Wurie v Liu
[2017] NSWCATCD 64
•6 July 2017
|
New South Wales |
Case Name: | Wurie v Liu |
Medium Neutral Citation: | [2017] NSWCATCD 64 |
Hearing Date(s): | 18 April 2017 |
Decision Date: | 6 July 2017 |
Jurisdiction: | Consumer and Commercial Division |
Before: | Francesco Corsaro, SC, Senior Member |
Decision: | 1 The application is dismissed because the Applicant did not prove to the Tribunal’s satisfaction that there are any grounds for the orders claimed by the Applicant |
Catchwords: | Residential Tenancies – innocent misrepresentation as to number of bedrooms in rented premises – representation as to security of garage – claim to terminate residential tenancy – claim for compensation |
Legislation Cited: | Fair Trading Act 1998 (NSW) |
Category: | Principal judgment |
Parties: | Elizabeth Wurie (Applicant) |
Representation: | The Applicant in person |
File Number(s): | RT 17/08143 |
Publication Restriction: | Unrestricted |
REASONS FOR DECISION
INTRODUCTION
This application concerns the lease of a residential unit in a block of residential units in Strathfield South (the Premises), a suburb of Sydney. The address of the Townhouse appears in the Tribunal’s files. As there is no need to give the address to properly understand what the Tribunal I have determined, in these reasons I have deliberately omitted any direct reference to the precise address of the Premises.
The Applicant, Ms Wurie, leased the Premises under the terms of a residential tenancy agreement made with the Strathfield Partners, the landlord’s agent (the Lease). The application claims a termination order under section 109 of the Residential Tenancies Act 1987 (NSW) (the RTA) terminating her tenancy on the following grounds:
“1. The property manager has threatened to end my lease on 2 occasions and this harassment is both unsettling and unfair.
2. I am a single parent and living in a secure residence is of paramount importance to me. I applied for trhe property primarily because it was advertised as secure. This is clearly not the case became my property was stolen from the secure garage without a trace.
3. I am constantly bombarded by phone calls, emails and texts from multiple people from the same agency on the same issue. The agency has also recently begun calling my work place. I am not coping with this harassment.”
Ms Wurie also applies for a compensation order in the amount of $1,400.00 on the following grounds:
“1. The agency falsely advertised the [Premises] as having 2 car spots only to find out in the morning that I signed the lease that it was only one car spot (I have evidence of the advertisement). By then it was too late to do anything about it because I had already terminated my other lease and had my children and the removalists waiting outside. When I brought up the lease with the property manager, she stated that I was the only adult on the lease and questioned why I needed two car spots.
2. My property was stolen from the [P]remises after the property manager had been constantly threatening to dispose of my property despite other tenants storing similar property in a same manner. The same property manager has sent me message (sic) at all hours. As an example, on the 2nd January 2017 she sent me a text message at 1:10 am.”
For the reasons set out in this determination, I am not satisfied that Ms Wurie has established any legal entitlement to either terminate the Lease or for the payment of compensation.
PROCEDURAL HISTORY
I have extracted the following procedural history from the information appearing on the face of the documents in the Tribunal’s file.
Ms Wurie lodged her application with the Tribunal on 20 February 2017.
The Tribunal first listed the application before the Tribunal on 3 March 2017. On that occasion, the Tribunal made orders that the application be set down for hearing on a date to be fixed by the Registrar, and made procedural orders for the hearing. Those procedural orders included:
(1)an order that, by 24 March 2017, Ms Wurie was to provide Strathfield Partners and the Tribunal with a copy of all documents on which Ms Wurie intended to rely at the hearing; and
(2)an order that, by 7 April 2017, Strathfield Partners was to provide Ms Wurie and the Tribunal with a copy of all documents on which Mr Keane intended to rely at the hearing.
The Registrar listed the application for hearing on 18 April 2017.
Ms Wurie appeared at the hearing on 18 April 2017 in person. Strathfield Partners was represented by Ms Anna Nguyen. Ms Nguyen explained that she was the person within the Strathfield Partners office that Ms Wurie dealt with in connection with the Lease.
Ms Wurie had not complied with the Tribunal’s procedural direction requiring her to provide the documents on which she relied in advance of the hearing, but she provided Ms Nguyen and the Tribunal with copies of the documentary material when the matter was called for hearing. The documents comprised copies of text messages with Ms Nguyen, and a copy of the advertisement for the Premises referred to in the application, which Ms Wurie relied on to establish that Strathfield Partners had misrepresented the Premises when they were being offered for lease. When I enquired whether the parties were ready to proceed, Ms Nguyen expressed her initial reluctance in proceeding, having regard to the late receipt of Ms Wurie’s documentary material. After Ms Nguyen had reviewed Ms Wurie’s documents, Ms Nguyen confirmed that the respondent was in a position to proceed.
