Abdel- Messih v Mahfoudi & Rouanet

[2017] NSWCATCD 10

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Abdel- Messih v Mahfoudi & Rouanet [2017] NSWCATCD 10
Hearing dates:	12 January 2017
Decision date:	06 February 2017
Jurisdiction:	Consumer and Commercial Division
Before:	M Eftimiou, General Member
Decision:	1. The application is dismissed.
Legislation Cited:	Residential Tenancies Act 2010
Cases Cited:	Kenny v Killalea [2015] NSWCTAP 66
Category:	Principal judgment
Parties:	Bishoy Abdel-Messih (applicant) Ryhad Mahfoud Mahfoudi and Julien Andre Pierre Rouanet (respondents)
File Number(s):	RT 16/51625
Publication restriction:	Nil

REASONS FOR DECISION

1. By application filed on 26 November 2016, the applicant sought orders pursuant to section 187(1)(c)(h) of the Act. The applicant stated as the reasons for seeking the Orders, that the respondents were refusing to pay the remaining bond and fortnightly rent.

2. On 9 December 2016 the application was adjourned at the request of the applicant. Leave was granted to amend the claim to seek the following orders:

1. An order pursuant to section 106 that the respondents had abandoned the property.

2. An order pursuant to section 107 that the respondents pay a break lease fee of $3000.00.

3. An order that the respondents pay $300 for replacement security swipe key.

3. The Tribunal ordered the applicant to serve upon the respondents a copy of the residential tenancy agreement together with evidence from the owners corporation of loss in regards to the security keys and any other evidence that he sought to rely upon prior to the next hearing.

4. The Tribunal ordered that the respondents are to be served by substituted service by sending a notice of hearing to their email addresses.

5. On 13 December 2016 a Notice of Hearing was sent to the parties advising them that the matter was set down for Conciliation and Hearing /Group List on 12 January 2017 at 1.15pm.

6. On 12 December 2016 the Tribunal received email correspondence from the respondents setting out some of the issues that they had experienced with the premises and with the applicant. The respondents were advised to seek independent legal advice about their rights and options.

7. The Tribunal received an email from the respondent, Julien Roouanet, on 12 January 2017 advising that his employer would not allow him to leave work early to attend the hearing and requesting that the matter be stood down the list until 2.30pm to allow him to attend.

8. The matter was stood down the list until 3pm. There was no appearance by the respondents.

9. The Tribunal determined that the matter should proceed to hearing. There was no reasonable explanation for the respondents’ failure to attend by 3pm. There was no evidence before the Tribunal as to why Ms Mahfoundi had not attended. An email was received late on 14 January 2017 from the respondent advising that he was not able to attend the hearing as his employer would not give him leave.

10. The applicant sought to rely on a submission handed to the Tribunal at the hearing. The applicant was sworn and the Tribunal accepted the submission as the applicant’s sworn evidence in relation to the dispute.

11. In addition the applicant sought to rely on the following documents:

1. Residential Tenancy Agreement;

2. Weekly Cleaning Roster;

3. TICA Privacy Disclosure Form;

4. Email Correspondence between the parties;

5. Receipt of payment of money;

6. Condition Report; and

7. Notice to remedy breach (Form 11).

BACKGROUND

12. On 14 November 2016 the applicant entered into a fixed term residential tenancy agreement with the respondents commencing on 14 November 2016 and ending on 14 February 2017. The rent was $500 per week for bedroom 1 in the premises. A rental bond was paid by the respondents to the applicant.

13. The applicant is a tenant under a separate residential tenancy agreement for the same premises. The applicant sublets rooms in the premises under separate residential tenancy agreements, where he is named as the landlord. The applicant runs a business of subletting rooms in various premises in the central business district of Sydney, where he is named as the head tenant of a residential tenancy agreement.

14. On 29 November 2016 the respondents forwarded an email to the applicant setting out a number of issues in relation to the premises and requesting that he carry out repairs. The list of repairs included: electrical issues, the washing machine, microwave and television not working; mould in the bathroom; the sink and shower leaking and the internet not working.

