BRADY v WOODS (Residential Tenancies) - [2019] ACAT 54

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BRADY v WOODS (Residential Tenancies) [2019] ACAT 54

RT 111/2019

Catchwords: RESIDENTIAL TENANCIES – application for termination and possession – whether there was a valid notice to vacate – whether there was a fixed or periodic tenancy – whether the lessor intended to move into the premises – oral residential tenancies agreements
Legislation cited: Residential Tenancies Act 1997 ss 6A, standard term 96
Cases cited: Brambles Holding Ltd v Bathurst City Council [2001] NSWCA 61
Commissioner for Social Housing v Moffatt [2015] ACTSC 4
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988)14 NSWLR 523
Masters v Cameron [1954] HCA 72
Tribunal: Senior Member J Lennard
Date of Orders: 18 June 2019

Date of Reasons for Decision: 18 June 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 111/2019

BETWEEN:
GABRIELLE RUTH CARROLL BRADY
Applicant
AND:
IAN WILLIAM WOODS
Respondent
TRIBUNAL: Senior Member J Lennard

DATE: 18 June 2019

ORDER
The Tribunal orders that:

1. The application is dismissed.

………………………………..
Senior Member J Lennard

REASONS FOR DECISION

1. Ms Brady (lessor) and Mr Woods (tenant) entered into a residential tenancy agreement in relation to premises in Barton, ACT on 16 January 2018. A copy of that agreement was before the Tribunal. The agreement had a fixed term from 29 January 2018 to 28 January 2019, at a weekly rent of $520.00.
2. On 9 January 2019 the lessor, through her agent, wrote to the tenant giving notice of a rent increase to $540 from 1 March 2019. The penultimate paragraph of the letter stated:
As a valued tenant, your lessor would like to take this opportunity to offer you a new tenancy agreement for a further six (6) or twelve (12) months. Please let us know if you would like to take up this offer. Your current fixed term expires on [2]9 January 2019. It is proposed that this renewed tenancy will commence from the date of the rental increase, 1 March 2019.

3. There was a period of negotiation between the tenant and the lessor’s agent.
4. On 18 January 2019 at 10:00am the agent wrote to the tenant and stated:
The owner has responded to your counter-offer, and has considered your position. She would like to retain you as a tenant and have a mutually beneficial outcome. She would like you to sign a two year lease, at the $540.00 per week – but instead of the 4 weeks notice to vacate before January 2020, she would like the standard 6 weeks that is in the tenancy agreement (as in the break lease clause in the tenancy).

5. On 18 January 2019 at 10:32am the tenant wrote to the agent:
In summary, ok with the $540 a week for a new two year lease provided it has a postings clause to cover CASA posting me anywhere other than Canberra which would require me to give 6 weeks notice or pay 6 weeks in…

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: [2019] ACAT 54
Decision Date: 18 June 2019

CaseChat Overview and Summary

In the matter of Brady v Woods, the applicant sought an order for termination and possession of residential premises under the Residential Tenancies Act. The applicant argued that the respondent had breached the terms of a tenancy agreement and therefore, the applicant was entitled to terminate the tenancy and regain possession of the property. The respondent, on the other hand, contended that there was no valid tenancy agreement and that the applicant had no right to terminate the tenancy or seek possession of the property.

The court was required to determine whether there was a valid notice to vacate and whether there was a fixed or periodic tenancy. The court also had to consider whether the lessor intended to move into the premises and whether the oral residential tenancies agreements were valid. The court considered the evidence presented by both parties and the applicable provisions of the Residential Tenancies Act.

The court found that there was no valid notice to vacate as the notice did not comply with the requirements of the Act. The court also found that the tenancy was periodic rather than fixed, as the lease agreement did not specify a fixed term. Furthermore, the court found that the lessor did not intend to move into the premises, as the evidence showed that the lessor had no intention of occupying the property. Finally, the court found that the oral residential tenancies agreements were not valid as they did not comply with the requirements of the Act. Based on these findings, the court dismissed the application for termination and possession.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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