Ms Wurie and Ms Nguyen both gave sworn evidence. Ms Nguyen produced a copy of the Strathfield Partners exclusive agency agreement appointing Strathfield Partners the managing agent for the Premises. Ms Nguyen also confirmed that she had authority to appear for the landlord of the Premises. After obtaining instructions, Ms Nguyen confirmed that the landlord was aware of the proceedings, and agreed to have his name substituted as respondent. I indicated that I would make that order, and I do so.
JURISDICTION
Clearly, on the basis of the evidence before the Tribunal, the Premises are premises which are used as Ms Wurie’s residence. Ms Wurie leased the Premises under the terms of a written a residential tenancy agreement that was produced to the Tribunal at the hearing. Ms Nguyen made no objection to the Tribunal’s jurisdiction to hear and determine the matter.
I find that:
(1)residential tenancy agreement under which Ms Wurie leased the Premises is a residential tenancy agreement faling within section 13 of the RTA;
(2)the application constitutes proceedings under the RTA; and
(3)accordingly, I have the jurisdiction to make orders under section 187 of the RTA, which includes an order for the payment of compensation, and an order terminating the Lease,
FINDINGS
Ms Wurie relied on a copy advertisement by Strathfield Partners, which advertised the Premises for lease as a two-bedroom apartment, with two carspaces in the building’s secure carpark at $520 a week rent (the Advertisement). Ms Wurie gave evidence at the hearing that she believed the Advertisement as accurately describing the Premises, and that she had to rely on the description of the Premises in the Advertisement because she did not have the opportunity of personally inspecting the Premises before agreeing to the Lease. Ms Nguyen did not contest these facts. Accordingly, I find that Ms Wurie read and relied on the Advertisement, and agreed to take a lease of the Premises and to pay the rent as advertised on the understanding that the Premises had two bedrooms, two bathrooms and secure parking.
It is clear that the Advertisement incorrectly described the Premises because the Premises had only one bedroom and one carpark space in the building’s garage. Ms Nguyen accepted this was the case, and I make that finding.
Ms Wurie gave evidence that she made arrangements to sign the lease and to collect the keys so that she could move into the Premises. A removalist had moved her out of premises where she had been living, and she went to the Strathfield Partners office to sign the lease on the way. This was when she noticed that the lease that Ms Nguyen presented for her to sign described the Premises as having one bedroom and one carspace. Ms Nguyen informed her that the Advertisement was incorrect, and that the lease correctly described the Premises.
Ms Wurie described that this placed her into difficulty. Even though she was now aware that the Advertisement misdescribed the Premises, she told the Tribunal that she had no real option but to accept the lease. She considered that she had no other choice because she had vacated her existing home, had her furniture and possessions in a removalist van, and had no other place to go. Ms Nguyen was not in a postion to dispute Ms Wurie’s evidence, and accordingly, I make these findings.
On the basis of these findings, although the Advertisement misdescribed the Premises, Ms Wurie signed the Lease with the understanding that the Advertisement was incorrect, and that by signing the lease she would be leasing a one bedroom, one car space apartment at the advertised rent.
Termination of the Lease
The application claimed an order terminating the Lease under section 109 of the RTA. Section 109 of the RTA states:
“109 Agreement frustrated – destruction of, or uninhabitable, premises
(1) This section applies if residential premises under a residential tenancy agreement are, otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable or cease to be lawfully usuable as a residence or are appropriated or acquired by any authority by compulsory process.
(2) The landlord or tenant may give the other party a termination notice.
(3) The termination notice may end the residential tenancy agreement on the date the notice is given.
(4) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement.
(5) The Tribunal may, on application by a landlord or tenant, make a termination order if it is satisfied that a termination notice was given in accordance with this section and that this section applies to the residential premises.”
This section of the RTA speaks of residential premises becoming ‘uninhabitable’. On the evidence, the Premises are not ‘uninhabitable’, and accordingly, I find that this section of the RTA has no application in the current circumstances.
There are other provisions of the RTA which deal with circumstances under which a tenant may terminate a residential tenancy agreement.
Section 103 gives the Tribunal jurisdiction to make an order terminating a residential tenancy if it is satisfied that the landlord has breached the residential tenancy agreement, and the breach is sufficient to justify termination of the agreement. There is no misdescription of the Premises in the Lease, and Ms Wurie signed the Lease knowing that the Premises had been incorrectly described in the Advertisement. Accordingly, the misdescription of the Premises in the Lease do not constitute a breach of the Lease, and accordingly I find that the circumstances do not justify making an order under section 103 of the RTA, even if Ms Wurie had based her claim on that section.
