Huggonson v Yip; Yip v Huggonson

Case •

[2025] NSWCATCD 86

•

16 June 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Huggonson v Yip; Yip v Huggonson [2025] NSWCATCD 86
Hearing dates: 8 April 2025
Date of orders: 16 June 2025
Decision date: 16 June 2025
Jurisdiction:Consumer and Commercial Division
Before: S A McDonald, Senior Member
Decision:

(1)   In respect of Case No. 2024/00483925, the Tribunal directs Rental Bond Services to pay the whole of Rental Bond Number T467279-6 to the applicant/tenant, Ms Michie Huggonson.

(2)   In respect of Case No. 2025/00005506, the application is dismissed.

Catchwords:

LEASE AND TENANCIES – Residential Tenancies Act 2010 (NSW) – residential tenancy agreement for strata unit - damage to lift in common property of strata scheme allegedly caused by tenant – whether lift is common property or within definition of ‘residential premises’ in s 62 of the Residential Tenancies Act – whether landlord can claim rental bond of strata unit for damage to common property of strata scheme

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Act 2010 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Nam v Zarb [2022] NSWCATCD 87

Sewell v Zvirblis [2022] NSW CATAP 337 at [2]

Shik v Wu [2021] NSW CATCD 96 at [21]

Category:Principal judgment
Parties:

Proceedings 2024/00483925
Michie Huggonson (Applicant)
Kenny Yip (Respondent)

Proceedings 2025/00005506
Kenny Yip (Applicant)
Michie Huggonson (Respondent)
Representation:

Proceedings 2024/00483925
Applicant (self-represented)
Respondent (self-represented)

Proceedings 2025/00005506
Applicant (self-represented)
Respondent (self-represented)
File Number(s): 2024/00483925; 2025/00005506
Publication restriction: Nil

REASONS FOR DECISION

Introduction

  1. This is a residential tenancy application and cross-application in respect of a rental bond dispute.

Residential Tenancy Agreement

  1. The Residential Tenancy Agreement (RTA) between Mr Kenny Chun Kin Yip (Landlord) and Ms Michie Kim Huggonson (Tenant) which is before the Tribunal was made on 19 December 2023 in respect of the strata unit known as [XXXX], Lane Cove NSW 2066 (Property).

  2. The term of the RTA was 12 months commencing on 12 January 2024 and ending on 19 January 2025. The rent payable by the Tenant to the Landlord under the RTA was $3,867.26 pcm payable in advance starting on 20 January 2024.

  3. A rental bond of $3,400.00 was paid by the Tenant on 21 January 2023 under a previous residential tenancy agreement. It is that bond over which the parties are in dispute. It is currently frozen with Rental Bond Services (RBS).

  4. The RTA at p.4 of 28 stated:

“Strata by-laws

Are there any strata or community scheme by-laws applicable to the residential premises

Yes

☑

No

☐

If yes, see clauses 38 and 39.”

  1. Clauses 38 and 39 of the RTA stated:

“38   The landlord agrees to give to the tenant, before the tenant enters into this agreement, a copy of the by-laws applying to the residential premises if they are premises under the Strata Schemes Management Act 2015.

39   The landlord agrees to give to the tenant, within 7 days of entering into this agreement, a copy of the by-laws applying to the residential premises if they are premises under the Strata Schemes Development Act 2015, the Community Land Development Act 1989 or the Community Land Management Act 1989.”

  1. Although clause 38 had a subheading which read [Cross out if not applicable], neither clause 38 nor clause 39 were crossed out in the copy before the Tribunal. However, it appeared that clause 38 was the relevant provision for the RTA and that clause 39 should have been crossed out.

  2. There appears to be no dispute between the parties that the Tenant was given a copy of, or otherwise made aware of, the by-laws of SP92334 prior to becoming a tenant of the Property.

