Parker v Morrison; Morrison v Parker

[2022] NSWCATCD 52

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Parker v Morrison; Morrison v Parker [2022] NSWCATCD 52

Hearing dates:

29 March 2022

Date of orders:

4 April 2022

Decision date:

04 April 2022

Jurisdiction:

Consumer and Commercial Division

Before:

G Blake AM SC, Senior Member

Decision:

(1)   Time is extended for the commencement of the COM 21/47990 proceedings until 22 November 2021.

(2)   Proceedings COM 21/47990 are dismissed.

(3)   Time is extended for the commencement of the COM 22/05329 proceedings until 7 February 2022.

(4)   Proceedings COM 22/05329 are dismissed.

Catchwords:

CIVIL PROCEDURE — Time — Extension of time to commence proceedings

CONSUMER LAW — Application of the Australian Consumer Law — Australian Consumer Law (NSW) –whether the applicant landlord has a consumer claim against the respondent tenant - whether the applicant tenant has a consumer claim against the respondent landlord

LEASES AND TENANCIES — Agriculture — Agricultural Tenancies Act 1990 (NSW) — Compensation

Legislation Cited:

Agricultural Tenancies Act 1990 (NSW)

Australian Consumer Law (NSW)

Competition and Consumer Act 2010 (Cth)

Fair Trading Act 1987 (NSW)

Interpretation Act 1987 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (repealed)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Flight Centre Travel Group Limited T/A Aunt Betty v Goel [2021] NSWCATAP 44

Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281

Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93

Texts Cited:

The Macquarie Dictionary, Macquarie Dictionary Publishers, 2022

Category:

Principal judgment

Parties:

COM 21/47990:
Matthew Parker (Applicant)
Leisha Morrison (Respondent)

COM 22/05329:
Leisha Morrison (Applicant)
Matthew Parker (First Respondent)
PVC Investments Pty Ltd trading as Ray White Windsor (Second Respondent)

Representation:

COM 21/47990:
S Starkey (Agent) (Applicant)
Respondent (Self-represented)

COM 22/05329:
Applicant (Self-represented)
S Starkey (Agent) (First and Second Respondents)

File Number(s):

COM 21/47990; COM 22/05329

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. In these two proceedings Matthew Parker, who is the owner (the owner), and Leisha Morrison, who is the former tenant (the tenant), of a property at South Windsor (the property) under an agreement between them (the tenancy agreement), each seeks relief against the other under the Agricultural Tenancies Act 1990 (NSW) (AT Act). The tenant also seeks relief against PVC Investments Pty Ltd trading as Ray White Windsor (the agent) under the Australian Consumer Law (NSW) (ACL (NSW)).

2. I have decided that each of the two proceedings should be dismissed.

The factual background

3. On 8 October 2020, the owner and the tenant entered into the tenancy agreement in the form of the standard form residential tenancy agreement under the repealed Residential Tenancies Regulation 2010 (NSW) bearing the date 7 October 2020 in respect of the property for a period of 12 months commencing on 8 October 2021 at a rent of $760.00 per week and a rental bond of $3,040.00.

4. The owner’s managing agent was Skye Starkey (Ms Starkey), Senior Property Manager & Business Development Manager of the agent. Ms Starkey was assisted by Karen Terrey (Ms Terrey), Property Manager of the agent.

5. On 30 March 2021, tenant vacated the premises.

6. There is a dispute between the owner and the tenant as to whether the tenant breached the tenancy agreement by leaving the property in an unclean and damaged state, and whether the owner breached the tenancy agreement by inadequate fencing which prevented the agistment of the tenant’s horses.

The proceedings in the Tribunal

7. There have been the four proceedings relating to this dispute in the Tribunal:

1. proceedings RT 21/20115 (the RT 21/20115 proceedings);

2. proceedings RT 21/25406 (the RT 21/25406 proceedings);

3. proceedings COM 21/47990 (the COM 21/47990 proceedings);

4. proceedings COM 22/05329 (the COM 22/05329 proceedings).

The RT 21/20115 proceedings and the RT 21/25406 proceedings

8. On 7 May 2021, the owner as the applicant commenced the RT 21/20115 proceedings against the tenant as the respondent by filing a tenancy application in which he sought a money order under the Residential Tenancies Act 2010 (NSW) (RT Act) for repairs to, and the removal of contaminated soil from, the property.

9. On 10 June 2021, the tenant as the applicant commenced the RT 21/25406 proceedings against the owner as the respondent by filing a tenancy application in which she sought a money order under the RT Act for the reduction in facilities due to inadequate fencing and for the removal of building and soil waste.

10. The owner and the tenant provided bundles of documents to the Registry. The owner’s bundle of documents provided to the Registry on 19 May 2021 (the owner’s 19 May 2021 bundle of documents) included the quotation dated 29 April 2021 of Hawkesbury Handyman Services for $866.00 for the repair of various items (remove three key lock safes from post under the house; repair front steps damage on edges; re-mesh flyscreen; repaint and repair blue cupboard; remove white paint marks on timber deck; purchase and replace cabinet for laundry) (the Hawkesbury Handyman quotation).

11. On 11 November 2021, the Tribunal dismissed each of the RT 21/20115 proceedings and the RT 21/25406 proceedings because they should have been brought under the AT Act.

The COM 21/47990 proceedings and the COM 22/05329 proceedings

12. On 22 November 2021, the owner as the applicant commenced the COM 21/47990 proceedings against the tenant as the respondent by filing a commercial list application in which he sought a money order under s 21(1)(e) of the AT Act for repairs to, and the removal of contaminated soil from, the property.

