4 Ending the Tenancy

This chapter is Contributed by staff of Tenancy WA and current to December 2018

Introduction

Section 60 of the Residential Tenancies Act sets out the only circumstances in which residential tenancy agreements shall be terminated under the Residential Tenancies Act.

These circumstances are as follows:

1. Where the lessor or tenant gives notice of termination under the Residential Tenancies Act and either -

2. In the case of a fixed term tenancy, where the lessor or tenant gives notice of termination under the Residential Tenancies Act and either -

3. Where a court terminates the agreement under section 73 (tenant causing serious damage or injury), 74 (undue hardship), 75A (objectionable behaviour in social housing tenancy agreement) or 75 (breach by lessor).(3)

4. Where a person with superior title to that of the lessor becomes entitled to possession of the premises.(4)

5. Where a mortgagee repossesses the premises.(5)

6. Where the tenant abandons the premises.(6)

7. Where the lessor and tenant agree in writing to terminate the residential tenancy agreement.(7)

8. Where the agreement terminates by merger. For example, where the tenant purchases the property from the lessor.(8)

9. Where every tenant dies.(9)

4.1 Termination by the tenant

There are new family violence provisions in the Residential Tenancies Act – these new laws are not yet included in this chapter. The family violence provisions in the Residential Tenancies Act came into effect on 15 April 2019, and they make changes with respect to terminating the lease, removing a perpetrator from a lease, changing the locks and liability under the lease and return of the bond. Check http://www.tenancywa.org.au/family-violence for information about these new laws.

4.1.1 Without grounds, by giving notice of termination

4.1.1.1 Termination of a Fixed term tenancy by the tenant, by issuing without grounds termination notice at the end of the tenancy

A fixed term agreement does not automatically terminate on the expiry date.(10) The tenant or the lessor must give at least 30 days’ written notice(11) to terminate the agreement on the expiry date.(12)

The notice must be signed by the tenant, identify the premises the subject of the agreement, and specify the day on which the tenant will deliver up possession of the premises.(13)

The notice must specify the actual date of the vacant possession day, (on which the tenant will move out).(14)

The tenant does not have to use a specific form to give notice.(15)

A tenant cannot give a no grounds termination notice and terminate before the end of the fixed term.(16)

If neither party terminates the fixed term agreement, the agreement continues as a periodic tenancy after the expiry date on the same terms (unless the Court modifies these terms).(17) See 4.1.1.2 for details on how to terminate a periodic tenancy.

The date specified for possession in the notice must not be earlier than the expiry date of the fixed term agreement.(18)

If the possession day is later than the expiry day of the fixed term agreement, the agreement expires on the possession day rather than the expiry day.(19)

If both the lessor and the tenant give a notice of termination to each other and the notices specify different possession days, then the earlier day is taken to be the possession day.(20)

If the lessor provides notice of termination that specifies a date for possession which is later than the expiry date of the fixed term agreement, the tenant can move out at any time between the original expiry date and the possession date without giving notice. The tenancy will terminate on the day the tenant moves out.(21) For example, if the lessor gives the tenant 30 days’ notice to terminate the tenancy 2 weeks before the end of the fixed term agreement, and the tenant still moves out on the original expiry day, the tenant is not liable for rent beyond the day when the tenant moved out. If the tenant chose instead to move out a week after the expiry date, the agreement would terminate at that time, and the tenant would not be liable for any further rent.

Service of termination notice

The notice of termination will need to be served in accordance with the Residential Tenancies Act s 85.

See 4.4.32 (Service) for further discussion of service requirements.

Time of termination

If the tenancy agreement does not state a time (e.g. 5 p.m.) at which the agreement ends on the termination date(22), then it ends at midnight on the last day.(23) ‘A termination notice is invalid if it requires the tenant to vacate the premises or return the keys before midnight on the last day.’(24) There is a presumption that a termination notice which sets the termination date as the last day of the fixed term means midnight on the last day.(25)

4.1.1.2 Termination of a Periodic tenancy by the tenant, by issuing without grounds termination notice

A tenant can end a periodic tenancy agreement at any time without specifying any grounds. The tenant must provide not less than 21 days’ notice to terminate the periodic tenancy agreement.(26)

The notice must be in writing, signed by the tenant, identify the premises the subject of the agreement, and specify the date on which the tenant will deliver up possession of the premises.(27)

The notice should specify the actual date on which the tenant will move out.(28)

The tenant does not have to use a specific form to give notice.(29)

At common law, notice to end a periodic tenancy had to be at least as long as the period of the tenancy agreement, and it had to end at the same time as the period of the tenancy would end. If the tenancy was for a period of a week, a week's notice had to be given, ending on the day that the week's rent would run out. If the tenancy was fortnightly, then a fortnight's notice would have to be given, ending at the end of the fortnightly rental period. If the tenancy was monthly, then a month's notice would have to be given, ending at the end of the monthly rental period. The Residential Tenancies Act expressly overrides these rules(30), so that even if the tenancy was a periodic tenancy of more than 21 days, only 21 days' notice need be given by a tenant, and it need not coincide with the end of the period.(31)

4.1.2 Termination of a tenancy by the tenant for breach by the lessor (fixed or periodic)

A tenant can apply to the Magistrates Court to terminate the residential tenancy agreement for breach by the lessor. The Court ‘may…terminate the agreement, if it is satisfied that the lessor has breached the agreement and the breach is in the circumstances of the case such as to justify termination of the agreement.’(32) If the Court terminates under this section, it must also make an order for possession and specify a day from which the orders must operate.(33)

It is unlikely that the Court will terminate a fixed term agreement unless the lessor’s breach is serious or significant. Repeated, serious breaches, particularly where they are also in defiance of court orders, may well justify termination.

An example of a breach which, by itself, would almost certainly not justify termination, might be where the lessor breaches the agreement by turning up on one occasion to carry out minor repairs without giving notice. On the other hand, if the lessor was to repeatedly and persistently turn up at the premises for various reasons, without giving correct notice under s 46 of the Residential Tenancies Act, in circumstances where the tenant had repeatedly asked them not to, that may justify termination. And if the lessor persisted in that behaviour after the tenant had obtained a court order to restrain the lessor from doing that, it would almost certainly justify termination.

The Magistrates Court tries to uphold agreements where possible, and is likely to make performance orders or compensation orders (or orders for a rent reduction) before it makes orders to terminate the agreement. A tenant who is successful in terminating for breach could seek compensation for losses incurred as a result of the agreement ending earlier than it was supposed to, including connection fees for utilities and removalist fees. Compensation would likely be assessed pro rata, according to how much of the tenancy agreement was left to run, at the date of termination.

4.1.3 Termination of a tenancy for undue hardship

A tenant or a lessor can apply to the Court to terminate the residential tenancy agreement for undue hardship. The Court may ‘terminate the agreement if it is satisfied that the lessor or tenant would, in the circumstances of the case, suffer undue hardship if the lessor or tenant were required to terminate the agreement under any other provision of the Act.’(34)

If the Court terminates under this section, it must also make an order for possession and specify a day from which the orders must operate that it considers appropriate in the circumstances of the case.(35) The Court may make such other orders as to compensation for any loss caused or any other matters it considers appropriate in the circumstances of the case.(36)

The NSW RT Tribunal, in Balmain v French [1997] NSWRT 155 (3 July 1997) has noted the following definition of hardship, from the "Business and Law Dictionary, Butterworths 1997":

"Adverse repercussions, whether mental or physical, ranging from temporary discomfort or inconvenience to some permanent and unalterable evil… [or misfortune]"(37)

"Undue hardship" is not defined in the Residential Tenancies Act. The South Australian Residential Tenancies Tribunal considered its meaning in the context of the SA equivalent of s 74 in Noble v Vorreiter (by L J Hooker Unley) [2003] SARTT 15 (30 June 2003) and concluded that it meant "hardship which is excessive or disproportionate in all the circumstances".

A party can suffer "undue hardship" even if the hardship results from their own actions.(38) That is to say, the hardship does not have to be caused by an event entirely beyond the control of the tenant to be one which the tenant can apply to terminate for.

Terminations for undue hardship may be ordered more readily for serious safety or health issues rather than financial hardship.(39) Even if the Court does terminate for undue hardship, the tenant is likely to be ordered to pay compensation to the lessor for early termination.

Examples of where termination may be ordered for undue hardship include, for domestic violence,(40) threats from an ex-partner (who the tenant had a restraining order against) resulting in the tenant fearing for their life,(41) ‘a significant and unpredictable change in the tenant’s circumstances (e.g. a major health issue), stalking or a threat to safety.’(42) Where there is more than one tenant, it is unclear if one tenant can apply unilaterally to terminate the residential tenancy agreement.

In Jones v Leung [2013] ACAT 79, at [36] the Tribunal accepted a submission that a hardship application could only be made where all co-tenants apply to terminate the agreement.

In Tse v Hang [2015] NSWCATAP 59 at [32] the Tribunal seems to suggest that a hardship application can be made unilaterally by one co-tenant. Note, however, that the Residential Tenancies Act 2010 (NSW) refers to ‘a tenant’ rather than ‘the tenant’ as in WA.

4.1.4 Termination of a tenancy by agreement in writing

A residential tenancy agreement can be terminated ‘where the tenant delivers up vacant possession of the premises pursuant to an agreement in writing between the lessor and the tenant to terminate the residential tenancy agreement’.(43)

The tenancy terminates at the time the tenant delivers up vacant possession of the premises to the lessor.

The agreement must be in writing, and it is recommended that it is signed by both the tenant(s) and the lessor(s).(44)

An agreement to terminate in writing should include at least:

• the names of the parties
• the address of the tenancy premises
• the date when the tenancy will terminate under the agreement;

(See example Agreement to Terminate in Writing (Simple))

If they can be agreed upon, the following should also be included:

• a clear statement as to the amount of compensation (if any) to be paid for early termination; and
• a statement that no further claim will be made for compensation for early termination.(45)

(See example Agreement to Terminate in Writing (Full)).

It may not be possible to settle all matters in advance of the tenant moving out. The main issue here is that some breaches of the residential tenancy agreement do not occur until the tenant vacates. The most obvious of these would be failing to leave the premises in as closely as possible in the same condition, fair wear and tear excepted, as they were in at the start of the tenancy. In that case the parties may still agree to terminate, but the lessor may reserve his or her right to claim compensation for breach of the relevant clause (which is 38.2 in the prescribed form agreement Form 1AA(46)). Alternatively, the parties may agree to terminate without addressing the issue explicitly (see example Agreement to Terminate in Writing (Simple)), which would leave the parties free to dispute all breaches occurring before termination. Finally, the parties could execute an agreement to terminate, in full and final settlement of all claims arising out of the tenancy, on the same day that the tenant vacates, after the lessor has carried out the final inspection, all being satisfactory (see example Agreement to Terminate in Writing (Simple 2).

Termination by agreement in writing is often the best option to terminate a fixed term agreement(47) early because:

• There is no breach of agreement where the lessor and the tenant agree to terminate the tenancy. As there is no breach of the agreement, the tenant does not owe the lessor compensation for early termination of the agreement, unless this is specified in the agreement to terminate the tenancy (see further discussion of this point below).
• The tenant cannot be listed on a residential tenancy database for breaking the agreement (unless the tenant has otherwise breached the agreement).
• There is the possibility of finality without court proceedings to determine how much "break lease" compensation the lessor is entitled to(48)
• The uncertainty and associated stress that accompanies other options can be avoided.

If the lessor does not agree to terminate in writing

Note that if the lessor does not agree to terminate, the tenant must remember to provide at least 30 days’ notice to terminate a fixed term agreement at the expiry date in accordance with the requirements under the Residential Tenancies Act.(49) [see 4.1.1.1 above for further discussion].

What if the lessor withdraws from the agreement in writing before the tenant moves out?(50)

The agreement to terminate in writing may not be enforceable if the lessor resiles from it before the tenant moves out, for lack of consideration from the tenant.(51) There are two possible ways to avoid this uncertainty:

Execute the agreement to terminate in writing in the form of a deed(52) The tenant could provide consideration by including it in the agreement to terminate. For example, the agreement to terminate could contain a term such as "The lessor, in consideration of the tenant's payment to him of $10(53), agrees to terminate …".

In the absence of the above, the tenant may, in certain circumstances, be able to hold a lessor to the agreement by the doctrine of estoppel. Discussion of estoppel is beyond the scope of this publication.

Compensation for termination by agreement in writing

Where a residential tenancy agreement has been terminated by written agreement the parties cannot subsequently claim compensation for loss or damage caused by the early termination of the agreement. This is because neither party has broken the agreement by mutually agreeing to terminate the fixed term agreement early.

A lessor cannot claim compensation for "break lease" following termination by agreement in writing (unless otherwise agreed in the termination agreement itself), because the tenant has not abandoned the premises.(54)

Similarly a tenant cannot claim compensation for removalists or utility connection fees.(55)

However, a party can still claim compensation for breaches which occurred before termination, subject to the relevant limitation periods and any agreement that they will not do so. If at all possible, the parties should settle all outstanding issues at the same time as they terminate by agreement in writing, and the agreement should include a full and final settlement term.

For consideration of the relevant factors in negotiating a termination by agreement see 4.2.3.

4.1.5 Termination of a tenancy by merger

A residential tenancy agreement will terminate through merger where the tenant and the landlord become the same person. The most common way this occurs is when the tenant purchases the premises from the lessor.(56)

Note that this may be the most common, but it is not the only way, in which a tenancy can be terminated by merger. Where a head-tenant assigns his or her lease with the head landlord to his or her sub-tenant, the sub-tenancy terminates by merger. Another example is where the tenant is left the premises in the landlord's will. There may be other possibilities not considered here.

In the case of joint lessors and/or joint tenants, merger will still occur even if only one joint lessor or one joint tenant is the same person.(57)

4.1.6 Termination of a tenancy by abandoning the premises (See "Break Lease")

See 4.2 Ending a fixed term agreement early (“Break Lease”).

4.1.7 Termination of a tenancy by the death of the tenant

Death of all tenants – a residential tenancy agreement will terminate where every tenant dies.(58)

Death of one of 2 or more tenants – if there are 2 or more tenants who are parties to the residential tenancy agreement, and the tenants are not joint tenants under the agreement – the deceased tenant’s interest in the tenancy ends, and the agreement continues in force between the lessor and the surviving tenant(s).(59) Rights (including a right relating to the security bond) and liabilities between the deceased tenant and surviving tenant(s) that existed immediately before the deceased.

4.1.8 Termination of a tenancy where the agreement is frustrated

The doctrine of frustration applies to contracts. "If a contract becomes incapable of performance because of unforeseen circumstances both parties are relieved from their obligations under the contract."(60)

At common law, the contractual doctrine of frustration was inapplicable to leases. As a result, unless the lease itself provided otherwise, the tenant whose premises were destroyed or rendered uninhabitable by natural disaster or compulsory acquisition by a government authority still had to pay rent until the end of the lease.(61)

The Residential Tenancies Act reverses this and, in effect, makes frustration applicable to residential tenancies. It causes the rent to abate automatically and permits the parties to terminate their agreement when, through no fault of their own, the premises are destroyed or rendered uninhabitable.

If the premises, or part of the premises, are destroyed or rendered uninhabitable (such as by natural disaster) or cease to be lawfully usable as a residence or are appropriated or acquired by any authority by compulsory process, the rent shall abate accordingly, and the lessor or tenant may give a notice of termination upon that ground.(62) For convenience, we shall refer to an event which results in premises, or part of premises, being destroyed or rendered uninhabitable or ceasing to be lawfully usable as a residence or being appropriated or acquired by compulsory process as a "frustrating event."

Frustration only applies if a frustrating event occurs otherwise than as a result of a breach of the agreement.

That means that, where an agreement is validly terminated for frustration, neither party can seek compensation from the other for the early termination of the agreement. If, for example, the premises are rendered uninhabitable by damage caused by a bush fire(63), the tenant or lessor can terminate for frustration, but neither can claim compensation for the early termination of the lease.

Not only that, but a party cannot terminate for frustration where the frustrating event results from a breach of the agreement. If, for example, the ceiling collapses because of a failure by the lessor to maintain the premises in a reasonable state of repair, neither party could terminate for frustration.(64) In such a case, the tenant could apply to court to terminate for breach by the lessor. Note that the lessor would not be able to terminate here, for his or her own breach.

Frustration applies to both fixed term and periodic tenancy agreements.(65) Because it applies to fixed term tenancies, both lessors and tenants sometimes attempt to rely on frustration, without justification, to terminate a fixed term early without liability.(66) A tenant who has received a termination notice for frustration who wishes to remain in the premises should seek legal advice at once. And a tenant who wishes to terminate for frustration should (usually)(67) seek legal advice before doing so, because they may be liable to pay compensation to the lessor for abandoning the premises if it turns out that it was not justified.

A tenant wanting to terminate the residential tenancy agreement for frustration is required to give ‘not less than 2 days’ notice of termination.(68)

A lessor wanting to terminate for frustration is required to give ‘not less than 7 days’ notice of termination.(69) The notice provided by the lessor must be in the prescribed form (Form 1C).(70)

The tenancy will only terminate when the tenant gives vacant possession in accordance with the notice of possession.(71) In some circumstances a tenant may not move out in accordance with a lessor's notice of termination. If that happens, the lessor may apply to court for orders for termination and vacant possession.

FRUSTRATION DEFENCES

Perhaps a spare room's ceiling has fallen in, leaving it uninhabitable, but the tenant wants to remain in the lease. The tenant may prefer the lessor to repair the ceiling and the lease to continue,(72) whereas the lessor may wish to terminate it. If the lessor had been aware that the ceiling was in imminent danger of collapse, but had failed to repair it, he or she may have breached the Residential Tenancy Agreement.(73) If the tenant does not move out, the tenancy will not terminate until a court has ordered termination following application by the lessor.(74) An Residential Tenancy Agreement cannot be terminated for frustration where the frustrating event is caused by a breach of the Residential Tenancy Agreement.(75) In this case, if the lessor's failure to repair the ceiling within a reasonable period had caused the ceiling to collapse, then it will not be possible to terminate for frustration. What if the frustrating event is not caused by a breach of the Residential Tenancy Agreement? In this example, that might occur if the ceiling collapse happened without any warning whatsoever, in circumstances where the lessor had no idea of the need for repair. In that case, a valid notice of termination for frustration could be issued. If the tenant then moved out in accordance with the notice of termination, the tenancy would terminate.(76) If the tenant did not move out, the lessor would be entitled to apply to court for termination of the agreement.(77) However, the court may refuse a lessor's application for termination for frustration if it is satisfied that the "consequences of the lessor continuing to be bound by the agreement would not be unduly burdensome to the lessor".(78) As a result, the lessor does not have an absolute right to terminate for frustration. In this example, even if the ceiling collapse was not due to any breach of the agreement, the lessor still may not be able to terminate for frustration. And in this example, if the tenancy continued the lessor would have an obligation to repair the ceiling.

The rent "shall abate accordingly"(79) as soon as a frustrating event occurs. "Shall" means "must" here, and "accordingly" means proportional to the degree of loss of use of the premises.

If the premises are completely destroyed or the tenant has to leave due to compulsory acquisition or the premises ceasing to be lawfully useable as a residence, the rent reduces to zero. If half the premises are destroyed, or rendered uninhabitable, the rent reduces by half, and so on.

The rent reduces automatically. The tenant does not have to apply for a rent reduction under the Residential Tenancies Act(80) or carry on paying the full rent until a court makes an order. Nor does the tenant have to negotiate a rent reduction with the lessor or agree a rent reduction in writing. Notwithstanding that they are not obliged to, a tenant may wish to try to reach agreement with their lessor as to what rent reduction is appropriate, particularly where the appropriate level of reduction may be arguable.(81) If the parties cannot reach agreement then the tenant should pay the reduced rent he or she thinks is reasonable, and if the lessor disagrees the lessor can apply to Court for an order that the tenant pay more rent. If the tenant pays an unreasonably low amount of rent, the lessor could get a Court order to terminate the tenancy on the basis of rent arrears (breach by non payment of rent).

Frustrating events could be caused by many things, including natural disasters such as bushfires or severe storm-related floods, and water penetration requiring removal of carpets leaving bare concrete floors and rendering the premises uninhabitable.(82)

Vashisht & Sharma v Edwards [2016] NSWCATCD 86 (20 October 2016) concerned water damage. Through no fault of the lessor, water had penetrated the bedrooms and living room, saturated the carpets (which required removal) and caused damage to the tenant’s belongings. Mould had started growing too. The carpets were removed, leaving bare concrete floors and the tack strips which had held the carpets in place. The carpets had not been replaced by the time the tenants terminated the tenancy, 2 months after the issue arose. The Tribunal stated:

A residence is not fit for habitation, that is it is uninhabitable if it is in such a state that ‘by ordinary use damage may naturally be caused to the occupier either in respect of personal injury to life or limb or injury to health.’ Summers v Selford Corporation [1943] AC 283 at 289.

To be habitable, premises must be able to be ‘used and dwelt in not only with safety but with reasonable comfort’ Proudfoot v Hart (1890) 25 QBD 42 at 51. (See also NSW Land and Housing Corporation v Woodward [2015] NSWCATAP 164 at [10] and [17], Bannister v Cheung [2014] NSWCATCD 105 at [16] to [20] and Elsom & Taylor Parker v Coroneos [2016] NSWCATCD 47).(83)

The Tribunal found that the premises were ‘not habitable’ because they ‘could not be occupied with reasonable comfort. The bedrooms could not be utilised as the carpets had been removed.’(84) The Tribunal ordered the rent to abate from the date the premises became uninhabitable,(85) however, the rent did not abate fully because the tenants continued to utilise the premises for storage and were not prepared to terminate the tenancy until they found somewhere else to move into.(86)

4.2 Ending a fixed term agreement early ("Break Lease")

There are new family violence provisions in the Residential Tenancies Act – these new laws are not yet included in this chapter. The family violence provisions in the Residential Tenancies Act came into effect on 15 April 2019, and they make changes with respect to terminating the lease, removing a perpetrator from a lease, changing the locks and liability under the lease and return of the bond. Check http://www.tenancywa.org.au/family-violence for information about these new laws.

4.2.1 Introduction

It is probably safe to say that the vast majority of tenants who "break lease" do so unwillingly, as a result of events beyond their control, such as loss of employment, sudden and serious illness or family violence. Sometimes, however, tenants may do so for a reason entirely within their control. For example, they have found a cheaper house in a better area, or they have purchased their own property which they want to move into. Breaking a lease by abandoning the premises can be very expensive for the tenant. It is not the only option however.

A tenant’s options for ending a fixed term agreement early are:

• Termination for breach by lessor.(87)
• Terminate by agreement in writing.(88)
• Sublet or assign lease.(89)
• Hardship application.(90)
• Continue with the residential tenancy agreement until the lessor relets the premises or the agreement ends.
• Abandon the premises.(91)

These are outlined below.

4.2.2 Terminating a fixed term for breach by the lessor

[see above at 4.1.2]

4.2.3 Terminating a fixed term tenancy by agreement in writing

[see also 4.1.4 above]

The fact that the tenant can unilaterally terminate the agreement, and not pay rent or compensation for it unless and until the lessor obtains a court order, [see 4.2.7 Abandoning the premises] might be an incentive for the parties to negotiate a reasonable settlement. What is reasonable is a matter for the parties themselves. If the parties cannot reach an agreement themselves, the only alternative will be, ultimately, to ask the court to decide what compensation is appropriate – either in accordance with s 78(92) (abandonment) or s 74(93)(hardship). In calculating compensation under either of those sections, the following factors would usually be relevant:

• the average vacancy period for the relevant area (that is how long rental premises are advertised before they are tenanted)
• the market rent for similar premises in the same or a similar location
• the amount by which rents have risen or fallen for similar properties since the tenancy was entered into
• the length of time left to run on the tenancy

An example

Below is a worked example of a break lease situation. There are many different break lease situations, and the appropriate amount of compensation depends on the circumstances. Consider the factors in your case, or seek advice.