  3. By-Law 11, Animals, of SP92334 stated as follows:

“11.1   Subject to section 49(4) of the Management Act, an Owner or Occupier of a Lot must not, without the prior written approval of the Owners Corporation, keep any animal (except a cat, a small dog or a small caged bird or fish kept in a secure aquarium) on the Lot or the Common Property.

…

11.7    Carry or restrain the animal when it is on the common property.”

  1. Under Clause 53 of the RTA, the Pet Clause, was enlivened by the completion of a signed Annexure at p.22/28 of the RTA.

  2. That Annexure included Clause 5 upon which the Landlord relied, which stated:

“5.   The tenant agrees to make good any damage caused by their pets including but not limited to timber flooring, doors, skirting’s (sic), carpets, irrigation system, gardens and lawns.”

  1. Also, Additional Terms – Pets at Clause 54 of the RTA stated:

“54. The tenant agrees:

54.1   to supervise and keep the animal within the premises, and

54.2   to ensure that the animal does not cause a nuisance, or breach the reasonable peace, comfort or privacy of neighbours, and

54.3   to ensure that the animal is registered and micro-chipped if required under law, and

54.4   to comply with any council requirements.”

  1. There was no dispute at the hearing that the Tenant kept a dog in the Property, that it was a ‘small dog’ within the terms of by-law 11.1 and that the Tenant had obtained the approval of the landlord and of the owners corporation to keep her dog in the Property as confirmed in the Pet Annexure to the RTA.

  2. This was also confirmed in a separate letter dated 18 January 2023 from Strata Choice, the strata manager of SP92334, to the Tenant.

Hearing

  1. The parties appeared in person before the Tribunal on 8 April 2025 for a half day hearing.

  2. Each of the parties prepared a bundle of documents which contained the following documents.

  3. The Tenant’s bundle (58 pages) included:

  1. a statutory declaration of the Tenant sworn 4 April 2025;

  2. a response to specific claims in the landlord’s statement of evidence;

  3. a chronology of relevant events;

  4. photographs;

  5. a lift expert report; and

  6. correspondence and emails.

  1. The Landlord’s bundle (200 pages) included:

  1. Landlord’s Points of Claim;

  2. Statement and Brief Submissions of Landlord;

  3. Orders Sought;

  4. Quotes of Schindler Lifts dated 25 September 2024 and 5 March 2025; Managing Agent’s Agreement dated 11 February 2020;

  5. Timeline of Events;

  6. RTA;

  7. Statutory Declaration of Sebastian Mathews, Building Manager, sworn 16 March 2025; and

  8. Emails with agent, insurers and strata managers.

Evidence

  1. The competing claims for the Tenant’s bond arise out of the following circumstances and event which the Tribunal shall briefly summarise.

  2. At approximately 2.55pm on Wednesday, 28 August 2024, the Tenant left the Property to pick up her daughter from the nearby school.

  3. SP92334 is a five-building complex consisting of over 300 residential units at Waterview Drive, Lane Cove NSW 2066.

  4. The Tenant was accompanied by her dog (Oreo). She proceeded from the Property by a lift to the basement carpark of the strata scheme to get to her motor vehicle. The Tenant’s evidence was that she was carrying Oreo but that she put him down near the lift entrance to get her car keys from her handbag. She then picked up Oreo to enter the lift but the leash, which was long, dangled behind her and the lift doors closed with the leash buckle outside the closed lift doors.

  5. The tenant gave evidence that Oreo was restrained in the lift by her but that the lift door sensor did not detect the dog’s leash and, as a result, the lift doors closed on the leash.

  6. When the lift started to descend, the leash tightened, placing pressure on the end of the leash attached to Oreo’s neck and causing the dog distress. The lift performed an emergency stop between the ground floor and basement level as a result. The Tenant pulled the leash and collar off Oreo’s neck and the lift then proceeded to the basement level and opened its doors.

