Edwards v ABUAAGLA (Civil Dispute)
[2014] ACAT 56
•15 August 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
EDWARDS v ABUAAGLA (Civil Dispute) [2014] ACAT 56
XD 12 /1906
Catchwords: RESIDENTIAL TENANCIES – agent acting within authority – end of lease settlement arrangement binds the parties –application of principles of contract–application of principles of agency.
Legislation:Residential Tenancies Act 1997, s 83
Cases:
Texts/Papers: Shorter Oxford Dictionary (5th ed. 2003)
Tribunal: Ms J. Lennard – Senior Member
Date of Orders: 15 August 2014
Date of Reasons for Decision: 15 August 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL XD 12/1096
BETWEEN:
VICTORIA LOUISE EDWARDS
Applicant/Lessor
AND:
AYOUB ABUAAGLA
Respondent/Tenant
TRIBUNAL: Ms J. Lennard – Senior Member
DATE:15 August 2014
ORDER
The Tribunal Orders that:
The application is dismissed.
………………………………..
Ms J. Lennard – Senior Member
REASONS FOR DECISION
Background
The parties entered into a residential tenancy agreement: Ms Victoria Edwards as lessor (the applicant) and Mr Ayoub Abuaagla as tenant (the respondent). This agreement was dated 8 December 2010 and was expressed to be for a fixed term of 12 months, terminating on 12 December 2011. Thereafter, the residential tenancy agreement was a periodic tenancy.
As the lessor was not resident in the ACT, her parents, who held an enduring Power of Attorney from the lessor, attended some inspections of the property and liaised and negotiated with the managing agent. On 16 April 2012, the lessor’s mother gave written instructions to the agent to issue a Notice to Vacate to the tenant. That letter stated “Victoria will be returning to Canberra to live in four weeks and will reside in her property at [address redacted], ACT”.
On or about 16 April 2012, the lessor’s agent served a notice to vacate upon the tenant upon the grounds that the lessor or lessor’s immediate relative intended to reside at the premises. The termination date was 14 May 2012.
The tenant failed to vacate in accordance with the notice to vacate and, on 14 May 2012, the lessor lodged an application to ACAT for termination of the tenancy. The notice to vacate described in paragraph 2 was relied upon in that application.
The matter was heard on 8 June 2012 and the Tribunal made an order for termination of the tenancy and for possession to be given to the landlord on 29 June 2012. The order had effect as a warrant for eviction.
On or about 26 June 2012, the lessor’s agent conducted a final inspection. The final inspection report prepared by the agent was provided to the Tribunal. That report contained a list of cleaning to be attended to and noted some minor damage to the premises in particular it was noted that the stovetop and the adjoining kitchen bench were heavily scratched. The amount of $631.45 was released from the rental bond to the lessor as compensation for the cost of repairs to the damaged stovetop.
On or about 21 December 2012, the lessor filed a Civil Dispute Application claiming damages on the grounds of negligence and/or breach of contract in relation to the condition of the rented premises in the amount of $9,207.55. The Tribunal determined that this matter (XD 12/1906) should be dealt with pursuant to the Residential Tenancies Act 1997 (the Act).
The lessor’s claim for compensation
ACAT received the following evidence: sworn evidence from Mr Quentin Hodgkinson, real estate agent who was engaged by the lessor’s managing agent in relation to the premises; sworn evidence from Mrs Sonja Edwards, acting as attorney pursuant to a Power of Attorney from the lessor, and copies of the final inspection report prepared by the real estate agency.
Mr Hodgkinson gave evidence that the final inspection identified the damaged stovetop as the most important item and that other matters such as cleaning and the repair of small holes created by the tenant in installing a weather strip were to be rectified by the tenant and that he believed this had been done. Mr Hodgkinson stated that the final inspection report was complete, that there were no other matters that could have or should have been listed as damage to the premises, and that the stovetop was the major issue. Mr Hodgkinson stated that the bond was disbursed to recover the cost of the stovetop, and pay outstanding rent owed to the landlord and that the balance was released to the tenant. Mr Hodgkinson gave evidence that he believed the agreement with regard to the bond had finalised the matters between the parties.