A tenant is 6 months into her 12 month fixed term agreement, for which rent is $325 per week. She has lost her job but has been offered another position interstate. The median rent for units has fallen by about $15 per week over the last year. The average vacancy period is 49 days, for units in the metropolitan area.

If she abandoned the premises today, and the lessor made every reasonable effort to re-let them, the lessor would lose $2275(94) in rent if the premises were vacant for the average period. Because rents have fallen since the tenant signed her lease, the premises may have to be relet at a slightly lower weekly rent. If it was reasonable to, and it was in fact, re-let at $315 per week, the lessor would lose a further $190 over the remaining 19 weeks that the original tenancy would have run for. Therefore, if the premises were vacant for the average period, the lessor would probably be entitled to $2465 as compensation for abandonment. Of course, the premises may be vacant for less than the average vacancy period, or they may be vacant for longer. The tenant may also be liable for the following costs pro rata for the remaining period of the lease [see compensation 4.2.7.1.1]:

• letting fee of $650 (2 weeks' rent)
• final inspection fee of $80
• advertising of $300
• tenancy database check fees of $15 per applicant (say $150 total)
• gardening and cleaning of $200

As half of the lease was remaining, these should be discounted by 50%. After the discount has been applied, they add up to about $700. The total would be about $3200.

What if, in the example above, to mitigate loss, the lessor advertised the premises at below market value, and they rented after two weeks? Let's imagine the premises were advertised at $300 per week. In that case, compensation for the pro rata costs would be a little less, say $500, because there might be lower costs for advertising, database checks and gardening/cleaning. Compensation for the vacant period would be only $650 (or maybe less, because there would usually be some vacant period even if the tenant had vacated at the end of the fixed term). Compensation for the difference in rent would be $600. The total would be about $1700.

In the example above, the single largest component is the lost rent during the vacancy period, which is typically, but not always, the case. Where a tenant has a long lease, and average rents have fallen catastrophically,(95) the largest component may be the difference in rents between the old tenancy and the new one.

4.2.4 Terminating a fixed term tenancy for undue hardship

[see above at 4.1.3 and 4.3.3]

4.2.5 Sublet or Assign

For discussion see 3.14 (Sub-letting and Assigning).

4.2.6 Continue with the agreement until the lessor finds a new tenant

In this situation the tenant continues with the fixed term agreement, and asks the lessor to try to relet the premises as soon as possible. The tenant can choose to stay or move out, but continues to pay rent until either a new tenant moves in, or the fixed term agreement expires.

The advantage for the tenant is that they do not breach the agreement, because they continue with the agreement until the lessor relets the premises or the agreement ends.

The main disadvantages for the tenant are that there is no incentive for the lessor to relet the premises while the tenant is paying rent for it, and the lessor is under no obligation to do anything to reduce the tenant’s losses – the tenant must rely on the goodwill of the lessor to relet the premises.

No duty of mitigation where the parties continue with the agreement

Section 58 of the Residential Tenancies Act is as follows:

Mitigation of loss is discussed more fully elsewhere. It provides, essentially, that a party cannot recover damages for breach of contract for any loss they consequently suffer which they could reasonably have avoided. One might think that it might apply here, but it does not. The reason it does not is because "mitigation only becomes relevant after breach and any failure to take mitigating action before a breach has occurred is not relevant to the assessment of damages."(96) In the situation that the tenant asks the lessor to find a new tenant but keeps paying rent, the tenant never actually breaches the agreement, therefore the lessor does not need to mitigate loss.(97)

If the tenant has already moved out they may be paying rent for two properties until the new one is relet; and the tenant is still responsible for cleaning and maintaining the premises (including the garden), whether or not they are living at the premises.

4.2.6.1 "Break lease" forms

Agents often ask tenants to sign ‘Break Lease Agreements’(98) in these situations. These agreements usually contain a statement that the lessor refuses to consent to early termination unless the tenant pays the lessor agreed amounts for such things as:

• expenses for the lessor attempting to relet the premises
• the cost of the "inspection and inventory fee" for the next tenant
• advertising costs

It is difficult to see what legal advantage there is to a tenant in signing such an agreement. The agreement is not usually supported by consideration, and is therefore not enforceable. Signing such an agreement will not prevent the tenancy from terminating under s 60(f) if the tenant later abandons the premises. Real Estate Agents will typically tell the tenant that they will not advertise the premises unless the tenant signs the agreement. However the lessor is under no duty to advertise the premises or do anything to attempt to relet them until the tenant actually abandons the premises (see 4.2.7. and 4.2.7.1.1).(99) If the tenant does abandon the premises, the lessor will usually have to advertise the premises to mitigate loss under s 78(1) regardless of whether or not the tenant has signed a "break lease form". If the tenant is dissatisfied with a lessor's efforts to relet, they may be without recourse unless they have actually abandoned the premises.

Practically speaking, as most real estate agencies use these forms, completing the ‘break lease agreement’ may be the simplest and quickest way to get the real estate agent to commence marketing the property to find a new tenant before the tenant needs to vacate or as soon as possible. If a tenant has a good working relationship with the real estate agent, who does then do all things necessary to re-let the premises, then signing the break lease form may reach the best outcome.

However, in a falling rental market a real estate agent may manage other vacant properties and may prioritise letting properties that don’t still have a tenant paying the rent, rather than taking all reasonable steps to relet the tenancy. In these circumstances, a tenant who has signed a break lease agreement can still decide to abandon the premises, and trigger the lessor’s duty to mitigate. Then the lessor is under a legal obligation to take reasonable steps to avoid loss.

Alternatively offering a break lease agreement and then failing to properly advertise and re-let the premises may be a breach of the real estate agents code of conduct, and a tenant could make a complaint to Consumer Protection who may assist the conciliate the matter, this option doesn’t include an enforceable remedy.

4.2.7 By abandoning the premises

At common law, a tenant could not terminate a tenancy early without grounds. If the tenant breached the tenancy agreement by ceasing to pay rent and permanently leaving the premises, the lessor had a choice. Either:

1. The lessor could accept the repudiation of the lease by the tenant, retake possession and sue for damages for the early termination; or
2. The lessor could refuse to accept the repudiation of the lease by the tenant and keep the premises available for the tenant without retaking possession. Rent would accrue as a debt owed by the tenant to the lessor until the termination date of the tenancy.

The lessor who chose to retake possession and sue for damages was subject to the common law duty to mitigate his or her loss(100) (see Mitigation of loss section for more details): the lessor had to take reasonable steps to reduce the lessor's losses as a result of the tenant's breach. In practice, that usually meant that the lessor had to relet the premises as soon as reasonably possible. By contrast, the lessor who chose to continue with the lease had no duty to mitigate loss, and could simply let rental arrears continue to mount up until the termination date.(101)

The common law situation referred to above was changed by the Residential Tenancies Act. S 60(f) provides that a residential tenancy agreement (whether fixed term or periodic) terminates where the tenant abandons the premises.(102)

The tenant therefore has the ability to unilaterally terminate their residential tenancy agreement, regardless of the wishes of the lessor. The tenancy terminates automatically at the time that the tenant abandons the premises, without any requirement for a court order.(103) This terminates the tenant’s obligations under the lease, giving rise to the lessor’s entitlement to compensation for losses arising from breach (see more at ‘effect of abandonment’ below).

Unfortunately, there are many myths, misconceptions and misunderstandings among tenants, real estate agents and lessors about abandonment. Below are some statements from the REIWA website:

• "In order to break a fixed-term lease, you need to seek the owner’s permission (via your property manager if the accommodation is professionally managed) […] If the owner is confident of quickly finding a new tenant, they might agree to a no fuss, no cost, break lease - however, they are under no obligation to do this."(104)
• "If a replacement tenant has not been found by the time you move out, you are liable to continue paying rent until a new tenant has been found or the original end date of your fixed-term lease expires. […]Walking out of the lease agreement does not terminate your obligations - the owner is still entitled to claim compensation."(105)
• "Terminating a lease becomes significantly more complicated if you are on a fixed-term lease, as there is no automatic right of termination"(106)

Statements such as these restate the position at common law, but fail to take account of the effect of s 60(f) of the Residential Tenancies Act. They would be correct if s 60(f) did not exist, but it does, and consequently the statements are not correct.

The consequences of failing to appreciate that the tenant has the right to unilaterally terminate a residential tenancy agreement by abandonment are far-reaching. The lessor's mistaken belief that he or she can hold the tenant to the agreement and continue to collect rent as and when it falls due tends to lead to an unwillingness to negotiate a realistic settlement. The tenant who doesn’t understand that they can terminate regardless of the lessor's wish to continue the agreement often pays rent for two sets of premises at the same time, one of which they no longer occupy. Whilst the tenant continues to pay rent, the agreement continues without being breached by the tenant. The lessor has no incentive to actually relet the premises. Not only that, but there is no obligation on the lessor to mitigate loss in those circumstances,(107) for two reasons:

1. There is no breach for the lessor to mitigate loss in respect of; and
2. There is no loss suffered by the lessor while the tenant is paying full rent.

A tenant who continues with the agreement in the hope that the lessor will make every effort to relet the premises as soon as possible has no recourse if in fact the lessor does not make any reasonable efforts to do so. On the other hand, the tenant who abandons the premises has the protection of s78(1), which provides that the lessor "shall take all reasonable steps to mitigate [their loss caused by the abandonment] and shall not be entitled to compensation in respect of any loss that could have been avoided thereby."

The meaning of "abandons the premises"

There is no definition of abandonment in the Residential Tenancies Act.(108) A tenant who leaves the premises in breach of the agreement with no intention of ever returning has "abandoned the premises".(109) The clearest way a tenant can abandon the premises is to stop paying rent, remove their belongings from the premises and return the keys to the lessor. The tenant who leaves the premises temporarily (e.g. for a holiday), intending to return, does not abandon.

Abandonment also only occurs when the tenant leaves for no lawful reason. Abandonment does not occur if the tenant leaves after the agreement has been terminated, or if leaving the premises will cause the agreement to terminate, in accordance with one of the provisions of section 60 other than s 60(f).

It is therefore not an abandonment for a tenant to leave in accordance with:

1. a lessor's notice of termination;(110)
2. court orders for termination and vacant possession;
3. an agreement in writing with the lessor to terminate.

Sometimes a lessor or agent will refuse to accept the keys from an abandoning tenant, due to their mistaken belief that they can hold the tenant to the agreement. That will not prevent the tenancy from terminating for abandonment. A tenancy may terminate for abandonment whether or not the tenant returns the keys to the lessor.(111)

The effect of abandonment

As the tenancy has terminated, both parties are released from their obligations under the agreement. Either party will still be able to seek compensation for any breaches that occurred prior to abandonment.(112)

The lessor is not left without recourse, however, when the tenancy terminates by abandonment, because they are entitled to compensation in accordance with s 78:

78. Right of lessor to compensation where tenant abandons premises

(1) Where a tenant under a residential tenancy agreement abandons the premises, the lessor shall be entitled to compensation from the tenant for any loss (including loss of rent) caused thereby, but shall take all reasonable steps to mitigate such loss and shall not be entitled to compensation in respect of any loss that could have been avoided thereby.

(2) A competent court may, upon application by the lessor, order the tenant to pay to the lessor any compensation to which the lessor is entitled under this section.

The effect of s 78 is to give the lessor the right to apply to court for an order that the tenant pays compensation for any loss caused by the early termination of the tenancy. "Loss of rent" is specifically included. There is also a positive duty on the lessor to take all reasonable steps to mitigate their loss. None of this means that the tenant "continues to be liable to the lease obligations until a new tenancy commences", nor is it inconsistent with the tenancy having terminated. After termination, the lessor has no right to rent,(113) because there is no longer any agreement under which it is due. If, however, despite the lessor taking all reasonable steps to relet, the lessor suffers losses as a result of the early termination, he or she may apply to court for an order that the tenant pay compensation for that. The majority of such losses are usually made up of "loss of rent" – rent which would have been paid under the terminated agreement were it not for its termination. What this means is that the tenant who has abandoned the premises does not have to continue to pay rent for the terminated tenancy, but should be prepared to have to pay compensation for the loss of rent if and when the lessor applies to court for it. A tenant can pay this compensation to the lessor earlier by agreement (without the need to go to Court), or the tenant can choose to make compensation payments to keep ‘the amount owing’ below the bond amount, in order to prevent the risk of a residential tenancy database listing.

[See 4.2.7.1.1. Compensation for further discussion].

Limitation period for abandonment

The lessor can apply to the Magistrates Court as soon as the tenant has abandoned. The lessor has 6 years after the tenant abandons the premises to commence court action for compensation.

Residential Tenancy Databases

The tenant risks being listed on a Residential Tenancy Database if, as a result of abandoning the premises, they owe more than the security bond. To prevent this risk a tenant can make compensation payments to keep the amount owing below the bond.

[See 4.8 Residential Tenancy Databases for further discussion].

Forwarding address

The tenant must provide a forwarding address to the lessor when the tenant delivers up vacant possession of the premises. The notice must be in writing and must state the address at which the tenant intends to reside next, OR the tenant’s postal address.(114)

There is a potential fine of up to $5 000 to a tenant who fails to comply with this requirement.(115)

Failure to provide a forwarding address also means that the tenant may not be notified about any future applications by the lessor for bond disposal and /or compensation.

Bond

If the tenant has not left a forwarding address the court will publish a notice on the eCourts Portal which states that their lessor has made a bond disposal application.(116) No other attempt need be (or is likely to be) made to contact the tenant. If the tenant does not file a notice of dispute within 7 days of the notice's publication date, the bond will almost certainly be paid out in accordance with the lessor’s application. There is no requirement that the tenant actually be made aware of the existence of the notice before the bond is paid as per the lessor's application.

Other applications

In the case of other applications made by the lessor (for example, for compensation for amounts exceeding the bond), the court will publish, on the eCourts Portal, a summary of the claim with the hearing date. If the tenant does not attend the hearing it will likely be held in their absence.

A tenant who abandons the premises without leaving a forwarding address should therefore check the eCourts Portal frequently. That is the only way that they will come to know about any applications by the lessor for bond disposal or compensation. The listings are here, and are listed under each local court. https://ecourts.justice.wa.gov.au/eCourtsPortal/ResidentialTenancy

[See 4.10.3 Tenant’s forwarding address for further discussion].

Practical steps for a tenant choosing to abandon

If the tenant chooses to abandon, it is advisable to give as much notice as possible to the lessor/property manager in writing that the tenant is abandoning the premises (and from what date). The tenant could state that the fixed term agreement will terminate under s 60(f) of the Residential Tenancies Act and the tenant no longer intends to be bound by the fixed term agreement. It is a good idea to also refer to s 78 of the Residential Tenancies Act so the lessor is aware of their obligation to mitigate loss.

The tenant could also advertise the premises themselves, and cooperate with the lessor by making themselves available to show people through the premises, keep the premises tidy and introduce prospective tenants to the lessor.

If the tenant does not notify the lessor of their abandonment, the lessor may not become aware for some time that the premises are vacant and will not be able to take steps to secure them. If the premises are damaged by third parties as a result, the tenant may be liable for that damage. In addition, the lessor cannot take steps to mitigate loss until they know that the tenant has left, or is intending to do so.

The tenant may either advise the lessor/property manager to contact the tenant when the latter knows what compensation the tenant owes the lessor in order to recover the money. If the tenant refuses to pay, the lessor can apply to the Magistrates Court.(117)

The tenant should keep an eye on whether the lessor is genuinely attempting to re-let the premises. Have they advertised it and how? Are they offering it to prospective tenants? Is it being listed for realistic rent? Are reasonable offers being considered? Have prospective tenants been discouraged or refused on unacceptable grounds, e.g. because they have children(118), or other unlawful discrimination? Keep a record of any interest shown in the property that the tenant is aware of.

Abandonment – ss 76A, 77 and 78B

All three of these sections are aimed at covering situations where it is not clear whether the tenant has in fact abandoned the premises, and give the lessor means of putting it beyond doubt.

Section 76A gives the lessor the option, if the ‘lessor suspects on reasonable grounds’ that the tenant has abandoned the premises to give ‘written notice to the tenant terminating the agreement.’ The notice must be in a form approved by the Minister (Form 13 Notice of Termination to Tenant if Premises Abandoned), and must: be signed by or for the lessor or property manager; identify the residential premises; and state the lessor is terminating the agreement because the tenant has abandoned the premises.(119) If the tenant does not take action to dispute the notice under s 76B within 7 days, the tenant is ‘to be taken to have abandoned the premises’.(120) If the tenant does not make an application within 7 days, the tenant still has 28 days to apply to Court for termination, compensation or any other orders the Court considers appropriate.(121)

Section 77 gives the lessor a procedure that they ‘may’ follow ‘[i]f the lessor ‘suspects on reasonable grounds’ that the tenant abandons the premises, and gives the lessor the right to enter for the purposes of inspecting and securing them, if the procedure is first followed. If the lessor suspects on reasonable grounds that the premises have been abandoned, the lessor may give the tenant a Form 12 (Notice to tenant of abandonment of premises(122)), giving the tenant 24 hours’ notice to enter the premises to inspect and secure.(123) The lessor may also give the tenant a notice (Form 13) under s 76A to terminate the residential tenancy agreement or seek a court order to do so under s 78A.(124)

The lessor must give the notice to the tenant by leaving a copy at the premises, and leaving a copy at the tenant’s last known place of employment (if applicable).(125)

Section 78A gives the lessor the option of applying to court for an order declaring that the premises were abandoned on a certain day if the ‘lessor suspects on reasonable grounds’ that the tenant has abandoned the premises. [See 4.3.9 – Abandonment Orders for further discussion].

‘Reasonable grounds’:

The lessor needs to have ‘reasonable grounds’ for suspecting that the tenant has abandoned the premises – this ‘means that the tenant has failed to pay rent...and that at least one of the following has occurred -

(a) the presence at the premises of uncollected mail, newspapers or other material;

(b) reports from neighbours of the tenant or from other persons indicating the tenant has abandoned the premises;

(c) the absence of household goods at the premises;

(d) the disconnection of services (including gas, electricity and telephone) to the premises’.(126)

These provisions are for the use of a lessor who is not certain that a tenant has abandoned the premises. If the lessor is certain, for example where the tenant has stopped paying rent, removed all their things and returned the keys and even provided written notice of abandonment, then there is no need for the lessor to use these processes. These processes provide the lessor with a process for protection against claims of breaching the tenancy agreement by entering without proper notice or by retaking possession in breach of the tenancy agreement.

4.2.7.1 Costs of breaking the lease(127)

Costs of breaking a fixed term lease may include, but are not necessarily limited to:

• Compensation for lost rent until a new tenant moves in, or the fixed term agreement expires (whichever occurs first).
• If the lessor has re-let the premises at a lower rent because the market rate has fallen, the tenant may be liable for the difference between the rent they were paying, and the new rent, until the end of the fixed term agreement. If the premises are re-let at a higher rent, then the amount of that benefit should be deducted from the total compensation.(128)
• Costs associated with finding a new tenant, including advertising costs, tenancy database check fees, final inspection fee and letting fee. These expenses are calculated pro rata, based on how much of the tenancy remains [see discussion below].

(A periodic tenancy agreement can be terminated by the tenant giving at least 21 days' notice and vacating (see 4.1.1.2 above). If a periodic tenancy is nevertheless terminated by abandonment, the lessor will be entitled to lost rent until a new tenant moves in up to a maximum of 21 days from the day that they become aware of the tenant having vacated. The lessor would not usually be entitled to any compensation for the costs associated with finding a new tenant where a tenant abandons a periodic tenancy. For that reason, we are limiting our discussion here to fixed term tenancy agreements only.)

Expenses which are assessed pro rata

The tenant is liable for costs associated with the lessor's mitigation of loss. In most cases, mitigating loss will involve re-letting the premises. Costs associated with re-letting the premises may include the following:

• advertising costs
• tenancy database check fees
• letting fee
• final inspection fee(129)
• costs associated with maintaining the premises in a presentable condition such that it may be more attractive to potential tenants (e.g. gardening and cleaning)(130)

These are expenses that the lessor would have incurred at the end of the lease in any event, which have merely been brought forward as a result of the break lease. Such costs should be calculated pro rata based on how long is left on the lease when the new tenant commences their agreement.MacIntyre [1996] NSWRT 108 (11 June 1996)">(131)

For example, if the tenant was in a 12 month fixed term agreement and the property was re-let 9 months into the agreement, the tenant would only be liable for 25% of the expenses.

4.2.7.1.1 Compensation

When the tenant abandons the premises, the lessor has the right to claim compensation under s 78 (1) of the Residential Tenancies Act ‘for any loss (including loss of rent) caused thereby’.(132) The lessor can apply to the Magistrates Court for an order that the tenant pay compensation to the lessor.(133)

Where the tenant moves out in accordance with a notice of termination or a court order for vacant possession the lessor is not entitled to compensation for loss of bargain (see 4.2.7).

Lessor’s duty to mitigate

The lessor has a legal obligation under s 78(1) of the Residential Tenancies Act to ‘take all reasonable steps to mitigate such loss and shall not be entitled to compensation in respect of any loss that could have been avoided thereby.’(134) It is important to note that s 78(1) "does not rely for its operation on the doctrine of mitigation as defined in the general body of contracts law"(135) , and so it is arguable that the common law rules on mitigation do not apply where the tenant abandons the premises.(136) It seems clear that Section 78(1) imposes a positive duty to mitigate on the lessor(137) whereas at common law there is no positive duty to mitigate loss. It is less clear whether the onus of proof is on the lessor (rather than the tenant, would be the case at common law) to show that he or she has not reasonably mitigated their (the lessor's) loss.(138) It seems inconsistent to impose a positive duty to mitigate on the lessor, but then place the burden of proving breach of that duty on the tenant. On the other hand, legislation is presumed not to alter common law doctrines.(139) One argument for placing the onus of proof on the lessor is that only the lessor will know the details of all the steps that they have taken in mitigation – the tenant will not. The duty to mitigate commences once the tenant abandons the premises.(140)

Because the lessor is not receiving any rent for the vacant property, they have a real incentive to find a new tenant as soon as possible.

If the matter goes to Court, the tenant should attend to bring evidence to argue that the lessor did not reasonably mitigate. The tenant should keep an eye on whether the lessor has mitigated loss by the lessor:

• advertising the premises as soon as it is abandoned;
• advertising the premises at current market value;
• conducting regular inspections/home opens;
• keeping the premises (including its gardens) presentable so they are as marketable as possible to potential tenants; and
• not unreasonably rejecting applications.

