HARRISON & ERIKSSON (Appeal)
[2013] ACAT 64
•30 May 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HARRISON & ERIKSSON (Appeal) [2013] ACAT 64
AA 13/17
Catchwords: APPEAL – RESIDENTIAL TENANCIES – hearing de novo - refusal to set aside ex parte judgment – premises not ready on the date the lease started: premises not ready for the tenants to move in and difficulties faced by the prospective tenants – the time at which the lease starts on its first day - the appellant landlord signing a new tenancy agreement with different parties on the day after the commencement day of the lease signed with the respondent – refund of rent and bond paid
List of legislation: Acts Interpretation Act 1901 (Cth), s 15AA
Residential Tenancies Act 1997
, Rule 53 of the standard
residential tenancy terms
List of Regulations: ACT Civil and Administrative Tribunal Procedure Rules 2009
(No 2), Rule 9
Appeal Tribunal: W.G Stefaniak – Appeal President
Date of Orders: 30 May 2013
Date of Oral Reasons for Decision: 30 May 2013
Date of Publication: 23 September 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )
AA 13/17
BETWEEN:
RACHEL HARRISON
Appellant
AND:
CHRISTOPHER ERIKSSON
Respondent
APPEAL TRIBUNAL: W.G Stefaniak – Appeal President
DATE:30 May 2013
ORDER
The Tribunal Orders that:
The appeal is dismissed
- The order of Member Daniel of 18 March 2013 is affirmed.
………………………………..
Signed W. G Stefaniak – Appeal President
REASONS FOR DECISION
The appellant ,Ms Harrison owned a unit in Belconnen. A lease was signed on 5 February 2012 by Ms Harrison as lessor and the tenant, Mr Eriksson (for him and his wife and 3 small children). Mr Erikkson’s wife is a medical doctor, Dr Denise Kelly. The appeal is from an ex parte decision in RT 13/163, where Member Mary-Therese Daniel, on Monday18 March 2013, made an order that the lessor, Ms Rachel Harrison, pay the tenants forthwith the sum of $6,127, being the rent and bond paid ($6,000) together with the filing fee of $127. On that same day, Ms Harrison applied to set aside Ms Daniel’s order. This came before Registrar Athol Morris in the motions list on 27 March 2013. Registrar Morris ordered, (after hearing from Ms Harrison by phone and M and D Eriksson and Matthew Peden who appeared as witness, and noting that there was no fresh evidence that was likely to change the outcome of the matter), that the application to set aside the order entered on the 18th of March be dismissed and the order of 18 March 2013 affirmed.
The appellant, Ms Harrison, appeals from that order. The matter came before me as Appeal President at a directions hearing on Friday 17 May 2013. At the directions hearing, Ms Sandra Nielson appeared to assist the respondent. She is a real estate agent. Mr Sinclair Whitbourne, solicitor, appeared on behalf of the appellant. The appellant’s solicitor indicated that he was keen to settle the matter and during the course of the morning, I allowed the parties ample opportunity to come to an arrangement. The appellant’s solicitor invited me to make any observations to assist in the settlement. I indicated to him that it appeared that from the facts that were at that stage before me that the lease signed on 5 February 2012 fixed a commencement date of 9 February 2013 and this indicated that vacant possession had to be available on that day. At that stage, what was put to me was that day was simply unsuitable for the appellant to provide vacant possession to the respondent.
The appellant’s solicitor indicated that the matter could not be settled at the directions hearing that he would like a little bit more time to advise his party to accept the offer made by the respondent.
The parties were given until Monday 21 May 2013 to advise the tribunal if the matter had been settled. An order was made that the applicant provide her current residential address prior to hearing or prior to settlement, whichever came first. The matter was set down for hearing by consent at 2 pm, 24 May 2013, if the matter could not be settled. The issue for determination was a narrow one and that related to the commencement date of the lease on 9 February 2013.
It transpired that the matter was not settled on Monday 21 May 2013.