Mr Hodgkinson gave further evidence that at the time of the tenant’s vacation of the premises he had received numerous phone calls from Mrs Sonja Edwards. Mrs Edwards was concerned with regard to the state of the premises and that she had indicated that the hot plates were severely damaged and needed to be replaced. Mr Hodgkinson stated that Mrs Sonja Edwards and Mr David Edwards had approved the agreement with the tenant with regard to the distribution of the bond.
Mrs Sonja Edwards gave evidence that the tenant had demanded the payment of $250.00 from the bond; that, otherwise, the tenant would not agree to the release of the money towards the repair of the cook top; and that the tenant had indicated that he was content for the question of the distribution of the bond to be determined by ACAT. Mrs Sonja Edwards also said that Mr Hodgkinson had suggested that they should agree to the payment of $250 to the tenant because it would cost more to go to ACAT than it would be worth. In cross examination, Mrs Edwards confirmed that she did authorise Mr Hodgkinson to pay $250.00 of the bond to the tenant and for the balance to be retained by the lessor for the payment of outstanding rent and towards the cost of making good the damage to the stovetop. Mr David Edwards gave similar evidence and also indicated that the keys had been collected by Mrs Sonja Edwards from the tenant on the day after the final inspection and that at that time they had not informed the tenant that further compensation would be sought. Mr Edwards stated that they had agreed to the distribution of the bond as proposed by the agent because they “wanted this finished”.
It was common ground between the parties that Mr Hodgkinson had been engaged by the lessor as managing agent of the premises during the term of the tenancy. It was also common ground between the parties that the lessor had appointed her mother as attorney pursuant to a Power of Attorney; and that Mrs Sonja Edwards in her role as attorney for the lessor had directed and given instructions to Mr Hodgkinson during and at the end of the tenancy. The lessor, as principal can be deemed to act in person whenever the person acting as her agent acts. This is because the agent is acting with the authority of the principal. The agent is a representative authorised to act on behalf of the principal and able to enter into transactions which bind the principal; as if the principal personally carried out the transaction. An agent has authority to create legal relations between a principal and a third party. The principal is a party to a contract or agreement because the agent has acted in a way to create the state of privity between the principal and the other party.
An agent must act within the boundaries of the agent’s actual, apparent or ostensible authority. A third party could not rely upon a discharge from liability to a principal unless the transaction underlying that discharge is in accordance with the agent’s express or implied or apparent authority. A real estate agent is appointed with specific, actual authority to undertake nominated transactions in connection to the rental property of a principle. Such actual authority includes the management of the tenancy in general, which would encompass entering into an agreement as to the distribution of a rental bond. ACAT is satisfied on the evidence before it that Mr Hodgkinson was acting within the boundaries of a real estate agent’s actual or apparent authority.
Mrs Sonja Edwards and Mr David Edwards gave evidence that they had authorised Mr Hodgkinson to agree with the tenant as to the distribution of the bond. This evidence would indicate that the agent was acting on the instructions of the Attorney appointed by the lessor.
The respondent tenant made the following submission: Mr Hodgkinson’s conduct during the course of the respondent’s tenancy was that of agent. Mr Hodgkinson, and Hodgkinson Real Estate, conducted the entirety of the applicant’s relationship with the respondent. Rent was received and disbursed, the property was inspected, and various communications were exchanged – all in the context of Mr Hodgkinson’s capacity as agent for the Applicant. The conduct of Mr Hodgkinson, in completing the end of lease inspection, subsequent negotiations and oversight of remedial action on the part of the tenant, and the ultimate release of a portion of bond moneys are evidence of the clear expression of Mr Hodgkinson’s authority to act in relation to the settlement of end of lease issues between the lessor and the tenant. The tenant is discharged by any payment to or settlement with the agent which would have discharged the tenant if the agent had in fact been the principal.
The agreement reached between the parties for the distribution of the rental bond finalises the relationship between them and is binding upon both parties in relation to any claim or dispute about the obligations relating to the condition of the premises at the end of the tenancy. It follows that the lessor may not bring any application under the Act which is inconsistent with the settlement already reached.
………………………………..
Ms J. Lennard – Senior Member
0
0
0