The lessor is only entitled to compensation for losses that are caused by the early termination or reasonable steps taken to mitigate loss. If, for example, the lessor re-lets the premises without advertising, the tenant is not liable for advertising costs. Similarly, if the lessor decides not to re-let the premises, the lessor will not usually be entitled to compensation for advertising, the letting fee, final inspection fee or a tenant database check.(141)

RESOURCES – Legal research memo: Where the tenant abandons the premises – the right to unilateral termination of a fixed term residential tenancy agreement by tenants Tenancy WA Memorandum 2015

Where the tenant abandons the premises ME.pdf

4.3 Termination by the lessor

4.3.1 Without grounds, by giving notice of termination

4.3.1.1 Termination of a Fixed term tenancy by the lessor by issuing without grounds termination notice

A fixed term agreement does not automatically terminate on the expiry date.(142) The tenant or the lessor must give at least 30(143) days’ written notice to terminate the agreement at the expiry date.(144)

The notice must be in writing in the prescribed form(145) (Form 1C), signed by the lessor or property manager, identify the premises, specify the day on which possession of the premises is to be given by the tenant, and specify and give particulars of the ground, if any, upon which the notice is given.(146)

The notice must state the actual date on which the tenant is required to move out.(147)

The possession day must not be earlier than the expiry date of the fixed term agreement.(148)

There is no specific power under the Residential Tenancies Act for the court to waive a defect in a notice of termination.(149)

Failure to comply with any of the above requirements will probably be fatal to any subsequent application to terminate which is based on a notice of termination having been given.(150)

A lessor cannot give a no grounds termination notice and terminate before the end of the fixed term (cf. periodic tenancy). If the lessor ends the tenancy early without the tenant’s consent for no lawful reason, the tenant may claim compensation for losses caused by the early termination.

If the possession day is later than the expiry day of the fixed term agreement, the agreement expires on the possession day rather than the expiry day.(151) The tenant is liable for rent up until the possession day and also has a responsibility for maintaining the premises as per the agreement until the possession day (unless the tenant and lessor agree otherwise).

If the lessor provides notice of termination that is later than the expiry day of the fixed term agreement, the tenant can move out any time from the original expiry date up to the day in the notice, without providing notice and the tenancy will terminate on the day the tenant moves out.(152) For example, if the lessor give the tenant 30 days’ notice to terminate the tenancy 2 weeks before the end of the fixed term agreement, and the tenant still moves out on the original expiry day, the tenant is not liable for rent beyond the day when the tenant moved out.

If both the lessor and the tenant give a notice of termination to each other and the notices specify different possession days, then the earlier day is taken to be the possession day.(153)

If there are 2 or more tenants, the notice only has to be delivered to one of them.(154)

If neither party terminates the fixed term agreement, the agreement continues as a periodic tenancy after the expiry date on the same terms (unless the Court modifies these terms).(155) The tenant will need to provide not less than 21 days’ notice in writing to terminate the periodic tenancy, and the lessor will need to provide not less than 60 days’ notice (see discussion below).

If the tenant fails to deliver up possession of the premises on the day specified on the notice, the lessor may, within 30 days after the possession day, apply to the Magistrates Court for an order to terminate the agreement and an order for possession of the premises.(156) Where orders for termination and vacant possession are made the Court must specify the day as from which the orders shall operate, which must be within 7 days after the day on which the orders are made.(157) However, the Court may suspend the orders for a maximum of 30 days after the orders are made if the Court is satisfied that it is desirable to do so having regard to the relative hardship caused to the tenant by not suspending or to the lessor by suspending (unless the property is the lessor’s principle place of residence).

Where a tenant fails to comply with a Court order for possession, the lessor can apply to the Magistrates Court for an order that the tenant pay the lessor compensation for any loss caused by that failure.(158)

If the fixed term agreement is under 90 days there are important differences in the laws – see discussion at [4.4.4] below.

Withdrawing a notice of termination

The Residential Tenancies Act is silent on whether and/or how a termination notice can be withdrawn or revoked.(159)

If a lessor gave a notice to a tenant but later told the tenant that he was withdrawing the notice, an estoppel(160) may arise if the lessor subsequently sought to rely on the original notice. It is not clear whether a tenant can rely on a notice of termination after it has been purportedly withdrawn by the lessor.(161)

The notice must be in writing in the prescribed form (Form 1C).(162) Note that an error in the form will not invalidate it unless it "materially affects the substance or is likely to mislead".(163)

The notice must also be signed by the lessor(164) or a property manager of the premises, identify the premises, specify the day on which possession of the premises is to be given by the tenant and state that the notice is given in exercise of the lessor's right to give notice without specifying any ground for so doing.(165)

Failure to comply with any of the above requirements will be fatal to any subsequent application to terminate which is based on a notice of termination having been given.(166)

A tenant may, within 7 days after receiving a no grounds notice of termination, apply to the(167) Magistrates Court for an order:

(a) that the period of notice be extended by a further period of up to 60 days; or,

(b) if the tenant believes that the notice was retaliatory, that the residential tenancy is not terminated as a result of the notice [see 4.4.1 Retaliatory eviction for further discussion].(168)

If the Court makes an order extending the notice period, it may, as it thinks fit having regard to the justice and merits of the case, make such other orders as to compensation for the lessor for any loss caused by the extension or any other matter the court considers appropriate.(169)

The Court can also make orders for termination and vacant possession on an application by a tenant for an order that the notice period be extended or that the tenancy is not terminated because the notice was retaliatory. In that case the date that the order for possession will operate from must be the later of:

(a) not less than 60 days after the day on which the tenant received the notice of termination; or

(b) within 7 days after the day on which the court made the orders for termination and vacant possession.

See 6.1.1 for discussion of termination of periodic tenancy agreements in public housing.

4.3.2 Termination of a tenancy by the lessor for breach by the tenant (fixed or periodic)

A lessor can take steps to terminate a tenancy if the tenant has breached the agreement. There are separate processes the lessor needs to follow for termination for rent arrears and for termination for a breach by the tenant other than rent arrears, respectively. These processes are outlined below.

4.3.2.1 Termination for Rent arrears

There are two processes the lessor can use to terminate a lease for rent arrears. The lessor cannot apply to court for a termination order without following one of these processes.

Process 1: s 62(4) – Form 1A(170)

The lessor is first required to give the tenant a notice "specifying the breach of the agreement and requiring payment of the rent"(171). No particular form is required for this breach notice.(172) This notice should clearly state the amount of the arrears. Not less than 14 days after giving this breach notice, if the tenant has not paid the arrears, the lessor may give the tenant notice of termination. If the tenant pays the arrears before the lessor issues a notice of termination then that is the end of the matter. This notice of termination must:

1. be in writing and in the prescribed form (Form 1A);and
2. be signed by the lessor or their property manager; and
3. identify the rental premises; and
4. specify the day on which possession of the premises is to be delivered up by the tenant; and
5. specify and give particulars of the rent arrears(173)

Once the initial 14 day notice period has expired, even if the tenant later pays the rent arrears in full, the lessor can still make an application to the Magistrates Court for termination and vacant possession orders. Any repayment of arrears by the tenant would still be relevant to whether or not termination was justified in all the circumstances of the case.(174)

If the tenant does not vacate before the date set for vacant possession on the Form 1A, the lessor has 30 days from that date to apply to the Court for termination of the agreement and an order for possession of the premises.(175)

Process 2: s 62(5) – Form 1B

No breach notice is required. The lessor can issue a Form 1B Notice of Termination as the first step.(176) This notice gives the tenant not less than 7 days to rectify the breach.(177)

This notice of termination must also comply with s 61 of the Residential Tenancies Act and must:

(a) be in writing and in the prescribed form (Form 1B);and

(b) be signed by the lessor(178) or their property manager; and

(c) identify the rental premises; and

(d) specify the day on which possession of the premises is to be delivered up by the tenant; and

(e) specify and give particulars of the rent arrears(179)

If the tenant pays the rent due under the agreement in full before the day stated to vacate on the notice, the lessor cannot proceed to apply to Court for termination.(180)

If the tenant does not pay rent by the day stated to vacate on the notice ("the possession date"), the lessor may apply to Court for termination and vacant possession orders. However, if the tenant pays the rent (and the filing fee) by the day before the Court date, the lessor cannot proceed with the application,(181) and any order made for termination and possession is of no effect.(182)

The hearing must be not less than 21 days after the Form 1B is given.(183)

Notice by lessor not waived by acceptance of rent

If a lessor demands or accepts rent, or starts proceedings for the recovery of rent, after the lessor is notified of the tenant’s breach or has given the tenant notice of termination, this does not waive the tenant’s breach or any termination notices given to the tenant.(184)

What happens after the possession date set in the notice has passed?

A notice of termination does not, by itself, terminate the agreement. For the agreement to terminate following service of a valid notice of termination, one of two more things still has to occur:

(a) The tenant delivers up vacant possession of the premises (Residential Tenancies Act s 60 (a)(i)); or

(b) The court, upon application by the lessor, terminates the agreement. (Residential Tenancies Act s 60(a)(ii))

If the tenant delivers up vacant possession on or after the possession date, the tenancy agreement terminates at that time.(185)

If the tenant delivers up vacant possession earlier than the possession date that probably does not amount to an abandonment and the tenancy agreement will still terminate on the possession date in accordance with s 60(a)(i) in that case.(186) Note however that some commentators have suggested that in these circumstances the tenancy would terminate for abandonment.(187) If they are correct then the tenant who moves out earlier than the date set by the termination notice will be liable to pay compensation for abandonment under s 78(1). The tenant who wishes to avoid this possibility should therefore not vacate the premises before the possession date.

If the tenant stays in the property beyond the date required for vacant possession, the tenancy agreement continues. The tenant will still need to pay rent while remaining in the premises. However, the lessor cannot evict the tenant without a court order.(188) The lessor will have to apply under s 71 for termination and vacant possession orders. Such an application must be made within 30 days of the possession date.(189)

See 4.6.1 (Recovery of possession prohibited except by court order) for further discussion.

Test for termination for rent arrears

N.B. This chapter does not deal with termination of public housing premises. See Chapter 6 Social Housing for discussion of the special provisions for termination of public housing premises.

The Court must make an order terminating the residential tenancy agreement and an order for possession of the premises, if it is satisfied:

(a) that notice of termination was given by the lessor and that it complied with and was given in accordance with the Residential Tenancies Act;(190)

(b) that the tenant has failed to pay rent in accordance with the agreement;(191) and

(c) that the failure to pay rent is 'in all the circumstances such as to justify termination of the agreement’.(192)

Although it must terminate if it is satisfied of the above, the court may nevertheless refuse to terminate, if the tenant has paid the rent arrears, but "in every case the court shall take into account any previous breaches of the agreement by the tenant".(193)

The Court cannot terminate for breach unless it is satisfied that the breach is 'in all the circumstances such as to justify termination of the agreement’.(194) Adavale Realty Pty Ltd v Williams(195) and Dendrobium Coal P/L v White (Tenancy)(196) provide a list of factors that have been regularly applied by the Residential Tenancies Tribunal in NSW, and has been adopted by some Magistrates in Western Australia. This has been reproduced in the text, Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice.(197) The following is a non-exhaustive list of factors that may be relevant:

• the period the tenants have occupied the premises;
• the ages of the tenants;
• the state of health of each tenant;
• the overall length of time the tenants have lived in the area;
• the employment of the tenants;
• any renovations to the premises the tenants have carried out;
• the age and number of children residing at the premises;
• proximity to schools and employment;
• friends and social contacts in the area;
• the tenants' ability to find other suitable accommodation;
• whether the rent is up to date;
• whether the tenant has committed any other breaches of the lease;
• any concessions made by the tenants such as their preparedness to vacate; and
• whether the landlord requires the premises for any other persons.(198)

In the case of termination for rent arrears, we might relevantly add the following:

• the amount of the rent arrears at the date of the hearing

In general, the larger the amount of rent arrears, the more likely termination is to be justified.

However, at common law, rent arrears have to be persistent and serious before they will found termination for repudiation. At common law if a tenant intended to pay the rent, and had a capacity to do so in the future if not immediately so, the tenancy would not have been terminated. The lessor would simply have had the right to sue for any losses arising from late payment or non payment of rent. In Progressive Mailing House Pty Ltd V. Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17, the High Court considers the issue of termination of a tenancy under the common law, before the operation of the Residential Tenancies Act. It is arguable that this approach ought be taken into account when the Court considers whether a breach justifies termination. Mason J states at pp 39-40:

39 Repudiation or fundamental breach of a lease involves considerations which are not present in the case of an ordinary contract. First, the lease vests an estate or interest in land in the lessee and a complex relationship between the parties centres upon that interest in property. Secondly, this relationship has been shaped historically in very large measure by the law of property, though in recent times the relationship has been refined and developed by means of contractual arrangements. Thus, traditionally at common law a breach of a covenant by a lessee, even breach of the covenant to pay rent, conferred no right on the lessor to re-enter unless the lease reserved a right of re-entry (Lane v. Dixon [1847] EngR 102; (1847) 3 CB 776 (136 ER 311); Doe d. Dixon v. Roe [1849] EngR 231; (1849) 7 CB 134 (137 ER 55)). And in Equity the proviso for re-entry was treated as a security for the payment of the rent (Howard v. Fanshawe (1895) 2 Ch 581, at p 588; Ezekiel v. Orakpo (1977) QB 260, at pp 268-269), so that on payment of the rent Equity would relieve against the forfeiture (Dendy v. Evans (1910) 1 KB 263). The object and effect of s.129 of the Conveyancing Act was to give further protection to the lessee and to preclude forfeiture of his interest in property within the sphere of the section's operation, except in accordance with its terms.

40 These incidents of the law of landlord and tenant indicate that mere breaches of covenant on the part of the lessee do not amount to a repudiation or fundamental breach. Indeed, it is of some significance that the instances in which courts have held that a lessee has repudiated his lease are cases in which the lessee has abandoned possession of the leased property. But too much should not be made of this as very few cases of repudiation by lessees have come before the courts. I would therefore specifically reject the appellant's submission that abandonment of possession is necessary to constitute a case of repudiation by a lessee. On the other hand, it should be acknowledged that it would be rare indeed that facts which fell short of abandonment would properly be seen as constituting repudiation by the lessee in the case of a long lease at a rental which was either nominal or but a fraction of the amount which could be obtained in the market place.

In Shevill v. Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620 the High Court also considered a case of a tenancy with rent arrears, and in that case Gibbs CJ held at pp7,

It is clear that a covenant to pay rent in advance at specified times would not, without more, be a fundamental or essential term having the effect that any failure, however slight, to make payment at the specified times would entitle the lessor to terminate the lease.

There are some misconceptions that payment of rent on time is a fundamental term of the tenancy agreement, but this is not the case. A tenant who refuses to pay rent at all is in breach of a fundamental term, but late payment or a period of non payment of rent (for example where a tenant falls upon hardship, with the intention to make payment later) is not a breach of a fundamental term.

• the history of rent arrears

If the tenant has paid the rent arrears back, the court may refuse to terminate, "but in every case the court shall take into account any previous breaches of the agreement by the tenant" in deciding whether termination is justified in all the circumstances.(199) A history of repeatedly falling into arrears, even if they are subsequently paid, may weigh in favour of termination. However, see above, at common law, this would not have been the case unless the tenant evinced an intention to no longer be bound by the contract.

• the reason for the rent arrears

It has been said that "there is an important distinction between:

(a) A tenant who cannot pay the rent due to intervening circumstances; and

(b) A tenant who chooses not to pay the rent"(200)

A lessor may still apply for termination for rent arrears where the tenant has fallen into arrears through no fault of their own, but the fact that the default is not wilful and the likelihood of the tenant making it good are relevant to whether termination is justified.(201)

• whether or not the tenant is likely to fall into rent arrears again in future

Where the tenant can show that the particular facts and circumstances which led to the arrears are unlikely to be repeated, that would usually weigh against termination. On the other hand, even if the factors leading to the default were completely beyond the control of the tenant, if they are likely to recur, termination will generally be more likely to be justified in all the circumstances.

• whether or not it is realistic for the tenant to repay any rent arrears, and how quickly

If it is not feasible for the tenant to repay the arrears within a reasonable time termination is more likely to be justified. The more rapidly the tenant can make up the arrears, the less likely termination is to be justified. The tenant who can show they will be able to pay the rent arrears in the near future, and/or can offer the lessor a realistic payment plan, is less likely to be terminated.

The Court can order vacant possession to the lessor immediately, but the Court may suspend the orders for a maximum of 30 days after the orders are made if the Court is satisfied that it is desirable to do so having regard to the relative hardship caused to the tenant by not suspending, or to the lessor by suspending (unless the premises are the lessor’s principal place of residence).(202)

Further factors

Crisis, transitional or short term accommodation?

The purpose of the housing will be a relevant consideration, and there is a growing number of cases from the East Coast tribunals that take into account if accommodation is provided through a crisis or transitional program (and therefore is not intended as long term housing).(203)

Public, social or private housing?

Case law and tests apply to private housing as well as public and social housing. The nature of the lessor may be relevant under the consideration of hardship to the lessor or need for the property. [See Chapter 6 Social Housing for further discussion of the special provisions for termination of public housing premises].

Risk of residential tenancy database listing

The tenant risks being listed on a Residential Tenancy Database if the Residential Tenancy Agreement is terminated for rent arrears or they owe more than the security bond in rent arrears when it ends(204)

[See 4.8 Residential Tenancy Databases for further discussion].

Limitation periods for termination for rent arrears

The lessor has 6 years from the date that the rent was due under the tenancy agreement to commence legal proceedings to recover the arrears. Each occasion that the tenant fails to pay rent in accordance with the agreement gives rise to a separate limitation period. Where a tenant repeatedly fails to pay rent there will multiple limitation periods.

(See 12.1.1 Limitation Periods section for full details).

4.3.2.2 Termination by the lessor for breach other than rent arrears

The lessor must first send a notice specifying the breach and requiring that the breach be remedied. This notice must be given to the tenant not less than 14 days before the notice of termination is given.(205) There is no set requirement for what form the breach notice is in.

If the breach is not remedied, the lessor can then send a notice of termination (Form 1C), giving the tenant not less than 7 days to deliver up vacant possession.(206)

If the tenant does not vacate within the time stated on the Form 1C, the lessor has 30 days after that date to apply to the Court for termination of the agreement and an order for possession of the premises.(207)

Holding over

See discussion above under 4.3.2.1.

Test for termination for breach other than rent arrears

The court cannot terminate for breach unless it is satisfied that the breach is 'in all the circumstances such as to justify termination of the agreement’.(208) The Residential Tenancies Act itself gives us no guidance as to what matters might be taken into account, or the weight any particular factor ought to be given.(209) The proviso that the court cannot terminate for breach unless it is satisfied that the breach is in all the circumstances such as to justify termination amounts to a wide discretion to the court not to terminate. It is submitted that by analogy with the equitable and statutory(210) jurisdictions to grant relief against forfeiture that:

• the discretion is wide and unfettered
• it should be a rare case where termination is granted despite the tenant having remedied the breach and compensating the lessor for any losses caused by it(211)

The court may also refuse to terminate where the breach has been remedied, but it must take into account any previous breaches by the tenant.(212) In general, the more breaches there have been, the more likely the court will find that termination is justified.

Adavale Realty Pty Ltd v Williams(213) and Dendrobium Coal P/L v White (Tenancy)(214) provide a list of factors that have been regularly applied by the Residential Tenancies Tribunal in NSW. This has been reproduced in the text, Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice.(215) The following is a non-exhaustive list of factors that may be relevant:

• the period the tenants have occupied the premises;
• the ages of the tenants;
• the state of health of each tenant;
• the overall length of time the tenants have lived in the area;
• the employment of the tenants;
• any renovations to the premises the tenants have carried out;
• the age and number of children residing at the premises;
• proximity to schools and employment;
• friends and social contacts in the area;
• the tenants' ability to find other suitable accommodation;
• whether the rent is up to date;
• whether the tenant has committed any other breaches of the lease;
• any concessions made by the tenants such as their preparedness to vacate; and
• whether the landlord requires the premises for any other persons.

Risk of residential tenancy database listing

See discussion above under 4.3.2.1.

4.3.2.3 Compensation

See 4.2.7.1 (Costs of breaking the lease) and 4.2.7.1.1 (Compensation) for a discussion of compensation for “breaking the lease” in a fixed term agreement.

The principles around mitigation of loss apply equally to periodic tenancy agreements and fixed term agreements – See 4.2.7.1.1 (Compensation) for a discussion of the lessor’s duty to mitigate.

4.3.3 Termination by the lessor where the lessor is selling the premises

Periodic Tenancy Agreement In a periodic tenancy agreement, if the lessor has entered into a contract for the sale of the premises that requires the lessor to provide vacant possession of the premises, the lessor can give the tenant not less than 30 days’ notice of termination.(216)

A lessor, or property manager acting for the lessor, who gives a notice of termination that they know ‘is false or misleading in a material particular’ could be issued with a fine of up to $10 000, which is enforced by Consumer Protection.(217)

If the tenant has a periodic tenancy agreement and wants to stay after the property has been sold, the tenant could negotiate an agreement with the purchaser to stay on a periodic tenancy or sign a new fixed term agreement with the purchaser. The purchaser does not have to agree to this.

Either party can still give a ‘no grounds’ notice of termination at any time during a periodic tenancy agreement [see 4.1.1.2 for discussion of notice required by the tenant to end a periodic tenancy agreement, and 4.3.1.2 for notice required by the lessor to end a periodic tenancy agreement].

Fixed Term Agreement If the tenant is in a fixed term agreement, the lessor cannot require the tenant to vacate before the end of the fixed term.(218) The agreement will continue on foot on the same terms and conditions as the existing agreement, until the end of the fixed term. The new owner purchases the premises subject to the tenancy and takes over the rights and responsibilities of the previous lessor.

If the premises is put on the market and the tenant wants to vacate, or the lessor wants to sell the premises vacant, the tenant and lessor may come to a mutual agreement in writing to terminate the tenancy.(219) The tenant could negotiate compensation for the inconvenience of vacating early and moving costs. It is important to get any agreement in writing. See 4.1.4 for the requirements for a mutual agreement to terminate the tenancy.

Advertising and cleanliness

The tenant is not required to go to any special effort or expense to make the premises more attractive to prospective purchasers (e.g. hiring professional cleaners or gardeners). If this is what the lessor wants, it is up to them to provide it. The tenant’s obligation under the Residential Tenancies Act is simply to keep the premises in a reasonable state of cleanliness.(220)

As part of the sales process, the lessor usually wants to take photographs of the premises for publication in advertising materials. If the lessor wants to take photographs for advertising, the tenant should try to negotiate an agreement about what will be photographed and how the photographs will be used.

If the tenant is worried that the photographs will put their possessions at risk of theft, the tenant should remove any valuable items before the photos are taken. Photographs should not include any identifying features.(221)

A tenant who has a restraining order who is concerned that publication of photos which include their personal belongings will reveal their address should raise that with their lessor as soon as possible and seek further legal advice. It is an offence under the Restraining Orders Act 1997 (WA) to publish any information that would, or would be likely to, reveal the whereabouts of a party to proceedings, or any person who gives evidence in proceedings, under that Act.(222)

For further discussion of use of photographs during inspections see 3.9 Lessor’s right of entry.

Inspections and viewings by prospective purchasers

For discussion about inspections and viewings by prospective purchasers, see 3.9 (Lessor’s right of entry).

4.3.4 Termination by the lessor for undue hardship

A lessor (or a tenant) can apply to the Magistrates Court for an order that the residential tenancy agreement is terminated on the grounds that they would suffer undue hardship if they were required to terminate the agreement under any other provision of the Residential Tenancies Act.(223)

See 4.1.3. for further discussion.

