Saoud v Puckeridge [2015] NSWCATCD 142

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Saoud v Puckeridge [2015] NSWCATCD 142 Hearing dates: 19 December 2014, 9 July 2015, 2 September 2015 and 12 October 2015 Decision date: 01 December 2015 Jurisdiction: Consumer and Commercial Division Before: C Campbell, General Member Decision: 1. Application is dismissed. Catchwords: Termination; possession; abandonment Legislation Cited: Residential Tenancy Act 2010; Texts Cited: S.106 Residential Tenancy Act 2010 Category: Principal judgment Parties: George Saoud (applicant) Shirley Puckeridge (respondent) Representation: Solicitors:Mr Panicker for the applicant; Mr Heatherington for the respondent File Number(s): RT 15/32903 Publication restriction: Nil

reasons for decision 1. There are two applications filed by the landlord: 1. RT 14/56043 is an application for orders for termination and possession of the premises based on rent arrears owed by the tenant, and an order for the payment of rent arrears; and 2. RT 15/32903 is an application for termination and possessions of the premises on the ground of abandonment. 1. Both parties were legally represented at the hearing. Both parties filed their evidence. No witnesses were called to give evidence, in either of the applications. 2. I am satisfied that the lease entered into between the parties is a twenty year residential tenancy agreement commencing on the 10 August 2010 and the Tribunal has jurisdiction to make the orders sought in the application. 3. I propose to deal firstly with the application for termination on the grounds of rent arrears owing as this was filed first in time. 4. The matter has a rather long history in the Tribunal. The first application was filed on the 17 November 2014. On the 19 December 2014 an Interim Money Order was made in favour of the landlord for rent arrears owed from 28 September 2014 to 19 December 2014 in the sum of $4,219.53. The evidence in both matters was completed on 9 July 2015. 5. Although the issue of capacity was not raised at any time by the tenant's legal representative, I formed the view on the medical material before me that there was a history of the tenant having severe dementia with episodes of delirium. And if she was incapable of understanding the nature of the proceedings or the nature of the orders which may be made against her, then any decision I made would be liable to be set aside ex debito justitae. 6. Accordingly, a guardian ad litem was appointed in accordance with s.45(4)(a) NCAT Act 2013 7. By way of background the tenant had been a protected tenant in her former premises. These premises were the subject of a large development and on 30 July 1997 the tenant entered into a relocation agreement with the developer Feldscher Pty ltd (which later changed its name to Jackson Landing Development Pty Ltd). The tenant agreed to relocate to the new premises, which are the subject of these applications, and relocate back to the original address at the completion of the redevelopment. Under Clause 4. of the relocation agreement the terms and conditions under which she occupied the old premises were to continue to apply. 8. However, Clause 4 is prefaced by a proviso which states: "Provided Mrs Puckeridge substantially complies with her obligations under this agreement." 9. There is no direct evidence before me as to what happened. But it is suggested that the tenant became friendly with some of the developers and decided that she did not wish to relocate to the former premises. Rather, she decided she wanted to remain at the new premises. It was after she made that decision the new 20 year lease was executed on 10 August 2010. 10. The relocation agreement was discharged by the parties entering into a new agreement, resulting in the current lease. It follows from this that any agreement that her protected tenancy status may be revived upon her return to the former premises became subsumed in the new agreement. 11. The developer subsequently sold the premises to the applicant. 12. There was an argument raised by the tenant at the commencement of the proceedings, that the registration of the lease on title under the Real Property Act 1900 ("RPA") preserved her rights as a protected tenant. This argument was abandoned, as the tenant conceded that the protected status relates the premises rather than the tenant. In other words, a protected tenancy cannot be transferred to new premises. 13. The lease was registered and the rent was nominated in the lease as $60.00 per week. The document signed by both parties is a standard form residential tenancy agreement. The lease also states the tenant is to be the sole occupant of the premises. 