr Ali Rajal, who he assumed always acted on behalf of both landlords. 6. On 3 August 2015, the Registry received an email from Mr Ali Rajal requesting an adjournment of the listing of the matter until after 7 November 2015 on the basis that he would be leaving Australia on 4 August 2015 and not returning until after that date. This request was dealt with by another Member of the Tribunal on 3 August 2013. The request was refused on the basis that the period of adjournment requested was unreasonably long. Mr Ali Rajal was given leave to appoint someone to attend in his absence, or in the alternative, was advised to provide a written submission to be relied upon at the hearing in the absence of an attendance. 7. Mr Ali Rajal's correspondence to the tribunal does not refer at all to Mr Samir Rajal. It proceeds on the basis that Mr Ali Rajal is the only person capable of responding to the tenant's application. It is impossible for the Tribunal to know what Mr Samir Rajal's circumstances are. He may be living or dead. He may legally capable of responding to legal proceedings or not. He may be in Australia or traveling with Mr Ali Rajal. 8. Section 36 of the Civil and Administrative Tribunal Act 2013, requires the Tribunal to facilitate the just, quick and cheap resolution of the real issues in dispute in a proceeding. It also requires the Tribunal to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. 9. This application is a simple and small residential tenancy claim. It does not warrant orders for the exchange of evidence or a special hearing. There would be a substantial injustice to the tenants if the hearing of the application were to be delayed, in that, prima facie, they are entitled to the prompt return of their rental bond after the date they gave vacant possession of the rented premises. The tenant's application ought to be dealt with to finality at its first listing. 10. On the evidence before it, the Tribunal was satisfied that the Respondent had been properly served with notice of the hearing by Notice dated 31 July 2015. That Notice included the following warning: "It is important that you are on time as the Tribunal may decide the matter in your absence. The decision made will be binding upon you." The importance of the landlords' participation in the hearing in person, by a representative, or on the basis of the filing of written submissions and evidence was also communicated to the landlords in the Tribunal's decision of 3 August 2015. 11. Specifically on the question of Notice to Mr Samir Rajal, the Tribunal was comfortably satisfied on the evidence before it, that at all material times, Mr Ali Rajal acted for the landlords on his own behalf and as agent for Mr Samir Rajal. Alternatively, or additionally, if that was not the case, Mr Ali Rajal should have arranged for Mr Samir Rajal to represent the landlords at the hearing in response to the Tribunal's order of 3 August 2015. 12. The Tribunal therefore determined that the tenant's application would be dealt with in the absence of the landlords. 13. For the purposes of the orders to be made by the Tribunal in these proceedings Mr Samir Rajal will be added as a party to the proceedings. 14. Mr Ali Rajal did not file any further evidence or submissions with the Tribunal following the Tribunal's order refusing his request for an adjournment. However, he did make brief submissions and file some evidence in response to the tenant's application with his request for an adjournment. This evidence is an electricity bill dated 6 August 2015 for $954.46 which was addressed to Mr Ross Tilsed at the rented premises and a water bill dated 27 May 2015 for $392.30 addressed to a person at the rented premises. The name of the addressee has been removed from the copy submitted to the Tribunal. Mr Ali Rajal's evidence and submissions have been considered by the Tribunal. 15. The tenant filed written submissions and a folder of documents in support of his application. The documentary evidence was a copy of the Residential Tenancy Agreement between the parties, email correspondence between the tenant and Mr Ali Rajal, a copy of a proposed new Residential Tenancy Agreement between the parties that was to continue the tenancy from the previous agreement, text messages between the tenant and Mr Alai Rajal and a copy of the electricity account which was also included in Mr Ali Rajal's evidence. 16. On the basis of the evidence before it, the Tribunal is satisfied that it has jurisdiction to deal with the tenant's application. The application arises from a Residential Tenancy Agreement in standard form made on 18 March 2015 and commencing on 23 February 2015. It was for a fixed term of six months ending on 23 August 2015. The rent payable under the terms of the Agreement was 400.00 per week. The tenants were required to provide the landlord with a rental bond of $1,600.00. 17. The tenants vacated the rented premises on 29 July 2015 and on 30 July 2015 contacted Rental Bond Services seeking the return of their rental bond. Rental Bond Services advised that no bond had been lodged in respect of the tenancy. The tenants then made a demand upon the landlords for the return of their rental bond. The landlords refused to do so. Later that day this application was filed with the Tribunal. 18. The rental bond is the property of the tenants and it must be returned to the tenants at the end of a tenancy unless and until the landlords can establish a right to some or all of the bond money by proving loss or damage as a result of conduct in the course of the tenancy for which the tenants are liable. The landlords bear the onus of proof in any claim upon the tenants' rental bond: Volfneuk v McCardle (2002) NSWCTTT 260. 19. In his letter to the Tribunal Mr Ali Rajal claims that he is entitled to the whole of the tenants' rental bond on the following bases: 1. The tenants breached the fixed term agreement by vacating the premises prior to the end of the term of the Agreement, and without providing notice of termination; 2. The tenants failed to pay an electricity bill for the rented premises in the amount of $954.46 which he had to pay; 3. The tenants have failed to pay for water usage owed in respect of the rented premises in the amount of $392.30; 4. The tenants have caused damage to the rear door and locks of the rented premises; 5. The tenants left rubbish at the rented premises at the time they vacated, which had to be removed.