Scott Cardamatis v Elyane Messara

[2014] NSWCATCD 211

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Scott Cardamatis v Elyane Messara [2014] NSWCATCD 211
Hearing dates:	16 July 2014
Decision date:	24 October 2014
Jurisdiction:	Consumer and Commercial Division
Before:	R F Buckley, Senior Member
Decision:	The application is dismissed
Catchwords:	Residential premises Predominant use
Legislation Cited:	Residential Tenancies Act 2010
Cases Cited:	Katherine McFarlane and John Murray v Fardshad Kazizi [1997] NSWRT 117
Texts Cited:	Residential Tenancies, Law and Practice NSW, 5th Edition, Anforth et al
Category:	Principal judgment
Parties:	Scott Cardamatis (applicant) Elyane Messara (respondent)
Representation:	Both parties were self-represented
File Number(s):	RT 14/14247
Publication restriction:	Unrestricted

Reasons for decision

1. This application was commenced by the applicant tenant on 6 March 2014. Subsequently the matter was listed for hearing on 28 March 2014 and a decision entered in favour of the applicant in the absence of the respondent. The decision was later set aside. The matter came before me as a hearing of an application brought for various claims, but principally pursuant to s 187(1)(d) of the Residential Tenancies Act 2010 (the RTA) seeking an order as to compensation for alleged damage caused to the applicant’s goods and possessions, together with a claim for reduction of rent, pursuant to s 44(1) of the RTA, by reason of an alleged reduction in services over an extended period of the tenancy which commenced in August 2012 and ceased in January 2014.

2. The leasing agreement was prepared by the respondent. It was titled, Residential Tenancy Agreement”. The applicant approached the application before the Tribunal as if it was one which was properly brought pursuant to the RTA. The respondent tendered evidentiary material which called into question the Tribunal’s jurisdiction.

The Evidence    

3. Both parties submitted significant folders of evidence. The applicant submitted and relied upon four black plastic enclosed folders of material much of which was repeated from one folder to the next. The respondent’s material was contained in one black lever-arch folder which was lodged with the Tribunal on the 20 June 2014. The folder attached exhibits marked A through W. Also attached were documents titled Synopsis, Chronology and Submissions. The applicant’s primary evidentiary narrative was set out in folder No. 3. The folder contained an index of topic headings, followed by an amalgam of 26 pages of evidence and submission.

4. The applicant also relied upon the statutory declarations of a Mr Fisk and Mr Andrew John Bredin.

5. For the purpose of formulating my reasons, I have read, heard and considered all oral and written evidence, together with the submissions made on behalf of both parties. To the extent that I may not refer to a specific piece of evidence in my reasons or singularly deal with a particular submission, it should not be assumed that I have ignored that evidence or submission. My reasons and decision have been drafted with issues of completeness, clarity, reason and brevity foremost in their preparation.

Consideration

6. The Residential Tenancy Agreement, ex. B in the landlord’s bundle, records that the agreement was made on 5 August 2012 and allowed the tenant, the applicant in these proceedings, the right to occupy premises at a “garage at rear *** Military Road, Mosman”. There are five special conditions in the agreement which are in the following terms:-

1. If the lessee wishes to enclose the storage area below the mezzanine storage area, at the rear of the garage, then it is at his cost and will need to be returned to its original condition at the end of the tenancy if required by the lessor.

2. The loose carpet placed on the floor of the garage is to be maintained in a clean and good state of repair by the lessee for the duration of his/her tenancy.

3. The electricity used in the garage will be separately reimbursed by the lessee to the lessor, or on a quarterly (or otherwise) basis once a devise to measure the electricity used has been installed. This will be calculated on a pro-rata basis, equal to the currently published business rate by Energy Australia or AGL or other supplier in New South Wales. [emphasis added]

4. The lessee acknowledges that he/she has been given two automatic garage door remotes in working condition and agrees to hand back both remotes in the same condition at the end of the tenancy.