13. On 7 February 2022, the tenant:

1. as the applicant commenced the COM 22/05329 proceedings against the owner as the first respondent and the agent as the second respondent by filing a commercial list application in which she sought a money order under the AT Act for the reduction in facilities due to inadequate fencing and for the removal of building and soil waste against the owner, and if she is liable to the owner then damages for contravention of s 18 of the ACL (NSW) against the agent;

2. provided a bundle of documents to the Registry (the tenant’s bundle of documents) which includes the following documents:

1. the statement of the tenant dated 6 February 2022 (the 6 February 2022 Morrison statement);

2. the synopsis of the tenant dated 6 February 2022 (the Morrison synopsis);

3. documents comprising emails, text messages and photographs;

4. the statement of the tenant dated 6 September 2021.

14. On 28 February 2022, the owner provided a bundle of documents to the Registry (the 28 February 2022 owner’s bundle of documents) which includes the following documents:

1. the statement of the owner dated 25 February 2022 (the Parker statement);

2. the letter dated 6 July 2020 of Kevin Geddes (Mr Geddes), Managing Director of Geddes Plumbing Pty Ltd (the Geddes letter);

3. the tenancy agreement;

4. an undated and unsigned condition report for the property “at start of tenancy” in the standard from under the RT including 442 coloured photographs without captions (the incoming condition report);

5. the incoming condition report marked in red handwriting “Final Inspection” with the handwritten comments in red including 221 coloured photographs without captions and omitting the original 442 coloured photographs;

6. a list of “outstanding repairs” and accompanying quotations and invoices;

7. 89 pages of coloured photographs of the property descried as “Ingoing/before photos and Vacate/ outgoing photos Photographs taken by Ray White Windsor Rea Estate and owner Mr Matthew Parker” which contain captions of what is depicted, and by whom and when they were taken and in some cases include computer generated markings on the photograph (the captioned photographs);

8. 8 pages of coloured aerial photographs of the property which contain captions of what is depicted, and in some cases include computer generated markings on the photograph (the aerial photographs);

9. a map of the area that includes the property of Hawkesbury City Council;

10. a summary statement and response to the tenant’s claim in the RT 21/25406 proceedings;

11. a synopsis of the owner’s claim in the RT 21/20115 proceedings;

12. emails between Ms Starkey or Ms Terrey and the tenant;

13. text messages sent and received by the tenant.

The hearing

15. The hearing took place on 29 March 2022 by telephone. The owner was represented by Ms Starkey. The tenant represented herself.

16. The owner relied on the owner’s 28 February 2022 bundle of documents which was admitted into evidence without objection (Ex A1). During the hearing I added the Hawkesbury Handyman quotation to this exhibit as it had been inadvertently omitted.

17. The tenant relied on the tenant’s bundle of documents which was admitted into evidence without objection (Ex R1).

18. There was no oral evidence. When asked as to whether they wished to ask any question of the other, each of the tenant and Ms Starkey declined.

19. Ms Starkey made oral submissions.

20. The applicant relied on the submissions in the applicant’s first to fourth bundle of documents.

21. The tenant, in addition to relying on the submissions in the tenant’s bundle of documents, made oral submissions.

22. At the conclusion of the hearing, I reserved my decision.

23. Subsequent to reserving my decision, on ascertaining that the copy of the tenancy agreement only contained every second page, I have had regard to the copy of the tenancy agreement provided by the owner in the owner’s 19 May 2021 bundle of documents.

The issues

24. The following issues arise for determination in the proceedings:

1. whether the tenancy agreement is governed by the AT Act or the RT Act;

2. whether the Tribunal has jurisdiction to determine the proceedings;

3. whether the time for the owner and the tenant respectively to commence the COM 21/47990 proceedings and the COM 22/05329 proceedings should be extended;

4. whether the tenant is liable to the owner for damage to the property and, if so what is the amount of the owner’s loss;

5. whether the owner is liable to the tenant due to part of the property being unusable and, if so what is the amount of the owner’s loss;

6. whether the tenant is entitled to recover damages against the agent for contravention of s 18 of the ACL (NSW).

25. Before considering these issues it is appropriate to set out the applicable statutory provisions.

The applicable statutory provisions

Interpretation Act

26. Part 5 (ss 31-38) of the Interpretation Act 1987 (NSW) (Interpretation Act) contains provisions dealing with the construction of Acts and instruments. Section 33 contains the place of objects in the interpretation of an Act, and provides:

3 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

AT Act

27. Part 1 (ss 1-4) contains provisions dealing with preliminary matters. Section 4 contains definitions, and relevantly provides:

(1) In this Act:

agricultural purposes means grazing, dairying, pig-farming, poultry farming, viticulture, orcharding, bee-keeping, horticulture, vegetable growing, the growing of crops of any kind, forestry, or any combination of any of those things.

…

farm means a piece of land not less than 1 hectare in area occupied or used by a tenant and which is wholly or mostly used or intended to be used for agricultural purposes.

…

owner means any person for the time being entitled to the rents and profits of a farm.

…

tenancy means a lease or licence, an agreement for a lease or licence, a tenancy at will or a sharefarming arrangement or any other arrangement by which a person who is not the owner of the farm has a right to occupy or use it.

tenant includes a sharefarmer and any person whose right of occupancy or use of a farm is derived from the tenant, but does not include a tenant employed by the owner.

Tribunal means the Civil and Administrative Tribunal.

…

28. Part 3 Division 2 (ss 18-19A) contains provisions dealing with compensation other than for improvements. Section 19A deals with compensation for deterioration, and relevantly provides:

19A Compensation for deterioration

(1) It is a term of a tenancy that the tenant must pay the owner fair compensation for any deterioration of the farm during the tenancy owing to the failure of the tenant to manage the farm in accordance with good farm management or the provisions of any agreement creating the tenancy, or both.