  7. The Tenant and Oreo were shaken by this event. The Tenant took photos of the leash, which was snapped by the movement of the lift after the leash became trapped in the lift doors, and of the doors themselves - see pp 26-30 of her evidence. All of these photographs were contemporaneous.

  8. The Tenant reported the incident to the strata manager and to Luna Management Services Pty Ltd, the strata scheme’s building management company, immediately afterwards and sent a follow up email that evening.

  9. On 30 August 2024, she received an email from Luna Management advising her she would be liable for the cost of damage to the lift doors. The Tenant requested the CCTV footage (if any) that the owners corporation may have had of the incident but says her requests were ignored.

  10. There was an emergency callout of Schindler Lifts Australia Pty Ltd to Luna Services Pty Ltd to inspect the lift which resulted in a charge of $1,188.00 in tax invoice no. 4688214634 dated 30 August 2024 to the owners corporation to review and/or reinstate the lift’s operation.

  11. The job description on that invoice stated:

“When responding to the call back dated 28.08.2024, the Schindler Technician found that the equipment had been subjected to vandalism which had affected one of the components. The landing door components were damaged. Following our attendance, the equipment was left in service. Works due to vandalism are not covered under the terms of your maintenance agreement, therefore this site visit will be chargeable.”

  1. It is unclear where Schindler Lifts obtained this categorisation of vandalism which had affected the lift’s operation but on the evidence before the Tribunal it appears to be incorrect.

  2. Although the lift was operational after this visit and/or within a short timeframe, some permanent damage could be seen at the bottom of the righthand lift door panel on the ground floor of the strata building. However this damage did not appear to impede the successful operation of the lift.

  3. Schindler Lifts provided several quotes for repair work to the lift in the next few months. First, there was a quote no. 155070089 dated 25 September 2024 to the owners corporation of $8,025.60 incl. GST being costs of repairs to the lift which included:

  1. Position lift for safe access and rework;

  2. Remove the ground level, right hall door panel;

  3. Position lift on ground level & shut down lift;

  4. Transport door panel to engineer workshop for repair;

  5. Collect repaired door panel & return to site;

  6. Position lift for safe access and rework;

  7. Re-install Hall door panel;

  8. Install new hall door guide shoe assembly;

  9. Re-align Hall doors;

  10. Test and commission; and

  11. Return lift to service.

  1. Schindler Lifts estimated that the lift would be out of service for approximately 2 days while the door panels were being repaired and reinstalled.

  2. The Tenant submitted that there were four versions of this quote prepared by Schindler Lifts of which only three were put into evidence by the parties. Subsequent quotes were prepared and dated:

  1. Quote No. 155358409 dated 7 February 2025 in the sum of $8,025.60 incl. GST (Tenant’s evidence); and

  2. Quote No. 155531024 dated 5 March 2025 in the sum of $7,586.80 incl. GST (Landlord’s evidence).

  1. These works had not been undertaken as at the date of the hearing, but it was understood that this work may be undertaken in May 2025. The Tenant’s position was that apart from some minor visual damage to the ground level door, the lift had been reinstated to effective service with the Schindler callout of 28 August 2024 in the sum of $1,188.00 which had readjusted the ground floor door panel.

  2. The Tenant gave evidence that lift had worked well, and continued to work well, between the call out inspection immediately after the incident and the hearing date. This called into question the need to incur the sum of $8,025.60 in the Schindler Quote and how it was referable, if at all, to the incident on 28 August 2024 or to the Tenant.

  3. The term of the RTA expired on 19 January 2025. On 17 December 2024, the agent requested the Tenant to vacate the Property on the basis that the Landlord would move back into the Property at the end of February 2025.

  4. Shortly after, the Landlord sent a letter of demand to the Tenant in the sum of $8,025.60 for work to be undertaken on the lift. This was the figure in the repair quote of Schindler Lifts dated 24 September 2024 and 7 February 2025.

