Respondent RT2436 v Rayner (Appeal) - [2024] ACAT 34

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

RESPONDENT RT2436 v RAYNER (Appeal) [2024] ACAT 34

AA 14/2024 (RT 36/2024)
Catchwords: APPEAL – residential tenancy – appeal against termination and possession order – whether appellant breached the lease agreement by failing to obtain lessor’s prior written consent prior to keeping animals (cats) in the leased premises – whether the appellant breached the lease agreement by subletting the leased premises without obtaining lessor’s prior written consent – no error of fact proved – appeal dismissed
Legislation cited: Residential Tenancy Act 1997 ss 71AE-AF, Sch 1 s 72

Cases cited:Rayner v Respondent RT2436 [2024] ACAT 28
Tribunal:Presidential Member G McCarthy

Date of Orders:  24 May 2024
Date of Reasons for Decision:         24 May 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 14/2024
BETWEEN:
RESPONDENT RT2436
Appellant/Tenant

AND:

JOHANNA RAYNER
Respondent/Lessor

APPEAL TRIBUNAL: Presidential Member G McCarthy
DATE:24 May 2024

ORDER

The Tribunal orders that:

Appeal dismissed.

………Signed………..

Presidential Member G McCarthy

REASONS FOR DECISION

The appellant/tenant, RT 2436, was a tenant of residential premises leased from the respondent/lessor, Ms Rayner. The tenancy agreement was governed by the Residential Tenancy Act 1997 (the RT Act) including the standard residential tenancy terms (the standard terms) in schedule 1 to the RT Act.
The premises was a three-bedroom unit in an apartment complex.
The tenancy agreement was made on 15 May 2023.
On 19 March 2024, the Tribunal (hereafter the original tribunal) ordered the tenancy agreement was terminated at 10:00am on 26 March 2024 consequent on the appellant breaching the tenancy agreement in two ways: subletting the leased premises without prior consent from the lessor and having animals (in particular, cats) in the premises without obtaining prior written consent from the lessor. On 8 April 2024, the original tribunal published reasons for its orders.[1]
[1] Rayner v Respondent RT2436 [2024] ACAT 28
On 25 March 2024, the appellant appealed from the original tribunal’s orders. She contended she was not in breach of the tenancy agreement and wished to stay in the premises until 21 May 2024 when the tenancy agreement would end “anyway”. In large measure, the appellant appealed because of the very significant consequence of the order for her, namely it would render her homeless.
In her application for appeal, the appellant claimed she was not in breach of the tenancy agreement did not state any detail as to why. However, in a subsequent application for interim or other orders dated 9 April 2024 by which the appellant sought leave for her appeal to be referred to the Supreme Court, she responded to the breaches of her tenancy agreement that gave rise to the original tribunal terminating the lease.
On 11 April 2024, I heard the appellant’s interim application following which I dismissed the application for leave to refer the appeal to the Supreme Court. I also stayed the orders of the original tribunal and listed the matter for hearing on 18 April 2024.
Where the appellant is a layperson, I was prepared to treat her responses to the proved breaches, as set out in the interim application dated 9 April 2024, as her grounds of appeal to the extent the grounds responded to the orders of the original tribunal and its reasons for those orders.
I begin with the first breach of the tenancy agreement leading to its termination: subletting without permission. Clause 72(1) of the standard terms provides:
Tenant must not sell, dispose of, or sublet tenancy without consent of lessor
72 (1) The tenant must not assign or sublet the premises or any part of them without the written consent of the lessor.
(2) Consent may be given at any time.
(3) No rights in relation to the premises may be created in any third party before consent is obtained from the lessor.
The original tribunal recorded that at the original hearing the appellant admitted she sublet a room in the premises on the booking website, Booking.com, “for a period of months” prior to being issued with a notice to remedy.[2] On the evidence, she began doing so by no later than June 2023 being a few weeks after signing the tenancy agreement made on 15 May 2023.
[2] Rayner v Respondent RT2436 [2024] ACAT 28 at [3]
On appeal, the appellant did not challenge that finding but contended she did not use the Booking.com booking website to sublet a room after being issued with the notice to remedy. On the evidence, that might be so but there was evidence in the form of a witness statement from the owner of Unit 4 in the complex, who lived directly above the leased premises, stating the appellant continued to sublet part of the premises in January and February 2024. This evidence was in the form of reported conversations, stated in direct speech, between the owner of Unit 4 and persons arriving to stay in the leased premises after making a booking through AirBnB.