(2) For the purposes of determining the compensation payable for any deterioration of the farm, the amount of compensation is an amount representing the decrease in the value of the farm as a result of the deterioration.

(3) The compensation is payable when the deterioration is evident.

(4) The rights of an owner under this section are displaced by an agreement:

(a) to the extent that those rights are expressly waived by the agreement, or

…

29. Part 4 (ss 20-23) contains provisions dealing with dispute resolution and remedies. Section 20 deals with applications to the Tribunal relating to disputes, and relevantly provides:

20 Applications to Tribunal relating to disputes

(1) An owner or tenant may apply to the Tribunal for determination of any of the following:

(a) a dispute relating to a right or obligation conferred by this Act,

(b) a dispute arising from, or relating to, an agreement creating a tenancy or any other dispute (not being a dispute referred to in paragraph (a)) arising from, or relating to, a tenancy,

…

(2) An application to the Tribunal must be made not later than 3 months after the relevant dispute or other matter arises or the end of the tenancy, whichever is the later.

30. Section 21 deals with orders that may be made by the Tribunal, and relevantly provides:

21 Orders that may be made by Tribunal

(1) The Tribunal may, on application by an owner or tenant under this Act, or in any proceedings under this Act, make one or more of the following orders:

…

(e) an order for the payment of an amount of money,

(f) an order as to compensation,

…

RT Act

31. Part 1 Division 2 (ss 6-12) provides for the application of the RT Act. Section 7 deals with premises to which the RT Act does not apply, and relevantly provides:

7 Premises to which Act does not apply

This Act does not apply in respect of the following premises—

…

(h) premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture.

FT Act

32. Part 3 Division 2 (ss 27-32) of the Fair Trading Act 1987 (NSW) (FT Act) provides for the application of the Australian Consumer Law (relevantly comprising Schedule 2 to the Competition and Consumer Act 2010 (Cth)) as in force from time to time as a law of New South Wales, its reference as the ACL (NSW), and its inclusion as part of the FT Act.

33. Part 6A Division 1 (ss 79B-79H) of the FT Act provides for preliminary matters with respect to the jurisdiction of the Tribunal in relation to consumer claims, and relevantly:

1. in s 79D, includes the following definitions of “consumer” and “supplier” for Part 6A:

consumer means any of the following persons or bodies to whom or to which a supplier has supplied … services (whether or not under a contract), … —

(a) a natural person,

…

supplier means a person who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services.

2. in s 79E, includes the following definition of “consumer claim”:

79E Meaning of “consumer claim” (cf CC Act 1998, s 3A)

(1) For the purposes of this Part, a consumer claim means a claim by a consumer, for one or more of the following remedies, that arises from a supply of … services by a supplier to the consumer (whether or not under a contract) … —

(a) the payment of a specified sum of money,

…

34. Part 6A Division 2 (ss 79I-79M) of the FT Act contains provisions dealing with applications to and the jurisdiction of the Tribunal, and relevantly provides:

1. in s 79I, that any consumer may apply to the Tribunal for determination of a consumer claim;

2. in s 79J, that the Tribunal has jurisdiction, except as otherwise provided by Division 2, to hear and determine a consumer claim the subject of an application under Division 2;

3. in s 79K(1)(a), that the Tribunal has jurisdiction to hear and determine a consumer claim only if the goods or services to which the claim relates were supplied in New South Wales;

4. in s 79L(1)(a), that the Tribunal does not have jurisdiction to hear and determine a consumer claim if the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged.

35. Part 6A Division 3 (ss 79N-79V) of the FT Act contains provisions dealing with orders of the Tribunal, and relevantly provides:

1. in s 79N(1), that in determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may, subject to Division 3, make any one or more of the following orders that it considers appropriate:

(a) an order that requires a respondent to pay to the claimant a specified amount of money,

…

2. in s 79S(1) when read with ss 79S(2)(a) and 79S(7), that the Tribunal has no jurisdiction to make, in respect of a particular consumer claim, an order in favour of the claimant if the amount to be paid under or because of the order would exceed $40,000.

ACL (NSW)

36. Section 18, which is within Chapter 2 Part 2-1, deals with misleading or deceptive conduct and relevantly provides:

18 Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

…

37. Section 236 relevantly provides:

236 Actions for damages

(1) If:

(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and

(b) the conduct contravened a provision of Chapter 2 or 3;

the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

…

NCAT Act

38. Part 1 (ss 1-6) contains provisions dealing with preliminary matters. Section 3 specifies the objects of NCAT Act, and relevantly provides:

3 Objects of Act

The objects of this Act are—

…

(d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

(e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and

…

39. Part 3 (ss 28-34) contains provisions dealing with the jurisdiction of the Tribunal. Section 28 deals with the jurisdiction of the Tribunal generally, and relevantly provides:

28 Jurisdiction of Tribunal generally

(1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

(2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction—

(a) the general jurisdiction of the Tribunal,

…

40. Section 29 deals with the general jurisdiction of the Tribunal, and relevantly provides:

29 General jurisdiction

(1) The Tribunal has general jurisdiction over a matter if—

(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

…

41. Part 4 Division 1 (ss 35-38) contains introductory provisions dealing with the practice and procedure of the Tribunal. Section 36 deals with the guiding principle to be applied to practice and procedure, and relevantly provides:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it—

(a) exercises any power given to it by this Act or the procedural rules, or

…

42. Part 4 Division 2 (ss 39-43) contains provisions dealing with the commencement of proceedings in the Tribunal. Section 41 deals with extensions of time, and provides:

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

43. Schedule 4 contains provisions dealing with the Consumer and Commercial Division of the Tribunal (the CC Division). Clause 3 deals with the functions allocated to the CC Division, and relevantly provides:

3 Functions allocated to Division

(1) The functions of the Tribunal in relation to the following legislation are allocated to the Division—

Agricultural Tenancies Act 1990

Australian Consumer Law (NSW)

…

Fair Trading Act 1987

…

Residential Tenancies Act 2010

…

Whether the tenancy agreement is governed by the AT Act or the RT Act

Introduction

44. Neither party made any submissions as to whether the tenancy agreement is governed by the AT Act or the RT Act. The critical questions are whether in the circumstances:

1. the tenancy agreement was a tenancy within the meaning of s 4(1) of the AT Act;

2. the predominant use of the property was for the purposes of agriculture within the meaning of s 7(h) of the RT Act.

45. In order to consider the first of these critical questions it is necessary to consider the application of the relevant provisions of the AT Act in the light of the terms of, and circumstances surrounding the entry into, the tenancy agreement.

46. In order to consider the second of these critical questions it is necessary to consider the usage of the property during the tenancy.

The terms of, and circumstances surrounding the entry into, the tenancy agreement

47. On 7 October 2020 at 11.13am, Ms Starkey sent an email to the tenant which provided:

“I have had a response from the landlords. They are happy for you to paint the bedrooms as long as it is done to an acceptable standard.

In regards to the fencing they are not in a position as yet to replace the fencing but are happy to reimburse some cost of materials for a temp repair.

In regards to the pet clause Six horse could be bit much for the property. I see you have 2 on the application how many horses will you plan on having there at any one time?”

48. On 7 October 2020 at 12.15pm, the tenant sent an email to Ms Starkey (the 7 October 2020 at 12.15pm email) which provided:

“Thanks so much for the swift response, this is great news.

To answer the horse clause first, I actually have 3 horses and wrote that on the application so not sure where 3 has come from! I'm not planning to have more than 5 on the property at any one time. That gives me room to add to my string or transition from one horse to another should I need.

Re the fencing, I totally understand the landlord not being able to repair right now and am happy to help with this. I have found some second hand fencing to help keep costs down and think I can probably do the whole exterior for $1000 in materials. I have also struck a deal with a fencing friend who is willing to do a deal on labour and help me at the heavily discounted rate of $1000.

I'm thinking the fairest way to sort this for both of us would be to reduce the rent by $2000 over the course of the year, if the landlord is happy with that?

Appreciate you helping to find a solution to this before I come in later today to sign the lease and before I pay the bond.

Many thanks!”

49. On 7 October 2020 at 1.59pm, Ms Starkey sent an email to the tenant which provided:

“I am looking at your application and it clearly states 2 horses but that's fine I will amend the lease for up to 5 horses.

I have spoke With the landlord he is o my willing to fix the sections of the fence that have the holes mainly the very back at this stage. He feels to do the whole den line we need the neighbours to be involved as they would need to go halves.”

50. On 7 October 2020 at 2.10pm, the tenant sent an email to Ms Starkey (the 7 October 2020 at 2.10pm email) which provided:

“Thank you.

Sorry, I think there's a type in your email so I can't understand what you mean.. .is the landlord willing to help secure the whole of the exterior fencing for the property? Your email suggests just the back paddock.

Without proper secure external fencing, I cannot move in as the property will not be secure...”

51. On 7 October 2020 at 2.28pm, the tenant sent an email to Ms Starkey (the 7 October 2020 at 2.28pm email) which relevantly provided:

“ …

If this issue isn't resolved I can't move in …

… ”

52. On 7 October 2020 at 2.35pm, Ms Starkey sent an email to the tenant which relevantly provided:

“ …

The landlord is only prepared to do the worse bits like the back fence that has the very large hole and what ever other small sections needing to be safe for your horses.

The external fences he needs to have agreements with the neighbours to replace as they will need to pay for half.

… ”

53. On 7 October 2020 at 2.58pm, the tenant sent an email to Ms Starkey which provided:

“Thanks for the chat just now! To confirm, I'm not looking for the entire exterior fence to be replaced, just to be made secure where there are holes, wire has come loose and posts are wobbling and insecure. I am happy to help with the labour of this but I will need help as I've never actually done it before so don't 100% know what I'm doing!

I have sourced the following 2nd hand and cheap at $600:

Star posts $7 per post (I have 45)

Roll of 400m of elec tape $140

Roll of 200m of elec tape $70

Star post caps $1 each (I have 45)

Star post pin locks- to run elec tape through 50cent each (I have 120 one for top row of tape, 1 for bottom row of tape)

I think this will go most of the way towards fixing the fence material-wise however we may need to buy additional electric tape and as mentioned, I'll also need help. I have a fencer friend who is happy to help at a discount - happy to put the landlord in touch if needs be.”

54. On 7 October 2020 at 3.02pm, the tenant sent an email to Ms Starkey which provided:

“Also, just to clarify, the $2k option that I mentioned would amount to a discounted rent of $721 .50 over the course of the year.

That's less than $40 pw that the landlord won't get without my rent anyway so is not a direct cost to him and given I a) paid extra for the shed and b) offered $10 above asking price, it seems prudish for him to balk at that!

Hoping for a good outcome thanks Skye,”

55. On 7 October 2020 at 3.19pm, Ms Starkey sent an email to the tenant which provided:

“The landlord is happy to cover the cost for the electric tape but will like to view for himself the sections you require to get fixed before agreeing to the star post, caps and pin locks. He will endeavour to go out to the property this Saturday perhaps to walk through with yourself. But there might be a small chance he could not make it. He will email me Friday if this is not possible.