  5. The Tenant vacated the Property on 28 December 2024 after complying with all requests from the agent in respect of the cleanliness and the condition of the Property. As far as the Tribunal understands, there is no issue with these matters and no part of the bond is sought by the Landlord in respect of the condition of the Property or how it was left by the Tenant.

  6. On 27 December 2024, the agent froze the Tenant’s bond for and on behalf of the Landlord.

  7. The Tenant obtained an expert report dated 2 April 2025 from Tony Hazeldine of Lift Logic (5 pages) which was based upon the Tenant’s account of the incident. Mr Hazeldine said in summary:

  1. Having foreign objects trapped in lift doors or escalator steps is common;

  2. If a lift contractor is required to attend there is a charge to the owner but this is rarely passed on to the person involved, unless it is a deliberate or intentional misuse;

  3. The dent in the right-hand panel at the bottom of the lift door is minor and is obviously having no effect on the lift’s operation given that some 8 months have elapsed without repair since the incident and until Lift Logic’s inspection on or about 5 April 2024;

  4. The Schindler Maintenance Report dated 9 September 2024 approximately 2 weeks after the incident makes no reference to any problems with door operations;

  5. The cost of the Schindler call out on 28 August 2024 seems high. A charge of $1,080 + GST is consistent with an after hours callout charge. Business hours callouts are usually in the $600-$700 + GST range; and

  6. The door repair quote is excessive and predatory and has varied over 3-4 different quotes of Schindler Lifts. The usual cost of recladding a pair of lift landing doors is approximately $2,800-$3,200 +GST.

  1. There is one further evidentiary matter. The Landlord states in his application that he tried to claim these amounts under first, the strata insurance of the owners corporation and then secondly, under his own landlord’s insurance before making a claim against the Tenant’s bond.

  2. In respect of these insurance claims, they were either not covered, rejected or uncommercial having regard to the deductible under the relevant policy. As a result of these responses, the Landlord pursued the Tenant.

Tenant’s Application

  1. On 30 December 2024, the Tenant applied to the Rental Bond Service for her bond to be released and was told the bond was frozen.

  2. The Tenant commenced proceedings in the Tribunal on 30 December 2024 to recover the full amount of her bond in the sum of $3,400.00.

Landlord’s Application

  1. On 6 January 2025, the Landlord commenced proceedings in the Tribunal in respect of his cross-application to claim the full amount of the bond.

  2. The Landlord states in his application:

“The tenant has vacated and during her tenancy her dog’s lead got caught in the lift and caused significant damage to the door, $8,025.60. We have tried to claim under strata insurance and they have rejected this, and also under landlord insurance but this is not covered under LL insurance. Hence we claimed the full amount of the bond $3,400 to put towards the lift damage. We are seeking to claim the full bond and claim the difference of $4,625.60.”

  1. In the Orders Sought in the Landlord’s bundle, the Landlord seeks reimbursement of:

  1. $1,188.00 for the first service call out on 28 August 2024; and

  2. $7,586.80 being the amount of the Schindler Quote dated 5 March 2025.

Jurisdiction

  1. The Tenant’s claim is in respect of the recovery of her bond. It is clear law that a rental bond for a residential premises is the property of the Tenant. In the ordinary course, it should be returned to the Tenant at the end of the term of the RTA subject to any claims for damage to the demised premises which a Landlord may have and which are not the subject of fair wear and tear.

  2. The Tribunal clearly has jurisdiction to hear the Tenant’s application.

  3. Jurisdiction is less clear in respect of the Landlord’s claim. The Landlord alleges that on or about 28 August 2024, the Tenant was in breach of by-law 11 of Strata Plan 92334 resulting in damage to the common property of SP92334.

  4. The owners corporation have apparently debited the Landlord’s strata levies account with both the Schindler Invoice for $1,188.00 and the Schindler Quote for $8,025.60. As a result, the Landlord now seeks recovery or indemnity of these two amounts from the Tenant.