14. The landlord put before the Tribunal a statement dated 24 February 2015. He states that in or about October 2012 he received a complaint from the tenant's neighbour, that the tenant's son and another family member were living at the property, and had thrown meat over the back fence and the police were called. 15. The landlord said he contacted the tenant and she agreed there were other family members living at the property. The landlord said it was agreed between them, that the other family members could remain at the property, but the rent would increase to $400.00 per week. I accept this evidence, which has not been contradicted. 16. On 5 November 2012 the landlord's agent sent by post to the tenant a notice of rent increase, which informed the tenant the rent was to be $400.00 from 12 January 2013. I am satisfied this notice is valid for the purpose of s.41 of the Residential Tenancy Act 2010 ("RTA") 17. The rent ledger shows that from 12 January 2013 various sums of money were paid for the rent, but certainly, there were no regular payments of $400.00 per week. On 22 July 2013 the landlord served the tenant with a notice of termination for rent arrears owing at that date. Following service of that notice the arrears were brought up to date. 18. The landlord says, and this is confirmed in a file note from the agent and by the ledger, that in early 2013 the tenant made contact and said she was struggling to pay $400.00 per week. 19. According to the agent and the landlord it was agreed the rent was to be reduced to $365.00 per week from 18 January 2014. The rent payments continued to be paid on a regular basis up to 16 August 2014. Thereafter, there was only one further payment of $600.00 which was paid after the service of the second Notice of Termination, which is the subject of this application. 20. On the 14 November 2014 the landlord served a Notice of Termination on the tenant for non-payment of rent, in accordance with s. 88 of the Act. The notice of termination was posted to the tenant. The deemed date of service is the 20 November 2014. As at the 20 November 2014 the rent ledger shows the rent was paid to 13 September 2014, with an in-hand amount of $238.33. So the rent was effectively paid to the 17 September 2014. 21. Accordingly, I am satisfied the tenant was more than 14 days in arrears as at the date of service. Attached to the Notice of Termination was a typed document from the agent, informing the tenant of the rent arrears owing up to the date of service and also informing her that if the money was paid up or if she was having difficulty paying to contact the office to discuss a payment plan. There is no evidence before me, of the tenant ever requesting the landlord to consider a payment plan for the arrears. 22. I am satisfied on the evidence before me the tenant frequently failed to pay rent on time as there had been no rent payment made since 16 August 2014. That payment meant the rent was paid up to 17 September 2014. For these reasons I find the Notice of Termination is valid. 23. The tenant's legal representative argued the RTA does not apply to this lease, as it was a registered lease. So as far as is material s.42 RPA provides: S. 42 Estate of registered proprietor paramount (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: (a) … (d) a tenancy whereunder the tenant is in possession or entitled to immediate possession, and an agreement or option for the acquisition by such a tenant of a further term to commence at the expiration of such a tenancy, of which in either case the registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected: Provided that: (i) The term for which the tenancy was created does not exceed three years, and (ii) in the case of such an agreement or option, the additional term for which it provides would not, when added to the original term, exceed three years. (2) In subsection (1), a reference to an estate or interest in land recorded in a folio of the Register includes a reference to an estate or interest recorded in a registered mortgage, charge or lease that may be directly or indirectly identified from a distinctive reference in that folio. (3) This section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section. 1. I have formed a view the argument is misconceived. This is twenty year lease, it is not a lease for three years or less, which provides a statutory exception to provide an indefeasibility of title. This twenty year lease was registered in accordance with the terms of the RPA (see Registered Dealing AF943734P; and Title Search of Folio 2/1010016). The lease is an "estate" recorded on the Folio to which the registered proprietor's title is "subject": S.42(1). When a standard form of residential tenancy agreement is used, in accordance with Schedule 1 of the RTA, then Reg 4(2) to the RTA , provides a lease of more than three years must be registered under the RPA (this lease complied with this provision). But this requirement for registration, does not alter or vary the operation of the provisions of the RTA, S.42(3) RPA notwithstanding. The lease operates according to its own terms, and in the case of a residential lease, the terms of RTA. Section 42(3) RPA does not have the legal effect contended for on behalf of the tenant. The tenant's rights as such are governed by her lease. 