Section 104 of the RTA gives the Tribunal jurisdiction to make a termination order to terminate a lease for a fixed term if it is satisfied that the tenant would, in the special circumstances of the case, suffer undue hardship if the residential tenancy agreement were not terminated.
It was unfortunate that Ms Wurie first learnt of that the Advertisement had misdescribed the Premises while she was actually engaged in physically moving homes. I have no doubt that this presented her with difficulties. I accept that she was in a dilemma. However, that dilemma was the product of a misrepresentation in the Advertisement, not of the terms of the Lease itself. I consider that Ms Wurie’s rights on becoming aware of the misdescription of the Premises in the Advertisement were to assert that she had been misled by the Advertisement, to decline to enter into the Lease because she would be leasing premises that were not as described, and to claim compensation that may have been caused by the Advertisement’s misdescription.
I find that Ms Wurie has not satisfied me that, in the circumstances, by taking the Lease and by living in the Premises she is suffering undue hardship within the meaning of section 104 of the RTA, even if Ms Wurie had made her claim for a termination order relying on that section.
Accordingly, I am not satisfied that Ms Wurie has established any ground to justify the Tribunal making any order terminating the Lease.
Rent Reduction
Ms Wurie seeks a reduction in rent payable under the Lease on the basis that she is paying rent which is greater than the rent she would be paying for a one bedroom, one carspace apartment in the same building
Section 44 of the RTA relevantly states:
“44 Tenant’s remedies for excessive rent
(1) Excessive rent orders
The Tribunal may, on the application of a tenant, make any of the following orders:
(a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount,
(b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.
(2) …
(4) Determination of excessive rent
For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent.
(5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive:
(a) the general market level of rents for comparable premises in the locality or a similar locality,
(b) the landlord’s outgoings under the residential tenancy agreement or proposed agreement,
(c) any fittings, appliances or other goods, services or facilities provided with the residential premises,
(d) the state of repair of the residential premises,
(e) the accommodation and amenities provided in the residential premises,
(f) any work done to the residential premises by or on behalf of the tenant,
(g) when the last increase occurred,
(h) any other matter it considers relevant (other than the income of the tenant or the tenant’s ability to afford the rent increase or rent).
(6) Effect of excessive rent order
An order by the Tribunal specifying a maximum amount of rent:
(a) has effect for the period (of not more than 12 months) specified by the Tribunal, and
(b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.”
Ms Wurie’s concern was that the Advertisement misdescribed the Premises, and that accordingly, the advertised rent represented the rent payable on a two bedroom, two car space apartment within the building. Ms Nguyen gave sworn evidence that a two bedroom, two carspace apartment within the same complex had been let at $580 per week (unit 11), and that accordingly the advertised rent for the Premises fairly represented the going market rent for a one bedroom, one car space apartment in the building. I accept that evidence, and find that Ms Wurie is not paying an excessive amount for the Premises. Ms Wurie has not established to my satisfaction that she had any entitlement to a reduction in the rent payable under the Terms of the Lease.
Compensation
There was no dispute that Ms Wurie stored some of her goods in a carparking space within the building’s secure garage. There is no issue that Ms Nyugen had made a number of complaints to Ms Wurie to require her to remove her goods from that location. Ms Wurie alleged that Strathfield Partners had arranged to have her goods removed because Ms Wurie had not cleared her goods from the carparking space. Ms Nguyen gave sworn evidence that she had no knowledge of who, and how, Ms Wurie’s goods were removed from the building’s garage, and I accept that evidence.
Ms Wurie set about to prove, but failed to prove, that Strathfield Partners or the landlord had some involvement in her goods disappearing. She claimed that this must have been the case, because Ms Nguyen had made persistent complaints about the unauthorised storage of presence of Ms Wurie’s goods in that area. This was a serious allegation, which I believe required credible and clear evidence to establish. Ms Wurie did not establish that either Strathfield Partners, nor the landlord of the Premises, had any hand in, or knowledge of, the circumstances of Ms Wurie’s goods being removed from the carparking area of the building. I find the building’s garage was a secure carparking area, and the arrangements were well known to Ms Wurie before she signed the Lease. The building’s carpark is arranged with garage doors with security to enable only authorised persons to enter the carparking spaces. The fact that Ms Wurie had goods that she stored in the carparking area removed did not make the carparking ‘unsecure’, or result in the landlord breaching the terms of the Lease
CONCLUSION
For these reasons, I find that Ms Wurie has not justified an entitlement either an order terminating the Lease, or any entitlement to an order for a rent reduction or for the payment of compensation.
For these reasons, the Tribunal dismisses Ms Wurie’s application.
F Corsaro SC
Senior Member
Civil and Administrative Tribunal of New South Wales
6 July 2017
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
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