Xiaoxia Qui v A & S Renard

[2015] NSWCATCD 125

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Xiaoxia Qui v A & S Renard [2015] NSWCATCD 125
Hearing dates:	8 July 2015
Decision date:	29 September 2015
Jurisdiction:	Consumer and Commercial Division
Before:	M Eftimiou, General Member
Decision:	1. The Rental Bond Service is to pay to the applicant landlord $4,800.00 from the Rental Bond. The balance of the bond is to be paid to the respondent tenants.
Catchwords:	Mistake in Contract – Compensation - Break Lease fee
Legislation Cited:	Residential Tenancies Act 2010
Texts Cited:	Law of Contract: Cheshire and Fifoots: Ninth Australian Edition.
Category:	Principal judgment
Parties:	Xiaoxia Qui ( applicant) Stephan Renard & Anne Renard (respondents)
File Number(s):	RT 15/30721
Publication restriction:	Nil

REASONS FOR DECISION

1. The applicant landlord by application filed on 1 May 2015 sought orders that the respondent pay to the landlord $8,300.00. The particulars of the claim are that the landlord seeks a break lease fee of 5 weeks rent being $7,000.00. A cleaning fee of $500.00 and rent arrears of $800.00.

2. On 22 June 2015 the tenants filed a cross application in matter RT 15/39614. The tenants sought an order that the landlord pay them $30,400.00. This sum was particularised as $1,200.00 in overpaid rent. $12,600.00 compensation for breach of peace and quiet enjoyment of the property; $5,000.00 for the landlord’s managing agent breaching a code of conduct; $2000.00 for the landlord presenting a false contract and $8,800.00 in costs.

3. The matters were set down for hearing at the same time. The Tribunal heard the landlord’s claim. The tenants claim was adjourned to enable them to seek advice and to particularise their claim. The tenants were advised as to the jurisdictional limit of the Tribunal.

4. Both parties advised that they were ready to proceed in relation to the landlord’s claim.

5. The Tribunal is satisfied that the parties entered into a residential tenancy agreement on 31 January 2014. The agreement was for 18 months commencing on 13 April 2014 and ending on 20 December 2015. Vacant possession was given to the landlord on 20 April 2015. The Tribunal is satisfied that it has jurisdiction to hear and determine the claim.

6. The landlord gave evidence that the tenants have abandoned the premises during the fixed term of the agreement and the landlord now seeks five weeks rent being $7,000.00.

7. The tenants deny abandoning the property. The tenants argue that the landlord varied the terms of the residential tenancy agreement by sending to them on the 23 March 2015 a new front page of the residential tenancy agreement which stated that the terms of the agreement commenced on 13 April 2014 and ending on 20 February 2015. On 24 March 2015, the tenants gave written notice of their intention to vacant the premises on 20 April 2015. The tenants gave evidence that they believed that the terms of the agreement had been changed by the landlord. The tenants stated that there had been previous correspondence from the landlord on 13 January 2015 where an option was given to the tenants to remain on a month to month arrangement with a rent increase. The tenants hold the view that the terms of the residential agreement that was signed by them in January 2014 had been varied by the landlord thus allowing them to give 21 days’ notice and vacating the premises on 20 April 2015.

8. The landlord submits that there was a typing error on the face of the document that was sent to the tenants on 23 March 2015. The end date should have read 20/02/2015; however the person typing the document incorrectly typed 20/02/15. The landlord gave evidence that when the tenant gave notice to vacate the premises in April 2015 the landlord telephoned and wrote to the tenants advising that they had a fixed lease until December 2015, and that there would be a penalty if they vacated earlier.

9. The issue for the Tribunal to determine is whether the tenants can rely on the ‘mistake’ made by the landlord in typing the document, to abandon the property before the end of the fixed term.

10. The Tribunal accepts the landlord’s evidence that there was a clerical mistake in typing up the agreement and that the end date of the contract should have read “12” and not “02”. This mistake was brought to the tenants attention in March 2015 when they issued to the landlord a notice of termination.

11. The doctrine of mistake is summarised in “Cheshire and Fifoot’s: The Law of Contract: Ninth Australian Edition (NC Seddon and MP Ellinghuas) at page 641 as follows:

.. a court will set aside or rectify a contract, so long as no innocent third party will thereby by effected, when it would be unconscionable for one party to assert his or her strict legal rights, arising from the contract, having regard to a mistake which has been made either by both parties or by one party which was known to the other party.

12. In law there is a presumption that a written document executed by the parties is the true record of their agreement. The Tribunal is satisfied that the parties executed a written document in January 2014 where the terms of the agreement between the parties was that the tenancy would end on 20 December 2015. This agreement cannot be unilaterally varied.

13. The Tribunal accepts that sometime during January 2015 there was some discussion between the parties in regards to the terms of the lease. It appears from the written correspondence between the parties that the landlord wished to increase the rent. The tenants clearly pointed out to the landlord that it was not open to the landlord to increase the rent during a fixed term agreement. No further evidence has been provided of any other discussions between the parties regarding any variation of the agreement. On 23 March 2015 the landlord’s managing agent wrote to the tenants advising them of a change of company name of the managing agency. The email advised the tenants;

“All others stay the same like banking details, your rent and all leasse term. Please refer to the attached first page of the lease and welcome letter from our principle Dana Smith.