4.3.5 Termination by agreement in writing

If the lessor wants the tenant to come to an agreement in writing to terminate before the fixed term agreement expires, the tenant could negotiate for compensation for the inconvenience of ending the agreement early, such as for removalist costs.

See 4.1.4 for further discussion.

4.3.6 Termination by the lessor where tenant is causing serious damage or injury

The lessor can apply to the Magistrates Court for an order for termination and possession where the tenant is causing serious damage or injury.(224)

The Court may ‘terminate the agreement if it is satisfied that the tenant has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit, serious damage to the premises or injury to the lessor or the property manager of the premises or any person in occupation of or permitted on adjacent premises.’(225)

Where the Court terminates the agreement, it must ‘also make an order for possession of the premises of immediate effect.’(226)

The Tribunal in Wong v Eggins ‘found that serious damage meant damage that was not insignificant or trifling.’(227)

In NSW Land and Housing v Bloomfield (Social Housing) the Tribunal found that "the removal of a toilet bowl from a bathroom constitutes serious damage".(228)

In Yeomans (By Peter F Burns Real Estate) v Janoska & Parry, the Tribunal found that a thirty centimetre hole kicked in the front door and a broken security screen door is ‘serious damage’. In this case, there was also a risk of further serious damage as a result of domestic violence perpetrated by the tenant.(229)

In Rooke, Walter (Landlord), and Rooke, Patrica (Landlord) v Austin, Rhonda (Tenant) the Tribunal found ‘serious damage’ caused by the tenant’s children and the neighbouring children, including ringbarked trees, damage to the dividing fence and signs of fire at the front entrance.(230)

4.3.7 Termination by the lessor for objectionable behaviour (where the lessor is the Housing Authority)

See Chapter 6 Social Housing for discussion of this topic.

4.3.8 Termination by the lessor where agreement frustrated

See 4.1.8 for discussion

4.3.9 Abandonment orders where the lessor applies to Court

This part deals with applications to Court for abandonment orders. See 4.2.7 (By abandoning the premises) for a full discussion of termination of the agreement by abandonment.

Section 78A gives the lessor the option of applying to court for an order declaring that the premises were abandoned on a certain day if the ‘lessor suspects on reasonable grounds’(231) that the tenant has abandoned the premises.(232) The Magistrates Court may make an order declaring the premises were abandoned on the day stated in the order,(233) and the tenant is taken to have abandoned on the day stated in the order.(234)

‘The lessor may make the application instead of giving a notice under s 76A to the tenant’ terminating the agreement if the lessor suspects on reasonable grounds that the tenant has abandoned the premises.(235)

If a tenant is dissatisfied with a decision of the Magistrates Court to order abandonment of the premises under s 78A(3), the tenant may apply to the Court for a review of the decision by way of a rehearing.(236) The tenant’s ‘application must be made within 28 days after the decision is made.’(237)

In reviewing the decision, the Court must exercise its original jurisdiction, and may make an order if satisfied that the tenant ‘did not abandon the premises or only abandoned the premises on a day after the day stated.’(238) If an order is made, it will require the lessor to pay the tenant an amount of compensation determined by the Court, for any loss or expense incurred by the tenant due to the termination of the agreement.(239)

4.4 Tenant defences to termination

4.4.1 Retaliatory eviction

Introduction

The retaliatory eviction provisions of the Residential Tenancies Act only apply to periodic tenancies and cannot be used to defeat an application to terminate a fixed term tenancy. The lessor who wishes to terminate a periodic tenancy “without grounds” must give at least 60 days' notice of termination to the tenant in accordance with the Act.(240) If the tenant moves out in accordance with the notice of termination, the tenancy terminates under s 60(a)(i). If the tenant does not move out, the lessor may apply for orders for termination and vacant possession in accordance with s 71. The court must make the orders sought if it is satisfied that the lessor gave the notice of termination to the tenant and that it "complied with and was given in accordance with" the Act.(241) Despite that, the court may refuse to terminate if is satisfied that the lessor was wholly or partly motivated to give the notice by the fact that the tenant had complained to a public authority or taken steps to secure or enforce her or his rights as a tenant.(242) The tenant who wishes to oppose termination of a periodic tenancy on the grounds that it is retaliatory has two options:

a. Within 7 days of receiving the notice of termination the tenant may apply under s 64(3)(b) for an order that the tenancy is not terminated because the notice was retaliatory; or

b. Wait until the lessor applies for termination and vacant possession orders under s 71 and oppose the orders on the grounds that the notice of termination was retaliatory.

The difference between the two options

• The first option is the result of a relatively recent amendment to the Act(243) whereas the second was in the Residential Tenancies Act as passed in 1987 and replicates an identical provision in the South Australian Residential Tenancies Act 1978. It is difficult to see that there is any practical advantage to using one option over the other however the tenant who uses the first option may have the matter heard and determined more quickly than it otherwise would be.

The burden of proof

Where the tenant had complained to a public authority or taken steps to secure or enforce their rights within 6 months before notice was given by the lessor, the burden lies on the lessor to prove that they were not motivated to give notice by that fact.(244) In all other cases, the burden of proving the motivation of the lessor would appear to be on the tenant.AdelLawRw 3; (1976) 5(4) Adelaide Law Review 357 363 – 364; _Rules of Evidence in Australia_, Arenson and Bagaric, Lexis Nexis Butterworths, 2005 16-17.">(245) In many of those cases it will be difficult, if not impossible, to prove the motivation of the lessor for giving the notice. It must be noted that, even where the notice was given within 6 months of the tenant complaining etc., that does not mean that the court must refuse to terminate. The lessor could still discharge the burden, and prove that they were not in fact motivated to give the notice out of retaliation. And even if the court found that the lessor was so motivated it could still decide to terminate the agreement.(246)

Motivated to give the notice

In Re Magistrate Steven Malley; Ex Parte The Housing Authority, the Supreme Court of Western Australia has held that the lessor is "motivated" to give the notice if "an actual or operative reason of the [lessor], in his or her own mind, [is] the fact that the tenant [has] taken steps to secure or enforce his [or her] rights as a tenant."(247) Examining whether a fact is an actual or operative reason for an action calls for an inquiry into the mental processes of the person responsible for that action. A mere causal link is insufficient."(248) The lessor who does not (potentially) enliven s 73(3)(b)(i) unless he or she gave the notice, at least to some extent, merely because of the fact that the tenant had "complained to a public authority or taken steps to secure or enforce his rights as a tenant".

Complained to a public authority

"Public Authority" is not defined in the Residential Tenancies Act.(249) It will not always be clear whether or not a particular person or body is a "public authority". In general, "a person or body executing a function in the public interest and for the public benefit" will be a "public authority".(250) It seems safe to say, therefore, that the following are clearly public authorities, although this is by no means an exhaustive list:

a. The Housing Authority

b. Government departments, and their associated divisions (e.g. Consumer Protection)

c. Local government authorities (local councils)

d. State-owned utility companies such as the Water Corporation and Synergy.(251)

e. Office of the Australian Information Commissioner

f. WA Police

Steps to secure or enforce rights as a tenant

The WA Supreme Court in Re Magistrate Steven Malley; Ex Parte The Housing Authority(252) held that "secure or enforce rights as a tenant" should be interpreted narrowly. In that case the Housing Authority had applied for a review order setting aside a Magistrate's decision to dismiss the lessor's s 64 application for termination without grounds, on the basis that he was satisfied that the lessor had been wholly or partly motivated to give the termination notice by the fact that the tenant had taken steps to secure or enforce his rights as a tenant. The magistrate had found that the tenant had taken steps to secure or enforce his rights as a tenant by defending s 75A termination proceedings previously brought against him by the Authority. Le Miere J concluded that:

"'The tenant had […] taken steps to secure or enforce his rights as a tenant' means that the tenant had taken positive action to enforce or secure rights accruing to him in his capacity as a tenant and does not extend to defending or resisting proceedings taken against him by a lessor to obtain possession of the premises."(253)

When might the court refuse to terminate because the notice was retaliatory?

Although very similar "retaliatory eviction" provisions have always existed in the Residential Tenancies Acts of most of the States and Territories, there is little case law on this question.

In Re Magistrate Steven Malley; Ex Parte The Housing Authority Le Miere J stated:

"[T]he RTA as a whole and the extrinsic material to which I shortly refer shows that the mischief to which s 71(3)(b)(i) is directed is a lessor giving to a tenant notice to terminate his tenancy in retaliation for a tenant complaining to a public authority or exercising or threatening to exercise a right conferred on the tenant as a tenant."(254)

S 71(3)(b)(i) is based on a practically identical provision in the Residential Tenancies Act (1978) (SA). The Residential Tenancies Act (1987) (NSW) contained very similar provisions.

In NSW, some of the circumstances in which the residential tenancies tribunals have refused applications to terminate because they were retaliatory have included:

a. Where the lessor was motivated to give notice by the tenant's prior successful application to the Tribunal;(255)

b. Where the tenants had complained to the lessor about sewerage problems and had complained to their local council;(256)

c. Where the tenant had inquired of their local council whether the lessor's ongoing garage conversion was legal (it was not and the local council required some of the conversion to be undone);(257)

d. Where the tenant had complained about mould and repairs, and sought orders for rent reduction, repairs and refund of water usage;McDowall, Vicki [1998] NSWRT 308 (23 October 1998); Similarly see Riddle v Littauer, Littauer v Riddle [2001] NSWRT 96 (14 May 2001) and Ward v Penson [2001] NSWRT 307 (6 November 2001)">(258)

e. Where the tenant had lodged objections to the local council to the lessor's development application for the neighbouring site, and written to the lessor complaining about a surveillance camera and subsequently successfully applied to the Tribunal for its removal;(259)

f. Where the tenant had "sought assistance with a leaking shower" and was immediately issued with a termination notice;(260)

g. Where the tenant of strata title premises had successfully applied to the NSW Consumer Trader and Tenancy Tribunal for orders for his lawful use of and access to common property;(261)

h. Where the tenant had refused to pay an invalid rent increase, requested repairs and sought repair orders;(262)

4.4.2 Breach does not justify termination in all the circumstances

In order to make an order terminating the residential tenancy agreement and an order for possession of the premises, the Court must be satisfied that ‘the breach is in all the circumstances such as to justify termination of the agreement’.(263)

The tenant could ask the Court to consider a range of factors as to why the breach does not justify termination in all the circumstances. See the discussion above at:

• 4.3.2.1 Termination for Rent Arrears – under the heading 'Test for termination for rent arrears'; and
• 4.3.2.2 Termination for Breach Other Than Rent Arrears

4.4.3 Failure to comply with notice requirements

A notice of termination must comply with the notice requirements under the Residential Tenancies Act.(264) The notice will need to be given in the correct time period, served in the correct manner, use the correct form, be in writing and include the correct content. These requirements are set out below.

4.4.3.1 Time

A notice of termination which gives less than the minimum period of notice under the Act may be invalid. Any subsequent application to terminate which relies on such a notice may be opposed on the grounds that the notice was not given in accordance with the Act. See 4.3.1.1, 4.3.1.2 and footnotes 183 and 206 above.

The relevant time periods for the various types of termination notices are set out below.

For further discussion of computation of time and time limits, see 12.1.1 (Limitation periods and other time limits) and 12.1.22 (Calculating time periods).

Termination notices by lessors

Ground	Time period (minimum)	Notes	Form	Further discussion
Frustration (s 69)	7 days		Form 1C (compulsory-prescribed form)	4.3.8 (Where agreement frustrated)
Rent arrears – Form 1A (s 62(4))	7 days	Before issuing a Form 1A, the lessor must issue a Form 21 (breach notice for non-payment of rent) which gives the tenant 14 days to rectify the breach.	Form 1A (compulsory-prescribed)	4.3.2.1 (Rent arrears)
Rent arrears – Form 1B (s 62(5))	7 days	No breach notice required	Form 1B (compulsory-prescribed)	4.3.2.1 (Rent arrears)
Breach other than rent arrears – Form 1C (s 62(3))	7 days	Before issuing a Form 1C, the lessor must issue a breach notice not less than 14 days before the Form 1C is given.	Form 1C (compulsory-prescribed)	4.3.2.2 (Other than rent arrears)
Without grounds – end of fixed term (s 70A)	30 days	Cannot terminate before the end of the fixed term.	Form 1C (compulsory-prescribed form)	4.3.1.1 (Without grounds, by giving notice of termination – fixed term tenancy)
Lessor has entered into a contract for sale of the premises (s 63)	30 days	During periodic tenancy only	Form 1C (compulsory-prescribed)	4.3.3 (Where the lessor is selling the premises)
Without grounds – periodic tenancy (s 64)	60 days		Form 1C (compulsory- prescribed form	4.3.1.2 (Without grounds, by giving notice of termination – periodic tenancy)
Where tenant no longer eligible for housing authority premises (s 71C)	60 days		Form 1C (prescribed)	6.1.3 (Special provisions for termination [in public housing])
Where tenant offered alternative Housing Authority premises (s 71H)	60 days		Form 1C (prescribed)	6.1.3 (Special provisions for termination [in public housing])

4.4.3.2 Service of termination notices

A termination notice may be served in the following ways – by giving it to the person personally, by post, or with the consent of the recipient (or in other circumstances specified in the regulations) by electronic means in accordance with the regulations.(265)

If the notice cannot be given or sent in accordance with any of the above methods, the notice is deemed to have been received if either: (a) a copy of it is published in a daily newspaper circulating throughout all, or most of, the State; or (b) a court hearing proceedings under the Residential Tenancies Act orders an alternative means of giving the notice and that means is effected.(266)

If delivered by post, the notice must be addressed to the recipient at any place specified by the recipient as their mailing address.(267) If a mailing address has not been specified, the notice must be sent to the recipient’s last known place of residence, employment or business.(268) The notice is deemed to have been given to the recipient when it would have been delivered in the ordinary course of post.(269) It is important to note here that the deeming provision is apparently not rebuttable.(270) That means that it does not matter whether the notice was actually ever delivered. If the sender can prove, on the balance of probabilities, that he put it in a stamped, correctly addressed envelope and placed that envelope in a post box, then the recipient will be deemed to have been served, when the letter would have arrived in "the ordinary course of post".

If posting, the person serving the notice should take into account Australia Post delivery times (including weekends and public holidays), as delivery time could extend the period of notice.(271) At present the "ordinary course of post" is three working days for delivery of regular post within the metropolitan area. For a more detailed discussion of the issue, including the delivery times applicable when posting outside of the metropolitan area, see 12.1.22.2 "Ordinary Course of Post".

If the notice is sent by another method such as email, the person serving the notice may have to prove that the recipient received the notice if the recipient denies that they did. There are no deeming provisions for email under the Residential Tenancies Act so this may be difficult to prove. See 12.1.24.3 (Electronic Transactions Act 2011) for further discussion.

Personal service by the tenant

The notice may be handed to the lessor personally. If the lessor refuses to accept it, the tenant may serve it by telling the lessor what it is and putting it down in front of him or her. Notice is deemed to have been duly given to the lessor if it has been given to the lessor’s property manager, any person apparently over the age of 16 years apparently residing at the lessor’s premises, or to the person who ordinarily receives rent under the agreement.(272)

If there are 2 or more lessors, the notice only has to be delivered to one of them.(273)

Personal service by the lessor

The lessor may hand the notice to the tenant personally. If the tenant refuses to accept it, the lessor may serve it by telling the tenant what it is and putting it down in their presence. If delivered personally, the notice is deemed to be duly given to the tenant if it is given to any person apparently over the age of 16 years apparently residing in the premises the subject of the agreement, or to the person who ordinarily pays rent under the agreement.(274)

If there are 2 or more tenants, the notice only has to be delivered to one of them.(275)

4.4.3.3 Use of incorrect form(276)

The notice of termination may be invalid if it is not in the correct form. All termination notices provided by the lessor must be in the prescribed form.(277) The tenant does not need to provide notice of termination in any particular form, although it must be in writing, but the use of Form 22 is suggested.

The relevant forms are set out in the tables above.

4.4.3.4 Writing

All notices of termination provided by the lessor must be in writing and be signed by the lessor or a property manager of the residential premises.(278)

All notices of termination provided by the tenant must be in writing, be signed by the tenant and identify the premises the subject of the agreement.(279)

See 12.1.23 for further discussion of writing and signature requirements.

4.4.3.5 Contents

The Residential Tenancies Act sets out what must be included in notices of termination provided by the lessor and tenant, respectively. These sections are set out in full as follows. This is discussed in detail in the earlier sections, at least with respect to the lessor terminating for breach or for no grounds notices e.g. 4.3.1.1 Fixed Term Tenancy and 4.3.1.2 Periodic Tenancy.

61. Form of notice of termination by lessor

Notice of termination of a residential tenancy agreement by the lessor must —

(a) be in writing and in the prescribed form; and

(b) be signed by the lessor or a property manager of the residential premises; and

(c) identify the premises the subject of the agreement; and

(d) specify the day on which possession of the premises is to be delivered up by the tenant; and

(e) specify and give particulars of the ground, if any, upon which the notice is given.

67. Form of notice of termination by tenant

Notice of termination of a residential tenancy agreement by the tenant shall —

(a) be in writing; and

(b) be signed by the tenant and identify the premises the subject of the agreement; and

(c) specify the day on which the tenant will deliver up possession of the premises.

4.4.4 Fixed term tenancy under 90 days

If the agreement is for a term of less than 90 days the Court must not order termination and vacant possession, unless the Court is satisfied that the lessor genuinely proposed (at the time of entering into the agreement) to use the premises after expiration of the term for purposes inconsistent with the tenant continuing to occupy the premises; or that the tenant of the tenant’s own initiative sought a tenancy for less than 90 days.(280) This prevents the lessor from using a series of short fixed term tenancies as a device to avoid the requirement to give 60 days' notice to terminate a periodic tenancy.

4.4.5 Termination where the tenant has applied for, or obtained a rent reduction

Where a tenant has applied for a rent reduction order, or one is in force, under s 32 of the Residential Tenancies Act: a. Any s 64 notice of termination has no effect.(281) b. Any other notice of termination also has no effect unless the lessor first successfully applies to the court to authorise it.(282) The court may only authorise it if it is satisfied that neither the institution of proceedings for the order nor the making of the order has wholly or partly motivated the lessor to give notice of termination.

4.5 Termination by superior title holder and/or mortgagee repossession

The chapter is currently under development

4.5.1 Superior Title Holder

4.5.2 Mortgagee Repossession

4.6 Eviction

4.6.1 Recovery of possession prohibited except by court order

A lessor is not allowed to take possession of the premises without a court order.(283) There is a potential fine of up to $20 000 to the lessor for doing so.(284)

The lessor must follow the correct process before a tenant can be evicted. In most cases, when a lessor wants to terminate a tenancy, they must give the tenant a notice of termination. In some circumstances, the lessor can apply directly to the Magistrates Court for an order for termination.

See 4.3 (Termination by the Lessor) for a discussion of the processes the lessor must follow in order to terminate the tenancy on different grounds.

Even if it is valid, a termination notice itself does not terminate a residential tenancy agreement. The tenant is entitled to stay after the vacant possession date in the notice. It is not a breach of a residential tenancy agreement to do so. However, the tenant’s obligations (including paying rent) under the residential tenancy agreement will continue.

If the tenant moves out after receiving the termination notice, the residential tenancy agreement will terminate on the date the tenant delivers up vacant possession.(285) The tenant can move out before the vacant possession date on the notice without giving the lessor a termination notice. If the tenant does that, the tenant will still be liable for rent until the vacant possession date.

If the tenant fails to deliver up possession of the premises on the day specified on the notice, the lessor may, within 30 days after that day, apply to the Court for an order to terminate the agreement and an order for possession of the premises.(286) The lessor must make the Court application within 30 days after the vacant possession date on the notice of termination.(287)

Where a tenant fails to comply with a Court order for possession (as distinct from an order for termination), the lessor can apply to the Magistrates Court for an order that the tenant pay the lessor any compensation caused by that failure.(288)

4.6.1.1 Illegal lockout

A lessor cannot lock a tenant out or threaten to lock a tenant out of the premises.(289) The lessor must follow the correct procedure. Only the sheriff, or someone acting for the sheriff (usually a bailiff(290)), can evict a tenant from the premises, and only when they are acting in accordance with a court order.(291)

If the lessor threatens to illegally evict the tenant or shows up at the premises and attempts to evict the tenant, the tenant should call the Police or Consumer Protection immediately.

A tenant who is illegally evicted, could make a court application for compensation for any inconvenience, loss or damage caused by the lessor’s breach, and/or an order to get the tenant’s belongings back.(292)

Limitation period for illegal lockout: a tenant has 6 years from the date they were illegally locked out by way of the locks being altered or removed to commence proceedings for compensation and/or a specific performance order.

4.6.2 Appealing a Residential Tenancy Decision in the Magistrates Court

Introduction

The majority of residential tenancy matters are disputes about less than $10,000. The Magistrates Court has exclusive jurisdiction over residential tenancy matters involving claims of $10,000 or less (known as "prescribed disputes").(293) For the purposes of this section, we are only dealing with prescribed disputes. A tenant who is appealing a matter which involves more than $10,000 should seek further advice.

4.6.2.1 If the tenant was present at the hearing

The decision was made by a magistrate

A tenant who is unhappy with a decision made by a Magistrate at a hearing that they attended, has limited options for appeal.

A Court order made by a Magistrate in a residential tenancy matter where both parties were present is final and binding (s26(1) Residential Tenancies Act 1987 (RT Act)) and no appeal can be made against that order.

Notwithstanding the bar on appeals, where there has been a denial of natural justice, or where the Magistrates Court had no jurisdiction to make the order (s.26(2) RT ACT), a tenant can apply for a review order under s 36 of the Magistrates Court Act 1987 (WA). An application for a review order must be made to the Supreme Court. Applications for review orders are beyond the scope of this publication at present.

A tenant who believes they may have been denied natural justice or that the Magistrates Court had no jurisdiction to make an order should seek further legal advice as soon as possible. The Supreme Court rules don’t specifically provide a limitation date for judicial review, and the general limitation period of 6 years is likely to apply for making an application for a review order, however it may be futile to do so where the lessor has already retaken possession of the premises, and almost certainly where the lessor has already re-let them to a third party.(294)

The decision was made by a Registrar

In a residential tenancy matter, a Registrar can only exercise the Court’s jurisdiction if the application is not disputed or if a party to the application does not appear. (s 13A (2)(b) RT Act).

This means that where both parties are present, Registrars can only make orders by consent.

A decision by a registrar to enter judgment by consent, is a judicial decision which can be appealed against. (Re Michelides; ex parte Chin [2008] WASC 256, per Hasluck J at [129] – [130])

A person who is dissatisfied by a decision made by a registrar may appeal to a Magistrate under s 29 of the Magistrates Court Act 2004 (WA).(295) There is an absolute right to appeal against a Registrar's decision, even if it was by consent(296).(297)

Magistrates Court Act 2004 [WA] s 29(4) provides that the appeal is by way of a "new hearing". A "new hearing" is a hearing de novo – see Priority Networking v Peterson [2018] WASC 36. In an appeal de novo, "the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error."(298) Hearing the matter afresh means that the court must take into account the facts and circumstances as they are at the time of the appeal hearing. That means that if the tenant does not consent at that time, consent orders cannot be made, and those being appealed against ought to be discharged (cancelled).

