Duncan v Freeman
[2015] NSWCATCD 14
•21 January 2015
|
New South Wales |
Case Name: | Duncan v Freeman |
Medium Neutral Citation: | [2015] NSWCATCD 14 |
Hearing Date(s): | 14 January 2015 |
Date of Orders: | 14 January 2015 |
Decision Date: | 21 January 2015 |
Jurisdiction: | Consumer and Commercial Division |
Before: | J Levingston General Member |
Decision: | 1. The Tribunal declares that there was a residential tenancy agreement incorporating the standard form of residential agreement appearing in the Regulations Schedule 1. |
Catchwords: | Residential tenancy – jurisdiction – termination – defective notice of termination – request for written reasons |
Legislation Cited: | Civil and Administrative Tribunal Act 2013 s62 |
Cases Cited: | Bruton v London and Quadrant Housing Trust [1999] 3 All ER 481 (HL) |
Category: | Principal judgment |
Parties: | Wendy Duncan (applicant) |
File Number(s): | RT 15/01426 |
Publication Restriction: | Nil |
JUDGMENT
These formal written reasons are provided following a written request made 14 January 2015 by the applicant landlord pursuant to the Civil and Administrative Tribunal Act 2013 (CATA) s62 (Tribunal to give notice of decision and provide written reasons on request) which provides:
(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.
(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.
(3) A written statement of reasons for the purposes of this section must set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
(4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.
and see previously Consumer and Trader and Tenancy Tribunal Act (repealed) s49 (Notice of decisions and reasons).
These written reasons are provided in addition to the brief oral reasons provided at the hearing: Kendell v BMW Finance Australia Pty Ltd: [1]
[1] Kendell v BMW Finance Australia Pty Ltd (Unreported NSWDC 1114099/2010 Balla DCJ 25/11/10).
The meaning of a Tribunal ‘decision’ is widely defined, and is to be distinguished from reasons, which set out the reasoning process to explain the decision.
The decision was given on 14 January 2015 and is recorded in the written Notice of Order which took effect at that time. [2]
[2] CATA s62(1) (Tribunal to give notice of decision and provide written reasons on request).
A party is entitled to know the decision and the reasons for the decision. Reasons are commonly given orally to the parties at the conclusion of the hearing, and no written reasons are usually provided, unless the parties request written reasons.
A statement of reasons can be brief, but must set out the decision and the reasons for the decision or any other material on which findings of fact are based.
Reasons should be adequate and comprehensive explaining the reasoning [3] being more than a statement of bare conclusions,[4] concise, [5] structured and logical but without being required to be survive a review “…construed minutely and finely with an eye keenly attuned to the perception of error",[6] and “…not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.[7]
[3] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [55].
[4] Commonwealth v Pharmacy Guild of Australia (1989) 19 ALD 510 at 514 per Sheppard J.
[5] Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500.
[6] Minister for Immigration and Ethnic Affiars v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272-273 at [30]; approving McAuliffe v Secretary, Department of Social Security [1993] FCA 456; (1993) 43 FCR 280 at 287, (1992) 28 ALD 609 at 616.
[7] Minister for Immigration and Ethnic Affiars v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272-273 at [31]; approving McAuliffe v Secretary, Department of Social Security[1993] FCA 456; (1993) 43 FCR 280 at 287 (1992) 28 ALD 609 at 616.
Written reasons need not be identical to the oral reasons, allowing for correction of grammar and punctuation, but they should not include any additional reasons which were not given orally, though they might be expressed differently without altering the substance.[8]
REASONS FOR DECISION
[8] Spencer v Bamber [2012] NSWCA 274 per Campbell JA at [137] to [153]; Kendell v BMW Finance Australia Pty Ltd (Unreported NSWDC 1114099/2010 Balla DCJ 25/11/10).
Application
This is an application by the landlord filed 12 January 2015 under the Residential Tenancies Act 2010 (RTA) pursuant to ss11 for determination of whether there is a residential tenancy agreement and 87 for termination of the agreement.
Appearances
Both parties appeared and the application was contested.
Jurisdiction
This Tribunal has jurisdiction under CATA ss 28, 29 and Schedule 4 (CONSUMER AND COMMERCIAL DIVISION ), Part 3 (Functions of Division), cl 3 (Functions allocated to Division) which includes the Residential Tenancies Act 2010, and by cl 3(2) provides:
(2) Subclause (1) extends to:
(a) any functions conferred or imposed on the Tribunal by statutory rules made under legislation referred to in that subclause, and
(b) any functions conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of proceedings for the exercise of functions allocated by that subclause (including the making of ancillary and interlocutory decisions of the Tribunal).