2. In addition to the standard terms of the residential tenancy agreement, the parties agreed to a number of "additional terms" which were reduced to writing. The tenant relies on one of these additional terms, to support her argument that the rent increase was invalid and the grounds for termination were invalid. For completeness I will recite the relevant special condition clause: The landlord and tenant enter into this agreement with the intent that: (i) This agreement will terminate if, before the expiry of 20 years : A Mrs Puckeridge dies; or B Mrs Puckeridge permanently cease to be reside at the premises (ii)… (iii) Whilst Mrs Puckeridge resides at the premises under this agreement the rent will be fixed at $60 per week and will not be reviewed 1. S.20 of the RTA provides a statutory basis for the variation of certain mandatory terms in long term leases of twenty years or more. However s.20(2) specifically prohibits the modification or exclusion of certain mandatory terms S. 20 Mandatory terms may be varied for long term leases (1) A fixed term agreement for a fixed term of 20 years or more may: provide that terms that would otherwise be included in the agreement by this Act or the regulations (mandatory terms) do not apply, or are varied as provided by the agreement, and (b) include terms that would otherwise be prohibited by this Act or the regulations. (2) However, any such agreement must not exclude or modify any of the following: any term included by this Act relating to the payment of rates, taxes and charges by the landlord, (b) the prohibition against more than one rent increase a year under a fixed term agreement for a fixed term of more than 2 years, (c) any right under this Act to make an application to the Tribunal, (d) the grounds on which a residential tenancy agreement may be terminated under this Act, (e) any other term prescribed by the regulations for the purposes of this section. 1. The tenant says the notice of rent increase is invalid, on the grounds it is inconsistent with the 'additional term' to the lease. I reject the tenant's argument on two bases; first, it is not disputed that the tenant breached the agreement by allowing her son and other family members reside at the premises which was inconsistent with the terms of the agreement and in the absence of any evidence to the contrary I accept the landlord's evidence that he reached an oral agreement with the tenant to the effect that she could allow her son and his family to stay at the premises on the basis that the rent be increased to reflect the change of circumstances; and secondly, as already stated I find the notice of rent increase served on the tenant was valid and complied with the provisions of RTA. 2. Under s.41(10) RTA the Tribunal must not make an order that a rent increase is not payable under this section, unless an application for such an order is made no later than twelve months after the rent is increased. The tenant has never filed an application for the Tribunal to make such orders, either within the twelve month period specified in the s.41(10) RTA, or at all. In other words she has never filed an application in the Tribunal challenging the rent increase. 3. The only application filed by the tenant was for orders for repairs, and this was withdrawn. 4. For these reasons I reject the tenant's argument that the notice of rent increase is invalid. I am satisfied that at the deemed date of service of the notice of termination there were rent arrears owed to the landlord in excess of 14 days, and I am satisfied the tenant had frequently failed to pay rent owing. In accordance with s.20(2)(d) the parties cannot amend or alter the grounds on which a residential tenancy may be terminated. 5. For these reasons I find the residential tenancy agreement is terminated and possession is to be given to the landlord. 6. I find there are rent arrears of $365.00 per week owing to the landlord from 20 December 2014, which is the day after the Interim Money Order was made, to date in the sum of $17,780.70. I note this amount exceeds the jurisdictional limits of the Tribunal, and I will decline to make an order for rent arrears. 7. I turn now to the second application RT 15/32903, which is an application for termination and possession on the grounds of abandonment. Having already decided the tenancy is terminated and possession is to be given to the landlord, I will only make brief comments as to what I would have found if the rent arrears application were unsuccessful. 