Courtney Challinor v Lynnette Borthistle

[2014] NSWCATCD 73

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Courtney Challinor v Lynnette Borthistle [2014] NSWCATCD 73
Hearing dates:	17 March 2014
Decision date:	09 May 2014
Before:	K Holwell, General Member
Decision:	The respondent is to pay the applicant the sum of $840.00 on or before 31 March 2014.
Catchwords:	Sub-letting of premises; refund of moneys paid in advance; refund of bond moneys
Legislation Cited:	Residential Tenancies Act 2010 (NSW)
Category:	Principal judgment
Parties:	Courtney Challinor (applicant)
File Number(s):	RT 14/05422

reasons for decision

Application

1.   By an application filed 29 January 2014 the applicant sought orders for the payment of moneys to the Tribunal and for a refund of bond moneys. The application was amended to claim a refund of the sum of $840.00 which had been paid by the applicant to the respondent.

Jurisdiction

2.   The Tribunal has jurisdiction to hear and determine this application pursuant to the Residential Tenancies Act2010 (NSW).

Proceedings

3.   A directions hearing was held on 14 February 2014. The case could not be settled on that day. It was set down for hearing on 17 March 2014. It was heard on that day. The decision and the reasons for the decision were provided to the parties orally on the hearing date. The hearing was sound recorded. The respondent has now asked to be provided with written reasons for the decision.

Evidence

4.   In the applicant's case oral evidence was given by the applicant. The applicant also tendered statutory declarations from her father Wayne Challinor and her mother Leonie Broughton.

5.   In the respondent's case oral evidence was given by the respondent. The respondent also tendered several of her written statements and statutory declarations of Frances Drew, Judith Taylor and Kevin Neale.

6.   The contents of the declarations of Ms Drew, Ms Taylor and Mr Neale are irrelevant to the issues in this case.

Findings

7.   In November 2013 the respondent rented a house at South Tweed Heads. In January 2014 the respondent advertised part of the house for sub tenancy on a website. The advertisements included various pictures or photographs of the part of the house to be sub-let.

8.   The applicant was living in Broken Hill. She was moving from Broken Hill to Tweed Heads to take up new employment. She needed somewhere to live in Tweed Heads. She saw the advertisement on the website and contacted the respondent. She made arrangements to rent the part of the house described in the advertisement without firstly going to Tweed Heads to inspect it.

9.   The applicant paid $840.00 to the respondent. The respondent issued two receipts for this money. One receipt was for $280.00 and was described on the receipt as being "I weeks rent from 26/1/2014 to 2/2/2014". The other receipt was for $560.00 and was described on the receipt as being for "bond".

10.   The applicant and her parents inspected the part of the house to be the subject of the sub-tenancy on or after 27 January 2014. The applicant claims that the premises were not as shown in the pictures and photographs on the website. Some of the applicant's belongings were placed in the house by her parents but later they were removed. The applicant did not commence occupation in the house. The applicant and respondent did not sign a lease.

11.   The Residential Tenancies Act by s 24 provides that a landlord may obtain a holding fee no more than one week of rent and retain that holding fee if a prospective tenant does not enter into a tenancy agreement.

12.   The receipt for the payment of $280.00 was clearly stated by the respondent on the receipt as being for one week of rent. It was not stated as being for a holding fee. I was satisfied that this money was not paid to the respondent as a holding fee and that it could not be retained by the respondent on that basis.

13.   The Residential Tenancies Act by s 162 provides that a landlord must deposit bond moneys with the Director General of Fair Trading. The respondent failed to deposit the bond moneys referred to in the receipt for the sum of $560.00.

14.   At the hearing the respondent claimed that the sum of $560.00 was not really paid for bond moneys. She says she only wrote "bond" on the receipt because the applicant requested it be done that way. I was satisfied that this evidence was untruthful and that it was a recent invention to try to account for the respondent appropriating the money to herself.

15.   The Residential Tenancies Act by s 26(1) provides that a landlord must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the landlord knows to be false, misleading or deceptive. The applicant said that she could not produce copies of the pictures or photographs on the web site advertisement because the respondent removed them. The inference is that the respondent removed them because they were misleading or deceptive and not a true indication of the part of the premises proposed to be sub-leased. I was satisfied that the respondent had engaged in misleading and deceptive conduct. I was satisfied that any moneys paid by the applicant to the respondent were refundable as a consequence of this conduct.

16.   The Residential Tenancies Act by s 74 provides that a tenant may sub-let the premises to another person if the landlord gives written consent to the sub-letting. Clause 32 of the respondent's lease has a similar provision. The applicant had made enquiries of the landlord's agent and ascertained that no written consent to any proposed sub-letting had been given by the landlord. The respondent could not produce any written consent. She said that she had oral consent and that the landlord's agent "knew about it". She said she was currently renting a room at the house to a university student.

17.   I was satisfied that any proposed sub-letting of part of the premises by the respondent to the applicant would, in the absence of any written consent, be void. I was satisfied that any moneys paid by the applicant to the respondent pursuant to a void agreement would be refundable to the applicant.

18.   The respondent made a further claim that she was entitled to keep the money paid by the applicant because she kept part of the premises vacant between 3 and 27 January 2014 pending the applicant's move to Tweed Heads. There is no legal basis for this claim. It is misconceived.

Conclusion

19.   For the reasons outlined above I was satisfied that the applicant was entitled to a refund of the moneys she had paid to the respondent and an order was made for the respondent to pay the applicant $840.00.

K Holwell

General Member

Civil and Administrative Tribunal of New South Wales

9 May 2014

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

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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: 31 July 2014