Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brookhouse v Sawarsin [2019] NSWCATAP 195 Hearing dates: 22 May 2019 Date of orders: 01 August 2019 Decision date: 01 August 2019 Jurisdiction: Appeal Panel Before: K Ransome, Senior Member A Bell SC, Senior Member Decision: 1. Pursuant to section 80(3) of the Civil and Administrative Tribunal Act 2013( NSW) the appeal is to be dealt with by way of a new hearing. 2. Order 1 made on 12 March 2019 in RT 18/43759 is varied as follows: (a) The landlord, Corinne Brookhouse, is to pay the tenant, Jasmine Sawarsin, the sum of $3,341.92 immediately. Catchwords: APPEAL - Section 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW)- determination of appeal by way of rehearing where no sound recording of the Tribunal hearing available. Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Category: Principal judgment Parties: Corinne Brookhouse (Appellant) Jasmine Sawarsin (Respondent) Representation: C Brookhouse (Appellant in person) J Sawarsin (Agent for the Respondent) File Number(s): AP 2019/13181 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 12 March 2019 Before: G Bassett, Member File Number(s): RT18/43759 REASONS FOR DECISION Background 1. In July 2018 the respondent to this appeal (the tenant) lodged an application with the Consumer and Commercial Division of the Tribunal seeking a refund of overpaid rent and return of the rental bond. The application was made under the Residential Tenancies Act 2010 (the Act) in respect of premises leased from the appellant (the landlord). 2. The landlord did not attend the hearing of the matter and orders were made in her absence. Those orders were subsequently set aside and the matter came before the Tribunal again on 12 March 2019 when orders were made that the landlord pay the tenant the sum of $5,026.86 being for overpaid rent of $2,599.10 and refund of the bond in the amount of $2,427.76. The appeal 1. On 18 March 2019 the landlord lodged an appeal from the decision made on 12 March 2019. An application to stay the original decision was not granted. 2. The landlord seeks leave to appeal on the following grounds: 1. that the decision was not fair and equitable as the tenant was in arrears of rent on the date the premises were vacated; 2. that the decision was against the weight of the evidence which showed the amount in arrears; and 3. that significant new evidence, being bank statements and a log of payments, is now available that was not reasonably available at the time of the hearing. 1. There was no written residential tenancy agreement produced to the Tribunal below and the issues before the Tribunal concerned, amongst other things, the term of the agreement. 2. It is unclear what happened at the hearing before the Tribunal member on 12 March 2019. Unfortunately, due to an equipment malfunction, the sound recording is not available and written reasons were not requested by the landlord or tenant. In addition, the landlord was represented by an agent at the hearing who was not present at the hearing of the appeal. There is no statement or other evidence of that agent before us about what evidence was presented on behalf of the landlord. The tenant was present and was able to give some evidence to the Appeal Panel of what occurred at the hearing. 3. The landlord had, before the Tribunal, argued that money was owed to the landlord from the bond for damage to the premises by the tenant. That claim has been abandoned as the landlord accepts she did not have ingoing and outgoing condition reports to substantiate her claims. We note that the rental bond for the premises was not lodged with Fair Trading as required by the Act. 4. At the hearing of the appeal it was agreed that the only issue in the appeal was whether rent was overpaid or underpaid and, if so, by how much. It was agreed between the parties that the residential tenancy agreement commenced on 12 August 2017 and that the total amount of rent paid during the tenancy was $30,415. It was common ground that the weekly rental was $650 per week. There was no agreement on the date that the tenancy ended and whether, during the tenancy, the landlord had agreed that the tenant deduct from the rent certain amounts paid for repairs. In addition, the evidence of both parties, as reflected in the documents submitted by the landlord, is that the bond was for $2,600, not $2,427.76 as set out in the Tribunal's orders of 12 March 2019. 5. In circumstances where, through no fault of the appellant, there is no record of what occurred at the hearing in the Tribunal and no record of the reasons for the orders made by the Tribunal, we have decided that the just course is for the appeal to proceed by way of a new hearing pursuant to section 80(3) of the Civil and Administrative Tribunal Act (NSW). 6. We directed the parties to provide any written submissions and supporting evidence relating to the date the tenancy ended and any amounts paid by the tenant for repairs which were agreed to be deducted from the rent. It was agreed by the parties that the remaining issue on appeal would be determined on the basis of the evidence previously filed and the further written material provided to us. 7. Both parties provided further written submissions and supporting evidence to us. Consideration 1. We note that the landlord in her written material filed after the directions made at the appeal hearing now seeks to argue that the respondent to the appeal was not a party to the residential tenancy agreement and therefore has no standing before the Tribunal or the Appeal Panel. That argument is inconsistent with the agreement reached by the parties at the appeal hearing as to the remaining issue, which we have recorded. It also goes beyond the scope of the leave which we gave to provide further evidence and submissions on the agreed remaining issue. The tenant states that she and her husband were co-tenants. To support her argument that the tenant's husband was the sole tenant, the landlord has provided a copy of a tenancy application dated 17 July 2017 signed by the respondent's husband. The landlord also refers to this document as the lease. The document is clearly not a residential tenancy agreement and we see no need to amend the leave which we granted so as to allow this issue to be raised now. When did the tenancy end? 1. The landlord states that the tenancy did not end until 19 July 2019, while the tenant maintains it came to an end on 5 July 2018 which was the day she vacated the premises. 2. The tenant is at a disadvantage in the proceedings as she does not have relevant documents in her possession as these are kept by her husband from whom she is estranged as a result of domestic violence. It also appears that the landlord has not kept appropriate records concerning the tenancy. The state of the evidence is therefore poor at best and, in some respects, is contradictory. 