8. The parties put on extensive evidence and submissions in relation to this application. 9. The landlord relies in part on the Annexure "A" to the residential tenancy agreement, and in particular under the heading TERM in the annexure, the following paragraph: The landlord and the tenant agree that, for the purpose of 9(c) above the tenant will be deemed to have permanently ceased to reside at the premises if: … (b) Mrs Puckeridge does not reside at the premises for a continuous period of three months except if the reason that Mrs Puckeridge does not reside at the premises for a continuous period of three months is her non-permanent hospitalisation, respite or nursing home care. If the landlord reasonably requests her to do so, Mrs Puckeridge must provide medical evidence to the landlord that her hospitalisation, respite or nursing home care is non-permanent. 1. For the reasons given above s.20(2) RTA, prohibits the Tribunal from making an order for termination on any ground other than that specified in the Act, notwithstanding any agreement to vary or modify the RTA. 2. S. 106(4) states: In determining whether a tenant has abandoned the residential premises the Tribunal may consider (but is not limited to considering) the following: (a) The failure by the tenant to pay rent under the residential tenancy agreement, (b) Any evidence the tenant no longer resides at the premises, © Any failure by the tenant to carry out any obligations relating to the residential premises under the residential tenancy agreement 1. In support of the application the landlord relied on the following: 1. Statement from Robin Lowe (the tenant's next door neighbour) dated 06.05.2015. The neighbour said that from his observations the tenant was absent from the property from at least 10.12.14 to the date of the statement. He said a burglar-alarm rang at the premises from 24.04.15 until 29.04.15. The police and fire officers entered the premises to turn off the alarm. They had to force a back door to gain entry. Mr Lowe said he noticed the premises were very messy with rubbish strewn about and a mattress on the floor. 2. Statutory Declaration from Sarah Ajaka, the landlord's real estate agent, dated 3 June 2015. She said that she called at the premises on numerous occasions in excess of 20 times between 27 November 2014 and 2 April 2015 to arrange a routine property inspection. She said she made contact with the tenant's son Anthony, who either denied her access or did not keep any of the appointments which she made. She said on one occasion she went to the property to see if she could arrange an appointment and Anthony was present. She said she noticed belongings on the ground and unopened mail lying around. 3. Statement from the landlord dated 11 May 2015. He says he attended the property nine times from 25 May 2015 to 2 May 2015 and the tenant was not present at the premises on any of the occasions he attended. He said he attended with his brother, who is a carpenter on 2 May 2015 for the purpose of repairing the door which had been forced open by the police. He said he observed rubbish and debris in various parts of the house and a mattress on the floor. 4. Series of photographs showing mess, mail and belongings strewn about 1. The tenant put before the Tribunal a series of documents in support of her assertion that she had not abandoned the premises. For clarity I think it important to set the chronology of events, based on the evidence before me: August 2014 Last rent payment received by landlord 16.11.14 Last bill issued by Telstra to the tenant's address 05.12.14 Son pays one rent payment of $600 (this is after the application was filed) 17.12.14 Tenant falls and is taken to RPA Hospital 24.12.14 Tenant discharged from RPA moves in with her son 09.01.15 Re-admssion to RPA 23.01.15 Discharged from RPA and moves back in with her son 23.03.15 Final Notice issued by AGL in relation to the supply of gas 29.04.15 NSW police and fire brigade attend premises to stop alarm 29.04.15 Broken glass panel discovered on back door 01.05.15 Notification from Sydney City Council about noise from smoke detector 14.05.15 Application filed in the Tribunal for declaration of abandonment Tenant returns to live at premises 1. The tenant's legal representative said the premises were not as messy as the landlord's photographs indicated. He said the landlord may have "staged" the mess for the purpose of the photographs. On one view, this could also indicate that the tenant is not residing at the property and is unaware of the mess at the premises or who made the mess at the property. These photographs were taken some time in early May 2015. The tenant suffers from dementia and there is no evidence if the items in the photograph belong to the tenant or some other person or persons. 