On 24 May 2013 the parties duly attended. The appellant had dispensed with the services of her solicitor. The matter proceeded to a hearing de novo with the parties referring to the papers already before the tribunal, with the appellant calling evidence from Mr Colin Kish, a friend of hers who witnessed the signing of the lease on the 5 February 2012, and evidence being taken from the parties. I was particularly interested in exploring issues around text messages between the parties on the dates of 6, 7, 8 and 9 February 2013, especially, text messages late in the afternoon on Friday, the 8 February 2013, which seemed to indicate a new arrangement may well have been agreed upon between the parties in relation to the commencement date of the tenancy.
At the end of the hearing, I made some remarks to the parties in relation to several issues that were still troubling me and adjourned the matter part heard to Thursday 30 May 2013 at 9.30am for decision. I also made an order encouraging the parties to submit any authorities that may assist ACAT. The parties submitted by my invitation a number of submissions to me, most of which did not take the matter any further and no actual authorities were submitted that may have assisted on the point in question.
The point in question related to when vacant possession pursuant to clause 53 of the lease should commence, i.e. should it commence at 12:01 am on the day in question, or should it commence on the start of the business day or could it actually commence at any time on the day? A subsidiary point was if it was found that vacant possession was actually given to the tenants on the 9 February 2013, then what reasonable compensation should be given to the appellant, as it then could become a break lease situation.
The tribunal in hearing the evidence of witnesses on 24 May 2013 and assessing the evidence of the witnesses accepted as accurate the evidence of Dr Janine Kelly, the wife of Christopher Eriksson, the tenant. Her evidence was given over the phone (having been rung up at a busy practice between patients). She disagreed with her husband and Mr Eriksson in certain aspects but I found her evidence to be clear, concise, believable and accurate. It is subsequently corroborated by certain independent sources.
I also find Mr Colin Kish’s evidence believable as to what occurred when the lease was signed on 5 February 2013. The evidence of Sandra Nielson as far as it went was highly credible and the evidence she gave of practice in the real estate industry was useful.
I found the evidence of the appellant and also Christopher Eriksson not as reliable. Mr Eriksson was obviously attempting, in my view, to tell it as accurately as he could. He indicated that certain events occurred on Sunday,
3 February, which his wife said simply did not occur. His wife corroborated what Mr Eriksson said in relation to what occurred on Monday, 4 February, that is, it was made quite clear to the appellant that the tenant and his family were desperate to move in on 9 February. They had had to vacate their house on Australia Day, 26 January 2013, due to flooding. They were in a motel and they had to get out first thing Saturday morning. They had also arranged for their furniture to be delivered on the Saturday morning.
The appellant denied any knowledge of any urgency and I did not accept that evidence. Similarly, Mr Eriksson indicated that at no time when the lease was signed on Tuesday, 5 February, did the appellant landlady express any potential problems that may occur in relation to her moving out on time. I am satisfied when the lease was signed between Mr Eriksson and the appellant in the presence of Mr Kish, that mention was made that there were some potential issues in terms of the appellant being actually out of the premises on the 9th of February. But I am also satisfied this was put on the basis that it should not a particular problem and everything should be fine.
When one looks at the emails of the 6 and 7 February, namely, the Wednesday and Thursday, all of those messages sent to the tenants from the appellant indicated that it would be impossible for the tenants to move in before Monday the following week, possibly Wednesday the following week and at very best before Sunday. The appellant seems to have gone off on a tangent in relation to bank cheques – a cheque not being cleared by her bank and this seems to be a preoccupation of hers (She indicated in evidence that she had been burnt before). It was clear from the text messages that this was probably the primary purported reason why she felt she was not prepared to allow the tenants to occupy the premises until Monday the following week.
Another reason given was the difficulty she herself had in moving and problems with a third party where she was moving to in terms of those premises being available for her.
It appears on Friday some of the bank problems seemed to have dissipated as far as the appellant was concerned, and at 4.58 pm, she seemed to have changed her mind on Friday and sent a text saying “Chris, I would need to transport my property as well as store it a couple of nights if you want to move in to my house on Saturday. If you are happy to pay for this cost at this point I am unaware of, otherwise you can simply wait until Monday when I am completely moved out when the girl in my new place had moved also.” Signed Rachel.