In Darcy & Darcy(299) the parties agreed to final consent orders being made by a Registrar of the Federal Magistrates Court following a conciliation conference. The Federal Magistrates Act 1999 (Cth) provided that such orders could be appealed against within a certain time, which could be extended. Under the Federal Magistrates Rules 2001 (Cth) an appeal against a Registrar's decision had to proceed "by way of a hearing de novo"(300). One of the parties appealed against the consent order, merely on the basis that they had withdrawn their consent. The court noted its concern over

"[…] the policy implications of a party being permitted, for any reason (or even no reason at all) to resile from final orders made on the basis of prior consent merely based on the happenstance that those orders were approved by a Registrar and not a Federal Magistrate. It would not be well for parties or practitioners to treat the review process as a de facto seven (7) day “cooling off period” on final orders approved by a registrar."

Notwithstanding that,

"The comments of the majority of the judges of the High Court in Harris,(301) and of the learned judges in the other authorities referred to above, lead [to the conclusion that] the mere fact of the Applicant withdrawing her consent and making her application that the consent orders be discharged brings the matter within the scope of the Court’s discretion to review the decision without the Court needing to have regard to the factors traditionally pleaded in support of an application under s.79A. The absence of the Applicant’s consent is the state of affairs as at the time of the rehearing before me."

These cases (Darcy & Darcy and the cases referred to therein and Priority Networking) taken together are strong authority for regarding the right to appeal to a Magistrate from the decision of a registrar as an absolute right for a new hearing before a Magistrate, with 21 days to make an application (noting that time period can be extended by the Court even if it has elapsed.(302) It should be noted here that, if this right exists, it would be one that a lessor would be entitled to use, in just the same way as a tenant.

A tenant who wished to appeal the making of consent orders by a Registrar would be entitled (under s 13B RT Act) to appeal to a Magistrate. That is a process that we will go on to discuss in the context of appealing a Registrar's decision that was made in the absence of the tenant.

4.6.2.2 If the tenant was not present at the hearing

If the tenant was not present at the Court hearing, there are two different processes for appealing the decision, depending on whether the decision was made by a Magistrate or a Registrar.

The decision was made by a Magistrate

If the tenant was not present when the order was made, they can make an application under section 17 of the RT Act to vary or set aside the order. The Act requires that the application must be made within 14 days after the making of the order.(303) A late application would require an order of the Court to extend this limitation date, and this may not be provided.

The relevant form is Form 16: Application to Vary or Set Aside Order.

The cost for lodgement of this application is $65.00, unless the tenant is eligible for the fee to be reduced in which case it is $19.70 and upon lodgement the tenant will be given a date for the hearing.

At the hearing, it seems that the Court will usually expect the tenant to show that they had a valid reason for non-attendance at the original proceedings and to show that they have an arguable case on the merits, that is, that they may be successful at a new hearing. (Note however that on the face of it, s 17, gives an unqualified right to a tenant to appeal a decision made in their absence.)

If the tenant is successful, the Court may set aside the order and give the tenant a date to come back for rehearing, or it may immediately hear the case. It is often the case that the tenant has not received any disclosure at this stage, and in these circumstances the tenant ought to seek disclosure orders and a date for rehearing which gives them enough time to prepare subsequent to receiving disclosure.

The decision was made by a Registrar

Where the decision was made by a Registrar, the RT Act provides two apparently possible avenues of appeal: via s 17 and s 13 B.

Section 17 provides as follows:

17. Application to vary or set aside order

(1) A person who is or was a party to any proceedings on an application under this Act may apply to a competent court for an order varying or setting aside an order made in those proceedings if the application was heard in the person's absence.

(2) An application to vary or set aside an order, other than an order under section 84, must be made within 14 days after the making of the order.

Section 13B reads:

13B. Appeals from decisions of a registrar

A person dissatisfied with a decision of a registrar in respect of a matter on which a registrar has exercised jurisdiction under section 13A(2) may appeal to a magistrate under section 29 of the Magistrates Court Act 2004.

There is an obvious overlap between the sections which has led to some controversy. There would seem to be no reason why a tenant could not choose to appeal a decision made by a registrar in their absence under either of them. However we are aware that some Magistrates have held that any decision made by a registrar (even if the decision is also made in the absence of a party) is only open to appeal via s13B. However, there also seem to be other Magistrates who take no issue with a party using s 17 to apply to set aside an order made by a Registrar in their absence.(304)

In Tenancy WA's opinion, it seems s 13B of the RT Act was enacted in order to give parties who were present when Registrars make decisions the same rights as tenants who were absent when Registrars made decisions.(305) Before it was enacted, parties who were present when a Registrar made a decision had no right to apply to overturn the decision, whereas parties who were not present could have the decision set aside (under s 17). This is presumably what the _Explanatory Memorandum Consumer Protection Legislation Amendment and Repeal Bill 2005 is referring to, when it states the Bill, "amends the Residential Tenancies Act 1987 to overcome inconsistencies by enabling decisions regarding tenancy disputes made by Registrars in the Magistrates Court to be able to be appealed". The enactment of s13B also provides consistency with other civil litigants in the Magistrates Court who already had rights to appeal registrars' decisions.

If a tenant was to make an application under s 17 and the matter was heard by a Magistrate who took the view that an appeal against a Registrar's decision had to be made under s 13B, then the s 17 application would most likely be dismissed.

The difficult question then arises of whether to apply under s 17 or appeal under s 13B.(306) Although registry staff cannot give legal advice, they can give "procedural advice". Procedural advice arguably extends to advice as to which Form an applicant should use in a given situation, and that in turn would suggest whether a tenant should apply under s 17 or s 13B in a given court. So one possible solution is to ask the registry staff, bearing in mind that it will be no answer to a Magistrate who later takes a contrary view to say that the reason a tenant chose a particular course of action was because the registry staff told them to!

It may not always be practicable or possible to ask the registry which form to use.

We suggest that, if the tenant knows that the decision was made by a Registrar, the tenant should proceed under s 13B. If the decision was made in the presence of the tenant (i.e. by way of consent orders) that is the only option. If the decision was made in the absence of the tenant by a Registrar, then we also suggest 13B because we are only aware of Magistrates taking issue with tenants using s 17 in these circumstances; we are not aware of any who have taken issue with tenants who have proceeded under s 13B.

Typically, of course, where a decision was made in a tenant's absence, the tenant does not know whether the decision was made by a Registrar or a Magistrate. In that case, the tenant should try to find out. Unfortunately this is not always possible because even if an order was made in court by a Magistrate, the written order sent to the tenant (and kept on file at the registry) may be signed by a Registrar. So even if the tenant was to be told by the registry that there are orders on the file signed by a Registrar, that does not necessarily mean that the decision was not made by a Magistrate.

Where a tenant cannot find out for sure whether the decision was made by a Registrar or a Magistrate then the safest option is to lodge applications under both s 17 and s 13B at the same time. The advantage of this is that the Court will have to accept one of them. The downside is that one of those applications will inevitably be dismissed, and the application fee thrown away. It may be that the court registry would refuse to accept both in any event - at least in those circumstances, it is difficult to see a Magistrate taking issue with a tenant for subsequently lodging the wrong form!

The final option here is for the tenant to use s 17 where they cannot ascertain whether the decision was made by a Registrar or a Magistrate. The rationale for this is that, if a Registrar made the decision, it may still be feasible to use s 17 (with all due respect to those Magistrates who disagree), however there is definitely no option of using s 13B to appeal a Magistrate's decision.

An application under s 17 should be made in the same way as set out above in respect of an application to vary or set aside a decision made by a Magistrate in the absence of the tenant.

To appeal the decision to a Magistrate under section 29 of the Magistrates Court Act (see s.13B RT ACT) the tenant must, within 21 days of the original decision(307), lodge two copies, and one copy for each other party of the following documents:

• Form 1B: Appeal against a Registrar’s Decision; and b. a copy of the Registrar’s decision; and c. any other documents necessary to decide the appeal.(308)

The tenant must then serve one copy of the lodged documents on each other party within 14 days of the lodgement date.(309) For information about service of documents, please see below.

The cost of lodging this application is $39.20, unless the tenant is eligible for the fee to be reduced, in which case it is $11.80.

Form 1B includes a section entitled "Grounds of appeal" with a space next to it. Given the Magistrates Court Act s 29(1) it is difficult to see what of relevance could possibly be written here other than, "1. The tenant is dissatisfied by the decision." This would also be consistent with the tenant having an absolute right to appeal against a Registrar's decision as argued above (see 10 - 12).

The Magistrates Court (General) Rules are silent as to whether a person appealing a Registrar's decision must state the grounds for the appeal. There are no Magistrates Court Practice Directions on appealing Registrars' decisions. This means that it is difficult for us to advise how a tenant should fill out the Form 1B. On the one hand, the Form itself implies that the tenant must set out the grounds of the appeal (although there is nothing in the rules requiring that). On the other, the Magistrates Court Act gives a right to appeal to any person who is dissatisfied with the Registrar's decision, and says that "the appeal is by way of a new hearing", which suggests that the only relevant ground would be that the tenant is dissatisfied.

District Court Registrars(310) have different powers depending on whether they are legally qualified or not. The powers that lay Registrars have include the power to conduct pre-trial conferences and make consent orders (District Court Rules 2005 r. 8(2)). Very similar legislation applies to appealing against the decisions of Registrars in the District Court:

District Court Rules 2005

Division 3 – Appeals from registrars

15. Appeal lies from registrar to judge

(1) If a party is dissatisfied with a decision of a registrar the party may appeal to a judge […]

(3) The appeal must be commenced by filing and serving a notice that —

(a) sets out the particulars of the registrar’s decision or that part of it to which the appeal relates; and

(b) sets out the final orders that it is proposed the Court should make on the appeal […]

(6) The appeal is to be by way of a new hearing of the matter that was before the registrar.

Note that this also sets out (in r 15(3)) what must be set out in the notice of appeal, which is absent from the Magistrates Court (General) Rules.

There is also a District Court Practice Direction (CIV 2009/2, 7 August 2009), which states relevantly:

APPEALS FROM DECISIONS OF REGISTRARS

Summary

The Court has clarified the documentation required to commence an appeal from a decision of a Registrar. […] There is no prescribed form for the notice of appeal. […] As an appeal from the decision of a Registrar is a new hearing, there is no need for the notice of appeal to set out any specific errors in the Registrar's decision. If there is any reasoning on which the Registrar relied which the party appealing wishes to specifically address, this can be done in the submissions. [emphasis added]

Note that the District Court Rules r. 61 provides that parties must file and serve written submissions at least two working days before the hearing of the appeal (and ordinarily there will be a directions hearing first at which the Court will allocate the hearing date).

The District Court Practice Direction's statement that, "As an appeal from the decision of a Registrar is a new hearing, there is no need for the notice of appeal to set out any specific errors in the Registrar's decision," suggests that, by analogy, there is no need to set out any specific errors in the Registrar's decision when one is appealing under s 29 of the Magistrates Court Act either. That in turn leads to the conclusion that the only "Ground[…] of appeal" which needs to be set out in Form 1B is that the tenant is dissatisfied with the decision(311)

The same reasoning suggests that the reason that the tenant missed the original hearing is irrelevant (remember this only applies where the original hearing was before a registrar, and different rules apply for a Magistrate or Judge). In circumstances where the tenant is seeking to extend the 21 day time limit(312) for appealing against a Registrar's decision, such information will of course be essential.

4.6.3 Lodging a Suspension Application

The orders being appealed against can be carried out at any time up until they are suspended. Lodging an appeal under section 17 or 13B does not automatically suspend their operation.

A suspension order prevents the landlord from enforcing the order for a certain period.

When lodging an appeal under either section 17 or 13B, it is strongly recommended to also lodge a suspension application, pursuant to s.15(1) of the Civil Judgments Enforcement Act 2004 (WA), unless the tenant has a written undertaking from the other party that they will not enforce until the appeal/set aside has been heard.

This is particularly important in cases where the landlord has orders for termination and vacant possession, because once a tenant has been evicted in accordance with a valid order, it may not be possible to obtain Court orders to undo that.

This application requires the tenant to complete Form 9: Application for Suspension Order as well as an accompanying Form 2: General Form of Affidavits.

The affidavit must identify the applicant as the tenant, and must set out the special circumstances being relied upon. A suspension order will only be granted if ‘special circumstances’ justify doing so.(313)

It should also outline the reason(s) the tenant was not present if the decision was made by a Magistrate and set out the reasons that the tenant's application to set aside the original decision has a reasonable prospect of success.

It should be noted that, in the case of consent orders made by a Registrar, the tenant does not have to prove that their consent was invalidated in some way(314) (e.g. by fraud or duress(315)) in order to show that they have a reasonable prospect of success. For the reasons set out above at 9 - 12, that is simply irrelevant to a hearing de novo; it should be sufficient for a tenant to simply state that they are dissatisfied with the decision, and have withdrawn their consent. That being said, the tenant must still set out the reasons that the tenant's application has a reasonable prospect of success. For example, if a tenant was to appeal against consent orders made by a Registrar for termination and vacant possession, the tenant would not need to give any reason for their resiling from the consent orders, but they would still have to address why orders for termination and vacant possession should not now be made without their consent. That is to say, the lessor cannot argue that the tenant has no reasonable prospect of success merely because the orders were made with the agreement of the tenant.

Once the application has been made and a hearing date set for the suspension application, the tenant must serve these two documents (Form 9 and Form 2) on the lessor or (if applicable) the lessor's real estate agent not less than three working days before the hearing of the application.(316) Personal service is required for these documents (service by mail or email is not sufficient). For more information about service of documents, see below.

4.6.3.1 What are 'Special Circumstances'?

"While there can be no hard and fast rules" as to what constitutes 'special circumstances', the general principles applicable to [a s 15 suspension application] are those described in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307[…]"(317)

In Eastland Technology the Full Court stated relevantly [at 9]:

In the light of the authorities, we may attempt to distil what we take to be the generally applicable relevant principles –

• The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
• It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
• It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
• The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
• If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
• If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.

Unless there are special circumstances justifying suspension, a successful litigant has a right to enforce a judgment before the determination of any appeal. The onus is on the applicant to persuade the Court of the existence of such special circumstances.

"Generally that will require the applicant to establish that the suspension of enforcement is necessary to prevent the right of appeal being rendered nugatory or to avoid practical difficulties in respect of the relief which may be granted on appeal."(318)

Note that "nugatory" in this context means "worthless" or "futile".

The central issue is whether suspension is necessary to preserve the subject matter of the claim, or whether refusal of suspension could create practical difficulties in respect of the relief that may be granted on appeal.

A common example of this is where a decision has resulted in orders being made for termination and vacant possession. A tenant appealing against such a decision would argue that a suspension order is necessary to prevent the order from being enforced (by the tenant's eviction) while the decision is being appealed. "Special circumstances" here would be that if the tenant were to be evicted pursuant to a valid order under the Civil Judgments Enforcement Act, even if the Court subsequently set aside the decision which had led to the orders for termination and vacant possession, the Court would not be able to return possession of the premises to the tenant(319)

The affidavit must contain a statement that suspension of the enforcement is necessary otherwise the appeal will be rendered nugatory, and it must set out why that is so. In the case of the example above, it might relevantly state:

"The suspension is necessary to prevent the lessor retaking possession because I have been told by my lawyer(320) and verily believe that, if the lessor does do that then, even if the Court was to subsequently set aside the decision which had led to the orders for termination and vacant possession, the Court would not be able to return possession of the premises to me and that would render the appeal nugatory."

Even if "special circumstances" are made out, the tenant must also establish that the appeal itself has "ultimately reasonable prospects of success so as to result in the grant of relief" to the tenant.(321)

Even then, suspension may still be refused, "where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the [suspension] will [cause] hardship to the landlord which may not be alleviated by terms upon which [suspension] may be granted.(322)

4.6.3.2 Urgent Suspension Applications

As stated above, the application and affidavit must be personally served on the other parties not less than three working days before the hearing of the application. The enforcement order in question –a property (seizure and delivery) order – may only be carried out between 9 a.m. and 5 p.m. but is not restricted to working days only.(323) Three working days is enough time for a motivated and resourceful lessor to arrange for the Bailiff to evict a tenant where the lessor has already obtained an enforcement order before the tenant seeks advice. Therefore where three working days will expire after the date ordered for vacant possession the tenant ought to apply for an urgent suspension application.

The Court has discretion to extend or abridge any time fixed by the Regulations (324) and in applying for urgent orders, a tenant would be seeking an abridgement of the three working days’ notice ordinarily required. The other party can also consent to an abridgement of the three working days’ notice required.(325)

The Civil Judgments Enforcement Regulations do not say what form should be used for making an application to abridge the service period, however TWA have previously used a Form 7: Application (under the Civil Judgments Enforcement Act) on the advice of the Perth Magistrates Court Registry. A related issue is that Form 7 presupposes that the Application must be accompanied by a supporting affidavit, although there is nothing in the Civil Judgments Enforcement Regulations to say that is required for an abridgment application. If the registry should insist on a supporting affidavit, we suggest that the affidavit in support of the suspension application be duplicated, with necessary changes so that it refers to the abridgment application, because the reasons that it is required are essentially the same. If an affidavit is not required, it may be sufficient to set out in a cover letter why the abridgment is required.

Again, it is important to note that it must be clearly stated, whether in the cover letter or affidavit in support, that once the termination has been enforced pursuant to a valid Court order, the Court cannot undo this, even if the decision on which the eviction was founded is later overturned on appeal.

4.6.4 Service of Documents

There are different service requirements depending on which application is being made.

4.6.4.1 Service under the RT Act

For the application to vary or set aside an order (s17, Form 16), service is not required by the tenant; the Court sends out the notice of hearing to any other parties to the matter as with any other application under the Residential Tenancies Act.(326)

4.6.4.2 Service under the Magistrates Court Act

For an application to appeal against a Registrar’s decision (s13B, Form 1B), the Magistrates Court (General) Rules states that the appellant must serve the documents on each other party within 14 days of the documents being lodged at the Court.(327) The Court can, by order, extend this period and may do so even if the period has elapsed.(328)

The Magistrates Court (Civil Proceedings) Rules states that unless personal service is required under the rules, if a person wants to serve a document on someone, they must do it by delivering it, or sending it by pre-paid post to their address (or last-known address).(329)

4.6.4.3 Service under the Civil Judgments Enforcement Act

For an application for a suspension order (Forms 9 and 2), the documents must be personally served on the other parties.(330)

The methods of personal service under the Civil Judgments Enforcement Regulations are set out in rr 88 – 91, and differ depending on whether the lessor is an individual, a partnership, a corporation or a public authority.

The "Housing Authority" is almost certainly a "public authority" and must be served in accordance with r. 91, by -

1. delivering it to a person who, on reasonable grounds, is believed to be the chief executive officer of the public authority; or b. leaving the document with a lawyer who is representing the public authority and is authorised to accept the document.

With respect to an application under the Civil Judgments Enforcement Act made in relation to proceedings under the RT ACT, documents can be served on the real estate agent managing the property subject to the application.(331)

4.6.4.4 Service by the bailiff

The Court can arrange for a bailiff to serve the application, although there is a service fee of $70.50 plus a travelling fee(332) associated with this. This may be an option if the lessor or real estate agency is not geographically close to where the tenant resides.

4.6.4.5 Proof of service under the Magistrates Court Civil Proceedings Act

The tenant will then need to provide proof that the application was correctly served. If it was served by a bailiff, then they will provide a certificate of service to the tenant.(333) Otherwise, the tenant or other person serving the claim will have to file a Form 11: Affidavit of Service.(334)

The Magistrates Court will often only provide a listing date for the suspension hearing once the affidavit of service has been filed.

4.6.5 Once a suspension order has been made

If the tenant obtains a suspension order and knows that the Sheriff has been given an enforcement order the tenant must, by ordinary service, give the Sheriff a copy of the suspension order.(335) Ordinary service may be made by delivering it, or sending it by pre-paid post to the last known address for service, or by email or fax if the Sheriff has consented in writing to that. It may also be handed personally to the Sheriff.(336)

4.6.6 Resources

Flowchart.pdf

affidavit template with headings.pdf

Affidavit example 1.pdf

Affidavit example 2.pdf

4.7 Security Bond

There are new family violence provisions in the Residential Tenancies Act – these new laws are not yet included in this chapter. The family violence provisions in the Residential Tenancies Act came into effect on 15 April 2019, and they make changes with respect to terminating the lease, removing a perpetrator from a lease, changing the locks and liability under the lease and return of the bond. Check http://www.tenancywa.org.au/family-violence for information about these new laws.

4.7.1 Disposal of the security bond

The bond can only be disposed by consent or court order. Once the tenancy has terminated, the parties can seek to dispose of the bond. All of the bond money should be returned to the tenant unless the tenant owes money for outstanding rent, is responsible for property damage, or has outstanding bills or incurred other costs (such as for cleaning).

4.7.1.1 By agreement

If all the parties agree how the bond should be disposed of, they can complete and sign a Joint Application for Disposal of Security Bond.(337) A tenant or lessor should not sign this form if they disagree with the amount of bond money being claimed or returned, or if the form is blank. A lessor or property manager who permits a tenant to sign a bond disposal form which leaves blank the amount of bond to be disposed of may be fined up to $5000.(338)

The form must be signed by all parties to the residential tenancy agreement. If a tenant is deceased, the signature of the tenant’s executor or administrator (or manager or administrator under any other written law if the tenant is represented by one) will suffice.(339)

If the tenant has not heard from the lessor or wants to speed up the bond disposal process, the tenant could write to the lessor requesting the lessor complete the bond disposal form. A template letter for a request to the lessor to complete the bond disposal form is attached.

RESOURCE - Template letter to request the lessor to complete bond disposal form

Request for lessor to complete bond disp.docx

Upon receiving the form, the Bond Administrator will pay the agreed amount to the tenant and the lessor.(340) If the Bond Administrator receives the form in the mail it will usually take 2-3 weeks to distribute the bond money, either by mailing out a cheque(s) or by direct transfer.

Real estate agents are now required to use the Bonds Online e-transactions system. This means that tenants who have an email address and mobile number will be included in this system. Paper processes are still permitted for tenants without emails and mobile phone numbers, and other tenants for whom it isn’t accessible. A real estate agent or private lessor who is registered for e-bonds can electronically lodge a bond disposal proposal, and the system will send tenants an email, with a link to a secure website, which will send a passcode to the tenant’s mobile phone number. Then, the tenant can consent to the disposal or dispute the disposal. If the tenant consents, then the bond disposal will be processed automatically, and is usually processed within a day. If a tenant disputes the disposal, the bond cannot be processed without a Court order.

More information about the E-bonds system for tenants is available here on the Bond Administrator’s website - https://www.commerce.wa.gov.au/publications/etransaction-faqs-tenants

If using a form and the completed bond form is taken to the Bond Administrator in person, the tenant may choose to either receive a cash cheque on the spot, or wait 2-3 days to receive in their bank account (if direct transfer is chosen).

The lessor and property manager must ensure that the form is not signed by the tenant unless the Residential Tenancy Agreement has terminated and the amount of the bond to be paid to the tenant and the lessor is stated on the form. There is a potential fine of up to $5 000 for failing to comply with this requirement.(341) This requirement does not apply, however, if the tenant signs the form in the following circumstances:

(a) either –

(i) there has been a decrease in the rent; or

(ii) a pet bond has been collected for a pet that the tenant is no longer keeping on the premises;

(b) the sole purpose for the tenant signing the form is to effect payment to the tenant of only part of the security bond;

(c) at the time the application form is signed by the tenant the form includes details of the amount to be paid to the tenant.(342)

If the bond is not lodged with the Bond Administrator, the tenant will need to pursue the lessor directly to dispose of the bond.