He is willing to get this rectified for you, he just wants to make sure that he is taking the right avenue about it. He is more than happy to help you with the repairs.”

56. On 7 October 2020 at 3.22pm, the tenant sent an email to Ms Starkey which provided:

“That's absolutely fine, I don't mind him assessing the situation first of course.

I will have to temporarily fence for the horses in the meantime, but as long as we can come to an agreement after he [word obscured] on Saturday, that is absolutely fine.

Thank you for sorting for me - see you shortly!”

57. On 7 October 2020 at 3.23pm, Ms Starkey sent an email to the tenant which provided:

“Not a problem.”

58. The tenancy agreement contained the following terms:

1. a inclusive description of the residential premises:

“3 Bedroom House and double Carport. 1 x shipping Container and a Demountable”

2. special conditions:

“ …

17.   Pursuant to clause 11, water usage accounts are to be paid within 21 days of notification from the agent.

18.   Tenant is Aware that the property is 5 acres and it is up to the tenant to maintain the entire property on a regular basis.”

3. an animal clause:

“ …

1.   Only animals that the landlord has approved can be kept at the premises and they must be listed on the agreement: Animals: 2 x Horses (no more than 6 x Horses) plus 1 x outside cat

… “

The usage of the property during the tenancy

59. On 21 March 2021 at 9.37am, the tenant sent an email to Ms Terrey (the 21 March 2021 at 9.37am email) which relevantly provided:

“ …

As mentioned, I'm currently keeping some on agistment and some here. There are 5 here as per my lease agreement however, 1 is a pony and 2 are miniature horses so in terms of space, they take up nothing and the three of them share a paddock. Because they're ponies, I don't want them on too much grass anyway as I don't want them foundering, so the pasture management isn't a problem for them.

The other 2 I'm keeping on agistment are also prone to laminitis, so they also don't need to be on pasture and that back paddock I showed you is plenty big enough. I can also rotate them around the 5 paddocks I have built.

Would it be possible to add 2 extra horses to the lease and make it 7 allowed to live here so I could have them all in the one place?”

Consideration and determination

60. I am satisfied that the property was a “farm” within the meaning of s 4(1) of the AT Act for the following reasons:

1. its area as specified in cl 18 of the special conditions of the tenancy agreement is 5 acres which is more than 1 hectare. In fact, as specified in one of the aerial photographs, its area is 2.29 hectares;

2. it was occupied by the tenant;

3. “grazing” in the definition of “agricultural purposes” in s 4(1) of the AT Act has its ordinary meaning of feeding on growing grass as contained in The Macquarie Dictionary:

“graze

verb (grazed, grazing)

–verb (i) 1. to feed on growing herbage, as cattle, sheep, etc.

…

–verb (t) 3. to feed on (growing grass).

4. to put cattle, sheep, etc., to feed on (grass, pasture, etc.).

5. to put (cattle, sheep, etc.) to feed on pasture.

…”

4. taking into account the emails passing between Ms Starkey and the tenant on 7 October 2020, the photographs of the property which are part of the incoming condition report and the captioned photographs, I infer that the property was intended to be used for agricultural purposes, being the grazing of the tenant’s horses. As is clear from the 7 October 2020 at 12.15pm email, the 7 October 2020 at 2.10pm email and the 7 October 2020 at 2.28pm email the tenant wanted to have up to five horses on the property at any one time and required secure fencing.

61. I am satisfied that the tenancy agreement created a tenancy within the meaning of s 4(1) of the AT Act as it was a lease pursuant to which the tenant had the right to occupy a farm. It follows that the tenancy agreement is governed by the AT Act.

62. I am satisfied that the property was used by the tenant for residential purposes.

63. I am also satisfied that the predominant use of the property was for the purposes of agriculture within the meaning of s 7(h) of the RT Act for the following reasons:

1. it is clear from the 21 March 2021 at 9.37am email that the tenant predominantly used the property for the agistment of horses;

2. “the purposes of … agriculture” in s 7(h) of the RT Act should be interpreted in the same manner as “agricultural purposes” in s 4(1) of the AT Act which encompasses the agistment of horses.

64. It follows that the RT Act does not apply to the property and the tenancy agreement is not governed by the RT Act.

Whether the Tribunal has jurisdiction to determine the proceedings

65. I am satisfied that the Tribunal has jurisdiction to determine the two proceedings for the following reasons:

1. the tenancy agreement was a tenancy within the meaning of the AT Act;

2. the tenancy contained a term that the tenant must pay the owner fair compensation for any deterioration of the farm under the provisions of the tenancy agreement pursuant to s 19A(1) of the AT Act;

3. the dispute between the owner and the tenant relates to an obligation conferred by the AT Act within s 20(1)(a) of the AT Act or an dispute arising from the tenancy agreement within s 20(1)(b) of the AT Act;

4. the tenant by commencing the COM 22/05329 proceedings as against the agent was making a consumer claim within s 79D of the FT Act for damages under s 236 for contravention of s 18(1) of the ACL (NSW);

5. the jurisdictional requirements have been satisfied because:

1. the agent supplied the services to which the claim relates in New South Wales under s 79K(1)(a) of the ACL (NSW);

2. the cause of action giving rise to the claim did not first accrue more than 3 years before the date before the tenant commenced the COM 22/05329 proceedings stipulated by s 79L(1)(a) of the ACL (NSW);

6. these provisions are picked by ss 28(1) and (2)(a) and 29(1)(a) of the NCAT Act, and pursuant to Sch 4 cl 3(1) of the NCAT Act this jurisdiction is allocated to the CC Division.