  5. It is unclear what connection the event of 28 August 2024, and the damage allegedly caused by it, has to the Tenant’s rental bond. Any damage suffered was not to the Property but to the common property of the owners corporation. The owners corporation are not a party to these applications.

  6. It is also unclear what process or proceeding was undertaken between the owners corporation and the Landlord for the owners corporation to seek from the Landlord, and for the Landlord to accept, liability for this event and in particular in the amount that the owners corporation asserts.

  7. The Landlord has commenced this application against the Tenant in the Tribunal seeking to recover from the Tenant the total sum of her rental bond in order for him to meet a claim for damages of third party property which the owners corporation has levied against his strata account.

  8. The Tribunal expresses doubt as to whether a residential bond can be claimed for such a purpose as the Landlord now seeks to do, namely to indemnify him from the claims of third parties (the owners corporation) for property damage alleged against the Tenant. Such acclaim may be, in any case, not a claim under the Residential Tenancies Act 2010 (NSW) (Act) but a claim at common law which, if it exists, should be brought in a court and not in the Tribunal.

  9. The purpose of the Tenant’s rental bond is to provide security to the Landlord for damages to the ‘residential premises’ as defined either in the RTA or in the Act.

Consideration

  1. After reviewing the above evidence and reviewing each party’s bundle of documents carefully, the Tribunal makes the following findings of fact:

  1. First, the Tenant, on her own evidence, was holding Oreo when she entered the lift. The Tribunal accepts the Tenant’s evidence in this respect. This fact resulted in the long leash, which was attached to the dog’s neck, dragging on the ground and becoming caught in the lift doors which failed to detect the leash and closed on it;

  2. In so doing, the Tribunal accepts the evidence of the Tenant and not that of either the Landlord or the Building Manager who were not in attendance at the critical time of this incident. The CCTV and photographs generated from it also failed to show the Tenant entering the lift. They showed her rounding the corner prior to facing the lift, which the range of the CCTV did not extend to;

  3. Secondly, as a result of this finding, the Tribunal finds that the Tenant did not breach by-law 11.7 as she was carrying and/or restraining Oreo when she entered the lift and therefore while on common property as required by by-law 11.7. To the extent that she may not have been restraining Oreo at some point prior to entering the lift, this did not cause any loss or damage to the owners corporation.

  4. Thirdly, and again as a result of this finding, the Tribunal finds that the tenant has not committed any breach of the RTA. Clause 54.2 is not breached as Oreo did not cause a nuisance, or breach the reasonable peace, comfort or privacy of neighbours. Nor did Oreo cause any damage to timber flooring, doors, skirtings, carpets, irrigation system, gardens or lawns of the Landlord as required for a breach of Clause 5 of the Pet Annexure.

  1. Clause 41 of the RTA states that the Landlord agrees that, where the Landlord or the Landlord’s agent applies to Rental Bond Services or the Tribunal for payment of the whole or part of the rental bond to the Landlord, the Landlord or Landlord’s agent will provide the Tenant with:

  1. Details of the amount claimed, and

  2. Copies of any quotations, accounts and receipts that are relevant to the claim, and

  3. A copy of a completed condition report about the residential premises at the end of the Residential Tenancy Agreement.

  1. It is clear to the Tribunal therefore that a Tenant’s rental bond is provided to the Rental Bond Board for security for any damage that might be caused to the ‘residential premises’ as defined in s 62 of the Act and not more generally. The Tribunal so finds.

  2. There is no law or authority which the Tribunal can find that suggests that a Tenant’s rental bond can be used as security for, or a buffer against, any third party claims for damages or liability to a third party’s property. This includes a lift in the common property of a strata scheme owned by the owners corporation which is physically remote from the ‘residential premises’ rented by the Tenant from the Landlord.

  3. In Shik v Wu [2021] NSW CATCD 96 at [21], a clear distinction was made between water damage incurred to the Tenant’s apartment which were residential premises and to the common property of the owners corporation.