2. What I can see is that there are a number of letters lying on the ground. There is no evidence from the tenant of ongoing services being paid for by her at the property. For example the only telephone bill is from November 2014. The notice from AGL, is described a Final Notice. There is no indicium from these documents to suggest the tenant continued to live at the premises after 23 January 2015 3. The medical evidence before the Tribunal indicates that in August 2013 the tenant was referred to the RPAH cognition clinic for ongoing monitoring. On the 9 January 2015 she was admitted as an in-patient to RPAH with a principal diagnosis of delirium superimposed on underlying dementia. She was discharged on the 22 January 2015. The Discharge summary states : Initially son declining social services and wishes to take mother home. Ongoing social work input deeming from nursing care and allied health input necessary for patient to have personal care at home. Discharge destination ultimately decided as son's residence in Five Dock, who wishes to provide ongoing care, with Mrs Puckeridge content with this arrangement. (Emphasis added.) 1. There is no medical evidence or evidence from an allied health professional stating from what date, if at all, the tenant was fit to return to her own home. Nor is there any evidence from the son which would explain how it was that tenant was by June 2015 fit to return to live at her own home. 2. I am troubled because on the evidence I am satisfied the rent payments stop in August 2014 (apart from one payment made by the son in December 2014 after the notice expired). Thereafter the tenant was admitted several times to hospital. The last discharge clearly states the tenant requires ongoing personal care at home and she is discharged to go and reside at the son's house, not at the premises. 3. Faced with: the evidence of failure to pay rent; the tenant being discharged to her son's house; the evidence from the tenant's neighbour who says she has not seen the tenant since November 2014; the alarm ringing at the premises for a number of days before the NSW Police and Fire Services attend and turn it off on the 29 April 2015; the broken glass panel on the back door; and the photographs which show the premises are in a very untidy and messy state, I would otherwise have been persuaded that the tenant had abandoned the premises, and would make the order sought by the landlord on that ground as well. 4. Doubtless the tenant's family are people who believe they are acting in the tenant's best interests. The tenant's granddaughter was present in the hearing room throughout. Neither she nor her father made a statement, gave evidence or otherwise directly put relevant material before the Tribunal to contradict the landlord's case, as one might have expected had such material been available. 5. There is however other material. When the matter came back on before me on the 2 September 2015 after the appointment of the Guardian ad Litem, the guardian, Ms Johnson, said that she had had a conversation with the neighbour, who expressed some concern for the tenant on the basis that she looked frail. She said the neighbour indicated that the tenant was very thin and was having some meals at the nearby community centre. This, of course, suggests that the neighbour has seen the tenant living at the premises. Ms Johnson asked for an adjournment to enable the Tenant to undergo an ACAT appointment to assess her ongoing needs. At the resumed hearing on 12 October 2015 Ms Johnson said the tenant had not been taken for the assessment. 6. From what the guardian ad litem has told the Tribunal I am satisfied that the tenant is, at least from time to time, residing at the premises. In the face of this evidence I am not actually persuaded on the balance of probabilities that the tenant has abandoned the premises. And accordingly I would decline to make the order sought that she has abandoned the premises, in accordance with s.106 RTA. 7. For the above reasons I make the following Orders: In matter RT 15/ 56043 1. I make an order for termination and possession. 2. The tenancy agreement is terminated from today and possession is to be given on the date of termination 3. The order for possession is suspended until 28 January 2016 4. The tenant is to pay the landlord a daily occupation fee in the sum of $52.14 from the day after the date of termination until the date vacant possession is given to the landlord. 5. Within 60 days from the date of possession specified in these Orders the landlord may request a relisting of the application to determine the amount of occupation fee owing In RT 15/32903 1. The application is dismissed C Campbell General Member Civil and Administrative Tribunal of New South Wales 1 December 2015 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: 13 January 2016