4.7.1.2 Where disputed

If the lessor is claiming that the tenant owes money from the bond, they will usually notify the tenant of this and tell the tenant the amount they want to deduct from the bond. This may be for damage, cleaning costs, rent or outstanding utility bills.

If the tenant does not agree with the amount of bond money being claimed or returned, the tenant should not sign the bond disposal form or consent to the e-bonds disposal proposal. The tenant could try to negotiate an agreement with the lessor by contacting them to say why they dispute each claim. The tenant can refer to the property condition reports, photos and any correspondence between the tenant and the lessor.

If the lessor is making a claim for damage, the tenant should request copies of work orders or quotes for any work done. The tenant can also provide the lessor with any quotes they have obtained.

If no agreement can be reached (or one party cannot get in contact with the other), the tenant or the lessor can apply to the Magistrates Court for an order for the disposal of the bond money.(343) A tenant cannot apply until the tenancy has terminated.(344) The Magistrates Court has exclusive jurisdiction over a bond dispute irrespective of the amount claimed (i.e. regardless of whether or not the amount is above $10 000).(345) The dispute will be conducted in accordance with minor case procedure.(346)

The application must be to the Court closest to where the tenant was renting, generally using a Form 6: Application for Disposal of Bond Money. If the amount in dispute is above the bond, or the application is for disposal of the bond and an additional claim (such as compensation for failure to conduct repairs within a reasonable time period) the application should instead be made using a Form 12: Application for Court Order. Both forms can be filed in at the court registry closest to where the tenant was renting, or online (or downloaded) on the Magistrates Court of WA website.(347)

Once an application has been lodged with the Court by the applicant, the Court will then send the respondent a Form 5: Notice of Intention to Dispute Application for Disposal of Bond Money.(348) If the respondent consents to the applicant’s application, the respondent can sign the consent form attached and lodge it with the Court – the parties will not be required to attend any hearing. If the respondent denies the applicant’s application for the bond, the respondent has 7 days after service to dispute the application by filling in the Form 5 and lodging it to with Court registry where the application originated (this should be the closest Court to where the tenant was renting).(349) The filing fee is $18.20. The parties will then be notified in writing of the time and place of the court hearing.(350) If the respondent fails to dispute the application within 7 days after service (or such longer period as the Court hearing the application thinks fit), the Court can (and invariably does, in the absence of the party) make an order as per the application (without conducting a formal hearing). It can be very difficult to dispute the amount of the bond disposal once it has been paid to a party by the bond administrator.(351)

Application made by more than one tenant: where there are multiple tenants under the residential tenancy agreement, an application for bond disposal may be made by any of the tenants and the Court may order (if satisfied that it would be just to do so) that the full bond be paid to the tenant(s), or that a tenant be paid any share of the bond to which they are entitled, less any deductions for breach of the agreement or for fumigation of the premises using the pet bond.(352)

Forwarding address: The tenant must provide a forwarding address to the lessor when they deliver up possession of the premises. Failure to do so, means the tenant may miss future court hearings and may not be notified about correspondence regarding bond disposal. If court forms for the bond are sent to the tenant, and the tenant does not dispute because they do not receive these forms, the bond will almost certainly be disposed of how the lessor asks for it to be disposed.

For further discussion on providing a forwarding address see 4.10.3 (Tenant’s forwarding address).

Time limit for getting the bond back: Under the Residential Tenancies Regulations 1989 (WA), the Bond Administrator(353) must write to the tenant and the lessor if they believe 6 months have elapsed since the termination of the residential tenancy agreement and the bond has not been disposed in accordance with the Residential Tenancies Act.(354) The Bond Administrator must invite the parties to apply under the Residential Tenancies Act for disposal of the bond, and notify them that if the bond has not been disposed after 60 days from the date of the notice, the money will be paid to the Unclaimed Security Bond Account.(355) The bond remains in the Unclaimed Security Bond Account for 6 years before being transferred to the Consolidated Revenue Fund (now called the Consolidated Account).(356) Once the bond is there either party can apply to the Treasurer for it to be paid to them.(357)

4.7.2 Final inspection and property condition report

The lessor is required to conduct a final inspection and provide an outgoing property condition report as soon as practicable, and in any event within 14 days (or 28 days in the case of a Housing Authority property located more than 100km from the nearest office of the Housing Authority(358)), after termination of the tenancy. There is a fine of up to $5000 to a lessor who fails to comply with this requirement.(359)

The lessor is required to give the tenant a reasonable opportunity to be present at the final inspection.(360) The tenant should make every effort to attend.

If the premises require any further cleaning, the lessor may give the tenant access to the premises to do the work themselves. The lessor may not, however, be obliged to do so (for further discussion, see 4.7.5. Mitigation of loss and bond disposal).

Multiple final inspections and additional items after the final inspection: non-binding interstate decisions suggest that it is sometimes permissible for the lessor to conduct multiple final inspections and add additional items to the list of issues with the premises after the initial final inspection. This is likely to depend on the circumstances of the case, particularly how soon after the initial final inspection the further issues are raised with the tenant.

The ACT Tribunal in Hlubucek v Sinodinos stated that a lessor cannot add additional items after the final inspection ‘unless such further discovered items would not have been visible at the time of the final inspection.’(361) The Tribunal acknowledged the need for ‘a finite limit to the time’ a lessor can add items to the list, and that ‘[o]nce the tenants have vacated the premises they have no control over what happens in and to the premises and should not continue to be held responsible for matters that could have occurred after they vacated the premises'.(362)

The ACT Tribunal in Martins v Zhang(363) suggested that extra items could be permissible soon after the final inspection if it is clear that they occurred during the tenancy:

… [I]t’s unreasonable to expect everything to be picked up on one final inspection. This Tribunal has, on a number of occasions, allowed a landlord to add an additional claim when it is obvious that the matter claimed had to have occurred during the tenancy and could not have occurred in the short timeframe between the final inspection and when the lessor or agent went back through and had another look.

Clearly, if it is several weeks after the final inspection, the potential for intervening events - such as climatic conditions, cobwebs growing because of the time of year or a new layer of dust on a window sill - can make it unsafe to attribute the problem to the recently expired tenancy. If however, something is discovered within one or two days after the final inspection (and it’s usually the lessor going in and picking up something the agents haven’t or indeed maybe the agents having another look and noting “-oops! I missed that one”), then that could be added to the list and this Tribunal takes a fairly liberal view of that.(364)

The ACT Tribunal in Edwards v Izzard(365) agreed that additional final inspections could be conducted as a result of an oversight by the lessor or agent at the initial final inspection, however, this should usually be limited to ‘damage that was not reasonably capable of identification during the final inspection or unless there is clear evidence that establishes that the damage was caused by the tenant.’(366) The Tribunal also points to the short time frame in which the additional items should be picked up and that ‘the longer the time between the end of the tenancy and the identification of the damage, the harder it will be for a lessor to meet this evidentiary burden.’(367) The argument raised in this case by the agent was that scratches in a glass door may have been missed because these scratches were harder to identify in full light. The Tribunal, however, rejected this position on the basis of insufficient evidence.(368)

Depreciation and extent of compensation the lessor may be entitled to

In general, the lessor is not entitled to "new for old" for items damaged or destroyed by a tenant. Rather, they are entitled to be put in the same position that they would have been in had the tenant not damaged their property in breach of the Residential Tenancy Agreement. When seeking compensation for damage, the lessor should take into account the age and condition of the item that was damaged.

Rent received from a tenancy is assessable taxable income. The lessor can claim a tax deduction for depreciation of any assets used in earning that income. Such assets include all the fixtures and fittings supplied with the premises. The Australian Taxation Office’s tax table (Rental properties 2017) shows the lifespan of certain items, and what percentage of their investments in fixtures and fittings the lessor can claim.(369) In some of the other States and Territories the courts and tribunals have adopted a practice of applying the ATO depreciation rate to assess how much compensation should be paid for damaged items.

For example, carpets have a 10-year lifespan under the ATO tax table.(370) If the tenant damages a 5-year old carpet, the tenant could be liable for roughly 50% of the cost of a new equivalent replacement carpet. Although not binding, this is a good negotiation point.

If the item has fully depreciated, the lessor could still be entitled to claim a nominal amount of compensation from the tenant, as although it has been depreciated it is not worthless.

Further, the tenant should only be responsible for the extent of the damage. For example, if the tenant spilt red wine in the lounge, the tenant should only pay for re-carpeting or repair of that room not the whole premises. An issue arises where the item that was damaged cannot be repaired in isolation. For example, if a tenant burns a hole in a benchtop it is likely that the lessor will need to replace the whole benchtop because sections of benchtops cannot be replaced in isolation.

Can the lessor still claim compensation for damage but not use it to carry out repairs?

Yes, the lessor can still claim compensation for negligent damage and not use it to carry out the intended repairs.

See further discussion at 4.9.3 [Compensation where expenses not incurred].

4.7.3 Fair wear and tear

What is fair wear and tear?

‘Fair wear and tear’ does not have a definition in the Residential Tenancies Act 1987 (WA) or in the standard form lease agreement.

However, it is a phrase that has been used in leases and tenancy agreements for a very long time, as noted, 80 years ago, by Scott LJ in the English Court of Appeal case of Taylor v Webb(371)

The phrase "wear and tear" is a very old English idiom and the clause "fair" (or "reasonable") "wear and tear excepted," has been common in leases and tenancy agreements for two or three centuries.

‘Fair’ in the Macquarie Dictionary has a variety of definitions, the closest one in this context being “that is legitimately sought, pursued, done, given etc.; proper under the rules.”

‘Wear and tear’ is defined in the Macquarie Dictionary as being “diminution, decay, damage, or injury sustained by ordinary use.”(372)

The Concise Oxford English Dictionary defines it as “damage sustained as result of ordinary use.”(373)

While the ordinary definitions of these words do not completely cover what ‘fair wear and tear’ means in relation to residential tenancies, they do go to the essence of the matter which is that the damage must be sustained through ordinary use.

The commonly accepted legal definition comes from the UK case of Haskell v Marlow(374) , in which Talbot J said:

Reasonable wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces.

Butterworths Concise Australian Legal Dictionary contains an identical definition of fair wear and tear, and adds that it is also known as ‘reasonable wear and tear.’(375)

For a Western Australian Supreme Court case which adopts the definition of fair wear and tear (and equates "fair wear and tear" with "reasonable wear and tear") from Haskell v Marlow see Toster and Anor v Burges & Anor [1975] WASC 65, at p.7 per Wright J:

"Reasonable wear and tear" which I take to have the same meaning as "fair wear and tear" was said by Talbot J. in Haskell v Marlow (1928) 2 K.B. 45 at p.59 to mean in relation to a house "the reasonable use of the house by the tenant and the ordinary operation of natural forces".

In Taylor v Webb(376), Scott LJ discusses the definition of fair wear and tear, and states that it covers ‘two classes of disrepair’:

(a) That brought about by the normal or ordinary operation of natural causes, such as wind and weather, in contradistinction to abnormal or extraordinary events in nature such as lightning, hurricane, flood, or earthquake; and

(b) that brought about by the tenant, and other persons present in or on the premises with the consent of the tenant, either unintentionally or as a normal incident of a tenant’s occupation, in the course of the "fair" (or "reasonable") use of the premises for any of the purposes for which they were let.

The NSW case of Abela v Walker(377) referred to this definition(378) and elaborated further on the nature of fair wear and tear.

In Abela, the Tribunal found that the word ‘fair’ relates to the cause of the damage, that is, the nature of the use of the property by the tenant which gave rise to the damage concerned, and in particular that intentionally caused damage can never be fair wear and tear. The words ‘wear’ and ‘tear’ were said to go to the effect of the damage -that is, how substantial the damage actually is.

This case also addresses the misconception that anything that is negligent damage cannot be fair wear and tear:

At the end of the lease the tenant is required to surrender the premises (and its contents) to the landlord in same condition in which they were received, except for: - items of damage (or loss) for which are not the result of the intentional or negligent conduct of the tenant, for which the tenant would not be responsible during the term of the lease; - items of damage (or loss) which are the result of the tenant's occupation of the house and may in some sense be said to be due to the tenant's negligence conduct [sic – "negligent conduct"], but which are fair wear and tear. This may include for example small marks on the wall or scratching of tiles on the floor etc.

Why are we concerned with fair wear and tear?

Residential tenancy legislation in every Australian state and territory except Western Australia now contains an explicit fair (or reasonable) wear and tear exception or exceptions – for example:

Residential Tenancies Act 1997 (Vic) s 64(2), s 419 Residential Tenancies Act 1997 (ACT) s 31, s64(b) Residential Tenancies Act 2010 (NSW) 2010 s51(3)(b), s 166(1)(a) Residential Tenancies and Rooming Accommodation Act 2008 (QLD) s 188(4) Residential Tenancies Act 1995 (SA) s 69(4) Residential Tenancies Act 1997 (TAS) s 53(b)

Why then are we concerned with fair wear and tear? The standard form rental agreement (Form 1AA) Part B reads:

PART B STANDARD TERMS APPLICABLE TO ALL RESIDENTIAL TENANCY AGREEMENTS The Residential Tenancies Act 1987 and the Residential Tenancies Regulations 1989 apply to this agreement. Both the lessor and the tenant must comply with these laws. Some of the rights and obligations in that legislation are outlined below.(379)

Most of the terms which follow are indeed derived directly from the Act, such as the tenant’s right to quiet enjoyment, landlord’s obligation to maintain the premises, and responsibilities in relation to public utility services. The Act expressly makes terms such as these ‘a term of every residential tenancy agreement’ by using those words in the relevant section. However there is no reference to fair wear and tear in the Act.

Clause 38 of the standard form tenancy agreement (Form 1AA) states:

38. The tenant agrees, when this agreement ends, to give vacant possession of the premises to the lessor. Before giving vacant possession to the lessor the tenant must:

1. remove all the tenant’s goods from the residential premises; and
2. leave the residential premises as closely as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy; and
3. return to the lessor all keys, and other opening devices or similar devices, provided by the lessor.

Identical clauses are found in Form 1AB (Prescribed Form Social Housing Lease) at clause 40 and Form 1AD Information for Tenants With Non-Written Residential Tenancy Agreement, at clause 37.

Here is where we find ‘fair wear and tear’ – included in the prescribed form leases and Information for Tenants with verbal Residential Tenancy Agreements but not included expressly in the Residential Tenancies Act or Regulations.

It seems clear that parties who have executed written prescribed form leases will be bound by the fair wear and tear clauses in them because they have expressly agreed to them.

It is less clear whether parties who execute verbal Residential Tenancy Agreements without including a fair wear and tear exception would nevertheless be bound by Clause 37 of Form 1AD. Given a very similar term is implied in any event, the question will usually be a moot one(380):

It is an implied term of every lease, unless it is inconsistent with the lease's express terms, that the lessee will "use the premises in a tenantlike manner and he must deliver up the premises in the same condition as he received them reasonable wear and tear excepted": Combara Nominees Pty Ltd v McIlwraith -Davey Pty Ltd (1991) 6 WAR 408, per Pidgeon J at 412(381)

There is another reference to "fair wear and tear" in the Regulations - they set out the prescribed information that is to be included in a property condition report in Form 1 – Property Condition Report.

This form includes a list of ‘important notes’ and one of these is in relation to fair wear and tear. It states:

Fair wear and tear is a general term for anything that occurs through ordinary use, such as the carpet becoming worn in frequently used areas. Wilful and intentional damage, or damage caused by negligence, is not fair wear and tear.

The second sentence of this statement is inconsistent with the second class of disrepair outlined in Taylor v Webb, namely that fair wear and tear includes damage that occurs “as a normal incident of the tenant’s occupation, in the course of reasonable use of the premises.”

In some cases, damage that is caused by negligence should in fact be classed as fair wear and tear. Using a property in an ordinary way, particularly where a tenant has young children or pets, does not mean living in such a way so as to cause absolutely no damage through negligence.

In the NSW case of Abela v Walker, the Tribunal member stated that it is up to the landlord to advance some reasonable plausible hypothesis as to why the tenant is responsible for the damage. It is not enough to simply say “the item was not damaged before the start of the lease and it is now and therefore the tenant must have caused it in some intentional or negligent fashion.”

If a tenant is arguing that damage should be classed as fair wear and tear, they have the burden of proof in showing this.(382)

Damage caused by negligence can occur through the ordinary use of the property, it depends on the nature and the extent of the damage itself as to whether it can be reasonably classed as fair wear and tear.

Further damage resulting from fair wear and tear

Immediately after his "definition" of "fair wear and tear", Talbot J in Haskell v Marlow goes on to state that:

The exception of want of repair due to wear and tear must be construed as limited to what is directly due to wear and tear, reasonable conduct on the part of the tenant being assumed. It does not mean that if there is a defect originally proceeding from reasonable wear and tear the tenant is released from his obligation to keep in good repair and condition everything which it may be possible to trace ultimately to that defect. He is bound to do such repairs as may be required to prevent the consequences flowing originally from wear and tear from producing other which wear and tear would not directly produce.(383)

Talbot J gave the example of a tile falling from a roof. While the tenant is not liable for the immediate consequences of this, if he does nothing and as a result a lot of water gets in and damages the ceilings and walls he cannot say that damage is due to reasonable wear and tear.

Common examples

Damage to walls

Damage to walls in a property is one of the most frequent issues raised by real estate agents and landlords after the termination of a tenancy.

Marks from the ordinary use of the property should be classed as fair wear and tear. Small marks, chips and scuffs on the walls should usually be considered fair wear and tear, particularly where a tenant has young children, or has lived in the property for a substantial amount of time. Again, it is important to note that the damage itself can be negligent and still classed as fair wear and tear.

Maroney v Bullard(384)

Damage to walls should be assessed objectively, not by reference to ‘fastidious views of landlord’ or views of tenant who is ‘indifferent to maintenance and care of leased property’.

The Tribunal member considered the evidence of the size and nature of the "dents, chips, scratches and scuffs" and stated:

I have concluded that none of this damage, so far as I can ascertain, was more than minor damage. I am not persuaded that it was anything but accidental damage arising from normal and reasonable use of the property. In my view, it should be regarded as ‘fair wear and tear’, particularly where it occurred over the course of a two-year tenancy and where such scuffs and dents can reasonably be expected to occur in the course of general living. [at 32]

On the other hand, nail holes, screws and curtain fixtures were not fair wear and tear as these arose from intentional actions on the part of the tenant. It was irrelevant that these actions may ‘seem reasonable’ and may even improve the use and amenity of the house. The obligation that the tenants had was to return the property to "substantially the same condition as the premises were in at the commencement of the tenancy agreement”, or ‘make good’. They did not do so, and compensation for the cost of making good was payable., and tenants bore the cost of removing fixtures that they had left in the property, and patching any holes resulting from these fixtures. [at 34]

Where it is the case that the walls need to be entirely repaired and repainted, the cost of doing this should be apportioned in a manner that distinguishes the repair of damage caused through ordinary use of the property, from repair of damage attributable to the intentional acts of the tenant. [at 35]

Compensation for damaged walls also depends on the facts of each case.

If the walls were freshly painted when the tenancy began, the tenant may need to pay for repair and repaint of entire wall where there is damage they are liable for. [at 37]

If the walls were scratched and scuffed at the beginning of the tenancy, any marks that the tenant is liable for may only require patching if anything at all, if the damage has made no material difference to the condition of the walls. [at 37]

Haddad v Castillo(385)

The Tribunal refused the landlord’s claim for cost of repainting walls at the end of a tenancy on the basis that "at the conclusion of a seven year tenancy it is wholly possible that the premises would need repainting."

The landlord could not show that particular damage was done to the premises during the course of the tenancy that required the repainting of the premises.

Oil Stains on Driveways and Garages

In many cases oil stains on driveways and garage floors are due to fair wear and tear, but often the cost of rectifying these are attributed to the tenant.

Barrera v Meyer(386)

In assessing whether oil stains on a garage floor were fair wear and tear, the Tribunal member in this case stated:

The tenant gave evidence that he had scrubbed the oil stains in the garage with a degreaser. As he has an old car which loses a bit of oil, and the marks were largely removed, the stains should be regarded as fair wear and tear.

Crowe v Best [2009](387)

The Landlord claimed $53.00 for the cost of the degreaser and labour costs for the removal of some oil stains on the garage floor at the end of a 7 year tenancy, and had provided some photos of the stains. The ingoing report noted some oil stains on the floor, but the tenant accepted there were some further stains at the time she vacated due to her car leaking. She agreed that her father’s attempt to remove the stains with acid had not been entirely successful. She was prepared to pay for the cost of the degreaser ($12.85) but not the labour costs.

The Tribunal found that "some extra garage floor staining might be expected at the end of a 7 year tenancy, but perhaps not to the extent indicated here." The Tribunal allowed the amount claimed for materials and labour ($53.00).

Polished Wooden Floors

There are many cases concerning marks on polished wood floorboards. Often, where there are marks on floorboards, the cost of repairing (which can include re-sanding and repolishing) can be quite costly, and landlords often attribute the whole of this cost to tenants.

Whether marks on floorboards are classed as fair wear and tear should depend on how the damage was caused, and the extent of that damage.

Alexander and Persi v Rogan(388)

The property had wooden floorboards that had been freshly sanded and polished at the commencement of the tenancy.

The landlord was claiming that the tenant had caused damage to the floorboards, both by walking on them with high heels and by their dog being in the property.

The tenants argued that it was all reasonable use of the property and should classed as fair wear and tear.

The Tribunal found that there were both types of damage present – the minor scratches and scuffs were fair wear and tear, but "several large gouges and heavy indentations from high heels" went beyond normal wear and tear.

Verscheure and Brandbury v Richards and Retmock(389)

In contrast to the decision in Alexander, the Tribunal in this ACT decision found that, by applying the definition from Taylor v Webb, damage done by high heels was fair wear and tear, because the “wearing of high heels, including wearing stiletto heels, is a normal use of premises leased for residential purposes”.

Acevska v Foss(390)

The condition report stated that the floors were clean and undamaged at the beginning of the tenancy.

The landlord alleged the tenant had caused negligent damage through using a skateboard in the property. There were some small indentations "consistent with markings from high heels", some small scratches, and a few slightly larger scratches.

The Tribunal found that the marks and scratches did not constitute anything further than fair wear and tear. The Tribunal took into account that the tenants had lived in the property for 21 months.

The Tribunal also explored what ‘normal use’ of the property would involve in relation to wooden flooring and its relationship to fair wear and tear:

The normal use of the premises would have involved moving furniture into the premise at the start of the tenancy and out of the premise at the end of the tenancy. During the tenancy furniture would have been placed on the floor and the tenants would have walked on the floor throughout that time. While the markings and small indentations are visible and the floor is no longer in a pristine condition, the photographic evidence shows that the floor still looks in good condition. I note the tenant denies using a skate board in the premise. There is no evidence to indicate that the parallel lines are skate board marks. They are barely visible and would be more consistent with a removal trolley. The indentations appear consistent with markings from high heels. I am not satisfied that the presence of any of the markings on the floor constitutes damage beyond fair wear resulting from normal use of the premise. I therefore find that the landlord has no entitlement to compensation for repairs to damage to floor boards. [emphasis added]

Grout in showers

Lessors sometimes expect tenants to restore shower grout to the colour it was at the beginning of the tenancy, especially where the shower was newly grouted at that time. However there may be an argument, in some cases, that the staining was due to fair wear and tear:

Discoloration over time

The number one reason that grout becomes discolored over time is because it was not sealed after installation. This leaves the grout exposed to all of the environmental elements in the area, including water, dust, dirt, soot, etc. Since grout is a porous material, it will inevitably take on some discoloration due to this exposure. The more time that passes, the more discoloration that will occur.