Further evidence was given which indicated that the earliest on Saturday afternoon that the property would be available would be 5 pm. The respondent Christopher Eriksson when questioned as to this particular text conversation indicated that he and his wife said they would actually put up the appellant for 2 nights until she could move into a new accommodation and would pay for her accommodation. Of course, in reality, the law is if a landlord cannot move on the day in question it is he or she who should pay for the tenants if the tenants have nowhere to go.
The respondent, Mr Eriksson, also gave evidence that as a result of what had occurred to date, he did not really trust the appellant’s sincerity when she said she would even be able to move out late Saturday (after 5 pm). At 5.15 on 8 February 2013, not long after receiving this text he went to Sandra Nielson’s office with his wife, they looked at another property at about 5.30 pm and indicated that they would take it. That other property was available from the next day (Saturday, 9 February 2013).
There was a telephone conversation between Dr Kelly, the respondent’s wife, and the appellant at about 6 pm on Friday, 8 February 2013. I accepted the version of that conversation given by Dr Kelly as opposed to that of the appellant. The effect of that conversation however was to confirm that there had been an offer made by the appellant to vacate the property late on Saturday afternoon, the time being not before 5 pm was mentioned, and that she could not vacate the property before then. Both the appellant and Dr Kelly were in agreement that the appellant had told her the earliest she could leave was after 5 pm.
Dr Kelly also indicated that she told the appellant they now would not be taking the property as they could not move in as planned when they needed to on Saturday morning and also requesting that the $6000 bond and deposit and rent paid in advance be refunded. Dr Kelly indicated that the appellant initially agreed to that over the phone but subsequently reneged on the matter. The appellant indicated that she made no such promise but I prefer the evidence of Dr Kelly in relation to that although at the end of the day nothing particularly turns on it.
A confirmatory email was sent by the Eriksson family written by Dr Kelly at 9.09 pm on the Friday. It stated,
Dear Rachel,
Chris and I thought we would email this note to confirm my conversation with you this evening. As you were unable to vacate your property before Saturday the 9th February in order for us to move into the property, as agreed on Tuesday the 5th of February when the lease we signed; we have had to find alternative accommodation as our family is homeless. We understand that your circumstances changed and you were not able to move out on time as agreed. We did suggest you move your things into the garage until you were able to move them, but you were not willing to do this, despite the fact that we have paid you premium rent and probably more in advance than usually required.
We are trying to do what is best for our family of 3 children under the age of 7 years, who need stability and can’t keep getting moved from place to place. We also cannot keep rebooking trucks, helpers and babysitters to help us move. We would therefore like to return the key to you and request that you return the money to us that we have paid you which is $6,000.
Chris’s bank verified to day that all monies have already been taken by the Commonwealth bank. We have had limited internet access as we are staying in temporary accommodation. So temporarily a cheque was the best way for us to pay you. It is also a legally verified way of paying rent according to A.C.T lease agreement. You should already have the $1200 rent that was paid by direct transfer a day later when we had internet access on Tuesday night 5th February 2013 and the money transferred.
We regret that things have turned out this way and hope that you can appreciate the difficult circumstances we are in and the stress that we are under therefore the reason that we have not been able to delay moving in and are therefore requesting our money back from you.
Please transfer the $6,000 to Chris’ Members Equity Bank BSB #### # Account #### ### Account Name: (the account number) or my Commonwealth Bank account BSB #### # Account 00#### ## by early next week as we cannot afford to be that much out of pocket
Your sincerely
Janine and Chris ErikssonThat email was responded to at 9.23 pm by Rachel Harrison, who stated
Dear Janine,
Thankyou for your email. I understand the circumstances you are in at this time.
I have already cleaned my whole house and secured the house for your children as discussed with Chris tuesday 5th February. I also today copied theother (sic) two keys required for you to access the winows (sic) and I have photocopied a copy of the lease and bond lodgement form together with the condition of premises report.
I feel it is unfortunate now given the circumstances you are in, and I really would have liked you to have moved into my property. I also had booked a truck for tomorrow afternoon (earliest I could do) to have all my furniture transported.
When you advised me this afternoon you were happy to pay for a motel for saturday and sunday nights, given the circumstances I was in regarding not being able to get into my new accommodation until monday, I was happy to except this arrangement, and I was going to have all my furniture out and remove all my property for you by saturday night so you and your family would be able to move in by saturday evening.
