Fowler v Fowler

Case [2022] NSWCATCD 138


Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Fowler v Fowler [2022] NSWCATCD 138
Hearing dates: 13 July 2022
Date of orders: 07 September 2022
Decision date: 07 September 2022
Jurisdiction:Consumer and Commercial Division
Before: S Hanstein, General Member
Decision:

The tenancy agreement is terminated on 7 February 2023, and possession is to be given to the landlord on that day.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Whether residential tenancy agreement exists — Long term tenancy — Termination – Whether tenancy agreement should be terminated

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Case v Frimont [2021] NSWCA 30

Sutcliffe v Hennessy [2017] NSWCATCD 77

Category:Principal judgment
Parties:

James Fowler (Applicant)

Jeffrey Fowler (Respondent)
Representation:

Moins Morris Schaefer (Applicant)

Tony Cox Lawyers & Conveyancers (Respondent)
File Number(s): RT 22/19090
Publication restriction: Nil

REASONS FOR DECISION

  1. This is an application for termination of a long term tenancy under section 94 of the Residential Tenancies Act 2010 (“Act”).

  2. The issues are:

  1. Whether there is a residential tenancy agreement between the applicant as landlord and the respondent as tenant

  2. If so, whether the tenancy should be terminated under section 94 of the Act

  3. If so, what date should vacant possession of the premises be required to be given.

  1. 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.

  2. 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

  1. The applicant’s evidence and submissions included the following.

  1. 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.

  2. 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.

  3. 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

  1. The respondent’s evidence and submissions included the following.

  1. Rather than being a residential tenancy agreement within section 13 of the Act, this is an informal family arrangement for an extended time.

  2. 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.

  3. The respondent…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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