Whether the time for the owner and the tenant respectively to commence the COM 21/47990 proceedings and the COM 22/05329 proceedings should be extended

Introduction

66. Neither the owner nor the tenant respectively commenced the COM 21/47990 proceedings and the COM 22/05329 proceedings not later than 3 months after the later of the relevant dispute arising or the end of the tenancy as required by s 20(2) of the AT Act.

67. The tenant in the 6 February 2022 Morrison statement and the Morrison synopsis submitted:

1. that time for the owner to commence the COM 21/47990 proceedings should not be extended for the following reasons:

1. it would be unfair because the owner and the agent should have known that the tenancy was governed by the AT Act and not the RT Act;

2. it would be a breach of natural justice because the owner should not be able to benefit from his and/or the agent’s misrepresentation that the tenancy was governed by the RT Act;

3. it would be contrary to the objects in s 3(d) and (e) of the NCAT Act;

2. that if time for the owner to commence the COM 21/47990 proceedings is extended, then time for her to commence the COM 22/05329 proceedings should be extended.

68. The owner in the Parker statement submitted that time for him to commence the COM 21/47990 proceedings should be extended because the RT 21/20115 proceedings were commenced within time, he would have commenced proceedings seeking relief under the AT Act if he had been earlier informed by the Tribunal, he has not intentionally delayed the RT 21/20115 proceedings and the COM 21/47990 proceedings, and there has been no adverse impact on either him or the tenant other than the passing of time.

Consideration and determination

69. In Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 (Jackson) an Appeal Panel at [23]-[24] made the following observations with respect to an extensions of time to commence proceedings under s 41 of the NCAT Act:

“[23] The Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22 at [22] said the following in relation to an extension of time in which to bring an appeal:

(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant — Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a “vested right“ to retain the benefit of that decision — Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success — Jackamarra at [7];

(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a) The length of the delay;

(b) The reason for the delay;

(c) The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d) The extent of any prejudice suffered by the respondent (to the appeal),

— Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable — Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]–[59].

[24] Factor 2 has no relevance here, but otherwise there is no reason to suggest that similar considerations do not apply with respect to the Tribunal’s consideration of extending time and therefore dispensing with or relaxing the requirement that an applicant must bring a timely application.”

70. Having regard to the principles in Jackson at [23]-[24] and the guiding principle in s 36(1) when read with s 36(2)(a) of the NCAT Act, I am satisfied that the time for the owner and the tenant respectively to commence the COM 21/47990 proceedings and the COM 22/05329 proceedings should be extended for the following reasons:

1. each of the RT 21/20115 proceedings and the RT 21/25406 proceedings, notwithstanding that relief was sought under the RT Act, was commenced with the time required by s 20(2) of the AT Act;

2. rather than dismiss the RT 21/20115 proceedings and the RT 21/25406 proceedings the Tribunal having regard to the guiding principle in s 36(1) when read with s 36(2)(a) of the NCAT Act should have permitted amendments by each of the owner and the tenant so as to claim relief under the AT Act. If such amendments had been made, the issue of an extension of time would not have arisen;

3. in circumstances where the owner and the tenant are not legally represented and incorrectly sought relief under the RT Act in the RT 21/20115 proceedings and the RT 21/25406 proceedings, justice requires an extension of time to commence the COM 21/47990 proceedings and the COM 22/05329 proceedings enable the disputes between them determined. There is no unfairness to the tenant in extending time to the owner;

4. I do not accept that the interpretation of s 41 of the NCAT Act, as required by s 33 of the Interpretation Act that requires the refusal of an application for an extension of time to commence proceedings where there had been previous proceedings raising the same issues in which relief had been claimed under the wrong Act and been dismissed resulting in the new proceedings which are out of time, would promote the objects in s 3(d) and (e) of the NCAT Act. Section 41 confers a discretion on the Tribunal which is to be exercised judicially having regard to all the relevant circumstances. Further, the objects in s 3(d) and (e) of the NCAT Act are not inconsistent with the application of s 41 of the NCAT Act to extend time for the commencement of the COM 21/47990 proceedings and the COM 22/05329 proceedings. On the contrary, it is appropriate to construe s 41 so as to enable the Tribunal to resolve the real issues in the two proceedings justly, quickly, cheaply and with as little formality as possible in accordance with the object in s 3(d) of the NCAT Act;

1. there has been no breach of natural justice to the tenant who had the opportunity to make submissions on this issue.

71. It follows that time for the commencement of the COM 21/47990 proceedings and the COM 22/05329 proceedings should be extended to 22 November 2021 and 7 February 2022 respectively.

Whether the tenant is liable to the owner for damage to the property and, if so what is the amount of the owner’s loss

Introduction

72. The owner claims $27,570.03 for “outstanding repairs” at the property comprising:

1. the work and amounts in the following quotations and invoices:

1. the Hawkesbury Handyman quotation;

2. tax invoice no 1685 dated 23 April 2021 of Pevie Handyman Services for $118.44 inclusive of GST to realign kitchen cupboard doors (the Pevie Handyman invoice);

3. invoice no 00003228 dated 4 May 2021 of Prograde Excavations Pty Ltd (Prograde) for $1430.00 inclusive of GST for the scaping of spoil into a pile and leaving on the property (the 4 May 2021 Prograde invoice);

4. invoice no 00003355 dated 6 December 2021 of Prograde for $22,000.00 inclusive of GST for the removal of approximately 30 tonnes of mixed spoil (the 6 December 2021 Prograde invoice);

5. tax invoice dated 26 April 2021 of Bunnings for the purchase of a padlock (the 26 April 2021 Bunnings invoice);

6. quote no QU-0212 dated 5 May 2021 of Hawkesbury Fencing for $2,452.00 for two galvanised star picket fences 1.2 metres high, one for 44 metres and the other for 40 metres (the Hawkesbury Fencing quote);

7. tax invoice dated 5 May 2021 of Bunnings for the purchase of a welder (the 5 May 2021 Bunnings invoice);

8. tax invoice no 1692 dated 24 April 2021 of Pevie Cleaning Services for $154.00 inclusive of GST for steam cleaning of the interior of the shed (the Pevie Cleaning invoice);

9. tax invoice dated 9 March 2021 of Sydney Water for $343.54 (being fixed charges of $9.84 for the period from 1 January 2021 to 31 March 2021 and usage charges of $333.70 for the period from 8 December 2020 to 6 March 2021) (the 9 March 2021 Sydney Water invoice).

