Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Staver v Pham [2016] NSWCATAP 77 Hearing dates: 21 March 2016 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Appeal Panel Before: L P Robberds QC, Senior Member T Simon, Senior Member Decision: Appeal dismissed Catchwords: Residential Tenancies Act 2010 – termination order – order for payment of arrears of rent – dispute as to whether agreement existed that payment for a bond would be transferred to rent payable Legislation Cited: Residential Tenancies Act 2010 (NSW) Category: Principal judgment Parties: Natalia Staver (appellant) Adrian Pham (respondent) Representation: Appellant – in person Respondent – Mr Sarkissian (agent) File Number(s): AP 16/06438 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 1 February 2016 Before: S De Jersey, General Member File Number(s): RT 16/00215 REASONS FOR DECISION 1. On 4 January 2016 Adrian Pham (the respondent to this appeal) lodged an application with the Tribunal seeking an order that Natalia Staver (the appellant to this appeal) pay to him pursuant to s 187 (1) (c) of the Residential Tenancies Act 2010 (the Act) the sum of $5,840. The application related to residential premises. The application sought a termination order pursuant to s 87 of the Act. The application stated that the termination date was 29 December 2015. The application also stated that the tenant (the appellant) was currently paid to 14 November 2015. 2. The application was heard and determined on 1 February 2016 when orders to the following effect were made: 1. The residential tenancy agreement was terminated in accordance with s 87 of the Act as the tenant had breached the agreement by failure to pay rent in accordance with the agreement. 2. The Tribunal was satisfied in accordance with s 89 (5) of the Act that the tenant had frequently failed to pay rent owing for the residential premises. 3. The residential tenancy agreement was terminated immediately and possession was to be given to the landlord on the date of termination. 4. The order for possession was suspended until 8 February 2016. 5. The tenant should pay the landlord a daily occupation fee at the rate of $104.29 per day from the day after the date of termination, namely 2 February 2016 until the date vacant possession was given to the landlord. 6. The tenant, Natalia Staver was to pay the landlord, Adrian Pham the sum of $8,134.29 on or before 8 February 2016. The reason given for that order was that the rent was in arrears from 16 November 2015 to 1 February 2016 in the sum of $8,134.29. 1. For the reasons set out below the Appeal Panel is of the view that the appeal should be dismissed. 2. Notice of appeal 3. The grounds of appeal in the notice of appeal stated that the rent arrears were not from 16 November 2015 to 1 February 2016, totalling $8,134.29 but from 16 December 2015 — totalling $5,840. 4. In part 6 of the notice of appeal there is a question: "What evidence did you give at the hearing? What documents did you show the Tribunal?". 1. The appellant answered those questions as follows: "I provided my payment with confirmation and signature from Real State (sic) Agent Compass Realty: Jason Li". 1. That statement appears to refer to a document attached to the notice of appeal. However the appellant, during the hearing of the appeal, agreed that that document had not been shown by her to the Tribunal Member and we conclude from what the appellant said that the document was not part of the evidence before the Tribunal Member. 2. The appellant stated to the Appeal Panel that she reached an agreement with the owner of the property that although a bond was payable, the money for the bond would be transferred to the rent payable and that realistically this meant that it was agreed that the appellant did not have to pay a bond. The appellant stated that she gave evidence to this effect to the Tribunal Member. 3. Paragraph 5A of the notice of appeal was completed by the appellant to the effect that the order for the payment of $8,134.29 was wrong and that it should have been for only $5,840. In paragraph 5B of the notice of appeal it was said in effect that the rent arrears were not from 16 November 2015 - $8,134.29 but from 16 December 2015 - $5,840. 4. There was no challenge in the notice of appeal to the findings made by the Tribunal Member that the notice of termination met the requirements of ss 82(1), 82(2), 87(2), 88(1) and 88(3) of the Act and that the notice of termination was a valid notice. 5. Tribunal Member's reasons 6. The Tribunal Member recorded that the respondent's agent had provided the Tribunal with a copy of the residential tenancy agreement, the rent ledger and the notice of termination. Based on that evidence the Tribunal made the findings and orders set out in par 2 above. 