15. The applicant emailed the respondents on 30 November 2016 requesting that they “elaborate on what needs repairing” and requesting that “try to provide photos/evidence also if possible”.

16. On 30 November 2016 the respondents notified the applicant requesting that he meet them in person and sign a letter giving them consent to vacate. The applicant refused to meet the respondents.

17. On 3 December 2016 the respondents sent to the applicant a “Notice to Remedy Breach”.

18. The applicant became aware that the tenants had vacated the premises on 8 December 2016.

19. The applicant now seeks an order that the respondents have abandoned the premises: an order for a break lease fee of $3000.00 and an order for Compensation of $300 for 2 unreturned swipe keys.

JURISDICTION

20. The Tribunal is satisfied that there is a residential tenancy agreement between the parties and the Tribunal has jurisdiction to hear and determine the claim.

ISSUES

1. Did the respondents abandon the property on 8 December 2016?

2. Is the applicant entitled to a break lease fee?

3. Is the applicant entitled to compensation of $300 for unreturned swipe keys?

Is the Notice that was issued to the applicant on 3 December 2016 a Valid Termination Notice

21. The applicant gave sworn evidence that he accepted that the ‘Notice to Remedy Breach’ that he received by email from the respondents on 3 December 2016 was an intention by the respondents to terminate the tenancy.

22. The applicant submitted that the notice was not a valid notice because:

1. The notice did not comply with sections 87 and 223 of the Act.

2. The notice did not comply with Section 98(2) of the Act.

3. The applicant did not breach the residential tenancy agreement.

23. A residential tenancy agreement terminates only in the circumstances set out under the Residential Tenancies Act 2010. Relevantly s81(2) provides that a residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises. The tenant does not need to make an application to the Tribunal to terminate the tenancy. This differs from a situation where a landlord must bring an application to the Tribunal if the tenant does not vacate the premises after the serving of the termination notice.

1. The applicant submits that the Termination Notice does not comply with section 87 of the Act. This argument is misconceived as Section 87 of the Act refers to a Termination Notice issued by a landlord not a tenant.

2. The applicant submits that the termination notice is not valid because it does not comply with sections 223 and 98(2) of the Act.

24. Section 223 sets out the procedure for the service of notices or other documents under the Act. The applicant submits that as the notice was sent by email it does not comply with section 223 of the Act and is therefore not a valid notice.

25. Section 223 relevantly provides that a Notice that is required by the Act to be given to any person may be given or served by:

(i) Delivering it to the person personally, or

..

(ii) delivering it in an envelope addressed to the person and leaving it in a mailbox at the person’s residential or business address, or

(iv) sending it by post to the address specified by the person for the giving or service or documents…

(v) sending it by facsimile transmission….

..

Nothing in this section affects the operation of any provision of a law or of the rules of a court authoring a document to be served on a person in any other manner.

26. Section 223 deems a document to be served in certain circumstances. Section 223 however does not preclude a document from being served by email.

27. In the NCAT Appeal Panel Decision Kenny v Killalea [2015]NSWCTAP 66 the Appeal Panel found that s113 of the Residential Tenancies Act gives to the Tribunal a broad discretion to make a termination order or any other order it if thinks appropriate in the circumstances of the case and if it is satisfied that the person to whom the notice was given has not suffered any disadvantage. It is open to the Tribunal to find that the serving of a notice by email does not of itself render the notice invalid if the provisions of section 113 are relied upon.

28. For the reasons outlined below it is not necessary for the Tribunal to determine whether the service of the notice by email renders the notice invalid.

SECTION 98

29. Section 98 provides that a tenant may give a termination notice on the ground that the landlord has breached the residential tenancy agreement.