It is highly recommended that sealer is reapplied every six months to a year, depending on the size and location of the project.(391)

If the above is correct, then discolouration of grout in showers would seem to mostly arise as a result of the "reasonable use of the house by the tenant" (by using the shower) and the "ordinary operation of natural forces" (the water being absorbed by the porous grout and "inevitably" staining it with the passage of time). That may be particularly so, where the lessor has failed to seal the grout (and reseal it every 6 – 12 months).

Obviously if the grout becomes discoloured through the tenant’s cleaning attempts, or through washing out hair dye, for example, then the tenant will be liable for this. Similarly, if the grout is discoloured simply because the tenant has failed to clean it, then the tenant will be liable.

To discharge the burden of proving the fair wear and tear exception, the tenant would almost certainly have to call a suitably qualified expert to give evidence or provide a written report as to the cause of the discolouration. That is to say, notwithstanding s 21 of the Residential Tenancies Act, it is doubtful that a court would accept the webpage reference above as sufficient evidence.

4.7.4 Pet bond

The lessor is entitled to request an additional amount of security bond if the tenant is permitted to keep any pet at the premises.(392) The legislation only permits pet bond where a pet is capable of carrying parasites that can affect humans, so the amount may be used at the end of the tenancy for fumigation that may be required.(393)

The maximum amount a pet bond can be is $260.(394)

An assistance dog as defined in the Dog Act 1976 section 8(1), is exempt from the pet bond.(395)

Upon termination of the tenancy, the Court cannot order that the pet bond be paid to the tenant until the expiry of 14 days after the tenant has delivered up vacant possession.(396)

For further discussion of pets, including a more detailed discussion of the circumstances in which the Pet Bond may be retained by the lessor, see 3.18 (Pets).

4.7.5 Mitigation of loss and bond disposal

Under section 58 of the Residential Tenancies Act there is a general duty to mitigate loss or damage upon breach of contract, which applies in the context of bond disposal.

The duty to mitigate means the lessor is not entitled to claim for loss which they could have avoided by taking reasonable steps.(397) In other words, the lessor ought to take reasonable steps to reduce the amount they are claiming from the bond as a result of the tenant’s breach of agreement (such as through negligent damage to the premises).

In the context of bond disposal, this is not a positive duty and the onus is on the tenant to prove that the lessor has acted unreasonably.(398)

In determining whether the lessor has acted unreasonably, ‘a high standard of conduct will not be required, and the [lessor] will not be held to have acted unreasonably simply because the [tenant] can suggest other and more beneficial conduct if it was reasonable for the [lessor] to do what he [sic] did’.(399)

The tenant could try to argue that the lessor has not met their duty to mitigate if the tenant can find cheaper quotes for work to be done in comparison to that provided by the lessor, or if the lessor charges for a professional cleaner rather than allowing the tenant back into the premises to clean outstanding issues. However, just because the tenant can produce a cheaper quote, does not necessarily mean that the lessor has acted unreasonably. Similarly, the lessor is not obliged to let the tenant re-enter the premises to fix outstanding issues or to clean after the tenancy has ended (depending on the circumstances it may be reasonable for them to hire a professional cleaner and charge the bill to the tenant).(400) If the lessor does allow the tenant to re-enter the premises to clean after the tenancy has terminated, the lessor is entitled to claim for extra rent until the tenant has cleaned and handed over the premises.(401)

4.8 Residential Tenancy Databases

4.8.1 What are residential tenancy databases?

Residential Tenancy Databases (RTDs) are databases run by private companies who collect information about tenants and make this information available to lessors and real estate agents. RTDs are used to check the rental history of prospective tenants. A database may list "personal information" about a tenant.(402) It may include any breaches of previous tenancy agreements as alleged by the lessor. RTDs are commonly called blacklists.

4.8.2 When applying for a rental property

If a lessor or agent usually uses one or more RTDs to assess rental applications, they must inform the tenant of this in writing at the time the tenant applies for the premises (or alternatively, not more than 7 days before the application was made).(403) They must do so whether or not they intend to use it for the tenant’s application.(404) The notice must state the name of each RTD the lessor or agent usually uses (or may use), that the reason the lessor or agent uses the RTD is for checking an applicant’s rental history, and how tenants may contact the relevant database operators to obtain information.(405) There is a potential fine of $5 000 for a lessor or agent who fails to comply with this section.(406)

The lessor could use a Form 18A to notify the tenant about the RTDs that they use, but this is not required.(407)

If a tenant applies to enter into a rental agreement and the lessor discovers that the tenant is listed on a RTD, the lessor must, within 7 days, give the tenant written notice:

• that the tenant has been listed on a database;
• the name of the database;
• the name of each person who entered the listing (if they are identified in the listing; and
• how and in what circumstances the tenant can try to have the listing removed or amended.(408)

4.8.3 When can a tenant be listed on a RTD?

RTDs have been regulated since 1 July 2013. There are now restrictions on when a lessor can list a tenant on a RTD.

A lessor, agent or database operator, can only list personal information about a tenant on an RTD if:

• the tenant was named as a tenant in a rental agreement that has ended;(409)
• the tenant has breached the agreement;(410)
• because of the breach the tenant owes the lessor an amount of money that is more than the security bond OR because of the breach the court has made an order terminating the rental agreement;(411)
• the personal information is accurate, complete and unambiguous, and relates only to the breach (must indicate the nature of the breach);(412)
• without charging a fee, the lessor has given the tenant a copy of the personal information or taken other reasonable steps to disclose it to the tenant;(413) and
• the lessor has given the tenant at least 14 days to review the personal information and make submissions objecting to its entry, or to object about its accuracy, completeness or clarity. The lessor must also consider any submissions made.(414) However, this will not apply to information contained in publicly available court or tribunal records at the time of the listing, or to a listing involving only an amendment of personal information about a person under s 82G.(415)

There is a potential fine of $5 000 for failure to comply with the above.

4.8.4 Lifespan of a listing

A listing can stay on a RTD for a maximum of 3 years, or until it becomes out-of-date, whichever occurs first.(416) A listing for a tenant under 18 must be removed when he or she turns 18 even if less than three years have passed.(417)

A listing becomes out-of-date if it was made because the tenant owed the lessor an amount more than the bond, and that amount was repaid within 3 months after the amount became due, OR it was made in respect of a court-ordered termination which has been set aside on appeal.(418)

Within 7 days of becoming aware that a listing is out-of-date a lessor or agent must give written notice to the database operator that the listing is out-of-date and must be removed.(419)

Once the lessor has given written notice to the database operator that the listing must be removed the database operator must remove the listing within 14 days of the notice being given.(420)

4.8.5 What if the tenant has paid the amount owed?

If the tenant has paid the amount owed within 3 months of it becoming due, then a listing on the RTD is out-of-date under the Residential Tenancies Act, and must be removed. The lessor or real estate agent must write to the database operator asking for the listing to be removed within 7 days of the tenant paying the amount owed.(421)

If the tenant has paid the amount owed, but it took more than 3 months to pay, then a listing on the database may be ‘inaccurate’ under the Residential Tenancies Act, and it should be amended. The amendment should make it clear that the tenant no longer owes the money.(422)

4.8.6 What can a tenant do if they suspect they have been listed?

If a tenant suspects they have been listed on a RTD they can take the following steps:

1. Write to the lessor or agent whom the tenant thinks has listed them on a RTD and ask if they are listed, in what database, and why. Keep a copy of the letter and any replies received. The lessor must give the tenant a copy of any personal information that they have listed on a database within 14 days of making the request.(423)
2. Ask the RTD operator (see contact details below) in writing. Like the lessor, the operator must give the tenant a copy of any personal information about the tenant within 14 days of making the request.(424)
3. A lessor or database operator is entitled to charge a fee for giving a copy of the personal information to the tenant. However, the fee must not be excessive and must not apply to lodging a request for information.PrivCmrACD 1 (16 April 2004). For a summary of these factors, see Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.216.2].">(425)

4.8.7 Correcting or removing listings

1. If the tenant has been listed and the information is inaccurate, incomplete, ambiguous or out-of-date(426) the tenant should raise that with the lessor or agent in writing, keeping copies of all correspondence. A lessor or agent who becomes aware that personal information is inaccurate, incomplete, ambiguous or out-of-date must, within 7 days, give written notice to the database operator to correct the information, or, if it is out –of-date, remove it.(427) Failure to do so is punishable by a fine of up to $5000.(428) The database operator must either correct the information (if it is inaccurate, incomplete or ambiguous) or delete it (if it is out-of-date) within 14 days of the notice being given.(429) A tenant who has an incorrect listing can write directly to the RTD seeking the correction or removal of the listing, and if the RTD does not do so, a tenant can make a complaint to Consumer Protection at DMIRS. These may be quicker and easier options than applying to Court.
2. A tenant may also apply to the Magistrates Court for an order to remove a listing if the information held on the RTD is inaccurate, incomplete, ambiguous, out-of-date, or unjust in the circumstances.(430)
3. When considering whether an order is unjust in the circumstances the court must consider:

1. 1. The tenant may also make a complaint to the Office of the Australian Information Commissioner (OAIC) – see 4.8.9.

4.8.8 Contracting RTD companies

Lessors must let tenants know, in writing, which databases they usually use for their rental history checks and how to contact the database operator.(431)

The two largest database companies in Australia are the Tenancy Information Centre of Australia (TICA) and the National Tenancy Database (NTD). There are also many other smaller database companies operating in Australia.

Note: under s 82I(4) of the Residential Tenancies Act, a fee charged by either the lessor or database operator for giving personal information must not be excessive and must not apply to lodging a request for information.

1. Tenancy Information Centre of Australia (TICA): register online (My TICA File), phone, fax or write to obtain a copy of the personal information TICA has about the tenant on file. TICA will charge the tenant to access information.

As at 29 August 2018, TICA’s charges are:

• Phone requests costs $5.45 per minute (higher from mobile and pay phones).
• Mail request costs $19.80 – include a stamped self-addressed envelope for return (bank cheque or money order only).
• Email or Fax request costs $33 – a response will be either emailed or faxed to the address provided (credit card payment only).
• Online (My TICA File) costs $55 p.a. to register (it is not necessary to subscribe to TICA to access a copy of the personal information TICA has about the tenant on file, and one of the above methods can be used instead).

All requests must be accompanied by the tenant’s name, date of birth and driver’s licence number/passport number. TICA can be contacted by mail, phone or fax.

PO Box 120 Concord NSW 2137 Phone: 190 222 0346 Fax: (02) 9743 4844 For further information see www.tica.com.au

1. National Tenancy Database (NTD)

NTD is now owned by Equifax. A free copy of the personal information held by NTD can be applied for online. According to Equifax the information will be provided within 10 days.

Alternatively Equifax will provide the information immediately upon payment of $38.50.

For either process, follow the links at https://www.tenancydatabase.com.au/contact-us .

Some RTD companies often ask for far more personal information than they require to process a tenant’s request, and also ask the tenant to consent to that information being used for purposes other than those for which it was requested. Such purposes include adding personal information to their databases, and sharing it with assorted third parties who may or may not be subscribers to those databases. The tenant does not have to consent to their information being used for any purpose other than identifying the tenant so that they can be provided with a copy of the personal information the RTD has on file. The tenant does not necessarily need to supply all of the information the RTD requests.

4.8.9 Making a complaint to the OAIC

A tenant may complain to the Office of the Australian Information Commissioner (OAIC) if an RTD operator has breached one of the Australian Privacy Principles set out in the Privacy Act 1988 (Cth).(432) The complaint can only be made in writing.

Tenants’ Union of Queensland Inc, Tenants’ Union of NSW Co-op Ltd v TICA Default Tenancy Control Pty Ltd [2004] PrivCmrACD 2 (16 April 2004) sets out examples of when a database operator may be in breach of the Privacy Act 1988 (Cth). The Federal Privacy Commissioner in this case found that TICA breached the national privacy principles on a number of grounds.PrivCmrACD 2 (16 April 2004). For a summary of TICA’s breaches in this case, see Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.211.1].">(433)

Before the OAIC can investigate a complaint, the complainant must first have complained to the agency or organisation and given it an opportunity to respond within 30 days. This means that the tenant will first need to lodge a complaint with the relevant RTD and give them 30 days to respond.

If the RTD does not respond, or the tenant is dissatisfied with the response, they can make a complaint to the OAIC.

Fill in the Privacy Complaint Form and submit online, or return by post, fax or email.

The form can be found at: https://www.oaic.gov.au/individuals/how-do-i-make-a-privacy-complaint

GPO Box 5218 Sydney NSW 2001 Fax: +61 2 9284 9666 Email: enquiries@oaic.gov.au

Enquiries phone line: 1300 363 992 (note that a complaint cannot be made over the phone)

4.8.10 Offences

The Residential Tenancies Act provides that lessors, real estate agents and RTD operators may be fined for breaching the following RTD provisions:

82C(2) Failing to give written notice of usual use of residential tenancy database

82D(2) Failing to give written notice of personal information in residential tenancy database

82E(1) Listing personal information in residential tenancy database contrary to section 82E(1)

82F(1) Listing personal information in residential tenancy database contrary to section 82F(1)

82G(3) Failing to keep copy of written notice under section 82G(2) for one year $1 000

82H(2) Failing to amend or remove personal information from residential tenancy database within 14 days

82I(1) Lessor or lessor’s agent failing to give copy of personal information within 14 days of request

82I(2) Database operator failing to give copy of personal information in residential tenancy database within 14 days of request

82K(2) Keeping personal information in residential tenancy database longer than permitted

In every case the section provides for a fine of up to $5000.

A tenant wishing to make a complaint about a breach of (or offence against) the Residential Tenancies Act, can contact Consumer Protection on 1300 304 054 or go to https://www.commerce.wa.gov.au/.

4.8.11 Listing minors

There are different rules for listing minors – the listing must be removed when the minor reaches 18 years of age, regardless of whether or not they have been listed on a RTD for 3 years.(434)

A ‘minor’ is a person who has reached 16 years of age but has not reached 18 years of age.(435)

4.9 Compensation following termination

The lessor may or may not be entitled to compensation following termination. This will depend on the nature of the termination and the extent of any damage to the premises.

4.9.1 Loss of bargain damages

See discussion of loss of bargain damages at 4.3.2.3.1.

4.9.2 "Break Lease" compensation

See discussion of Compensation for break lease at 4.2.7.1.1.

4.9.3 Compensation for repairs where the lessor has no intention to carry out the repairs

It sometimes happens that a lessor claims compensation at the end of the lease for damage done to premises during the lease in circumstances where the lessor has no intention of actually repairing the damage. One example would be where the lessor intends to demolish the premises. In such a case, the lessor would suffer no actual loss where the tenant had failed to leave the premises in as near as possible the same condition as they were in at the beginning of the tenancy, in breach of clause 38.2 of the standard form lease.

In such cases whether or not the lessor actually does or has any intention of doing the repairs, is probably irrelevant.(436) If that is so the lessor can claim damages assessed on the basis of the cost of carrying out the repairs even when they intend to sell or demolish the premises.

It still remains the case that, the Tribunals in other States and Territories have very often refused to pay compensation in the absence of any proof that the lessor has actually already paid for necessary repairs (or will do so).(437)

4.10 Miscellaneous end of tenancy matters

4.10.1 Keys

Returning the keys

It is important for the tenant to check their residential tenancy agreement for any clauses about keys.

The prescribed form tenancy agreements provide that "the tenant agrees, when the agreement ends, to give vacant possession to the lessor" and that, "before giving vacant possession […] the tenant must return to the lessor all keys (and other opening devices, or similar devices) provided by the lessor".(438) The agreements also provide that the tenant may be liable for losses incurred by the lessor if this requirement is not met.(439)

Where a tenant or lessor has given a notice of termination to bring a tenancy to an end, the tenancy does not terminate unless and until the tenant delivers up vacant possession on or after the date set by the notice (or a court orders termination).(440)

In most circumstances, a tenant who has not handed back the keys at the end of the tenancy has not handed back vacant possession of the premises(441) and the tenancy therefore continues. In that case, the tenant is liable, under the agreement, for rent for each additional day the tenant fails to hand back the keys.

The time of day that the keys must be returned by

Parties sometimes argue over what time of day the keys should be returned at the end of a fixed term. If the agreement itself states the time of day that the keys must be returned by, or the time of day at which the agreement ends, then that is the time that the keys should be returned by. However, that is uncommon.

The prescribed form agreements provide only that the agreement starts and ends on a certain date:

"TERM OF AGREEMENT * This residential tenancy agreement is periodic starting on [insert date]. * This residential tenancy agreement is fixed starting on [insert date] and ending on [insert date]. (*delete as appropriate)"

Where the agreement is silent as to the time of day at which the agreement ends, the agreement runs until midnight on the last day,(442) and the keys may therefore be returned at any time on the last day.

In Grundy v Lee [1997] NSWRT 50 (4 March 1997) the agreement contained a clause by which the tenant agreed to "vacate the premises by midday on the date of departure". The Tribunal found that the clause was void:

[The clause requiring the tenant to vacate by midday], in my view, also contravenes terms of the Act. It has been a long held view, as I understand it, in this jurisdiction that premises may be vacated up to 12.00 am on the date of vacation. It is true that not many landlords or indeed real estate agents would not be in a position to collect keys at 12.00 am on any particular day. It seems common sense generally prevails and the keys are either returned on the following day or deposited through a letterbox or some such other means in the office of the real estate agent office in question. In my experience, the delivery of the key on the subsequent day on which vacation is sought, or indeed the discovery of the key in the letterbox in the appropriate real estate agent, does not lead to a claim of rent for the day following the agreed date of vacation. I am satisfied that the clause as framed contravenes the Act and should be struck out.(443)

4.10.2 Abandoned goods and documents

Introduction

Sometimes, after a tenancy has ended, there are goods and / or documents left behind, which are not the property of the lessor. Disputes often arise over such goods, for example:

(i) Where the lessor considers the goods to be rubbish and takes them to the tip; (ii) Where the lessor keeps the goods for himself, or sells or gives them away; (iii)Where a tenant leaves behind goods which the tenant does not want any more, and the lessor incurs expense in disposing of them.

At common law, a lessor who simply dealt with such items as he/she saw fit could be liable in conversion(444) to the owner of the items. If the items had actually been abandoned, then the lessor could not be liable, but the lessor would have to "prove that the owner ha[d] an intention to abandon finally and conclusively the item[s] in question."(445) In many circumstances that would be difficult, if not impossible.

A detailed discussion of conversion is beyond the scope of this section. For now, it is enough to say that conversion is a tort (civil wrong) which occurs when a person intentionally and unlawfully deals with property in a manner which is inconsistent with the rights of the owner of that property.

The Residential Tenancies Act sets out the rights and duties of lessors and owners of goods with respect to goods which are left on premises after termination. There are different requirements, depending on whether the possessions are classified as "goods" or "documents".

4.10.2.1 Under the Residential Tenancies Act

4.10.2.1.1 Abandoned goods (not including documents)(s 79)

4.10.2.1.1.1 Where the goods are perishable foodstuffs or their estimated value is less than the estimated cost of removal, storage and sale.

Where goods not including documents are left on residential premises after termination, the lessor may, after 2 days have passed since the termination of the agreement:

(i) remove and destroy or dispose of any perishable foodstuffs; and

(ii) remove and destroy or dispose of the rest of the goods where the estimated value is less than the total estimated cost of their removal, storage and sale. (s 79(1))

So long as the property disposed of is perishable foodstuffs, and/or its estimated value is less than the total estimated cost of removal, storage and sale, and it is disposed of after 2 days, the lessor "shall not incur any liability" (s 79(14)(a)). A tenant cannot claim compensation from a lessor who has disposed of his goods in accordance with s 79(1).

S 79(1) gives a lessor the power to dispose of a tenant's property without liability, but only where the conditions set out in s 79(1) are actually met. Sometimes they are not met, for example:

A lessor who disposes of goods without complying with s 79(1) will still potentially be liable to the owner of the goods.

It will not always be clear whether the estimated value of the goods is indeed less than the estimated total cost of their removal, storage and sale. A lessor may request a written statement from the Department of Mines, Industry Regulation and Safety as to whether or not there are reasonable grounds for believing that the goods are indeed perishable foodstuffs and /or that the estimated value of the goods is less than the estimated cost of their removal, storage and sale (s 79(4)). Such a statement is sometimes called an "indemnity certificate".

An "indemnity certificate" does not absolve a lessor of liability for wrongfully disposing of property. A lessor who relies on such a certificate in disposing of goods is, however, entitled to be repaid from the Rental Accommodation Fund, in the event that they are subsequently found liable to the owner of the goods for wrongfully disposing of them. (s 79(5)). That means that a tenant whose property has been wrongfully disposed of in purported reliance on s 79(1) is still entitled to claim compensation from the lessor, even if the lessor has an "indemnity certificate". In the event the tenant is successful, the lessor will be able to claim back any compensation they had to pay to the tenant from the Rental Accommodation Fund.

There is another potential benefit to a lessor of obtaining an "indemnity certificate". Where the "indemnity certificate" states that there are reasonable grounds for believing that the estimated value of the goods is not less than the estimated cost of removal, storage and sale, and the opposite turns out to be true(447), the lessor may apply to court for an order that he be paid the difference between the two values out of the Rental Accommodation Fund. (s 79(6)).

4.10.2.1.1.2 Where the estimated value of the goods is not less than the estimated cost of removal, storage and sale.

Where the estimated value was not less than the estimated cost of removal, storage and sale, the lessor has to store them safely for at least 60 days after the termination of the agreement. (s 79 (2)). There is a penalty of up to $5000 for not complying with this section.

The lessor must attempt to notify the tenant(448) that they are storing the tenant's belongings (s 79(3)). They may do that either:

It is important to note that the lessor does not have to use the approved form and a notice will still be valid if it is "to the effect" of that form.(452) See Form 2 and Form 3 for full details. In summary, both Form 2 and Form 3 include:

Form 3 also includes a note that the lessor may remove and destroy perishable food stuffs and goods whose value is less than the estimated cost of removal storage and sale.

Failure to comply with s 79(3) is punishable by a fine of up to $5000.

After 60 days, any goods which have not been reclaimed must be sold at public auction as soon as practicable (s 79(8)).Up until the goods are sold, any person with a lawful right to them may reclaim them upon paying the lessor the reasonable costs of removal and storage. (s 79(7)).

