Barkat v Sun

[2022] NSWCATCD 46

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Barkat v Sun [2022] NSWCATCD 46

Hearing dates:

7 March 2022

Date of orders:

10 March 2022

Decision date:

10 March 2022

Jurisdiction:

Consumer and Commercial Division

Before:

P French, Senior Member

Decision:

(1) The application is dismissed.

Catchwords:

LAND LAW — Residential Tenancies Act 2010 — Discretion to declare that an agreement is a residential tenancy agreement — Discretion to order a landlord to enter into a written residential tenancy agreement

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Barkat v Sun [2021] NSWCATAP 327

Texts Cited:

Coronavirus (COVID 19) Temporary Changes to NCAT Operations procedure (18 March 2020 and as subsequently updated)

Category:

Principal judgment

Parties:

Mark Barkat (First Applicant)
Rubina Barkat (Second Applicant)
Zechao Sun (First Respondent)
Aiqing Xu (Second Respondent)

Representation:

First and Second Applicant (Self-represented)
D Wang (First and Second Respondent)

File Number(s):

RT 21/44010

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by Mark and Rubina Barkat (the tenants) for orders under ss 11 and 16 of the Residential Tenancies Act 2010 (RT Act) that would, respectively, declare that an agreement under which they occupy premises is a residential tenancy agreement within the meaning of s 13 of that Act, and which would require Zechao Sun and Aiqing Xu (the landlords) to prepare and enter into a written residential tenancy agreement with them in accordance with the terms of an oral agreement they say was concluded on 26 July 2020. This application was made to the Tribunal on 17 September 2020 (the application).

2. I note that at the time the application was made, the tenants also sought orders pursuant to ss 111 and 115 of the RT Act in relation to an end-of-fixed-term termination notice that had been issued to them by the landlords on 13 July 2020 under s 84 of the RT Act. On 10 May 2021 the landlords made an application to the Tribunal for a for a termination order based on that termination notice. The Tribunal dismissed that application on 2 June 2021 on the basis that the application has been made outside the time period permitted by s 83(2)(a) or the RT Act Regulation 39(4)(a), which is within 30 days after the date for termination specified in the notice. Consequently, nothing remains in relation to this element of the dispute.

3. On 25 November 2021 the landlords issued the tenants with a termination notice under s 85 of the RT Act which required them to return possession of the premises on 1 March 2022. The tenants have not done so. On 7 March 2022 the landlords made an application to the Tribunal for a termination order based on that notice which is listed for Conciliation and Hearing on 28 March 2022. It is not before me for determination.

Procedural history

4. The present application was originally heard and determined by the Tribunal, differently constituted, on 18 February 2021. In short summary, and relevantly to issues before me for determination now, the Tribunal declined to find that the parties had entered into a new fixed term agreement of 12 months duration on or about 26 July 2020 and proceeded to make orders for termination and possession based on the termination notice dated 13 July 2020 even though there was no application before it made by the landlords at that time for a termination order. The Tribunal’s orders were the subject of a successful appeal: Barkat v Sun [2021] NSWCATAP 327 which set aside the orders for termination and possession and remitted the tenants’ application redetermination by a differently constituted Tribunal.

5. The remitted application was listed before the Tribunal, differently constituted, for a Directions Hearing on 5 November 2021 which was conducted by telephone in accordance with NCAT’s COVID-19 Revised Hearing Procedure. Both parties were represented at that Directions Hearing. In accordance with the Tribunal usual practice the Tribunal attempted to assist the parties to resolve the dispute cooperatively by conciliation. Those efforts were not successful. As a consequence, the Tribunal gave directions to the parties for the filing and exchange of the documentary evidence they intended to rely upon at the Special Fixture Hearing.

Evidence and hearing

6. The tenants have responded to those directions by filing a bundle of documents on 29 November 2022. This bundle was marked Exhibit A1. The landlords have not filed any evidence in response to the Tribunal directions.

7. The Special Fixture Hearing was conducted in a Virtual Meeting Rooom (VMR) in accordance with NCAT’s COVID-19 Revised Hearing Procedure. Mr Robbie Barkat, who is the tenants’ son, attended the hearing on the tenants’ behalf accompanied by Mr Mark Barkat. Mr Robbie Barkat gave evidence under affirmation. Mr Dennis Wang who is the landlords’ Managing Agent’s Property Manager, attended on the landlords’ behalf. He gave oral evidence under oath. The parties had the opportunity to present their respective cases, to ask each other questions, and to make final submissions to the Tribunal.

The issues to be determined

8. By their application under s 11 of the RT Act the tenants ask the Tribunal to make an order declaring that there is a residential tenancy agreement subsisting between themselves and the landlord to which the RT Act applies. This application is misconceived. There is no issue that there is a residential tenancy agreement subsisting between the parties to which the RT Act applies.

9. Although neither party has put any of the apparently 3 written fixed term agreements that have subsisted between them into evidence it would appear from the oral evidence given by both Mr Robbie Barkat and Mr Wang that the first agreement commenced on or about 8 February 2017. Neither Mr Barkat nor Mr Wang knew what the term of that agreement was. It is not in issue that the last written fixed term agreement entered into by the parties had a 12-month term commencing on 1 August 2019 and ending on 31 July 2020. It was in relation to this agreement that the landlords issued the tenants with an end-of-fixed term termination notice under s 84 of the RT Act on 13 July 2020.