2. $7.05 for water usage for the period from 6 March 2021 to 30 March 2021.

73. While the owner made no submissions as to the basis on which he is entitled to an order under s 20(1)(e) of the AT Act, it appears that he is relying on the terms of the tenancy agreement.

74. Each of the owner and the tenant has provided extensive evidence about whether the tenant is liable to the owner for damage to, the cleaning of, and the removal of rubbish from, the property. For the reasons set out below, it is unnecessary to consider most of this evidence.

75. The tenant in the Morrison synopsis submitted that there is no basis for any compensation payable by her because the owner has provided no evidence:

1. that the way she maintained the property was from “the failure of the tenant to manage the farm in accordance with good farm management” within s 19A(1) of the AT Act;

2. of any “decrease in the value of the farm as a result of the deterioration” within s 19A(1) of the AT Act.

The relevant evidence

76. Clauses 11, 12 and 18 of the tenancy agreement relevantly provide:

“PAYMENT OF COUNCIL RATES, LAND TAX, WATER AND OTHER CHARGES

…

11.   The tenant agrees to pay:

…

11.6 water usage charges, if the landlord has installed water efficiency measures referred to in clause 10 of the Residential Tenancies Regulation 2019 and the residential premises:

11.6.1   are separately metered, or

11.6.2   are not connected to a water supply service and water is delivered by vehicle.

Note. Separately metered is defined in the Residential Tenancies Act 2010.

12.   The landlord agrees that the tenant is not required to pay water usage charges unless:

12.1   the landlord gives the tenant a copy of the part of the water supply authority's bill setting out the charges, or other evidence of the cost of water used by the tenant, and

12.2   the landlord gives the tenant at least 21 days to pay the charges, and

12.3   the landlord requests payment of the charges by the tenant not later than 3 months after the issue of the bill for the charges by the water supply authority, and

12.4   the residential premises have the following water efficiency measures:

12.4.1   all internal cold water taps and single mixer taps for kitchen sinks or bathroom hand basins on the premises have a maximum flow rate of 9 litres a minute,

12.4.2   on and from 23 March 2025. aft toilets are dual flush toilets that have a minimum 3 star rating in accordance with the WELS scheme,

12.4.3   alt showerheads have a maximum flow rate of 9 litres a minute,

12.4.4   at the commencement of the residential tenancy agreement and whenever any other water efficiency measures are installed, repaired or upgraded, the premises are checked and any leaking taps or toilets on the premises have been fixed.

…

USE OF THE PREMISES BY TENANT

…

18.   The tenant agrees, when this agreement ends and before giving vacant possession of the premises to the landlord:

…

18.2   to leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy, and

18.3   to leave the residential premises reasonably clean, having regard to their condition at the commencement of the tenancy, and

18.4   to remove or arrange for the removal of all rubbish from the residential premises in a way that is lawful and in accordance with council requirements, and

…

77. The owner’s 19 May 2021 bundle of documents included the 9 March 2021 Sydney Water invoice.

78. In the Geddes letter Mr Geddes states that water saving devices have been installed on all internal plumbing fixtures of the property.

79. On 15 April 2021 at 5.10pm, Ms Terrey sent an email to the tenant which relevantly provided:

“We have conducted a final inspection of 309 Fairey Road, South Windsor with the landlords. As per the ingoing report we have compared the condition of which you have returned the property and compared the ingoing photos. Unfortunately, there are some areas of concern which we have been instructed by the landlord which will need to be rectified.

They are as follows:-

…

Missing welder from the shelf in the shed

…

New padlock & replacement keys which was cut during your tenancy to the shed door

…

We are now in the process of obtaining quotes to rectify the outstanding repairs and will be seeking compensation.”

80. On 19 April 2021 at 12.48pm, the tenant sent an email to Ms Terrey which relevantly provided:

“Please see in green my response to you in green. …

…

Missing welder from the shelf in the shed - I do not know what you're talking about. I don't know what a welder looks like, and there is no welder listed in the condition report

…

New padlock & replacement keys which was cut during your tenancy to the shed door - I'm happy to provide a new padlock. Please take $20 out of my bond to replace it.

…”

Consideration and determination

81. I am satisfied that the “outstanding repairs”, other than for the replacement of the padlock and the welder and for water usage, relate to the deterioration of the property during the tenancy owing to the failure of the tenant to manage the farm in accordance with cll 18.2, 18.3 and 18.4 of the tenancy agreement within s 19A(1) of the AT Act.

82. I am also satisfied that the owner is not entitled to claim the amounts in the Pevie Handyman invoice, the 4 May 2021 Prograde invoice, the 6 December 2021 Prograde invoice, the Hawkesbury Fencing quote, and Pevie Cleaning invoice for these breaches of cll 18.2, 18.3 and 18.4 of the tenancy agreement because the amount of compensation prescribed under s 19A(2) of the AT Act is the amount representing the decrease in the value of the property as a result of the deterioration.