…”

14. Attached to the correspondence was a front page of the residential tenancy agreement with the address for service of notice being changed to reflect the change in the managing agents details.

15. In addition to the other details of the tenancy the end date of the agreement was typed as “20/02/2015”. This document was signed and returned to the landlord. The tenants did not question the variation in date. The tenants then issued the landlord with a 21 day notice of termination. The landlord advised the tenants on receipt of the notice that there was a typing/clerical error on the document that was sent to them on 23 March 2015.

16. The Tribunal is not satisfied on the evidence before it that both parties intended to vary the terms of the agreement so that it ended on 20 February 2015. A contract cannot be varied unilaterally. The tenant is not able to satisfy the Tribunal that the landlord changed her intention in relation to the agreement that was signed in January 2014. The Tribunal accepts the landlord’s evidence that it was a clerical error that inserted the number “0” instead of the number “1”. Further the tenant was on notice in March 2015 that the mistake had been made and that the landlord had not formed any intention to vary the terms of the agreement. The landlord also advised the tenants that the original terms of the agreement signed in January 2014 where the terms of the agreement that bound the parties and that the tenant would be subject to a claim by the landlord for breach of the agreement if they vacated the premises. Notwithstanding this knowledge, the tenants sought no legal advice and the tenants vacated the premises.

17. The Tribunal finds that the tenants are not able to rely on the clerical mistake that was made by the landlord to vacate the premises prior to the end of the fixed term of the agreement.

18. The Tribunal is satisfied that the tenant has abandoned the property. Clause 41 of the Agreement and section 107 of the Act set out the landlord’s remedies on abandonment. The Tribunal is satisfied in accordance with section 107(4) an amount equal to 4 week rent is to be paid by the tenant to the landlord to compensate the landlord for any loss caused by the abandonment of the residential premises by the tenant. The Tribunal orders the tenant to pay the sum of $5,600.00 to the landlord. This is four weeks rent in accordance with clause 41 of the Rental Agreement.

19. The landlord seeks compensation of $500.00 for cleaning fee. The landlord seeks to rely on the ingoing and outgoing inspection report together with an invoice for cleaning.

20. The tenants deny the breach. The tenants state that the premises were not clean at the commencement of the tenancy. During the tenancy there were issued regarding mould which were brought to the landlord’s attention. In addition the items listed on the cleaning invoice of Pool cleaning and garden were the responsibilities of the landlord in the tenancy agreement. The tenant sought to rely on an email dated 22 April 2015 from the managing agent advising them that the property was clean on vacating date.

21. The Tribunal has considered the evidence before it and is not satisfied that the tenant has breached the terms of the tenancy agreement by failing to return the premises to the landlord in as near as possible the same condition as the commencement of the tenancy except for fair wear and tear. The Tribunal notes that the invoice issued to the landlord is dated 8 May 2015. This is some 18 days after the tenant vacated the premises. The outgoing inspection report indicates that generally the property was clean at the end of the tenancy. The Tribunal has also had regard to an email sent by the property manager to the tenants on 22 April 2015 advising that she has inspected the property and apart from the pool and garden “all others seem in good condition”. There was no mention in the email regarding the premises not being clean. The landlord has failed to establish the breach.

22. The landlord seeks rent arrears of $800.00 for the period 17 April 2014 until 20 April 2014. The landlord has sought to rely on the rent ledger. The tenant argued that there were discrepancies in the rent ledger. The landlord acknowledged these discrepancies. The landlord sought to rely on a hand typed document which was meant to be an accurate record of the rent. The landlord stated that the rental trust ledger reporting system did not allow her to rectify the discrepancies identified. The document handed up by the landlord indicated that the rent was owed from 18 April 2014 until 20 April 2015. The tenant argues that rent should not have to be paid as the landlord had agreed to give to the tenant a rent reduction for a period that construction work was being undertaken. It was agreed by the tenant that the rent reduction agreed to by the landlord had been calculated in the rent arrears, however, the tenant now disputes when the construction work was completed. This matter has been dealt with in the tenant’s claim. The Tribunal determines on the evidence before it that the tenant owes rent from 18 April 2015 until 20 April 2015. The Tribunal finds that although the tenants vacated the premises on 19 April 2015 the keys were not returned to the landlord until 20 April 2015. An amount of $600.00 is owed by the tenants in rent arrears.

23. The Tribunal orders that the tenant is to pay to the landlord the sum of $6,200.00.

24. The Tribunal has made orders in the tenants’ application in the matter RT 15/39614. In that matter the Tribunal has ordered that the landlord is to pay to the tenant $1,400.00. This amount of $1,400.00 is to be credited against the $6,200.00 owed by the tenant to the landlord. This leaves an amount of $4,800.00 owed by the tenant to the landlord.

25. The formal order made by the Tribunal is that the rental bond service is to pay to the landlord $4,800.00 from the rental bond monies. The balance of the monies is to be paid to the tenant.

M Eftimiou

General Member

Civil and Administrative Tribunal of New South Wales

29 September 2015

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: 16 December 2015