Nicholls v TICA Default Control Pty Ltd

[2014] NSWCATCD 97

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Nicholls v TICA Default Control Pty Ltd & Anor [2014] NSWCATCD 97

Hearing dates:

17 April 2014

Decision date:

11 June 2014

Before:

M. Gilson, General Member

Decision:

Pursuant to s 217 of the Residential Tenancies Act 2010 the Tribunal orders that personal information concerning Felicity Nicholls held in a Residential Tenancy Database be wholly removed as follows:

- Individual's name

By 28 April 2014

Catchwords:

Residential Tenancy Database

Legislation Cited:

Residential Tenancies Act 2010, sections 187, 209, 213 and 217

Category:

Principal judgment

Parties:

Felicity Nicholls (applicant)
TICA Default Tenancy Control Pty Ltd
(first respondent)
NSW Land and Housing Corporation (second respondent)

File Number(s):

SH 14/18429

reasons for decision

1. These reasons are provided pursuant to section 62(2) of the Civil and Administrative Tribunal Act 2013 (the "NCAT Act") at the request of the applicant. The Tribunal gave oral reasons on 17 April 2014. The applicant and her representative were present at the hearing. The hearing was sound recorded, however the reasons are produced from the Member's notes and recollections.

APPLICATION

1. By way of an application received on 4 April 2014, the applicant sought orders that her personal information as recorded in a residential tenancy database, be removed and that she be awarded compensation in the sum of $1,000.00.

Representation

1. The applicant appeared in person and was also represented by Mr Safi-Westendorf of New England and Western Tenants Advice and Advocacy Service. The first respondent presented a written submission. Ms Hemmet represented the second respondent.

Proceedings

1. As the first respondent did not attend the hearing in person or by telephone conference, the Tribunal was unable to attempt conciliation pursuant to section 37 of the "NCAT Act". The matter proceeded by way of an informal hearing.

Jurisdiction

1. On or around 23 October 2013 the applicant and the second respondent entered into a residential tenancy agreement with a rental of $350.00 per week. The premises were "residential premises" within the meaning of section 3 of the Residential Tenancies Act 2010 (the "RT Act").

1. Schedule 4, Part 3 of the "NCAT Act" establishes that the functions of the Tribunal in relation to the "RT Act" are allocated to the Tribunal's Consumer and Commercial Division. The present matter proceeded in the Tenancy list of this division.

Applicant's evidence

1. The applicant provided a written submission with her application to the Tribunal. The applicant also gave oral evidence to the Tribunal.

1. The applicant argues that the first respondent's "Public Record" database, is a "residential tenancy database" as defined in section 209 of the "RT Act", and accordingly the Tribunal has jurisdiction to deal with a listing in such a database by virtue of section 217 of the "RT Act". The applicant contends that; "it is unjust in the terms of section 217 (2) (b) to allow information listed in breach of section 213(3) to remain listed on TICA'S database".

1. The applicant also claims that as a consequence of the unjust and unlawful listing on the first respondent's database, she has experience great difficulty in obtaining a new tenancy, and she seeks compensation for the additional accommodation costs she has incurred.

First respondent's evidence

1. The first respondent, (TICA) provided a written submission dated 9 April 2014 and sought to be represented by such submission.

1. The first respondent argues that the information is recorded in its Public Record Database and merely advises the case number and the hearing date. It claims that it is allowed to record any information that is within the "Public Domain". TICA states that the Tribunal only has jurisdiction over its "Tenancy History Database", and has no jurisdiction over information listed in its Public Record Database.

Second respondent's evidence

1. The second respondent gave oral evidence to the Tribunal. It is the second respondent's position that it did not list the applicant's information with TICA and does not place listings with TICA.

Findings and determination

1. Under section 209 of the "RT Act", a "residential tenancy database" is defined as a database:

(a) Containing personal information

(i)   relating to, or arising from, the occupation of residential premises under a residential tenancy agreement, or

(ii)   entered into the database for reasons relating to, or arising from, the occupation of residential premises under a residential tenancy agreement, and

(b)   the purpose of which is for use by landlords or agents of landlords for checking a person's tenancy history to decide whether a residential tenancy agreement should be entered into with the person.

1. The phrase; "relating to, or arising from", as used in the above definition imposes a wide interpretation on the definition of a "residential tenancy database", under the "RT Act".

1. Part (b) of the definition of a "residential tenancy database", establishes that the purpose of the database, has to be to allow a landlord or the landlord's agent to use the person's information in deciding whether to enter into a residential tenancy agreement with the person.

1. The phrase; "checking a person's tenancy history", does not in my opinion, limit a "residential tenancy database", to a "Tenancy History Database" as proposed by TICA. Any information, "relating to, or arising from" the occupation of residential premises under a residential tenancy agreement, will be historical.

1. Any database containing personal information, relating to, or arising from, the occupation of residential premises by way of a residential tenancy agreement, is caught by the definition of a "residential tenancy database".

1. The first respondent's argument that as the information is listed in the "Public Domain", it is able to be recorded in its "Public Record", is in my opinion, without merit. The only reason the information exists in the "Public Domain", is because it related to or arose from the occupation of residential premises under a residential tenancy agreement. Therefore, the recording of such information constitutes a "residential tenancy database", over which the Tribunal has jurisdiction.

1. There are many matters brought to the Tribunal by landlords and landlord's agents, which are dismissed on the evidence, or withdrawn, or are misconceived, or are vexatious. If the Tribunal was unable to consider the listings associated with such matters because the information was in the "Public Domain", then many tenants could be severely disadvantaged. The use of the broad phrase, "relating to, or arising from", in the definition of the "residential tenancy database", clearly is intended to give the Tribunal jurisdiction to supervise such listings.

1. In view of my findings, the unilateral actions of TICA to list personal information about the applicant in a residential tenancy database, would appear to constitute a breach of section 213 of the "RT Act".

1. I hold that in the circumstances of the case, the applicant's name in TICA's residential tenancy database is unjust, and by the provisions of section 217 (3) of the "RT Act", I order that such information be wholly removed.

1. Section 187 of the "RT Act" deals with the general order making powers of the Tribunal, and subsection (2) in part states;

Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following: ...

(c) loss or damage suffered by a person as a result of inaccurate, ambiguous or out-of-date information being listed about the person on a residential tenancy database.

1. The Tribunal's determination in the present matter is that the listing of the applicant's name was unjust in the circumstances. The Tribunal did not determine that the listing was inaccurate, ambiguous or out-of-date, as section 217 (2) (a) of the "RT Act" allows. Therefore, I hold that compensation cannot be ordered in this matter.

1. An order is made to have the listing of the applicant's name removed from the residential tenancy database.

M Gilson

General Member

Civil and Administrative Tribunal of New South Wales

11 June 2014

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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: 21 August 2014