Jurjieian v Rajal

[2015] NSWCATCD 112

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jurjieian v Rajal [2015] NSWCATCD 112

Hearing dates:

13 August 2015

Decision date:

09 September 2015

Jurisdiction:

Consumer and Commercial Division

Before:

P French, General Member

Decision:

1. Ms Shanele Joseph is added as an Applicant.

 

2. Mr Samir Rajal is added as a Respondent.

 3. The Respondents, Mr Ali Rajal and Mr Samir Rajal are to pay the Applicants, Mr Daron Jurjieian and Ms Shanele Joseph, $1,600.00 within seven days of the date of these Orders, being a full refund of the Applicants’ rental bond.

Catchwords:

RESIDENTIAL TENANCY – rental bond, not paid to rental bond services, claim for breach of the agreement, early termination of fixed term agreement, unpaid electricity charges, unpaid water usage, damage to property, failure to remove rubbish

Category:

Principal judgment

Parties:

Daron Jurjieian in person (applicant)
No attendance (respondent)

File Number(s):

RT 15/45567

Publication restriction:

Nil

REASONS FOR DECISION

1. This is an application by Mr Daron Jurjieian (the tenant) for orders from the Tribunal that will require Mr Ali Rajal and Mr Samir Rajal (the landlords) to repay to the tenants the whole of the Rental Bond. This application was made to the Tribunal on 30 July 2015.

2. The tenant brings this application on his own behalf and on behalf of another tenant, Ms Shanele Joseph, who attended the hearing with Mr Jurjieian and indicated her consent to Mr Mr Jurjieian acting on her behalf. For the purpose of the orders the Tribunal will make in the proceedings, Ms Joseph will be added as a party.

3. At the commencement of the hearing of the matter, the tenant advised the Tribunal that he sought to amend his application include a further claim for compensation in relation to the landlord’s alleged breach of tenant’s quiet enjoyment of the tenancy.

4. The Tribunal indicated to the tenant that it would be prepared to grant leave for such an amendment to be made, but this amended claim would need to be served on the landlords before the matter could be dealt with. The tenant decided not to make this application at this time so that his claim in relation to the rental bond could be dealt with at this listing of the matter.

5. Neither Mr Ali Rajal nor Mr Samir Rajal attended the hearing. The tenant’s application only refers to Mr Ali Rajal as Respondent and the notice of the hearing was only sent to Mr Ali Rajal. The Tribunal notes the address of both landlords is the same. The tenant gave sworn evidence that his only dealings were with Mr Ali Rajal, who he assumed always acted on behalf of both landlords.

6. On 3 August 2015, the Registry received an email from Mr Ali Rajal requesting an adjournment of the listing of the matter until after 7 November 2015 on the basis that he would be leaving Australia on 4 August 2015 and not returning until after that date. This request was dealt with by another Member of the Tribunal on 3 August 2013. The request was refused on the basis that the period of adjournment requested was unreasonably long. Mr Ali Rajal was given leave to appoint someone to attend in his absence, or in the alternative, was advised to provide a written submission to be relied upon at the hearing in the absence of an attendance.

7. Mr Ali Rajal’s correspondence to the tribunal does not refer at all to Mr Samir Rajal. It proceeds on the basis that Mr Ali Rajal is the only person capable of responding to the tenant’s application. It is impossible for the Tribunal to know what Mr Samir Rajal’s circumstances are. He may be living or dead. He may legally capable of responding to legal proceedings or not. He may be in Australia or traveling with Mr Ali Rajal.

8. Section 36 of the Civil and Administrative Tribunal Act 2013, requires the Tribunal to facilitate the just, quick and cheap resolution of the real issues in dispute in a proceeding. It also requires the Tribunal to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

9. This application is a simple and small residential tenancy claim. It does not warrant orders for the exchange of evidence or a special hearing. There would be a substantial injustice to the tenants if the hearing of the application were to be delayed, in that, prima facie, they are entitled to the prompt return of their rental bond after the date they gave vacant possession of the rented premises. The tenant’s application ought to be dealt with to finality at its first listing.

10. On the evidence before it, the Tribunal was satisfied that the Respondent had been properly served with notice of the hearing by Notice dated 31 July 2015. That Notice included the following warning: “It is important that you are on time as the Tribunal may decide the matter in your absence. The decision made will be binding upon you.” The importance of the landlords’ participation in the hearing in person, by a representative, or on the basis of the filing of written submissions and evidence was also communicated to the landlords in the Tribunal’s decision of 3 August 2015.

11. Specifically on the question of Notice to Mr Samir Rajal, the Tribunal was comfortably satisfied on the evidence before it, that at all material times, Mr Ali Rajal acted for the landlords on his own behalf and as agent for Mr Samir Rajal. Alternatively, or additionally, if that was not the case, Mr Ali Rajal should have arranged for Mr Samir Rajal to represent the landlords at the hearing in response to the Tribunal’s order of 3 August 2015.