30. Section 98(2) provides that the termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given.

31. The respondents advised the applicant on Friday 29 November 2016 of their intention to vacate the premises due to the breach of the agreement by the applicant. The respondents tried unsuccessfully to arrange a meeting with the applicant to address these issues. The applicant on his own evidence refused to meet with the respondents. On 3 December 2016 the respondents emailed the termination notice to the applicant. The date of vacant possession on the notice was 10 December 2016. It is clear that the notice does not give to the applicant 14 days’ notice of the date of vacant possession. The applicant became aware that the respondent’s had vacated the property on 8 December 2016. The notice does not comply with section 98(2) of the Act.

32. The Tribunal finds that the notice issued by the respondents to the applicant does not comply with section 98(2) of the Act. The notice does not specify a termination date that is not earlier than 14 days after the day on which the notice is given.

DID THE RESPONDENTS ABANDON THE PROPERTY ON 8 December 2016?

33. The Tribunal finds that the respondents abandoned the property on 8 December 2016. The Tribunal is satisfied that the respondents were in a fixed term agreement with the applicant commencing on 14 November 2016 and ending on 14 February 2017. The Tribunal has found that the termination notice issued by the respondents to the applicant on 3 December 2016 was not a valid termination notice as it does not meet the requirements of section 98(2). The Tribunal is satisfied that the applicant became aware on 8 December 2016 that the respondents had abandoned the property. The applicant was advised by other residents in the premises that the respondents had left the property. The applicant took back possession of the respondents’ room on 8 December 2016.

34. The Tribunal makes an order declaring that the respondents abandoned the residential premises on 8 December 2016.

IS THE APPLICANT ENTITLED TO A BREAK LEASE FEE pursuant to section 107 of the Act?

35. Subject to the exercise of the Tribunal’s discretion (section 107(1)) of the Act to order compensation for abandonment before the end of the fixed term of the Agreement, the applicant by reason of printed condition 41 of the Agreement (s 107(3)) is entitled to compensation by way of a break fee in an amount equal to 6 weeks rent (s107 (4) of the Act.

36. The Tribunal may on application by a landlord, order a tenant to pay compensation to the landlord for any loss (including loss of rent) caused by the abandonment of the residential premises by the tenant.

37. The Tribunal has a discretion to determine whether any compensation is payable to the landlord for any loss.

38. The applicant has advised the Tribunal that he is not seeking compensation for loss of rent as he has kept the respondents rental bond money. The applicant is seeking a break lease fee of $3000.00.

39. For the reasons that follow the Tribunal determines that it is not appropriate in the particular circumstances of this case for the Tribunal to order the respondents to pay compensation to the applicant by way of a break fee in the amount of $3000.00 or any lesser amount.

40. The respondents have provided information that they vacated the property due to the applicant’s failure to maintain and repair the premises. The notice of breach that was issued to the applicant by the respondents states that he has breached condition 18 and 19 of the Residential Tenancy Agreement. Clause 18 and 19 of the Agreement refers to the landlord’s general obligations under the agreement. The following information has been provided by the respondents in relation to breach of the agreement:

1. There was no internet connection in the premises.

2. The bathroom ceiling is totally mouldy.

3. The sink and shower leaks in the bathroom

4. The carpet is “totally disgusting”

5. The washing machine does not work

6. The microwave does not work

7. The television does not work

8. There is no ventilation in the bathroom

9. There is an electrical problem in the premises, with the circuit switch tripping if the lights and power switch are turned on at the same time.

41. The applicant gave evidence that he did not attend the premises to inspect the issues raised by the respondents. The reasons given by the applicant in not attending the premises were that:

1. He wanted the respondents to provide him with additional information.

2. None of the previous tenants had complained about these issues.

42. Section 63 of the Act sets out the landlord’s general obligation to maintain residential premises in a reasonable state of repair. Section 52 also states that a landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation. The Act provides that a landlord is to ensure that premises are clean and the landlord has a continuing obligation to maintain and repair the premises.

