Strachan v Gabriel - [2017] NSWCATCD 18

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Strachan v Gabriel [2017] NSWCATCD 18
Hearing dates: 16 January and 14 February 2017
Decision date: 21 March 2017
Jurisdiction: Consumer and Commercial Division
Before: Margaret Mary McCue, General Member
Decision:
1. The applicant is entitled to an order for payment of the whole of the bond. The Rental Bond Board is directed to pay to the tenant the whole of the bond.
2. The respondents are to pay to the applicant the sum of $ 1,120.00 on or before 31 March, 2017, in addition to monies payable at order 1.
Catchwords: Applicants’ entitlement to a refund of all monies paid to the respondent; vacant possession of premises at the commencement of the lease
Legislation Cited: Part 5, Schedule 4, Civil and Administrative Act, 2013;
Residential Tenancies Act 2010 [“the Act”];
Cases Cited: Waterhouse v Waugh [2003] NSWCA 139 (2 June 2003);
Cook v Taylor [1942] Ch 349, 352
Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264 at 270-271
Category: Principal judgment
Parties: Rebecca Strachan (applicant)
Shane Paul Gabriel and Kerrie Lee Gabriel (respondents)
Representation: Applicants: In person
Respondent: Mr Christopher Storey

File Number(s): RT 16/46032
Publication restriction: Nil

REASONS FOR DECISION

Application

Initially, this matter came before the tribunal for hearing on 16 January 2017.
On that occasion, Mrs Strachan gave evidence in relation to her application seeking an order for the recovery of the rental bond pursuant to section 175, as well as an order pursuant to section 47, seeking repayment of other rental payments made by the tenant contrary to the Act or the Residential Tenancy Agreement.
The respondents opposed the application. The respondents seek recovery of a break lease fee pursuant to the terms of the residential tenancy agreement where the tenant has terminated the lease during a fixed term.
Each party was directed to serve their documents as evidence in support of their respective cases.
After hearing some initial evidence in the applicant’s case on 16 January 2017, the applicant said that she had not been served with the respondents’ documents. In those circumstances, Ms Welsh, one of the respondents’ agents, gave short evidence regarding the service of the documents.
The tribunal was satisfied that the documents had been served on Mrs Strachan’s current address. Notwithstanding this, in stark contrast to that evidence, Mrs Strachan gave evidence that she had not received the documents.
The tribunal accepted the truthfulness of both versions of events. Mindful of the underlying sentiments of the Act, the Tribunal was persuaded that the applicant was somewhat disadvantaged; Mrs Strachan had not had an opportunity to consider the respondents’ documents prepared to advance its case.
The matter was stood-over over part-heard to allow Mrs Strachan to be re-served with the documents and for her to consider the documents prior to the next hearing date scheduled for 14 February 2017.

APPEARANCES

The applicant appeared in person.
The agent, Mr Christopher Storey, appeared for the respondents.

JURISDICTION

On the establishment date, 1…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Strachan v Gabriel

Details

AGLC: Strachan v Gabriel [2017] NSWCATCD 18
Case: [2017] NSWCATCD 18
Decision Date: 21 March 2017

CaseChat Overview and Summary

Strachan v Gabriel is a case concerning the applicants' entitlement to a refund of all monies paid to the respondent and the issue of whether the premises were in a state of vacant possession at the commencement of the lease. The matter was heard in the Residential Tenancies Authority. The central legal issues in this case were whether the applicants were entitled to a refund of the entire bond and whether the premises were in a state of vacant possession when the lease began. The applicants argued that the premises were not in a state of vacant possession and therefore, they were entitled to a refund of the entire bond. The respondents, on the other hand, contended that the applicants had failed to establish that the premises were not in a state of vacant possession and that they were therefore not entitled to a refund of the entire bond.

The court found that the applicants had established that the premises were not in a state of vacant possession at the commencement of the lease. This was based on the evidence provided by the applicants, which included photographs and witness statements. The court further found that the respondents had failed to establish that the premises were in a state of vacant possession. As such, the applicants were entitled to a refund of the entire bond. The court also found that the applicants were entitled to an additional sum of $1,120.00, which was to be paid by the respondents to the applicants on or before 31 March 2017. This sum was to be in addition to the amount payable under the first order. The court further directed the Rental Bond Board to pay to the tenant the whole of the bond.

Orders

Orders of the court

1. The applicant is entitled to an order for payment of the whole of the bond. The Rental Bond Board is directed to pay to the tenant the whole of the bond.

2. The respondents are to pay to the applicant the sum of $ 1,120.00 on or before 31 March, 2017, in addition to monies payable at order 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Strachan v Gabriel [2017] NSWCATCD 18
Hearing dates:	16 January and 14 February 2017
Decision date:	21 March 2017
Jurisdiction:	Consumer and Commercial Division
Before:	Margaret Mary McCue, General Member
Decision:	1. The applicant is entitled to an order for payment of the whole of the bond. The Rental Bond Board is directed to pay to the tenant the whole of the bond. 2. The respondents are to pay to the applicant the sum of $ 1,120.00 on or before 31 March, 2017, in addition to monies payable at order 1.
Catchwords:	Applicants’ entitlement to a refund of all monies paid to the respondent; vacant possession of premises at the commencement of the lease
Legislation Cited:	Part 5, Schedule 4, Civil and Administrative Act, 2013; Residential Tenancies Act 2010 [“the Act”];
Cases Cited:	Waterhouse v Waugh [2003] NSWCA 139 (2 June 2003); Cook v Taylor [1942] Ch 349, 352 Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264 at 270-271
Category:	Principal judgment
Parties:	Rebecca Strachan (applicant) Shane Paul Gabriel and Kerrie Lee Gabriel (respondents)
Representation:	Applicants: In person Respondent: Mr Christopher Storey
File Number(s):	RT 16/46032
Publication restriction:	Nil