12. The Tribunal therefore determined that the tenant’s application would be dealt with in the absence of the landlords.

13. For the purposes of the orders to be made by the Tribunal in these proceedings Mr Samir Rajal will be added as a party to the proceedings.

14. Mr Ali Rajal did not file any further evidence or submissions with the Tribunal following the Tribunal’s order refusing his request for an adjournment. However, he did make brief submissions and file some evidence in response to the tenant’s application with his request for an adjournment. This evidence is an electricity bill dated 6 August 2015 for $954.46 which was addressed to Mr Ross Tilsed at the rented premises and a water bill dated 27 May 2015 for $392.30 addressed to a person at the rented premises. The name of the addressee has been removed from the copy submitted to the Tribunal. Mr Ali Rajal’s evidence and submissions have been considered by the Tribunal.

15. The tenant filed written submissions and a folder of documents in support of his application. The documentary evidence was a copy of the Residential Tenancy Agreement between the parties, email correspondence between the tenant and Mr Ali Rajal, a copy of a proposed new Residential Tenancy Agreement between the parties that was to continue the tenancy from the previous agreement, text messages between the tenant and Mr Alai Rajal and a copy of the electricity account which was also included in Mr Ali Rajal’s evidence.

16. On the basis of the evidence before it, the Tribunal is satisfied that it has jurisdiction to deal with the tenant’s application. The application arises from a Residential Tenancy Agreement in standard form made on 18 March 2015 and commencing on 23 February 2015. It was for a fixed term of six months ending on 23 August 2015. The rent payable under the terms of the Agreement was 400.00 per week. The tenants were required to provide the landlord with a rental bond of $1,600.00.

17. The tenants vacated the rented premises on 29 July 2015 and on 30 July 2015 contacted Rental Bond Services seeking the return of their rental bond. Rental Bond Services advised that no bond had been lodged in respect of the tenancy. The tenants then made a demand upon the landlords for the return of their rental bond. The landlords refused to do so. Later that day this application was filed with the Tribunal.

18. The rental bond is the property of the tenants and it must be returned to the tenants at the end of a tenancy unless and until the landlords can establish a right to some or all of the bond money by proving loss or damage as a result of conduct in the course of the tenancy for which the tenants are liable. The landlords bear the onus of proof in any claim upon the tenants’ rental bond: Volfneuk v McCardle (2002) NSWCTTT 260.

19. In his letter to the Tribunal Mr Ali Rajal claims that he is entitled to the whole of the tenants’ rental bond on the following bases:

1. The tenants breached the fixed term agreement by vacating the premises prior to the end of the term of the Agreement, and without providing notice of termination;

2. The tenants failed to pay an electricity bill for the rented premises in the amount of $954.46 which he had to pay;

3. The tenants have failed to pay for water usage owed in respect of the rented premises in the amount of $392.30;

4. The tenants have caused damage to the rear door and locks of the rented premises;

5. The tenants left rubbish at the rented premises at the time they vacated, which had to be removed.

Early termination of the fixed term Agreement

20. As noted above, the tenancy was established under a fixed term agreement that was to end on 23 August 2015. The tenants left the rented premises on 29 July 2015. Mr Ali Rajal claims that the tenants terminated the Agreement early without giving proper notice. He claims, in effect, that he is entitled to the equivalent of rent to the end of the fixed term. Although not explicitly asserted by Mr Ali Rajal, the Tribunal also notes that the Agreement has an operative standard form clause 41 break fee term, which in the circumstances, may give rise to a claim that the landlord is entitled to claim 4 weeks rent from the tenants.

21. The tenant claims that it was the landlord and not the tenants, who terminated the Agreement early.

22. In this respect, the tenant submitted into evidence an email from the Mr Ali Rajal dated 22 July 2015 which has a subject line “Notice of Termination.” The email ends with the words “[i]f you don’t agree to the new contract please accept this as your “Notice of Termination.” The tenant also submitted into evidence a text message he received later that day from Mr Ali Rajal which reads as follows: “Hi Daron its Ali I have tried to call and have sent three text messages with no replies last week, I have emailed you guys a new lease if you wish to stay after 23 August 2015 and if you guys don’t wish to I completely understand please accept this as the formal notice to vacate the premises. Please ensure the keys are returned by Sunday.”

23. The email and text message evidence submitted by the tenant covers the period 12 June 2015 to 2 August 2015. In broad outline it concerns an attempt by Mr Ali Rajal to negotiate with the tenants a new fixed term agreement in respect of the rented premises before his departure from the country on 30 July 2015. Initially, Mr Ali Rajal proposed that this Agreement would be expressed to commence from 24 August 2015, the day after the lapse of the existing Agreement. However, by 22 July 2015 he was insisting on an agreement that would terminate the existing Agreement prior to his departure on 30 July 2015 and commence from on or about that date. This new agreement would require the tenants to pay rent at the rate of $580.00 a week (a $180.00 a week rent increase).