43. In circumstances where the issue relates to common property of the strata scheme, the landlord has a duty to use such rights as the landlord holds to compel the owners corporation to take action to remedy defects in the landlord’s tenanted premises, including taking action against the owners corporation under the Strata Schemes Management Act 1996 (Lee v Fuzessery (201)CTTT)). This is the consistent approach taken by the Tribunal in circumstances where the owners corporation refuse to carry out repairs that impact on the tenancy agreement that the landlord has with the tenants. This position is supported by Master Harrison in Reiss V Helson [2001]NSWSC486 where he upheld a decision of the Tribunal to the effect that inaction by the owners corporation is no defence to a claim against a landlord for failure to repair.

44. The obligation to maintain and repair found in section 63 of the Act is one of strict liability. This duty to maintain and repair is dependent upon the landlord being given notice of the need to carry out the repair and a reasonable time to carry out the repair. The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that the landlord had notice of the need for the repair and the landlord failed to act with reasonable diligence to have the repairs carried out.

45. The Tribunal finds that the applicant was on notice of the need for the repair and the applicant failed to act with reasonable diligence to have the repairs carried out. The applicant was not able to provide evidence of any steps that he has taken to inspect the property and carry out any repairs that may have been necessary. The applicant has not inspected the property and for example arranged a licensed tradesperson to inspect the electrical issues raised by the respondents or a licensed builder or plumber to inspect the water leaking and mould issues. The Tribunal finds that the applicant failed to act with reasonable diligence to inspect the premises and to identify what if any issues were required for him to address to ensure that he has complied with his strict obligations pursuant to section 62 of the Act.

46. The applicant submitted that the respondent’s had a remedy pursuant to section 63 to seek repairs to the premises. The respondents are not bound to rely on section 63 to seek repairs. A tenant is entitled to issue to the landlord a termination notice pursuant to section 98 and is not bound to seek an order pursuant to section 63 of the Act.

47. The Tribunal finds that the applicant took little steps to investigate the claims made by the respondents in relation to the issues that they were having with the premises. The Tribunal finds that the applicant refused the requests by the respondents to meet him to try and resolve the dispute. In the exercise of its discretion under section 107 of the Act, the Tribunal determines that it is not appropriate in the particular circumstances of this case for the Tribunal to order the respondents to pay compensation to the applicant by way of a break fee.

48. The applicant has provided no evidence of any loss that he has suffered by the respondents not returning the security key. The Tribunal directed the applicant to provide evidence from the owners corporation in relation to being charged for the security keys that were not returned. No evidence has been provided by the applicant. This part of the claim is dismissed.

49. The Tribunal gave to the applicant an opportunity to amend the claim during the hearing to seek rent arrears. The applicant advised that he had retained the respondents’ bond money and did not wish to amend the claim and to seek an order for rent arrears.

50. The Tribunal gave to the applicant an opportunity to seek an adjournment to submit additional material to the Tribunal. The applicant declined the opportunity to seek an adjournment. The Tribunal gave to the applicant an opportunity to make written submission to the Tribunal after the hearing. The applicant declined the opportunity to make any further written submissions.

51. After the hearing was completed the Tribunal received email correspondence from the applicant where he has purported to amend the claim and or to provide additional evidence.

52. The applicant was not given leave at the end of the hearing for the filing of any additional written submissions or evidence. Further, no leave was given to the applicant to amend the claim. The applicant declined the opportunity to amend the claim and or to file additional submission or evidence that was given to him at the hearing. It would not be procedurally fair for the Tribunal to allow the applicant to now amend the claim without giving the respondent an opportunity to respond.

53. The hearing was closed and the application to re-open the hearing and submit additional evidence is refused. The applicant was given an opportunity at the hearing to amend the application, submit additional evidence, and or to provide written submission and it was declined. No reasonable explanation has been provided by the applicant as to why the hearing should be re-opened or why he should be given an opportunity to submit additional evidence after the hearing has been completed.

M Eftimiou

General Member

Civil and Administrative Tribunal of New South Wales

6 February 2017

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

Decision last updated: 31 March 2017