5. The lessee acknowledges receipt of one rear door key and one mezzanine storage key which he agrees to hand back at the end of the tenancy.

7. It is asserted by the applicant that sometime in or about January 2013 the storage boxes and other personal goods stored by him in the garage were damaged by water ingress. This allegation is rejected by the landlord.

8. It is further asserted by the applicant that there was an understanding, or agreement, not in any written form other than as recited in Special Condition 1 above, that the landlord was to pay by way of reimbursement to the applicant, his costs incurred in cement rendering one wall. The respondent denies any such agreement.

9. Further, the applicant contends that by reason of the leakage into the garage and a subsequent sewerage break which occurred from about July 2013 to October 2013, either under or adjacent to the garage, his continued occupancy of the garage became untenable. He seeks an order for reduction of rent.

10. I will initially deal however with the issue of the Tribunal’s jurisdiction.

Was the garage a “residential premises”?

11. The respondent contends that the garage premises were let to the applicant for the purpose of storage of a large number of boxes and other personal material associated with, and for the purpose of the conduct of his artistic business. The respondent says, and it is not denied by the applicant, that whereas the garage premises had an electricity connection, there are neither water or drainage connections, nor bathroom amenities or a kitchen contained within the garage. The floor is concrete apart from a loose piece of carpet, and the walls, at the time the lease commenced, were bare brickwork.

12. In her response to the allegations made by the applicant, the respondent asserted that the applicant was in breach of Clause 8.1 of the Tenancy Agreement, in that he used the garage as a bedroom, which was not permitted under the terms of the agreement. The agreement does not contain any specific term precluding the garage being used as a bedroom. The relevant assertion made by the respondent in RT14/18729, the landlord’s set-aside application, is in the following terms:-

“Mr Cardamatis did not adhere to the terms of the lease, Clause 8.1, illegal use of premises as a bedroom”.

13. 13    The applicant responded in his submissions to the Tribunal:-

“I did have a bed located under the mezzanine level of the Bakery and on a few occasions I did sleep there as I am an artist and I work with a product that often needs re-applying on regular intervals. When this has occurred, I have “crashed” there. I cannot find any section in the Residential Lease where it states residing and/or sleeping is not permitted, the zoning 2 B permits it and the lease I signed does not say that I can’t sleep there”.

14. The word “Bakery” refers to a business that the applicant commenced in partnership with another artist at the garage premises. In an email from Mr. Cardamatis to the respondent dated 8 October 2013, in the second paragraph on page 1, the applicant states:-

“Approximately 16 July work commenced tearing up Post Office Lane and on the Telstra site, located at the end of Post Office Lane and directly adjacent to the garage I lease at the rear of 844 Military Road, known as “The Bakery”.

15. In the penultimate paragraph on page 1 of the email, the applicant further stated:-

“The jack hammering made the Bakery vibrate, shake and move like it was going to collapse. I could actually see dust and render regularly fall out of the walls. Staying there was not and remained no option. After one week of work on the site, it became clear that I could not access or remain at the Bakery for any duration other than momentary, so I collected with my friend my essential tools and equipment for my artwork and left the Bakery”.

16. On page 2 of the same email, the second paragraph from the top, the applicant stated:-

“The Bakery went from a quiet work and storage space where I stored and created art works, to a site that was extremely hazardous to anyone’s health. Through industrial deafness, the massive rock excavation occurring, regular dust plumes from the demolition and excavation that emanated from the site most days, toxic fumes of various origins and nature, foul and lingering sewerage odours that filled and permeated the Bakery irrespective of doors open or closed”.

17. In ex. U to the respondent’s bundle, there is attached a series of three newspaper articles. The first dated 2 November 2012, a Herald extract contains the following paragraph:-

“Cardamatis and collaborator Joseph Saad had been working hard to prepare their new gallery, The Bakery, for last night’s opening of their first exhibition. One of their tasks was to pour 80kg of concrete into a large pothole at the gallery entrance…..”

A similar article appeared on the same date in the Telegraph.