24. Unsurprisingly, the tenants resisted this proposal. They wanted the then current Agreement to run its course and to vacate at the end of the fixed term before the rent increase would come into effect.

25. Mr Rajal’s email of 22 July 2015 did not stipulate the date upon which vacant possession of the rented premises was required. If it had been subject to challenge, it is likely that it would be found to be invalid as a Notice of Termination on that and other grounds.

26. But the tenants did not challenge it. They acted on it and Mr Ali Rajal’s subsequent text message to the effect that they give vacant possession by 29 July 2015. The tenant’s sworn evidence was that he and Ms Joseph felt threatened and harassed by Mr Rajal’s behaviour. They wanted to separate from him as quickly as possible.

27. In this respect, they relied upon the text message and email evidence before the Tribunal. Mr Ali Rajal’s text messaging during particular periods, and overall, was frequent and demanding. The emails and text messages accuse the tenants of various breaches of the Agreement and criminal activity. The overall intention of these communications would appear to be an attempt to coerce the tenants into terminating the Agreement prior to 30 July 2015 and to enter into a new Agreement with a rent increase commencing from that date.

28. Just prior to the tenants vacating the rented premises, and afterwards, Mr Ali Rajal’s text messages to the tenants include attempts by him to obtain a concession from the tenants that it was them and not him who terminated the Agreement early. This appears to be an attempt by Mr Ali Rajal to minimise his legal exposure or gain legal advantage over the tenants when they refused to accede to his demands.

29. On the evidence before it, the Tribunal is comfortably satisfied that it was Mr Ali Rajal who terminated the fixed term Agreement early, not the tenants. The landlords are not entitled to compensation from the tenant for any rent foregone from the early termination of the tenancy.

Unpaid electricity bill

30. Mr Ali Rajal claims the costs of payment of an electricity bill in the amount of $954.46, dated 6 August 2015, which has been rendered in respect of the rented premises. That bill is addressed to Mr Ross Tilsed. The tenant’s deny any liability for the account, pointing out that the bill is not in their name or in the name of either landlord.

31. The Tribunal notes that the bill is in respect of the rented premises, and that it appears to be for a period when the tenants were living at the address.

32. However, the landlords have provided no explanation for the electricity account being in the name of Mr Tilsed, or for why the landlords or tenants are liable for electricity accounts rendered to him.

33. On this basis the landlords have not established that the tenants have breached clause 10.1 of the Agreement, and consequently cannot claim the costs of payment of that account against the tenant’s rental bond.

Unpaid water usage

34. The landlord claims that the tenants have failed to pay for water usage of $392.30 owed under the terms of the Agreement, and that as a consequence, they are entitled to claim the unpaid amount against the tenant’s rental bond.

35. In reliance upon sub-clause 10.5 of the Agreement, the tenant contends that the tenants are not liable for water usage costs because the landlord has not installed water efficiency measures rented premises. The landlords’ submission does not address the issue of water efficiency measures. In the absence of any positive evidence, the Tribunal cannot be satisfied that there are water efficiency measures in place.

36. In any event, on the evidence before it, the Tribunal cannot be satisfied that there is a water usage account for which either the landlords, or the tenants, are potentially liable: the addressee for the bill submitted into evidence by the landlord is missing.

37. Nor can the Tribunal be satisfied that a proper invoice for the payment of this bill has been provided to the tenants in accordance with clause 11.1 of the Agreement. The tenants deny ever receiving a proper invoice.

38. It follows that the landlord can make no claim upon the tenants’ rental bond in relation to unpaid water usage.

Damage to rear door locks

39. The landlord claims unspecified costs of repair to a rear door and rear locks of the rented premises allegedly damaged by the tenants. No evidence whatsoever is offered in support of this claim. The tenants deny the claim. The landlord has failed to substantiate the claim.

Rubbish left at the premises

40. The landlord claims that the tenants left rubbish at the rented premises at the time they vacated, which had to be removed at his cost or inconvenience. No evidence whatsoever is offered in support of this claim. The tenants deny the claim. They say they removed all rubbish at the request of the landlord. The landlord has failed to substantiate the claim.

Conclusion

41. It follows from these reasons that the landlords have failed to establish any entitlement to retain the tenants’ rental bond. The tenants’ rental bond has not been paid to Rental Bond Services in contravention of the Act. The Tribunal therefore orders that the landlords return the tenants rental bond within 7 days of the date of these orders.

P French

General Member

Civil and Administrative Tribunal of New South Wales

9 September 2015

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 October 2015