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…