83. The rights of the owner under s 19A(2) of the AT Act have not been displaced by any right to recover the cost to repair damage, clean the property and remove rubbish as there is no provision of the tenancy agreement expressly waiving these rights.

84. The owner’s claim for the replacement of the padlock and the welder arise in bailment. The owner’s claim for the water usage arises in contract for breach of cl 11.6 of the tenancy agreement. The Geddes letter is evidence that the owner had installed the required water efficiency measures. I infer from the 9 March 2021 Sydney Water invoice that the property is separately metered.

85. I accept that the owner complied with cll 12.1, 12.2 and 12.3 of the tenancy agreement because the owner’s 19 May 2021 bundle of documents included the 9 March 2021 Sydney Water invoice.

86. I accept that the owner complied with cl 12.4 of the tenancy agreement because the Geddes letter is evidence that the owner had installed the required water efficiency measures. I infer from the 9 March 2021 Sydney Water invoice that the property is separately metered.

87. The owner does not have any right to recover $7.05 for water usage for the period from 6 March 2021 to 30 March 2021 because there is no evidence that he gave the tenant a bill of Sydney Water covering this period as required by cl 12.1 of the tenancy agreement.

88. The question arises as to whether the owner can claim for the replacement of the padlock and the welder and for water usage for the period from 8 December 2020 to 6 March 2021 in the COM 21/47990 proceedings on the basis it is a consumer claim.

89. Part 6A of the FT Act does not create a cause of action. Jurisdiction is conferred on the Tribunal by reference to the general type of claim made by the consumer. A cause of action is predicated upon the existence of causes of action that arise independently from Part 6A: Flight Centre Travel Group Limited T/A Aunt Betty v Goel [2021] NSWCATAP 44 (Aunt Betty) at [18]-[19]. In Aunt Betty at [19] the Appeal Panel quoted with approval the decision of the Appeal Panel in Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93 at [97]:

“[97] The cause of action may be founded upon contract, tort, debt, statute or any other sufficient basis in law. All that is required is that the cause of action is available under New South Wales law to the consumer at the relevant time and provides a legitimate legal basis for the consumer to make a claim of a type listed in s 3A (1) (a) to (e) of the CC Act, or the corresponding definition in Pt 6A, against the supplier. If there is such a claim and the other requirements in relation to jurisdiction are met, the Tribunal then has power to make orders of the types listed in s8 (now ss79N, 79O and 79P of the FT Act), having regard to the legal entitlements of the parties under the causes of action upon which the claims are based: Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [164].”

90. I am satisfied that these claims are not a consumer claim within s 79E of the FT Act because the tenant was not a supplier of goods or services to the owner. It follows that the tenant is not liable to the owner for damage to the property, for the replacement of the padlock and the welder, and for water usage for the period from 8 December 2020 to 6 March 2021.

91. Accordingly, the COM 21/47990 proceedings should be dismissed.

Whether the owner is liable to the tenant due to part of the property being unusable and, if so what is the amount of the owner’s loss

Introduction

92. The tenant’s claim is for a reduction of rent for the period of 12 weeks and 3 days from the time the stables were damaged in a storm to their demolition.

93. While the tenant’s claim appears to be that she is entitled to an order for compensation under s 20(1)(f) of the AT Act for compensation, she made no submissions as to why the appropriate measure of compensation for the inadequate fencing of the property is a rent reduction.

The relevant evidence

94. Clause 19 of the tenancy agreement relevantly provides:

“LANDLORD'S GENERAL OBLIGATIONS FOR RESIDENTIAL PREMISES

19.   The landlord agrees:

…

19.3   to keep the residential premises in a reasonable state of repair, considering the age of, the rent paid for and the prospective life of the premises, and

…

Consideration and determination

95. The tenant’s claim for a rent reduction arises in contract for breach of cl 19.3 of the tenancy agreement.

96. The question arises as to whether the tenant can claim for a rent reduction in the COM 22/05329 proceedings on the basis it is a consumer claim.

97. I am satisfied that this claim is a consumer claim within s 79E of the FT Act because the tenant is a consumer and the owner is the supplier of services.

98. I am not satisfied that the owner failed to keep the property in a reasonable state of repair in breach of breach of cl 19.3 of the tenancy agreement. The stables were damaged in a storm which was a fortuitous event. The tenant entered into the tenancy agreement aware of the condition of the fences.

99. If, contrary to my finding, the owner failed to keep the property in a reasonable state of repair in breach of breach of cl 19.3 of the tenancy agreement because of the condition of the fences for the period of 12 weeks and 3 days it took to demolish the stables, then I am not satisfied that the tenant has established that she suffered any loss. There was no expert evidence of the loss of rental value due to the inadequate condition of the fences.

100. It follows that the owner is not liable to the tenant for any loss for any breach of cl 19.3 of the tenancy agreement by his failure to demolish the stables. Accordingly, the COM 22/05329 proceedings should be dismissed.

Whether the tenant is entitled to recover damages against the agent for contravention of s 18 of the ACL (NSW)

101. As the tenant is not liable to the owner for damage to, the cleaning of, and the removal of rubbish from, the property, for the replacement of the padlock and the welder, and for water usage for the period from 8 December 2020 to 6 March 2021, this issue does not arise for determination.

Orders

102. I make the following orders:

1. time is extended for the commencement of the COM 21/47990 proceedings until 22 November 2021;

2. the COM 21/47990 proceedings are dismissed;

3. time is extended for the commencement of the COM 22/05329 proceedings until 7 February 2022;

4. the COM 22/05329 proceedings are 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: 22 June 2022