The Tribunal has power to make orders under the RTA.
The limit of jurisdiction is $30,000 for a bond claim and $15,000 for arrears of rent and water: RTR clause 23 and RTA s 187(4)(a).
Facts
The material facts are that parties both reside at the premises of which the applicant is the landlord and registered proprietor and the respondent is the tenant. There is a written agreement referred to as House Rules but no residential tenancy agreement in the form of the Regulations Schedule 1. There was no fixed term of the agreement; the premises are fully furnished including linen and eating utensils; the landlord provides all cleaning products, cooking facilities; utilities such as electricity, internet are included in the rent; rooms do not have door locks; tenants also have access to common areas. The tenant pays rent and paid a bond of two weeks rent: see the statement of facts in the application. On 29 December 2014 the applicant landlord gave written notice to the tenant to vacate on or before 10 January 2015, with no reason given, see exhibit A.
In identifying the relevant facts for the decision and reasons I have been guided by the following principles:
(a)Relevant or material facts are the facts essential to making the determination and which are the facts which the tribunal based its decision;[9]
(b)Applied the test of “materiality”:[10]
(c)Considered the material or relevant facts on which the decision is made:[11]
(d)The process involves identification of the factual elements in the relevant section of the statute which the applicant must prove to obtain a determination. This includes facts which are not controversial as they are not in dispute, and other facts which are in dispute. The tribunal has to determine the disputed facts on the balance of probabilities, and the process involves weighing the evidence, and drawing conclusions or inferences;[12]
(e)Include references in the reasons to the sources of the relevant evidence;[13]
(f)Avoid errors of law or jurisdiction in giving reasons:[14]
(g)It is not necessary to deal with or dispose of every fact that was not material to the determination.[15]
[9] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [136]; (2001) 206 CLR 323 at 346.
[10] Singh [2000] FCA 845; (2000) 98 FCR 469 at 482 [56]- [57]; approved in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [137]; (2001) 206 CLR 323 at 346.
[11] McEvoy v McEvoy [2012] NSWSC 1494 at [41] per Pembroke J; see also Minister for Immigration v Pochi (1980) 4 ALD 139 at 159-160.
[12] Ansett Transport Industries (Operations) Pty Ltd v Taylor (1987) 18 FCR 498.
[13] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[14] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.
[15] Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 at 417-418 per McHugh J.
Law
The first issue is whether there is a residential tenancy agreement. The RTA s3 relevantly defines “landlord”, “rent” and “tenant”. The facts show that the premises are residential premises and the definition of tenant is sufficiently wide to include an arrangement such as in this matter where the respondent is a tenant with exclusive use of a bedroom with shared use of common facilities and common areas in the premises. The premises are used for the purpose of a residence. The tenant’s exclusive use of the bedroom is an interest in land that operates against the world at large as a right in rem (the thing). This is more than an interest which might be described as a mere licence giving non-exclusive use of the bedroom. The facts show that the tenant has exclusive use of the bedroom as a right in rem to the exclusion of the landlord, which is a residential tenancy right: see Bruton v London and Quadrant Housing Trust [1999] 3 All ER 481 (HL). I am satisfied that there is a residential tenancy agreement, albeit not reduced to writing in the standard form appearing in Schedule 1. However, by the Act, certain terms in the standard form of agreement are part of every tenancy agreement and cannot be excluded. The agreement between the parties incorporates the terms in the standard form.
The second issue is whether the notice of termination is effective. RTA s82 sets out the requirements for a valid termination notice. The notice given by the landlord does not satisfy all the formal requirements: s82 (1)(c) as it does not refer to the relevant section relied on, for example a breach of the tenancy agreement by the tenant, or otherwise give any ground for the notice.
In addition, the notice gives 12 days’ notice which is insufficient as the minimum time for notice if there was a fixed term is 30 days: RTA s84; and if there is a periodic agreement without a fixed term it is 90 days: RTA s85; and if the landlord relies on a breach of the agreement it is 14 days: RTA s87. The landlord does not specify the grounds, and presumably it is to be treated as a “no grounds” notice which requires 90 days’ notice: RTA s85. The notice period of 12 days is clearly too short and non-compliant for the notice to be a valid notice of termination.
Conclusion
In all the circumstances the facts support a residential tenancy agreement, and the application must be dismissed.
J Levingston
General Member
Civil and Administrative Tribunal of New South Wales
21 January 2015
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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
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