Since I have packed all my property and cleaned the house completely, at this point I am happy to still give you the house as per agreement and have you move in tomorrow, saturday, February 9, 2013.
I have checked several times with the CBA and the cheques have not cleared at my end, and I am also happy to show you this evidence. I am unsure as to why Members Equity is stating otherwise.
I also understand you have a demanding job, and you have the children to look after.
Please let me know if you still would be happy to take the house tomorrow and have me remove all my property by latest tomorrow evening?
Regards,
Rachel Harrison
It is relevant to note that even at that late stage having been told that the respondent and his family would not now be moving in, the appellant reiterated she was prepared for them to move in on Saturday, and that would have to be late afternoon because she had a truck coming on the Saturday afternoon herself to move her furniture. I accept that what she had been told around 6 pm and confirmed around 9 pm that the respondent was no longer moving in, and that she then purported to leave it open. At 7.19 am on the Saturday morning, the appellant texted the respondent and stated “The earliest I can move is Sunday I can have all property out Sunday. Rachel”
Those were the facts up until Saturday 9 February 2013 as accepted by me. Regarding the denials made in relation to the conversations that were had earlier in the week and the denials made in relation to certain parts of the conversations with Dr Kelly, I accept Dr Kelly’s versions which I note were corroborated to an extent by further texts sent by the appellant which seem to contradict what the appellant said. I accept what Dr Kelly said in relation to those conversations and in relation to other conversations earlier as indicated above. There are a number of other factors apart from the contradictions as to the conversation between the appellant and respondent which cause me significant concern as to the accuracy of statement the appellant said she made.
Unbeknown to the respondent in this case, the appellant was also in communication with Mr Ayachi Johrie, who had a colleague Chang Zuo Xie. These conversations had been going on, it seems from around 1 February2013 in relation to Ayachi taking a room and getting some of his colleagues to come in too. At approximately 8 pm on Friday, 8 February 2013, the appellant responded to a contact by Ayachi by saying “ Hi Ayachi, yes I am fine. I am, looking for another person with you to rent my house. I think two people is better so I can move closer to the university. You know anyone? Thanks, Rachel”.
Ayachi replied “I can check for u. But u still keen to rent the master room to me?” Answer “Yes,” “OK. I ‘d like to sort it all soon then please if that is ok with u...& I can ask around at work for the other room. It is $160 isn’t it?” “OK other rooms ate (sic) $170 pw each”, if you replied”. At 11.56 pm, Ayachi sent another text on the 8 February 2013 – “Hi Rachel, I’m happy to sign the lease earlier. I may not move in but just pay anyway coz I really want to get done with this. I can’t come tomrw. I will try Sunday else Monday after I finish work...........is that is still Ok with you? Also, I do have a guy keen on a place. I can ask him to come along if u want and he can check the place too.” The response sent at 11.58 pm , 8 February 2013, by the appellant stated – “OK. I am free at noon on Sunday. That would be good thanks, see you both on Sunday”.
It is interesting this correspondence by text completely contradicts a number of assertions the appellant made to the respondent. At the very least as I said during the Hearings, it would have been very crowded at the unit if the respondent and his family had had a rethink and decided to move in after all. Also, the appellant’s text of 7.19 am on Saturday, 9 February 2013, indicating that she could not vacate until Sunday, but not indicating anything in relation to other people taking the property and the texts at around 8 pm on the Friday night, seem to be a complete contradiction of her email of 21:37, 8 February 2013. A further text was sent to Ayachi on 9 February 2013 indicating that Ayachi and his colleague Mr Zuo Xie could take the whole property for $400. She stated “if you were happy to pay $400 for the whole house I would be happy to lease you the whole house and this is a quite a good deal.”
The new tenancy agreement with Mr Johrie and Mr Xie was signed on Sunday the 10th of February. From the next day there appeared complications with this arrangement as well in that she wanted to change the lease by advertising the third bedroom and a dispute arose as a result of that. Subsequently, an order was made in ACAT (RT 13/124) by Senior Member Anforth on the 18th of April 2013 ordering that the respondent Rachel Anne Harrison pay the applicants Mr Johrie and Mr Xie a sum of $800 within 7 days, being the bond money that had been paid by them.
