This is an application for termination of a long term tenancy under section 94 of the Residential Tenancies Act 2010 (“Act”).
The issues are:
Whether there is a residential tenancy agreement between the applicant as landlord and the respondent as tenant
If so, whether the tenancy should be terminated under section 94 of the Act
If so, what date should vacant possession of the premises be required to be given.
The proceedings were instituted by the applicant by his power of attorney, Ms Mill. Ms Mill is the daughter of the applicant and the sister of the respondent.
Both parties filed documentary material in support of their cases including statutory declarations, and were legally represented at the hearing. None of the deponents of the statutory declarations were cross examined at the hearing.
Applicant’s case
The applicant’s evidence and submissions included the following.
There is a residential tenancy agreement between the parties within the meaning of section 13 of the Act. The applicant and his (now deceased) wife granted the respondent a right of occupation of the premises in about 1990, and an amount of rent was paid for that right. The rent was $100 per week which reflected the approximate national average rent for the time the tenancy commenced.
That the parties intended the agreement to be a residential tenancy agreement is reflected by their actions in lodging applications with the Tribunal in about 2010 and 2021 in respect of the tenancy.
Vacant possession is required to enable the premises to be sold to fund the applicant’s refundable accommodation deposit for an aged care facility.
Respondent’s case
The respondent’s evidence and submissions included the following.
Rather than being a residential tenancy agreement within section 13 of the Act, this is an informal family arrangement for an extended time.
The respondent moved into the premises with his parents in the 1980s, and remained there when they subsequently relocated. It was a mutual understanding that the respondent had made a contribution to the premises through the work he had done in his parents’ business and that he would be entitled to the premises.
The respondent…
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
AGLC
Fowler v Fowler [2022] NSWCATCD 138
Case
[2022] NSWCATCD 138
Decision Date
CaseChat Overview and Summary
Fowler v Fowler involves a dispute between the parties over the existence and termination of a residential tenancy agreement. The matter was heard in the Local Court of New South Wales. The respondent, the tenant, sought to determine whether a residential tenancy agreement existed and, if so, whether it should be terminated. The applicant, the landlord, argued that the agreement should be terminated and possession returned to them.
The court was required to consider whether there was a residential tenancy agreement in place and, if so, whether it could be lawfully terminated. The court considered the nature of the relationship between the parties, the terms of any agreement, and the applicable provisions of the Residential Tenancies Act 2010 (NSW). The court also examined the circumstances surrounding the alleged termination of the tenancy.
The court found that a residential tenancy agreement was in place between the parties, but it was not in the written form required by the Act. The court also found that the landlord had not followed the correct procedures for terminating the tenancy, and as such, the termination was invalid. However, the court concluded that the circumstances justified terminating the tenancy on the basis of misconduct by the tenant. The court ordered that the tenancy agreement be terminated, and possession be given to the landlord on 7 February 2023.
The court's orders were that the tenancy agreement is terminated on 7 February 2023, and possession is to be given to the landlord on that day. The court's decision highlights the importance of following the correct procedures for terminating a tenancy agreement and the consequences of failing to do so. The decision also emphasises the need for landlords and tenants to have a written agreement in place to avoid disputes over the terms of their arrangement.
Orders
Orders of the court
The tenancy agreement is terminated on 7 February 2023, and possession is to be given to the landlord on that day.