  4. In Sewell v Zvirblis [2022] NSW CATAP 337 at [2] the Appeals Panel said that in relation to a compensation claim, there was an issue as to whether a security gate on common property which had been damaged fell within the definition of ‘residential premises’ in s 62 of the Act. At first instance it was held that the security gate was not ‘residential premises’ and this finding was not disturbed on appeal.

  5. Finally in Nam v Zarb [2022] NSWCATCD 87 at [26]-[29], the Tribunal stated that the Landlord must identify a relevant duty which was breached by the Tenant to give rise to a liability on the part of the Tenant to the Landlord. The Tribunal is bound to determine claims in accordance with the general law and established legal principles. No such duty has been established in this case.

  6. The Tribunal went on to say:

“[27] The obligations imposed on a tenant by s 51 of the [Act], especially s 51(1)(d), apply in respect of ‘residential premises’. The door to the driveway did not constitute part of the residential premises the subject of the Agreement. As has already been pointed out, the Agreement defined the residential premises to include the Unit, two parking spaces and a storage cage. No question can therefore arise as to whether the Tenant breached s 51 of the [Act] which may have entitled the Landlord to an order pursuant to s 187(1)(c) or s 187(1)(d).”

  1. The Landlord has not identified or relied upon any provisions of the RTA which imposed obligations on the Tenant in respect of common property of the strata scheme which could apply to this incident. This is especially so having regard to the Tribunal’s findings in paragraph 58 above.

  2. It follows therefore that in the same way that a door to the driveway in Nam’s case was not ‘residential premises’ for the purposes of the RTA, a lift on common property in a large strata building is not ‘residential premises’ for the purposes of the RTA or for the purposes of the rental bond provided by the Tenant to RBS. The Landlord therefore cannot make a claim on the Tenant’s bond for reimbursement of the rental bond to meet such third party liabilities, even if the third party makes a claim upon the Landlord as appears to have occurred here.

  3. There appear to be a range of reasons why this can’t occur, which include:

  1. First, the owners corporation appears to have debited the Landlord’s strata levy account without reason or explanation suggesting the Landlord is vicariously liable for any acts of negligence (if they occurred) of the Tenant outside of the RTA or the Property. This appears to be an unwise assumption that has not been tested.

  2. Secondly, the rental bond is there strictly to be used as a security guarantee for damage to the residential premises, not to any property of a third party who was not party to the RTA.

  3. Thirdly, ‘The Owners – Strata Plan No. 92334’ is the legal entity which would have suffered loss allegedly as a result of the Tenant’s negligence or breach of by-laws, not the Landlord. The owners corporation however are not a party to either of these applications. But only they have standing to bring such a claim, and not the Landlord.

  4. Fourthly, there is some doubt as to whether the quotes for repair work to be undertaken by Schindler Lifts in the sum of $8,025.60 should or could be met by the Tenant. Evidence was led suggesting the lift worked well without that work being done, and that the charges by Schindler Lifts were excessive.

  5. Fifthly, no act of negligence of common law has been proven by the Landlord against the Tenant. The fact that the owners corporation has decided unilaterally to impose the repair cost on the Landlord is unfortunate but does not establish any liability against the Tenant.

  1. For these reasons, the Landlord’s claim against the Tenant must fail and should be dismissed.

  2. The Tenant’s claim against the Landlord in respect of the rental bond shall result in an order from the Tribunal that the rental bond which is currently frozen should be released in full to the Tenant.

Orders

  1. The Tribunal orders:

  1. The Tribunal therefore in Case No. 2024/00483925, the Tenant’s application, directs Rental Bond Services to pay the whole of Rental Bond Number T467279-6 to the applicant/tenant, Ms Michie Kim Huggonson.

  2. In respect of Case No. 2025/00005506, the Landlord’s application, the Tribunal orders that the application is dismissed.

**********

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: 25 September 2025

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Nam v Zarb [2022] NSWCATCD 87