The rent, of course, in the particular matter before me was $600 a week, and $6000 had already been paid in full as described above by the respondent tenant.
Those are the relevant facts found by me in relation to this matter. The only other evidence of note was that of Matthew Peden from Independent Property Group, who went to the property on or about 11 February 2013 and found the property to be fully furnished with no evidence of packing. Of course, this could mean after the lease fell through the appellant quickly unpacked. It could also mean that the appellant had no intention of moving out for one or both prospective tenants and that this was some sort of scam. I did not decide that issue, but it does add to the contradictions inherent in the evidence of the appellant. Unless her evidence was corroborated by an independent source, I did not believe it. Those are the relevant facts in relation to the matter.
Rule 9 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) states :
9Rejecting documents—abuse of process etc
(1)This rule applies if a document lodged with the tribunal appears to the registrar on its face to be an abuse of the tribunal’s process or to be frivolous or vexatious.
(2)The registrar may—
(a)reject the document; or
(b)refer the document to the tribunal for directions about how to deal with it.
Registrar Morris rejected the appellant’s application as being an abuse of the tribunal process. I must say the matters in relation to Mr Johrie and Mr Xie did not become apparent to me until the day before the resumed hearing (30 May 2013) when I was due to make my decision. The matters were mentioned by me to the appellant and she addressed me further on this prior to me arriving at my decision. I do not think in the circumstances I need to go into that in any great detail. I accepted that it may be prudent having potential irons in the fire but had the respondent agreed to move in late Saturday or even Sunday it would have got rather crowded had Mr Johrie also wanted to move in and effectively there could have been two leases running. I found her reasoning unconvincing on this point. The evidence was as equally consistent with some sort of scam as it was to having several irons in the fire at the one time.
The lease of the 10 February 2013 is certainly relevant to any claims the appellant may have for a breach of lease situation. However, for the reasons I will set out below it does not apply here, and I will make comments as to what would occur if it did.
I must say that I would have thought there would be some case I could find and/or the parties could find or the appellant’s solicitor could find (when he was on the case) which would clarify the matters as to exactly when a lease commences in terms of the days stipulated in the lease. Rule 53 of the Standard residential tenancy terms (in the Residential Tenancies Act 1997) is quite clear. It states:
53 Unless otherwise agreed in writing, the tenant has exclusive possession of the premises, as described in the agreement, from the date of commencement of the tenancy agreement provided for in the agreement.
The date of commencement of this agreement was Saturday, 9 February 2013. The clause is quite clear that the tenant has to have exclusive possession of the premises. One cannot have exclusive possession of the premises if the landlord’s equipment is still there and the furniture is still there or indeed, the landlord is still there.
Often, an agreement is made in writing to vary this. Endorsements are given by ACAT. Commonly, one will see things such as the landlord allowed to access the shed in backyard every Friday to do carpentry work or the tenants are not to use bedroom no.4 which is locked up because the landlord is storing some personal belongings there. Such clauses and conditions are made clear and concrete to vary the normal vacant and exclusive possession rule, and are agreed upon as variations to clause 53 by the parties.
Sometimes, the tribunal will see a tenant paying rental from the date the agreement is due to start but due to some reason being unable himself or herself to move in. Sometimes, there may be some provisions of the landlord not being able to clear out all his property and there may well be some further provisions made there in relation to varying the lease and the arrangements made. These things are normally sorted out between the parties.
This probably explains why there is no case law on this as it is such a self-evident point and normally if there is a problem the parties are capable of sorting it out. The respondent and his wife in this matter had always maintained that they expected vacant possession for the whole of the Saturday and that is the basis of their argument. The landlord, as I have indicated, only mentioned late on Friday afternoon the possibility of being able to move out late Saturday to enable to tenants to move in. This was not even mentioned before then. I find it is not unreasonable in the circumstances that the tenant Mr Eriksson would, as a result of the prevarications and excuses being made by the landlord, and the various dates being offered as to when he could move in, which would make him and his family effectively homeless after Friday evening, have considerable scepticism as to whether the landlord would in fact go through with the offer of his family now moving in late Saturday on 9 February 2013. At any rate, there was no written agreement or indeed not even a verbal agreement that he accepted that late offer. Had there been so, I would have been satisfied that an arrangement had been made to vary the commencement date.
