Francer v Smith

[2023] NSWCATCD 82

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Francer v Smith [2023] NSWCATCD 82

Hearing dates:

1 June 2023

Date of orders:

20 July 2023

Decision date:

20 July 2023

Jurisdiction:

Consumer and Commercial Division

Before:

S Hanstein, General Member

Decision:

The application is dismissed as the Tribunal does not have jurisdiction to hear and determine it.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Whether residential tenancy agreement exists

Cases Cited:

Case v Frimont [2021] NSWCA 30

Sutcliffe v Hennessy [2017] NSWCATCD 77

Texts Cited:

None

Category:

Principal judgment

Parties:

James Francer (applicant)
Eloise Smith (respondent)

Representation:

Parties appeared in person.

File Number(s):

RT 23/12009

Reasons for decision

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

2. The first issue to be determined is whether there is a residential tenancy agreement between the applicant (as landlord) and the respondent (as tenant). If there is no residential tenancy agreement, the Tribunal does not have jurisdiction to hear and determine the application for termination.

3. Both parties filed documentary material in support of their cases and gave oral evidence.

4. The background facts are not in dispute:

1. The applicant is the legal owner of the property.

2. The applicant and respondent were in a relationship, and have a child together. The parties resided at the property together for a number of years until October 2019.

3. In October 2019, the parties separated and the applicant vacated the property. The respondent remained at the property with the parties’ child.

4. The child ceased living at the property in 2020, and the paternal grandmother now has sole parental responsibility for the child.

5. In about June 2022, the applicant told the respondent she would need to leave the property.

6. There has been no family law property settlement, or proceedings.

Applicant’s case

5. 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 granted the respondent a right of occupation of the premises for value, when he vacated the property in October 2019. It was an oral agreement. The parties, knowing the applicant was the legal owner of the property, intended that the respondent reside in the property as a tenant, but only if she paid outgoings and attended to the upkeep of the property.

2. The applicant stated to the respondent:

You can live in the property at this stage with [the child] so she remains in her home but as I will need to pay rent and living expenses elsewhere myself, I will not be able to also pay all the outgoings on the property. You will have to pay the electricity, the water usage and ensure the upkeep of the property to provide a safe environment for [the child].

3. The respondent failed to pay outgoings. The property is in a state of disrepair.

Respondent’s case

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

1. Rather than being a matter for the Tribunal, the dispute should be resolved in the Family Court. There is no residential tenancy agreement. She is occupying the home they lived in together, which should be the subject of family law property proceedings.

2. There was no agreement about the property when the applicant left. Some time after the applicant had left, he informed the respondent:

Don’t worry about the house, it is being paid for. You and [the child] will always have a roof over your heads.

7. The property is in a better state now than when the applicant was residing there.

Legislation and legal principles

8. Section 13 of the Act provides, relevantly:

13   Agreements that are residential tenancy agreements

(1)  A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.

(2)  A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing.

(3)  An agreement may be a residential tenancy agreement for the purposes of this Act even though—

(a)  it does not grant a right of exclusive occupation, or

(b)  it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities.

Note—

See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act.

...

9. The following principles apply when assessing whether an arrangement is a residential tenancy agreement within section 13 of the Act:

1. It is necessary for there to be an agreement, even though the agreement need not be in writing and may be implied.

2. There must be an intention to create a legal relationship. The intention of the parties must be assessed objectively.

3. There must be the granting by one person to another, for value, of a right of occupation of premises that are residential premises.

4. Payment of Council rates and charges can satisfy the requirement that “value” be provided.

5. If the elements of section 13 are established, there is a residential tenancy agreement, regardless of any other relationship that may also exist between the parties.

6. Subsequent conduct of the parties can be used to determine whether an agreement was in truth entered into.

(See Case v Frimont [2021] NSWCA 30 and Sutcliffe v Hennessy [2017] NSWCATCD 77, and the authorities referred to therein)

Consideration

10. On the balance of probabilities, I am not satisfied that there is a residential tenancy agreement between the parties.

11. Prior to the applicant’s departure from the property in October 2019, the respondent was residing at the premises as the partner of the applicant. There was clearly no tenancy agreement at that time.

12. I am also not satisfied that the parties entered into a residential tenancy agreement when the applicant departed the property in October 2019 and the respondent remained in the property.

13. In my view, the arrangement between the parties at that time is more accurately characterised as one former partner leaving the former “matrimonial home” and the other partner remaining in the home with the child. This is a very common arrangement that arises upon breakdown of a relationship.

14. The fact that the applicant was the legal owner of the property does not mean that the respondent was only permitted to reside there if granted a right of occupation by the applicant. The property would likely be considered property of the parties which may be redistributed under family law following the breakdown of the relationship, with the respondent having an entitlement to remain there pending resolution of the issue or order made by the Court to the contrary.

15. In these circumstances, I am not satisfied that there was an intention to create the legal relationship of landlord and tenant when the applicant departed the property.

16. In arriving at this conclusion, I note there is no documentary evidence or other direct evidence of a residential tenancy agreement being entered into at that time. Even the applicant’s version of events is consistent with an arrangement being put in place following the breakdown of the relationship, and does not use words such as “tenancy agreement”, “tenant” “landlord”, or “rent” or other indicia of the intention to enter a tenancy agreement. The respondent disputes there is a tenancy agreement and I am not satisfied that she ever agreed to enter into a tenancy agreement.

17. For completeness, I am not satisfied that the arrangement by which the respondent was residing in the property changed to be a tenancy agreement when the child ceased residing there. Although the applicant’s intention may have been that the respondent could only reside there if the child was, I am not satisfied that was an agreement reached between the parties and any entitlement under family law for the respondent to remain there would likely not be contingent upon the child being there.

Orders

18. It follows that the Tribunal does not have jurisdiction to hear and determine the application.

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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: 20 September 2023