18. The Mosman Daily on 1 November 2012 contained an article featuring photographs of the applicant and one Joseph Saad which noted that the opening of the new gallery called The Bakery was to occur on 1 November 2012. The second paragraph of the article reads as follows:-

“The Gallery, called The Bakery, features art work created from native seed pods and flower casings”.

The Law

19. Section 3(1) of the Residential Tenancies Act defines residential premises as follows:-

“Residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence”.

20. By reference to the established authority quoted in the text book, Residential Tenancies, Law and Practice NSW 5th Edition, the author at page 20 notes that:-

“There is nothing in the definition of a “residential premises” that requires any minimum level of facilities in the premises. However, s.52(1) of the Act requires that the premises must be “fit for habitation”. The issue of minimum facilities is probably best addressed in that context”.

21. In this case, the only facility provided for visitors, including the applicant to the rented premises was electric light and power. As noted previously there was no water, drainage toilet facilities and no kitchen.

22. The rear garage is but one of three premises on the block known as ***Military Road, Mosman, which are let by the respondent. The first two premises are at the front of the property and contain a shop on the ground floor and an apartment above it. There is no reference or assertion by the applicant to any sharing of amenities, other than the applicant stating that both of the other tenants had a right to move their rubbish bins down the side of his leased garage.

23. Section 52 of the RTA is in the following terms:-

“Landlord’s general obligations for residential premises

52 Landlord’s general obligations for residential premises

(1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant(emphasis)

(2) A landlord must not interfere with the supply of gas, electricity, water, telecommunications services or other services to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.

(3) A landlord must comply with the landlord’s statutory obligations relating to the health or safety of the residential premises.

Note : Such obligations include obligations relating to swimming pools under the Swimming Pools Act1992 .

(4) This section is a term of every residential tenancy agreement.”

24. These obligations upon a landlord, primarily to provide the premises in a state that is “fit for habitation”, is not consistent with the applicant’s circumstances of renting a garage without any water, drainage, toilet or kitchen facilities. Neither is it consistent with an obligation that a landlord must not interfere with “the supply of gas, electricity, water, telecommunications or other services to the residential premises….”, when there was but one of such utilities.

25. Section 7 of the RTA, under the heading, Premises to which Act does not apply is in the following relevant terms.

“This Act does not apply in respect of the following premises:

(a) – (g)…..

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

26. What therefore was the predominant use of the leased garage premises? The respondent described the garage area as being approximately 16 metres by 3 metres in width. The applicant’s evidence is that he converted the garage into an art gallery, a place where he could work and perform his art works, and in his words as noted above, occasionally “crashed” if he found he could work no longer or was required to work late into the night. In Katherine McFarlane and John Murray v Fardshad Kazizi [1997] NSWRT 117, Thane,K. in considering Reg 21 of the Residential Tenancies Act Regulation 1995, a provision in almost identical terms to s7(h) of the RTA, at [1] said relevant to the issue of amenities, “…The premises are commercial in nature with little or no facilities that would ordinarily be associated with a domestic use.” Further at [2] the Member stated, “…The Tribunal does not consider that an occasional stay in a property to constitute a ‘place of residence’”.

27. This evidence outlined above, the cited similar authority together with the absence of amenities, leads me to the conclusion that the predominant use of the leased premises was as an art gallery, workshop, and storage area. It was not, in my assessment, a residential premises. There was no base line provision of minimum facilities, nor could it in any way be described as fit for anything other than an occasional sleep over.

28. In the circumstances outlined above, I find and determine that the premises leased by the applicant from the respondent, being the garage area at the rear of **** Military Road Mosman, were not residential premises to which the RTA applied. The relevant lease agreement, although using the scheduled residential tenancy format, was not a Residential Tenancy Agreement.

29. The Tribunal does not have jurisdiction. The application is dismissed.

R F Buckley

Senior Member

Civil and Administrative Tribunal of New South Wales

24 October 2014

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: 05 February 2015