Having accepted that Dr Kelly told the appellant at about 6 pm on Friday night (8 February 2013) that the tenants would not be moving in and having this confirmed by email after 9 pm on that day, the terms of the lease stand. The only issue (and I invited the parties to comment on this and gave them ample opportunity to do so) was to show any case that might indicate any time of Saturday the 9th could be held to be an acceptable time in accordance with the lease. The appellant was unable to find any authority in relation to that. The respondent was also unable to find any cases.
However, the respondent did refer me to the Acts Interpretation Act 1901 (Cth) which did in section 15AA states:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
Section 36 of the Acts Interpretation Act is about calculating time. Subsection (1) states:
36 Calculating time
(1) A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
Calculating periods of time
ItemColumn 1
If the period of time:Column 2
then the period of time:1 is expressed to occur between 2 days includes both days. 2 is expressed to begin at, on or with a specified day includes that day. 3 is expressed to continue until a specified day includes that day. 4 is expressed to end at, on or with a specified day includes that day. 5 is expressed to begin from a specified day does not include that day. 6 is expressed to begin after a specified day does not include that day. 7 is expressed to end before a specified day does not include that day. Example 1: If a claim may be made between 1 September and 30 November, a claim may be made on both 1 September and 30 November.
Example 2: If a permission begins on the first day of a financial year, the permission is in force on that day.
Example 3: If a licence continues until 31 March, the licence is valid up to and including 31 March.
Example 4: If a person’s right to make submissions ends on the last day of a financial year, the person may make submissions on that day.
Example 5: If a variation of an agreement is expressed to operate from 30 June, the variation starts to operate on 1 July.
Example 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28‑day period begins on 3 August.
Example 7: If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May, the notice may be given at any time during the 7‑day period starting on 1 May and ending on 7 May.(2) If:
(a) an Act requires or allows a thing to be done; and
(b) the last day for doing the thing is a Saturday, a Sunday or a holiday;
then the thing may be done on the next day that is not a Saturday, a Sunday or
a holiday.Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.
(3) In this section:
holiday, in relation to the time for doing a thing, means:
(a) a day that is a public holiday in the place in which the thing is to be or may be done; and
(b) if the thing is to be or may be done at a particular office or other place—a day on which the place or office is closed for the whole day.
Specifically, item 2 states that if the period of time is expressed to begin at or with a specified day then the period of time includes that day. Example 2 states “If a permission begins on the first day of a financial year, the permission is in force on that day”. During my summing up and delivery of oral reasons, I gave the example of someone taking over a liquor licence on 1 January 2013. This would mean under ACT law that they could serve liquor up until 5 am on that day stopping then and recommencing serving liquor at 8.00 am (I hope my interpretation of current liquor laws is correct).
Wikipedia was also used by the respondent and objected to by the appellant but it is indicative that Wikipedia states for civil purposes a common clock has been defined for the entire region based on the main local solar time at some central meridian. Such time zones began to be adopted around the middle of the 19th century when railroads with regular schedules came to be used, with most major countries having adopted them by 1929. For the whole world we have 46 time zones....The main one is “world time or coordinated universal time”. The present common convention has the civil day starting at mid-night which is near the time of the lower combination of the main Sun on the central meridian of the time zone. A day is commonly divided into 24 hours of 60 minutes of 60 seconds each. I accepted that evidence.
The submission made by the respondent went on to state that depending on the relevance of the circumstances, specifically in business, the end of a day for business purposes is close of business, and is accepted as 17:30. So if the lease starts on a particular day, then the “business” day starts at 0900 hours. As noted by me on 30 May 2013 as well, a tenant has to pay the lease from the start of the lease, and that includes a full day’s rent for the first day. Unless the lease stipulates the time within that day, I find, and am satisfied, that the commencement of a lease due to start on Saturday, 9 February 2013, includes the whole Saturday, 9 February 2013. Business practice indicated that delivery trucks are not going to turn up at 0001 hours (i.e.12:01 am people time.) Invariably, they would probably turn up at 8 or 9 O’clock in the morning, in other words, the start of the business day. It is therefore not good enough in terms of interpreting this clause that sometime after 5 pm on that day is within what was contracted for .
