Connell v Petersen

[2022] NSWCATCD 122

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Connell v Petersen [2022] NSWCATCD 122

Hearing dates:

2 May 2022, 16 June 2022

Date of orders:

26 August 2022

Decision date:

26 August 2022

Jurisdiction:

Consumer and Commercial Division

Before:

S Hanstein, Tribunal Member

Decision:

(1) The respondent is to pay the applicant the sum of $2,259 within 14 days of the date of this order.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — Tenant’s right to quiet enjoyment — Landlord’s obligation to safeguard belongings left behind

Legislation Cited:

Residential Tenancies Act 2010

Uncollected Goods Act 1995

Category:

Principal judgment

Parties:

Amy Connell (Applicant)
Peter Petersen (Respondent)

Representation:

Solicitors:
Hunter Tenants’ Advice and Advocacy Service (Applicant)
Respondent self-represented

File Number(s):

RT21/51481

Publication restriction:

Nil

REASONS FOR DECISION

1. This is an application by the applicant tenant against the respondent landlord for return of the bond, and for compensation.

Background

2. The respondent did not appear at the hearing on 2 May 2022. The matter was part heard on that day and listed for further hearing on 16 June 2022.

3. Both parties appeared on 16 June 2022, and the respondent sought an adjournment until he was released from custody in November 2022 to enable him to get together evidence to oppose the applicant’s case. He claimed that he had previously prepared evidence but had been unable to provide it to the Tribunal and the applicant because his computer was stolen.

4. The applicant opposed the adjournment application, submitting that the proceedings had already been on foot for a considerable time and it would cause her financial and emotional hardship if the matter was not dealt with until November.

5. The application for an adjournment was refused.

6. The Tribunal’s guiding principle is that the Tribunal must ensure the just, quick and cheap resolution of the real issues in dispute, and it was not considered to be in accordance with that principle to allow an adjournment of the hearing. The proceedings have been on foot for a significant length of time, and there was not sufficient justification for a further delay until at least November 2022. The respondent did not appear at the first hearing and had submitted no documents in support of his case, notwithstanding that he was not in custody at the relevant times and had some time before going into custody to attempt to provide documentation even if his computer was stolen. It was accepted that the applicant would be prejudiced by further delay in the resolution of the proceedings, particularly until at least November 2022. Taking all of those matters into account, I was not satisfied an adjournment of the hearing should be granted.

7. The hearing then proceeded on 16 June 2022. The respondent participated for part of the hearing, but then left.

Applicant’s case

8. The tenant seeks return of the bond ($1,000). She also claims that the landlord unlawfully locked her out of the premises, and turned off utilities. She claims he moved her belongings to the outside of the premises and gave her a short time frame within which to collect them. She claims that some belongings were missing, and some were damaged or destroyed by not being protected from the weather. She seeks compensation of $1,200. She also seeks the cost of a storage unit for three months (at $200 per month) being necessary because she was removed from the premises without notice.

Respondent’s case

9. The landlord denies the tenant’s claims. He claims no bond was paid, that the tenant owed rent, that the tenant was given verbal notice to leave the premises, and that she and her cousins went through her belongings and took what they wanted and then scattered the rest over the yard before taking photographs.

Consideration

10. I am satisfied that there was a residential tenancy agreement between the parties from 15 October 2020, for a fortnightly rent of $700. I am satisfied the Tribunal has jurisdiction to hear and determine this case under the Residential Tenancies Act 2010.

11. I am satisfied the tenancy ended when the tenant left the premises after having been “locked out” by the landlord and being advised by the police not to return in December 2021. I am satisfied the landlord placed the tenant’s belongings outside of the house for her collection, and I am also satisfied that some damage was caused to some belongings and that some of the tenant’s belongings were missing. I accept the tenant’s evidence in this regard.

12. The landlord had an obligation to safeguard the tenant’s belongings and to deal with them in accordance with the Uncollected Goods Act 1995. I am satisfied that obligation was breached and the tenant has suffered loss or damage as a result. The landlord claims the belongings were placed in an orderly manner for collection, and were protected from the weather, and that damage was instead caused by persons associated with the tenant. I am not prepared to accept that is the case. It is strongly denied by the tenant, and it is unlikely that the tenant, or persons on her behalf, would destroy her own goods.

13. 13 The tenant has provided evidence of ownership and value of the goods, both oral and documentary. Taking into account the nature, condition and age of items, and the principle of depreciation; I am satisfied on the evidence before me, on the balance of probabilities, that the claimed amount of $1,200 is reasonable compensation for the tenant’s loss or damage.

Storage fees

14. I am satisfied that the landlord did not give a valid termination notice to the tenant and, through his actions, has caused the tenant to leave the premises notwithstanding that she was entitled under the tenancy agreement to occupy the premises. I am satisfied that the tenant has suffered loss or damage as a result, in the form of having to pay for storage for her goods when those goods would otherwise be at the premises with her. In assessing reasonable amount of compensation for the tenant’s loss or damage, I take into account that the tenant would likely have been entitled to 90 days notice of termination of a periodic agreement. I take into account also however that the tenant would be obliged to pay rent to the landlord if she had continued to reside in the premises. In all the circumstances, I am satisfied that compensation of $300 for storage costs is reasonable, reflecting one and a half months storage, as it is to be expected it would take some time for the tenant to make arrangements for her belongings in light of the tenancy agreement coming to an end without notice.

Bond

15. The tenant has provided bank statements which show, she says, all of the amounts paid to the landlord. The first payment was made on 15 October 2020 and the final one was made on 9 December 2021. There are payments totalling $22,209, all referenced with the landlord’s details. Two payments of $500, one on 30 April 2021 and one on 13 May 2021, also have the description “bond”. Some of the other payments also have the description “rent” and others have no description (other than the landlord’s details).

16. The tenant claims she paid the bond in April and May 2021 because this is when she could afford to do so although there was no discussion about this with the landlord at the time: there had been a discussion at the commencement of the tenancy that the landlord wanted a bond of $1,000 but the tenant could not afford to pay at that time. The landlord denied that any bond was ever paid, and asserted that the tenant owed money in rent. No rent ledger was provided by the landlord. No rental bond was lodged with the Rental Bond Services.

17. Rent of $700 per fortnight, payable from 15 October 2020 to 17 December 2021 (the day before the application), would total $21,450. The tenant has paid $759 in excess of that amount and I am satisfied she is entitled to return of that amount, whether it be overpaid rent or return of the amount of bond held over and above the rent outstanding.

Conclusion

18. The order is:

1. The respondent is to pay the applicant the sum of $2,259 within 14 days of the date of this order.

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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

Amendments

04 October 2023 - Formatting amendments.

Decision last updated: 04 October 2023