10. There is a dispute between the parties as to whether the tenancy continued after 31 July 2021 on the basis of a new 12-month fixed term agreement or on a periodic basis (or at least there was at one time in these proceedings). However, on either basis, a residential tenancy agreement subsisted between the parties. I therefore decline to make the order sought under s 11. There is no foundation for it. There is no issue that a residential tenancy agreement to which the RT Act applies has subsisted between the parties from on or about 8 February 2017 up to the present.

11. By their application under section 16(1) of the RT Act the tenants ask the Tribunal to order the landlords to prepare and enter into a written residential tenancy agreement to give effect to an oral agreement they contend was made for a further 12 months fixed term commencing on 1 August 2020 and ending on 31 July 2021. This was the gravamen of the dispute between the parties in the original proceedings. The landlords originally disputed that such an oral agreement was made. However, Mr Wang informed the Tribunal that this is no longer contested. That is, the landlords now concede that such an agreement was made orally. In the absence of any dispute, the Tribunal therefore makes that finding. An oral agreement was made on 26 July 2020 for a further fixed term of 12 months duration commencing on 1 August 2020 and ending on 31 July 2021. It follows from this that the tenancy has continued on a periodic basis after the end of that fixed term, being from 1 August 2021. Neither party contend that there was any form of agreement (that is oral or in writing) for any further fixed term beyond that date.

12. Having reached that conclusion, the issue is whether it is an appropriate use of the discretion conferred by s 16 to require the landlord to prepare and enter into a written fixed term agreement with the tenants in respect of the period 1 August 2020 to 31 July 2021. I am not satisfied that it is. There is no longer any dispute as to such an agreement having been made or as to its terms. A residential tenancy agreement may be oral without its oral form affecting any tenant or landlord right or obligation. The period of the fixed term ended more than 7 months ago. There is therefore no utility in such an order being made. While such an order may vindicate the tenants, Mr Wang’s concession is a sufficient vindication of their position in my view. The s 16 discretion is to be exercised judicially where there is proper cause. There is no proper cause for the exercise of the discretion remaining now.

13. The tenants contend that the Tribunal ought to use the power conferred by s 16(2) of the RT Act to require the landlords to prepare and enter into a new fixed term agreement of 12 months duration commencing from the date these proceedings are determined. They contend that the Tribunal should do so because they did not receive ‘unencumbered’ quiet possession of the premises during the 12-month term commencing on 1 August 2020. In this respect they point to the proceedings they were obliged to institute in the Tribunal to resist the landlords’ s 84 termination notice (the present proceeding in its original form), the deficiencies in the Tribunal’s original determination of those proceedings, the necessity of pursuing an appeal against that first instance determination, the delay in the Appeal Panel issuing its decision on this appeal, and the landlords failed attempt to obtain a termination order by the application made on 10 May 2021. They contend that these matters have resulted in a prolonged period of stress and distress.

14. Late in the course of his presentation, the tenants’ representative, Mr Robbie Barkat, contended that these matters resulted in a breach of the tenants’ right to quiet enjoyment of the premises, contrary to s 50 of the RT Act. In the absence of any written residential tenancy agreement in evidence I note that s 50 is made a term of every residential tenancy agreement by operation of s 50(4) that Act.

15. Section 16 provides the Tribunal with power to bring certainty to residential tenancy agreements where such uncertainty exists, consistent with the objective rights and obligations of a tenant and landlord found in the terms of the RT Act. The primary considerations in bringing such certainty are what the parties have agreed in relation to the tenant’s occupancy of premises as may be ascertained or inferred from the objective and surrounding circumstances.

16. The bringing of such certainty may, in a particular case, also bring some peace to a tenant consistent with their right to quiet enjoyment. In the present case, had such an order been made in the terms sought by the tenants in the original proceedings, it would have prevented the landlords acting on the notice they had issued under s 84 of the RT Act on 13 July 2020. But that is now all in the relatively distant past as I have explained above.

17. The discretion conferred by s 16 does not provide the Tribunal with licence to impose upon the parties any idiosyncratic notion of justice whether to penalise a landlord in relation to conduct of which it disapproves or to salve a tenant who has suffered an ordeal. For this reason, the discretion cannot be exercised to impose a term of the agreement on the parties which has no foundation in anything they have negotiated or have sought to negotiate in the past.

18. Other than in the way I have described, s 16 is not a remedy for a breach of a tenant’s right to quiet enjoyment. Those remedies are found in s 187 of the RT Act and arise from an application made under s 190 of that Act. Such an application must be made with 3 months of the applicant becoming aware of the alleged breach (section 190(1) of the Act and Regulation 39(9) of the Residential Tenancies Regulation 2019) unless the time for the making of the application is extended under s 41 of the Civil and Administrative Tribunal Act 2013. There is no such application before me today. In any event, it appears to me that the events in question all occurred significantly before the 3-month period within which an application containing such claims could be brought to the Tribunal, although I do determine that issue here.

19. For the foregoing reason, I refuse to make any of the orders sought by the tenants.

Orders

20. For the foregoing reasons:

1. The application is dismissed.

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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: 17 May 2022