On appeal, the appellant claimed this witness was lying but no persuasive basis was put forward for that claim or evidence to support it. The appellant’s claim is also contrary to the evidence in the form of witness statement given by the owner of Unit 5 who corroborated the claims made by the owner of Unit 4. In particular, the owner of Unit 5 described speaking with “a number of people” who had booked rooms in the leased premises and were looking for directions including “on 24 June 2023 and 4 January 2024”. Also, the owner of Unit 5 stated she had known the owner of Unit 4 “for over 10 years and believe her to have an honest character … I know she holds a security clearance with the Australian Government, which required her to act in an honest and transparent manner”.
I could find no error in the original tribunal’s finding that the appellant breached clause 72(1) of the standard terms, did not rectify the breach in a timely manner and continued to breach it.
I next refer to the cats. Pursuant to item 16 of the tenancy agreement, the appellant was “required to obtain the Lessor’s prior written consent to the keeping of an animal in the premises”. Item 16 then referred to additional clause 106 of the tenancy agreement which stated:
Where the Tenant must obtain the Lessor’s consent to the keeping of an animal on the premises, the Tenant must apply for the lessor’s consent in writing.
Sections 71AE – 71AG of the RT Act govern the keeping of animals in residential premises where a tenant is required under a residential tenancy agreement - as in this case - to obtain the lessor’s consent to keep an animal on the premises. In particular, section 71AE states:
71AE Process for tenant seeking consent—animals
(1) This section applies if, under a residential tenancy agreement, the tenant is required to obtain the lessor’s consent to keep an animal on the premises.
(2) The tenant may apply, in writing, to the lessor for the lessor’s consent.
(3) The lessor may refuse consent only if the lessor obtains the ACAT’s prior approval.
(4) The lessor may impose a condition on consent—
(a) if the condition is a reasonable condition about—
(i) the number of animals kept on the premises; or
(ii) the cleaning or maintenance of the premises; or
(b) with the prior approval of the ACAT.
Note A tenant may apply to the ACAT to resolve a tenancy dispute, including a dispute about whether a condition imposed under s (4) (a) is a reasonable condition (see pt 6).
(5) The lessor is taken to consent to the tenant’s application under subsection (2) unless, within 14 days of receiving the application, the lessor applies to the ACAT under section 71AF.
The respondent submitted the process under section 71AE was not engaged because the appellant never applied in writing to the respondent for the respondent’s consent to keep a cat or cats the premises prior to her commencing to keep cats in the premises. At the original hearing, the respondent pointed out that the appellant did not request permission to keep the cats in the premises until after the respondent had provided the appellant with written notification of her breach of item 16 of the tenancy agreement by way of a notice to remedy.
At the appeal hearing, the appellant claimed she did not have cats in the premises after being given the notice of remedy, but that claim is contradicted by the evidence. During a routine inspection on 12 July 2023, cats were found in the premises. In an email sent the appellant on 12 July 2023, the respondent’s agent stated
The cats are declined and MUST be removed. The reason is the owner is highly allergic. You have two weeks to comply.
In her witness statement, the owner of Unit 5 states she observed cats in the leased premises including on 22 July 2023 and 4 January 2024. Further, in response to an email from the respondent agent sent on 7 December 2023 stating they would need to access the property “to check if the unapproved cats are still in the property”, the appellant replied
My cats are my family. That (sic) was never my intention to ‘get rid of them’. I asked for permission. If you want to reject that you need to take me to court.
There is no evidence the appellant asked for permission to keep cats in the premises prior to doing so. Also, the process under section 71AE does not contemplate a tenant being able to keep animals (in this case, cats) in leased premises prior to determination of whether approval to keep the cats in the premises is given or refused.
I see no error in the original tribunal relying on the appellant’s breach of item 16 of the tenancy agreement as a further ground to terminate the tenancy, especially in circumstances where the appellant continued to be in breach after being given a notice to remedy.
Where both grounds of appeal are unsuccessful, the appeal must be dismissed.

………………………………..

Presidential Member G McCarthy

Date of hearing:	18 April 2024
Appellant:	In person
Respondent:	M Cross, authorised representative