Strachan v Gabriel [2017] NSWCATCD 18

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Strachan v Gabriel [2017] NSWCATCD 18 Hearing dates: 16 January and 14 February 2017 Decision date: 21 March 2017 Jurisdiction: Consumer and Commercial Division Before: Margaret Mary McCue, General Member Decision: 1. The applicant is entitled to an order for payment of the whole of the bond. The Rental Bond Board is directed to pay to the tenant the whole of the bond.

2. The respondents are to pay to the applicant the sum of $ 1,120.00 on or before 31 March, 2017, in addition to monies payable at order 1. Catchwords: Applicants' entitlement to a refund of all monies paid to the respondent; vacant possession of premises at the commencement of the lease Legislation Cited: Part 5, Schedule 4, Civil and Administrative Act, 2013; Residential Tenancies Act 2010 ["the Act"]; Cases Cited: Waterhouse v Waugh [2003] NSWCA 139 (2 June 2003); Cook v Taylor [1942] Ch 349, 352 Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264 at 270-271 Category: Principal judgment Parties: Rebecca Strachan (applicant) Shane Paul Gabriel and Kerrie Lee Gabriel (respondents) Representation: Applicants: In person Respondent: Mr Christopher Storey File Number(s): RT 16/46032 Publication restriction: Nil

REASONS FOR DECISION

Application 1. Initially, this matter came before the tribunal for hearing on 16 January 2017. 2. On that occasion, Mrs Strachan gave evidence in relation to her application seeking an order for the recovery of the rental bond pursuant to section 175, as well as an order pursuant to section 47, seeking repayment of other rental payments made by the tenant contrary to the Act or the Residential Tenancy Agreement. 3. The respondents opposed the application. The respondents seek recovery of a break lease fee pursuant to the terms of the residential tenancy agreement where the tenant has terminated the lease during a fixed term. 4. Each party was directed to serve their documents as evidence in support of their respective cases. 5. After hearing some initial evidence in the applicant's case on 16 January 2017, the applicant said that she had not been served with the respondents' documents. In those circumstances, Ms Welsh, one of the respondents' agents, gave short evidence regarding the service of the documents. 6. The tribunal was satisfied that the documents had been served on Mrs Strachan's current address. Notwithstanding this, in stark contrast to that evidence, Mrs Strachan gave evidence that she had not received the documents. 7. The tribunal accepted the truthfulness of both versions of events. Mindful of the underlying sentiments of the Act, the Tribunal was persuaded that the applicant was somewhat disadvantaged; Mrs Strachan had not had an opportunity to consider the respondents' documents prepared to advance its case. 8. The matter was stood-over over part-heard to allow Mrs Strachan to be re-served with the documents and for her to consider the documents prior to the next hearing date scheduled for 14 February 2017.