Barrow v Yu (Residential Tenancies) - [2021] ACAT 68

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BARROW & ORS v YU (Residential Tenancies) [2021] ACAT 68

RT 285/2021
Catchwords: RESIDENTIAL TENANCIES – whether written agreement purported to be a residential tenancy agreement – where agreement required rent to be paid monthly in advance and payment of a bond exceeding 4 weeks rent – where terms inconsistent with the Residential Tenancies Act and therefore void – where agreement found to be unenforceable because parties failed to agree on essential terms – whether, in those circumstances, the agreement is a ‘residential tenancy agreement’ – whether, in those circumstances, the dispute is a ‘tenancy dispute’ – where the ACAT found to lack jurisdiction under the Residential Tenancies Act – where tenants’ cause of action is for money had and received based on a total failure of consideration – where tenants’ alternative cause of action is for recovery of money paid as a result of a mistake – whether application should be characterised as an application “in relation to a contract” – where order made that application be heard and determined as a civil dispute application – lessor ordered to repay first month’s rent paid in advance

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 11, 15, 16, 22, 56, 57
Magistrates Court Act 1930 ss 257, 258
Residential Tenancies Act 1997 ss 6A, 7, 8, 9, 20, 37, 56, 58, 60, 62, 63, 64AC, 72, 76, 77, 83, 85, 101
Residential Tenancies Act 1997 (Reprint 68) standard terms 16, 28

Cases cited:Australian and New Zealand Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26
David Securities Pty Ltd & Ors v Commonwealth Bank of Australia [1992] HCA 48
Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150
Hopkins v Governor-General of Australia [2013] NSWCA 365
McCarthy v Federal Commissioner of Taxation [2013] FCA 715
Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Co Inc. [1994] HCA 54
Progressive Mailing House Pty Ltd v Tabali [1985] HCA 14

List of J. D. Heydon, Heydon on Contract (Lawbook Co., 2019)
Texts cited:J. W. Carter, Contract Law in Australia (LexisNexis Butterworths, 7^th ed, 2018)

Tribunal: Senior Member M Orlov

Date of Orders:  23 July 2021
Date of Reasons for Decision:         23 July 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 285/2021

BETWEEN:
EDWARD BARROW
First Applicant
OLIVER PULSFORD
Second Applicant
ALEX AMBROSI
Third Applicant
CONOR NAKKAN
Fourth Applicant

AND:
HSIAO-I YU
Respondent

TRIBUNAL: Senior Member M. Orlov

DATE:23 July 2021

ORDER

The Tribunal orders that:

The application be heard and determined as a civil dispute application under Part 4 of the ACT Civil and Administrative Tribunal Act 2008.
The respondent must pay the sum of $4,069.19 to the applicants within 7 days of the date of this order by electronic fund transfer into the following bank account:
[Bank details redacted]

………………………………..
Senior Member M Orlov

REASONS FOR DECISION

Introduction

This…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ACAT 68
Decision Date: 23 July 2021

CaseChat Overview and Summary

The case of Barrow v Yu was heard before the ACT Civil and Administrative Tribunal, focusing on the enforceability of a residential tenancy agreement. The dispute arose between the applicant, Barrow, and the respondent, Yu, primarily concerning whether the residential tenancy agreement was unenforceable due to its incompleteness. Specifically, the agreement did not contain terms for the payment of rent and a bond that complied with the Residential Tenancies Act. The agreement included terms for monthly rent to be paid in advance and a bond exceeding four weeks' rent, which were found to be void. Both parties considered these terms essential, leading to the conclusion that the agreement was unenforceable. Barrow had paid the first month's rent under the mistaken belief that a binding agreement existed.

The legal issues before the tribunal were whether the residential tenancy agreement was unenforceable due to incomplete terms and if the tribunal had the authority to order restitution for the mistaken payment of the first month's rent. The tribunal considered whether the terms regarding rent and bond were essential and whether their absence rendered the agreement unenforceable. The tribunal also examined its powers under section 83(1)(c) of the Residential Tenancies Act to order restitution. The tribunal found that the agreement was unenforceable due to the absence of essential terms and had the authority to order restitution for the mistaken payment.

In its reasoning, the tribunal determined that the agreement's terms concerning rent and bond were indeed essential, and their absence made the agreement unenforceable. The tribunal also concluded that it had the power to order restitution for the mistaken payment of the first month's rent. Consequently, the tribunal ordered the respondent to pay the sum of $4,247.35 to the applicant within seven days. This decision underscored the importance of complete and compliant tenancy agreements under the Residential Tenancies Act. The tribunal's order was made under its authority to provide remedies for unjust enrichment resulting from mistaken payments.

Orders

Orders of the court

ORDER

The Tribunal orders that:

1. The application be heard and determined as a civil dispute application under Part 4 of the ACT Civil and Administrative Tribunal Act 2008.

2. The respondent must pay the sum of $4,247.35 to the applicants within 7 days of the date of this order by electronic fund transfer into the following bank account:

2. [Bank details redacted]

………………………………..

Senior Member M Orlov

REASONS FOR DECISION

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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