Yang v Webster [2018] NSWCATAP 293

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Yang v Webster [2018] NSWCATAP 293 Hearing dates: 11 October 2018 Date of orders: 07 December 2018 Decision date: 07 December 2018 Jurisdiction: Appeal Panel Before: G K Burton SC, Senior Member D A C Robertson, Senior Member Decision: (1) Application for leave to appeal refused. (2) Appeal dismissed. Catchwords: LEASES AND TENANCIES – Residential Tenancies – liability of landlord and agent for loss of property consequent on open inspection – Residential Tenancies Act s 61(2) – onus of proof Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 House v The King (1936) 55 CLR 499 Texts Cited: Nil Category: Principal judgment Parties: Mi Roo Yang and Eddie Park (Appellants) Isabelle Webster (Respondent) Representation: E Park (Self Represented) (Appellants) B Webster (Respondent) File Number(s): AP18/31288 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 29 June 2018 Before: J Ringrose, General Member File Number(s): RT 17/47482

REASONS FOR DECISION 1. The Appellants, Eddie Park and Mi Roo Yang, are respectively the managing agent and landlord of residential premises in Redfern. 2. The respondent, Isabelle Webster, was a tenant of the property along with two other tenants. 3. In July 2017 the tenants gave notice of intention to vacate the premises and Mr Park gave the tenants notice of his intention to hold an open inspection for the purpose of re-letting the property. 4. The inspection took place on 5 August 2017. By that date the tenants other than Ms Webster had, "for all practical purposes", moved out. Ms Webster had packed up her possessions in readiness to vacate the premises but those possessions remained on the premises when Ms Webster left at about midday on Friday, 4 August 2017. 5. Mr Park conducted the open inspection between 9.50 and 10.10 am on 5 August 2017. Two prospective tenants attended the open inspection. 6. Ms Webster returned to the property at about 2.30 pm on 5 August 2017. She noticed that some of her possessions, notably a pink suitcase which she had left on the premises, were missing. She also observed that the rear door to the premises was ajar with the deadbolt activated. There was no sign of forced entry. 7. Ms Webster reported the theft of her possessions to the Police at 2.52 pm that day. 8. Ms Webster brought a claim in the Tribunal against Mr Park and Ms Yang seeking compensation in the amount of $10,865 which she asserted was the current value of the items she had lost. 9. Ms Webster brought her claim pursuant to the provisions of s 61(2) of the Residential Tenancies Act 2010 (NSW) which provides: (2) The Tribunal may, on application by a tenant, order the landlord or the landlord's agent to pay compensation to the tenant for damage to or loss of the tenant's goods caused by any person in the exercise of a power of the landlord or landlord's agent to enter residential premises under this Act or the residential tenancy agreement. 1. The Member found that Ms Webster's possessions had been stolen after the inspection and that the theft occurred by reason of the inspection. The Member found that Mr Park had found the rear door ajar when he arrived for the inspection and that Mr Park left it ajar when he left after the inspection. Mr Park had given evidence to that effect. 2. The Member found that the robbery had occurred after the inspection. The basis upon which the Member so found was set out in paragraphs [44] and [47] of the Member's decision: 44 The Tribunal is further satisfied on the probabilities that the robbery occurred after the open for inspection period. The first reason for accepting this position is the fact that Mr Park could not confirm that the room had been moved around at the time of his inspection and he was not able to confirm that property had been moved about as noted in the police report. Further, if the robbery had occurred during the previous night then one would have expected that the use of credit cards which were stolen would have also been apparent late on the night of 4 August or early on the morning of 5 August. 47 But for the inspection which, it is noted was outside the period authorised for inspections under the Act on a property to be vacated, the person or persons the Tribunal finds to be most likely responsible for the robbery would not have been aware of the goods being conveniently packed in the property and of the access being possible through a door which was ajar and which apparently was not locked at the time when the parties carrying out the inspection were leaving. 1. The Member, on a basis which was not made clear in the decision or evidence, apportioned responsibility for the robbery 50% to Ms Webster and 50% to Mr Park and Ms Yang and awarded Ms Webster $5,432.50 being half the value of the goods which she had lost, in which respect the Member accepted Ms Webster's assessment of value.