Sandra Nielson gave evidence that the real estate practice is for the landlord to move out several days before so there is no impediment on the day the lease starts for the tenant to move in to the property.
Accordingly, I am against the appellant’s contention that by offering the property to be available after around 5 pm, on her evidence, sometime late in Saturday afternoon onwards complies with the lease. I also find on the basis of what had occurred in terms of the difficulties being put in the path of the tenants by the landlord, it was not unreasonable for Mr Eriksson to feel that the landlord was not serious in moving out on Saturday and an 11th hour attempt to offer an olive branch so that they could move in on Saturday afternoon may not be able to be believed. The subsequent 7.19 am text on Saturday, 9 February 2013, seems to add weight to the view as indeed does the fact that the landlord was actively negotiating with other people and was actively from 8 pm on 8 February 2013 attempting to move them into the house. It would have been quite chaotic if everyone had agreed.
So, the appellant fails on that point and her case fails.
Even if the appellant’s case was a strong one in relation to when the day the lease started, 9 February 2013, she still has significant problem in terms of mitigating loss in that (1) she agreed initially to refund the moneys but subsequently went back on that (telephone conversation with Dr Kelly Friday evening), and (2) a new lease was signed by Mr Johrie and Mr Xie on Sunday the 10th of February, that lease was to commence on 14 February 2013. The best result would be only several days’ rent as a result of that, but as a result of what had occurred before, I do not think that would be remotely fair to the respondent.
It is impossible for her to justify keeping the $6000 paid and seeking a further $1500 compensation plus further costs. The signing of a lease on the
10 February with Mr Johrie and Mr Xie ended any further contractual arrangement she may have had with the respondent. Any rights she may have had to any compensation back from Mr and Mrs Eriksson is negated by that lease.Her argument that she should be compensated for the break lease, (and I find there is no break lease) is negated by her signing up new tenants the day after the old lease was to take effect with the respondent.
I make no further comment on the fact situation in the Johrie & Xie lease which led to Senior Member Anforth’s order. It may be very relevant in a criminal prosecution in terms of similar fact evidence but I do not feel there is any need to go any further here. Suffice to say these matters clearly overlap with this matter and that the lease of 10 February 2013 subsequently also fell in a heap and the tribunal ordered that that bond be returned to Mr Johrie and Mr Xie.
Accordingly, it is a clear that the appeal has no legs and not only do I find myself in agreement with Registrar Morris, it is my view the order made ex parte by Member Daniel should stand as is. Accordingly, the appeal will be dismissed and the order of Member Daniel of the 18th of March 2013 is affirmed.
I should add that Member Daniel and Registrar Morris seemed to have made their orders on a different set of facts in relation to the respondent’s not being given keys and not being able to access the premises. There is some overlap as a result of what was before them and what was before me, however, as a result of effectively hearing this matter again, as a hearing de novo, and as a result of the additional matters put before me through evidence and through examination of the various witnesses together with the matters that relate to the Johri & Xie lease, I had a much fuller view of the total situation. As it turns out, I have come to the same conclusion reached by Registrar Morris and Member Daniel.
ORDER
The appeal is dismissed and the order of the tribunal dated 18th of March 2013 in the matter of RT 163 of 2013 is affirmed.
………………………………..
W.G Stefaniak – Appeal President
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | AA 13/17 |
PARTIES, APPELLANT: | Rachel Harrison |
PARTIES, RESPONDENT: | Christopher Eriksson |
COUNSEL APPEARING, APPELLANT | |
COUNSEL APPEARING, RESPONDENT | |
SOLICITORS FOR APPELLANT | |
SOLICITORS FOR RESPONDENT | |
TRIBUNAL MEMBERS: | W.G Stefaniak – Appeal President |
DATES OF HEARING: | 30 May 2013 |
PLACE OF HEARING: | ACAT Canberra |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
0
0