3. According to the rent record report provided by the landlord the last rent payment was made on 5 July 2018 which took the rent up to that date. The report records that the "vacate date" was 19 July 2018. We note the report was generated on 15 March 2019 which was well after the tenancy ended. The evidence of the tenant is that the rent ledger was not produced at the Tribunal hearing. We accept the tenant's evidence in this regard. 4. The evidence concerning termination of the tenancy is unsatisfactory. The landlord has provided a copy of a text message dated 28 June 2018 which she states was from the tenant and contains a screen shot of an email the tenant sent her the day before stating that she and her husband were giving three weeks' notice to vacate the premises. This would make the vacate date 19 July 2018. The landlord has also provided a copy of what she states are text messages between her and the tenant. The first is dated 9 July and is a message from the landlord to the tenant in which she states "we will be keeping the exit date as 19th sorry I just landed home after have fly interstate...". The next message is from the landlord to the tenant dated 16 July in which the landlord states "Just wanted to touch base last day is 19th July 2018 if you could please drop the keys to … no later than 5pm 19/07/18 we will be doing a final inspection the 20/07/18". The tenant appears to reply "No worries" the next day. 5. There are no other messages or other documents before us to indicate what prompted the landlord after having returned home from interstate to send the text message on 9 July 2018 in which she stated she would be keeping the vacate date at 19 July 2018. 6. We note that the tenant is a protected person under a domestic violence order issued against her husband. Division 3A of Part 4 of the Act sets out how a tenant or co-tenant may terminate a tenancy in circumstances of domestic violence. Section 105C of the Act provides that a domestic violence termination notice may be given by a tenant or co-tenant and must specify a termination date that is on or after the day on which the notice is given. Evidence of domestic violence must be attached to the termination notice. A copy of the relevant domestic violence order made against the relevant domestic violence offender is a document that constitutes such evidence (s 105C(2)(b)). 7. The tenant states that she gave notice to terminate the tenancy on the advice of victims support services at the court because of the domestic violence order. She has not provided a copy of the notice she states she gave to the landlord. The evidence of the tenant is, however, that she moved out of the premises on 5 July 2018 and that she started paying rent in her new premises from 7 July 2018. We accept that those dates are correct. The tenant points out that the landlord's bank records show that on 9 July 2018 a payment of $650 was made to the landlord by a new tenant in respect of the premises. 8. In her evidence provided to the Appeal Panel the landlord has provided a copy of the final apprehended domestic violence order issued against the tenant's husband in respect of the tenant and her children. The landlord has not stated how she came to have a copy of the order in her possession. The only plausible explanation is that she was provided with a copy of the order by the tenant. That, combined with the fact that there must have been some correspondence from the tenant to the landlord which prompted the landlord on 9 July 2018 to respond that "we will be keeping the exit date as 19th", leads us to find that, at some time after 28 June 2018 and before 5 July 2018, the tenant in fact gave notice to the landlord in accordance with s 105C of the Act that she would be vacating the premises on 5 July 2018. 9. As noted in s 105G of the Act the right to terminate a tenancy in circumstances of domestic violence is in addition to any other right of a tenant to terminate a tenancy. A later notice to terminate in circumstances of domestic violence would supersede any previous notice to terminate on other grounds. We note that the notice given by the tenant on 28 June 2019 did not refer to domestic violence. 10. We therefore find that the tenancy commenced on 12 August 2017 and ended on 5 July 2018. The total rent payable during the tenancy at $650 per week was therefore $30,458.08. Repairs to the premises 1. The rent ledger produced by the landlord and her bank statements record that there were two short payments of rent – one of $450 on 22 September 2017 and another of $65 on 3 April 2018. Otherwise, payments of $650 were made in relation to all other periods set out in the ledger. The landlord claims that rent of $650 should have been paid on each of these occasions and therefore the short payments reflect an underpayment of rent of $785 for those periods. The tenant, on the other hand, states that, with the approval of the landlord, she and her husband carried out repairs to the premises and deducted the monies paid for the repairs from the rent due. 2. The tenant has provided copies of text messages which support her contention that she and her husband paid for certain repairs, including to an antenna and oven door, which the landlord agreed could be deducted from the rent payment. The otherwise regular payments of rent do not show a pattern of underpayment of rent and we accept the evidence of the tenant that the two short payments were made with the agreement of the landlord in respect of repairs paid for by the tenants which were otherwise the responsibility of the landlord. Conclusion 1. The tenant has also raised a new claim in the material filed in accordance with the directions we made at the hearing. She states that she and her husband paid two weeks rent in advance at the commencement of the tenancy that was not recorded by the landlord. The tenant agreed at the hearing before us that the total amount of rent paid was $30,415 and it is not now open to her to dispute that amount. In any event there is no evidence before us of an additional amount having been paid. 2. In summary therefore, the amount the tenant was required to pay during the tenancy, taking into account the agreed deductions for repairs of $785, was $29,673.08. She in fact paid $30,415 leading to an overpayment of rent in the amount of $741.92. The landlord therefore owes the tenant $3,341.92 which comprises return of the bond of $2,600 and refund of overpaid rent of $741.92. OrderS 1. Pursuant to section 80 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) the appeal is to be dealt with by way of a new hearing. 2. Order 1 made on 12 March 2019 in RT 18/43759 is varied as follows: 1. The landlord, Corinne Brookhouse, is to pay the tenant, Jasmine Sawarsin, the sum of $3,341.92 immediately. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 01 August 2019