7. The Tribunal Member also stated that based on the evidence given on behalf of the respondent, she was satisfied that the tenant had failed to pay all rent due and owing as at the date of the hearing and had failed to give vacant possession of the premises to the respondent. 8. The Tribunal Member also was satisfied that for the purposes of s 87 (4) (b) of the Act, the failure to pay rent on time was sufficient to justify the termination of the tenancy agreement. The Tribunal also noted that there had been a breach by the appellant of the Tribunal's orders, made on 15 January 2016, for the appellant to pay $5,840 by that date. 9. The Tribunal Member recorded that the appellant had contested the application based on her evidence that the personal cheque she presented on 15 January 2016, bounced because the Commonwealth Bank incorrectly acted on the processing of the cheque early. The Member went on to state that whether that was the case or not, the respondent's agent sent a text message to the appellant on 21 January 2016 to advise her that the cheque had bounced and that the appellant had not made any attempts to pay that amount again until the day of the hearing, 1 February 2016, when she arranged a personal cheque for $5,840 to be banked into the respondent's agent's account at 10.46am on the morning of the hearing. It had not been cleared at the time of the afternoon's hearing. 10. The Tribunal Member also made a finding, based on the rent ledger, that the arrears were at least 10 weeks rent as at the day of the hearing and the Tribunal was satisfied that there had been a frequent failure to pay rent on time which also justified an order under s 89(5) of the Act. 11. Because the notice of appeal raised a question whether the Tribunal Member was correct in making an order that the appellant pay $8,134.29, the Appeal Panel sought clarification from the appellant as to the amounts which she alleged she had paid. During that interchange with the appellant she stated that the only payment which she had made was a payment of $5,840 (at the commencement of the lease) and that the personal cheques which she provided to the respondent (or his agent) dated 30 December 2015, 15 January 2016, 1 February 2016 and 15 March 2016 were all cancelled by her. She stated that her bank had informed her that someone had attempted to gain electronic access to her cheque account and advised her to cancel each of those cheques, which she did. 12. Onus of proof 13. The appellant has the onus to prove that there was an agreement to the effect that the money payable for the bond would not be paid for the bond but would be transferred to the amount owing for rent. That allegation is inconsistent with the calculation made by the Tribunal Member as to the amount owing for rent. That amount was calculated by reference to the entries in the rent ledger. In other words the rent ledger does not support the appellant's case on this point. 14. Furthermore we conclude from what is stated in pars 5 and 6 above and from the fact that the appellant did not allege on the hearing of the appeal that she tendered any documentary evidence to prove this agreement, that no such documentary evidence was placed before the Tribunal Member. 15. In those circumstances, we are not satisfied that the calculation made by the Tribunal Member as to the amount owing for rent was wrong. The appellant has not satisfied us that there was an agreement between the parties that the bond money would be transferred to rent. 16. If the alleged advice from the bank was relevant (and we are not convinced it is) the appellant has the onus to prove it was given and that she acted upon it. We note that the appellant did not call any person from the bank to give evidence that this advice was given to the appellant. That fact and the fact that the bank is alleged to have told the appellant on four separate occasions that someone had attempted to gain electronic access to her bank account results in our not being satisfied that these events occurred. 17. But even if the appellant's bank advised her to cancel each of the four cheques referred to above, the fact is that when each of those cheques was cancelled, the appellant still owed to the respondent the increasing amount of the rent. In other words, even if the advice was given and the appellant acted upon it and cancelled the cheques, this did not mean that the appellant was not in breach of the tenancy agreement for failure to pay the rent. 18. Conclusion 19. The Appeal Panel is of the view that the evidence supports the six orders made by the Tribunal Member. The Appeal Panel is not persuaded that any of the grounds in the notice of appeal have been made out. In those circumstances the Appeal Panel is of the view that the appropriate order to be made is that the appeal is dismissed and it makes that order. ********** 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. 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