If the goods are sold at auction, the lessor is entitled to retain out of the proceeds of sale the reasonable costs of removal, storage and sale. (s 79(9))

A lessor who has sold goods at auction under s 79, "may, upon application containing the prescribed information, pay into court an amount that a competent court is satisfied represents the balance of the proceeds of the sale after deduction of any amount to which the lessor is entitled under subsection (9) and any amount that the lessor is owed under the former agreement, and, where such payment is made, the receipt of the court for the moneys paid shall be sufficient discharge to the lessor of the lessor’s liability in respect of the moneys." (s 79 (10)). The "prescribed information" is:

(a) the name and address of the lessor;

(b) the name of the former tenant;

(c) for each item sold —

(d) particulars of the amount claimed by the lessor for —

(Residential Tenancy Regulations 1989 reg. 12E)

It would be interesting to know whether any lessors ever actually take advantage of this section, given it is not compulsory. The opinion of the authors of the leading text on the Residential Tenancies Act 1978 (SA) from which the section was taken was that "[m]ost landlords will pay such moneys to the Tribunal in order to avoid any liability in respect of the money."(453) What happens if the lessor does not pay the money to the court? In that case the Unclaimed Money Act 1990 (WA) may apply in certain circumstances, but further discussion of that is beyond the scope of this section. It seems likely that, if the former owner of the goods claims the money, the lessor would have to pay it to him/her.(454)

If money is paid into court under s 79(10), it is credited to the Rental Accommodation Account. Any person claiming any amount credited to the Rental Accommodation Account may apply to court for it, and the court may pay it to them if satisfied that they are entitled to it. (s 79 (12)) A tenant whose goods are sold at auction by a lessor may use this section to claim what is left over from the sale of their goods, after the lessor has deducted his expenses, but only where the lessor has actually paid the money into court under s 79(10). If the goods had been the property of someone other than the tenant, that person may also claim under s 79(12).

Where goods are sold at auction under s 79, the buyer of the goods, unless he/she actually knew that they belonged to someone other than the tenant(455) or that another person had a legal interest in the goods(456), acquires good title to the goods that cannot be defeated by the previous owner (or interest holder).

As long as the lessor sells the goods at auction having followed the procedure set out in s 79 set out above, the lessor is protected from any liability except:

• liability for intentional or negligent damage to the goods; or
• where the lessor has actual notice of any interest in the goods of any person other than the tenant and fails to take all reasonable steps to notify that person of the whereabouts of the goods and afford that person a reasonable opportunity to reclaim the goods. (s 79(14)(b))

It should be noted that, although the Residential Tenancies Act mandates sale by auction, and is careful to protect lessors and innocent buyers from liability, it does not extend that protection to the auctioneer. "The auctioneer who in good faith sells goods which do not belong to a client commits conversion by handing them over to the buyer."(457) So a tenant or third party whose goods are sold at auction may still have the option of suing the auctioneer in conversion, notwithstanding his right to sue the lessor and / or purchaser may be barred by those goods having been sold in accordance with s 79 of the _RT Act.

S 79(15) provides that, where a "dispute arises between a lessor and a tenant in respect of goods to which [s 79] applies, a competent court may, upon application by such person, order the payment of any amount or make such other order as it considers appropriate in the circumstances."

4.10.2.2 Abandoned documents

A "tenant's document" is defined in the Residential Tenancies Act as meaning:

(a) an official document; or

(b) a photograph; or

(c) correspondence; or

(d) any other document which it would be reasonable to expect that a person would want to keep. (s 80A(1))

That would self-evidently include things such as:

• passports
• birth certificates
• receipts and warranty cards
• printed photos
• letters
• bank statements
• lottery tickets
• court documents

Perhaps not so obviously, it would also include items stored electronically (whether that be on a computer hard drive, memory card, usb thumb drive or in a smartphone). The Interpretation Act 1984 (s 5) defines "document" as including "any publication", and "publication" as

(a) all written and printed matter; and

(b) any record, tape, wire, perforated roll, cinematograph film or images or other contrivance by means of which any words or ideas may be mechanically, electronically, or electrically produced, reproduced, represented, or conveyed; and

(c) anything whether of a similar nature to that described in paragraph (b) or not, containing any visible representation, or by its form, shape, or in any manner capable of producing, reproducing, representing, or conveying words or ideas; and

(d) every copy and reproduction of a publication as defined in paragraphs (a),(b) and (c)

Computers, hard drives, memory cards and smartphones are contrivances by means of which any words or ideas may be electronically reproduced. By the same token, it would also include phonograph records, cassette tapes, DVDs, compact discs etc.

Under s 80A:

(i) a lessor must take reasonable care of a tenant's documents for 60 days after the termination of the agreement (failure to comply punishable by a fine of up to $5000) (s 80A(3));

(ii) During that 60 day period, the lessor must take reasonable steps to notify the tenant that the documents were left at the premises, and as to when and from where they may be collected (s 80A(4));

(iii) If a tenant reclaims the documents and pays an amount equal to the reasonable costs of the lessor in complying with (i) and (ii) above, then the lessor must give the documents to the tenant (failure to comply punishable by a fine of up to $5000)(ss 80A(5) and (6));

(iv) The lessor has the right to destroy or otherwise dispose of a tenant's documents only if the tenant does not reclaim the documents in accordance with (iii) above, within 60 days (s 80A(7)).

A lessor who destroys or disposes of unclaimed documents after complying with the requirements of s 80A may apply to court to be paid from the Rental Accommodation Fund his reasonable costs incurred in complying with the section. (s 80A(8)).

Oddly, whilst a tenant may apply under s 79(15) for compensation from a lessor for the loss of their goods, there is no corresponding right to do so in relation to their documents. That may mean that a tenant has to commence proceedings in the Minor Case Division of the Magistrates Court, where the amount in question is under $10,000,(458) in order to recover compensation for wrongly disposed of documents.

Compensation

The way the courts usually assess how much compensation is payable for conversion is by estimating the market value of the goods at the time that they were disposed of. That is the best price reasonably obtainable for the goods in the open market. In most cases, that will be the value that similar goods, of the same age and condition, would fetch on the second hand market. Where there is no market for the goods, compensation may be calculated as "the replacement value in a comparable state or the original cost minus depreciation".(459)

It may be difficult, if not impossible, to bring any evidence of the condition of the items at the time that they were disposed of. Obvious difficulties arise where the whereabouts of the goods are no longer known.(460) If such difficulty arises out of the wrongful act of the lessor, the court may "assume the worst against the defendant that is consistent with the evidence" (McCartney & Ors V Orica Investments Pty Ltd [2011] NSWCA 337); where there is evidence that the value of an item could fall within a range, the court is permitted to assume it is at the top end of that range.(461)

Many items may only be of value to the tenant, and little or no value to anyone else. It is open to a court to order compensation for the sentimental value of items and distress caused by their loss as well as market value (Jianwei Liu v State of New South Wales [2014] NSWSC 933 at [33])(462)

There are no clear standards set out as to how courts should calculate appropriate damages for loss of sentimental value, but it has been held that "quantification should be modest." (Farley v Skinner [2001] UKHL 49; (2002) 2 AC 732).

In a NSW tenancy matter the Tribunal considered $2000 would be appropriate for the wrongful disposal of "particular items of sentimental value, and the sheer difficulties that would have been caused […] by loss of the hospital records and personal banking and other details to enable [the tenant] to easily rent again" and for the "distress caused by the loss of personal photos and video tapes not of any real financial value but of considerable value to [the tenant and her son]." (Hobbins v St George Community Housing Co-operative (Tenancy) [2002] NSWCTTT 410.)

In another case the court awarded $3000 for "loss of sentimental value and distress and inconvenience" to a tenant whose possessions were unlawfully disposed of by his landlord (in that case he was also awarded $8,950 for the value of his possessions, but there are few details of what they were) (Murphy v Doman & Ors [2004] NSWCA 419).

4.10.2.2.1 Disposal of Uncollected Goods Act

The Disposal of Uncollected Goods Act 1970 (WA) ("DUGA") does not apply to any goods or documents left on residential tenancy premises after termination to which sections 79 and 80A of the RT Act apply. (DUGA s 6 and Schedule).

The DUGA may apply in circumstances where goods are left with a tenant by co- tenants and / or ex-partners. Seek advice is you are in this situation.

4.10.3 Tenant's forwarding address

The tenant must provide a forwarding address to the lessor when the tenant delivers up vacant possession of the premises. The notice must be in writing and must state the address at which the tenant intends to reside next OR the tenant’s postal address.(463)

Failure to provide a forwarding address also means that the tenant may not be notified about any future applications by the lessor for bond disposal and /or compensation.

There is a potential fine of up to $5 000 to a tenant who fails to comply with this requirement.(464)

Bond

If the tenant has not left a forwarding address the court will publish a notice on the eCourts Portal which states that their lessor has made a bond disposal application.(465) No other attempt need be (nor is it likely to be) made to contact the tenant. If the tenant does not file a notice of dispute within 7 days of the notice's publication date, the bond will almost certainly be paid out in accordance with the lessor’s application. There is no requirement that the tenant actually be made aware of the existence of the notice before the bond is paid as per the lessor's application.

Other applications

In the case of other applications made by the lessor (for example, for compensation for amounts exceeding the bond), the court will publish, on the eCourts Portal, a summary of the claim with the hearing date. If the tenant does not attend the hearing it will invariably be held in their absence, resulting in judgment for the lessor.

A tenant who abandons the premises without leaving a forwarding address should therefore check the eCourts Portal frequently. That is the only way that they will come to know about any applications by the lessor for bond disposal or compensation. Any applications by the lessor which are heard in the tenant's absence will almost certainly result in orders being made in favour of the lessor.

[See 4.10.3 Tenant’s forwarding address for further discussion].

Notes

1 : RT Act s60(a).

2 : RT Act s60(b).

3 : RT Act s60

(c).

4 : RT Act s60(d).

5 : RT Act s60(e).

6 : RT Act s60(f).

7 : RT Act s60(g).

8 : RT Act s60(h) Note that this may be the most common, but it is not the only way, in which a tenancy can be terminated by merger. Where a head-tenant assigns his or her lease with the head landlord to his or her sub-tenant, the sub-tenancy terminates by merger. Another example is where the tenant is left the premises in the landlord's will. There may be other possibilities not considered here.

9 : RT Act s60(i).

10 : RT Act s 70A(2).

11 : Note that a tenant or lessor of Foundation Housing's Foyer Oxford Premises at 196 Oxford Street, Leederville, only has to give 7 days' notice in certain circumstances. See RT Regulations r 7D.

12 : RT Act ss 70A(3), 60(b)(i).

13 : RT Act ss 67, s 70A(2).

14 : RT Act s 67

(c); Middlebrook v Stone [2005] NSWCTTT 686.

15 : Consumer protection provide a Form 22 – Notice of Termination from Tenant to Lessor on their website, for the sake of convenience. Use of the form is not compulsory, however, and a failure to use it will not invalidate the notice, so long as the notice given complies with s 67 of the Act.

16 : See RT Act s 64(5)

17 : RT Act s 76C.

18 : RT Act s 70A(4).

19 : RT Act s 70A(5).

20 : RT Act s 70A(6).

21 : RT Act s 70A(7).

22 : Note that written residential tenancy agreements must be in the prescribed form, which only allows for a date to be entered under the heading "Term of Agreement". A time could be added as an additional term, however.

23 : Due to the "general rule [that] the law takes no account of fractions of a day". Forster v Jododex Aust Pty Ltd [1972] HCA 61, (1972) 127 CLR 421, 445 per Gibbs J.

24 : Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.84.1] It seems likely that this only applies where no actual time is stated for expiry.

25 : Grundy v Lee [1997] NSWRT 50 (4 March 1997]; Story v Madders (1883) 39 VLR 150, cited in Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.84.1] [2.110.3].

26 : RT Act s 68.

27 : RT Act ss 67.

28 : RT Act s 67(c); Middlebrook v Stone [2005] NSWCTTT 686.

29 : Consumer protection provide a Form 22 – Notice of Termination from Tenant to Lessor on their website, for the sake of convenience. Use of the form is not compulsory, however, and a failure to use it will not invalidate the notice, so long as the notice given complies with s 67 of the Act.

30 : RT Act s 70.

31 : Bradbrook et al, Residential Tenancy Law and Practice, [2212].

32 : RT Act s 75(1).

33 : RT Act s75(2).

34 : RT Act s 74(1).

35 : RT Act s 74(2)(a).

36 : RT Act s 74(2)(b).

37 : See Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.93.3].

38 : Noble v Vorreiter (by L J Hooker Unley) [2003] SARTT 15 (30 June 2003), citing Lord Denning M.R. in Liberian Shipping Corporation "Pegasus" v A. King and Sons Ltd [1967] 2 Q.B. 86 at p.98"Even though a claimant has been at fault himself, it is an undue hardship on him if the consequences are out of proportion to his fault."

39 : Note however that there are a number of cases where residential tenancy agreements have been terminated for financial hardship: see discussion in Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.104.2].

40 : Foster v Battista (by Ray White Flagstaff Hill) [2011] SARTT 37

41 : Jesenko v Chajka [2002] SARTT 23

42 : Foster v Battista (by Ray White Flagstaff Hill) [2011] SARTT 37, 6.

43 : RT Act s 60(g).

44 : Note, however, that the RT Act does not require that the agreement be signed. An unsigned agreement will still be effective, if it can be proved that it was made by the parties.

45 : For example, a statement that "This agreement represents full and final settlement of all claims arising out of the tenancy."

46 : Note it is clause 40.2 in Form 1 AB for Social Housing tenancies.

47 : In the case of a periodic tenancy, the tenant may terminate by giving at least 21 days' notice and moving out (see above 4.1.1.2). That will usually be a better option for the tenant because the consent of the lessor is not required.

48 : Notwithstanding that there may still be disputes over the state of repair and/or cleanliness of the premises at the time of vacation by the tenant.

49 : RT Act ss 70A(2),(3), 67.

50 : In some other jurisdictions the equivalent to RT Act (WA) s 60(g) stipulates that a tenancy agreement terminates when a lessor consents to the tenant vacating and once the lessor has consented to the tenant vacating, he or she cannot go back on his or her word; see RT Act 2010 NSW s 81(4)(e); RT Act 1997 (Vic) s 218 (but note that s 217 permits termination by agreement, and is silent on whether a party can resile from the agreement).

51 : In some circumstances it may be arguable that the tenant has provided consideration by giving up their right to possession of the premises earlier than they otherwise would have had to under the Residential Tenancy Agreement.

52 : Discussion of deeds is beyond the scope of this publication.

53 : The amount of consideration need not be adequate, but must be sufficient. A nominal amount will suffice.

54 : Diago Lobo v Abdel-Messih [2016] NSWCATCD 14 (24 February 2016) [62].

55 : Chand v Anderson [1999] NSWRT 71 (27 April 1999) – Tribunal declined the tenant’s claim for compensation for costs associated with relocation after mutual agreement to end the tenancy as the lessor was not in breach and payment for such costs did not form part of the agreement to vacate.

56 : Note that this may be the most common, but it is not the only way, in which a tenancy can be terminated by merger. Where a head-tenant assigns his or her lease with the head landlord to his or her sub-tenant, the sub-tenancy terminates by merger. Another example is where the tenant is left the premises in the landlord's will. There may be other possibilities which we have not considered here.

57 : Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.81.11].

58 : RT Act s60(i).

59 : RT Act ss 59B(1), (2).

60 : Bradbrook et al, [515].

61 : Bradbrook et al., [515], and the authorities cited therein.

62 : RT Act s 69(1).

63 : So long as the bush fire did not damage the premises because of a breach of agreement. Even a bush fire may only destroy premises because, in breach of the agreement, fire breaks were not maintained or gutters kept clear of debris.

64 : In breach of the term implied by s 42(2)(b) of the RT Act – the lessor would have to know that the ceilings required repair, and have failed to act in a reasonable time, to be in breach.

65 : RT Act s69(4).

66 : Sometimes it will be clear that the premises, or part of them, have been destroyed or rendered uninhabitable – when they have been burnt to the ground for example. In other cases (e.g. smoke damage), it may not be so clear. And sometimes it will not be clear whether the frustrating event was caused by a breach of the agreement.

67 : It may not be necessary where it is abundantly clear that a frustrating event has occurred, and it was not as the result of a breach of the Residential Tenancy Agreement – for example where the premises are compulsorily acquired. See footnote 78 above regarding bush fires for why they cannot always be relied on to terminate for frustration.

68 : RT Act s 69(3).

69 : RT Act s69(2).

70 : RT Act s 61(a).

71 : s60(a)(i)

72 : The rent will automatically abate, so the tenant should pay less rent until the ceiling is repaired – see following.

73 : The breach might have been of the term implied by 42(2)(a), 42(2)(b) or 43(2)(b). See section on repairs.

74 : RT Act s 60(a)(ii).

75 : S 69(1) provides that a party can only give notice of termination for frustration where the frustrating event occurs "otherwise than as a result of a breach of a residential tenancy agreement".

76 : RT Act s 60(a)(i).

77 : RT Act s 71(1).

78 : RT Act s 71(3)(b)(iii).

79 : RT Act s 69(1)(a).

80 : Rent reduction application may otherwise be made under s 32.

81 : This may be the case where only part of the premises are rendered uninhabitable. Where the premises are completely destroyed, it will not be.

82 : Vashisht & Sharma v Edwards [2016] NSWCATCD 86 (20 October 2016).

83 : Vashisht & Sharma v Edwards [2016] NSWCATCD 86 (20 October 2016) [11] – [12].

84 : Vashisht & Sharma v Edwards [2016] NSWCATCD 86 (20 October 2016) [13].

85 : Vashisht & Sharma v Edwards [2016] NSWCATCD 86 (20 October 2016) [15].

86 : Vashisht & Sharma v Edwards [2016] NSWCATCD 86 (20 October 2016) [30].

87 : RT Act s 75.

88 : RT Act s60(g)

89 : RT Act s49

90 : RT Act s74

91 : RT Act s60(f)

92 : Where the tenant has abandoned.

93 : Where the tenancy is terminated for undue hardship.

94 : 49 days equals 7 weeks; $325 x 7 = $2275.

95 : As happened to some in the Pilbara at the end of the mining boom.

96 : Brian Anthony Mouritz v Ramona Hegedus [1999] WASCA 1061 (19 April 1999)

97 : Not only that, but it is important to remember that the lessor has to mitigate the lessor's losses (not the tenant's losses) - the lessor who is still being paid full rent does not have any loss which they can mitigate.

98 : REIWA produce a "break lease form" entitled "Request for consent to termination by tenant during a fixed term agreement".

99 : Break lease agreements do not usually contain a term imposing a duty on the lessor to advertise the premises. Although it may be possible to imply one, this will be pointless if the agreement is nevertheless unenforceable.

100 : Luxer Holdings Pty Ltd -v- Glentham Pty Ltd [2007] WASCA 209 per Buss JA at [36].

101 : Maridakis v Kouvaris (1975) 5 ALR 197.

102 : RT Act s 60(f).

103 : See "'Where the tenant abandons the premises' – the right to unilateral termination of a fixed term residential tenancy agreement by tenants." Tenancy WA Memorandum, 29/10/2015, and the cases and materials cited therein.

104 : https://reiwa.com.au/information/renters/how-do-you-break-a-rental-lease-/ accessed on 19 December 2018

105 : https://reiwa.com.au/information/renters/how-do-you-break-a-rental-lease-/ accessed on 19 December 2018

106 : https://reiwa.com.au/information/renters/how-do-you-break-a-rental-lease-/ accessed on 19 December 2018

107 : That is, while the tenant continues to pay rent in accordance with the tenancy agreement.

108 : The Act does, however, define "reasonable grounds, for suspecting that a tenant has abandoned residential premises" (at s 3):

reasonable grounds, for suspecting that a tenant has abandoned residential premises, means that the tenant has failed to pay rent […] and that at least one of the following has occurred –

(a) the presence at the premises of uncollected mail, newspapers or other material;

(b) reports from neighbours […] or […] other persons indicating that the tenant has abandoned the premises;

(c) the absence of household goods at the premises;

(d) the disconnection of services (including gas, electricity and telephone) to the premises

The Macquarie dictionary defines "abandon" as "to leave behind completely and finally: to abandon ones's home."{{Macquarie dictionary (6th Ed.)

109 : See Andrea Hookway v Melinda and Ian Boxsell [2008] ACTRTT 19 [34] – " Once the tenants declare their intention to abandon the property within the fixed term for no lawful reason, such as in the present case, and actually vacate the premises and ceases paying rent, an abandonment has occurred within the meaning of section 36(e) [equivalent to RT Act WA s 60(f)] of the Act and the tenancy is terminated." In Dona Holdings Pty Ltd -v- Palaniswamy [2015] NTRTCmr 20 (22 January 2015) the Northern Territory Commissioner of Tenancies adopted the same definition of abandoning the premises. Also see Director of Housing v Zavos (Residential Tenancies) [2014] VCAT 283 (18 March 2014) at [19] – [24] for consideration of the meaning of "abandon" in the RT Act 1997 (Vic).

110 : Magin, Richard (Landlord) v Mason, Richard (Tenant), and Craze, Mellisa (Tenant) [1993] NSWRT 125 (8 November 1993); Jayawardena v Yue (Residential Tenancies) [2009] ACAT 5 (14 April 2009) at [18] – "The Act does not define what constitutes an “abandonment” and so must be taken to have adopted the definition of the term at common law. At common law abandonment occurs when a tenant chooses to vacate the premises without lawful cause during the fixed term. But when a lessor determines to rely upon his/her right under the Act and the residential tenancy agreement to serve a Termination Notice on a tenant, then the tenant has a lawful right to vacate in response to that notice and thus no abandonment has occurred."

111 : See, for example, Abraham & Abraham (by Raine & Horne - Burnside & Norwood) v Hanson & Hanson [2009] SARTT 11 (23 June 2009).

112 : Subject to the relevant limitation periods –see x.xx.xx Limitation Periods.

113 : Other than rent which accrued before the date of termination.

114 : RT Act s 53(3).

115 : RT Act s 53(3).

116 : RT Act 85(3)(c); RT Regulations r. 12.

117 : RT Act s 78(2).

118 : RT Act s 56 makes it an offence to discriminate against tenants with children.

119 : RT Act s 76A; Form 13 can be downloaded at: Government of Western Australia Department of Mines, Industry Regulation and Safety, Form 13 Notice of Termination to Tenant if Premises Abandoned (29 June 2017) <https://www.commerce.wa.gov.au/publications/termination-notice-tenant-if-premises-abandoned-form-13>.

120 : RT Act ss 76A(3), 76B.

121 : RT Act ss 76B(2), (3).

122 : RT Act s 77(2); Form 12 can be downloaded at: Government of Western Australia Department of Mines, Industry Regulation and Safety, Notice to tenant of abandonment of premises – Form 12, 27 May 2014 <https://www.commerce.wa.gov.au/publications/notice-tenant-abandonment-premises-form-12>.

123 : RT Act ss 77(1), (4).

124 : RT Act s 77(2)(b)(ii).

125 : RT Act s 77(3).

126 : RT Act s 3 (‘reasonable grounds’); Government of Western Australia Department of Mines, Industry Regulation and Safety, Notice to tenant of abandonment of premises – Form 12, 27 May 2014; https://www.commerce.wa.gov.au/publications/notice-tenant-abandonment-premises-form-12; RT Act s 76A; Form 13 can be downloaded at: Government of Western Australia Department of Mines, Industry Regulation and Safety, Form 13 Notice of Termination to Tenant if Premises Abandoned, 29 June 2017; https://www.commerce.wa.gov.au/publications/termination-notice-tenant-if-premises-abandoned-form-13.

127 : It is not a breach of the Residential Tenancy Agreement, nor is it "breaking the lease", to move out in accordance with a notice of termination or an order for vacant possession – see 4.2.7. The compensation referred to here is only payable where the tenant abandons the premises.

128 : Carter and Harland, Contract Law in Australia (3rd Ed), [2134] and the case cited there, British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673.

129 : Also known as a "property condition report fee".

130 : Gardening and cleaning costs may also be justified on the grounds that they are costs which are caused by the early termination. If the tenant had not terminated early, the tenant would usually have obligations under the lease to mow the lawns, and maintain the gardens. The tenant would also have been obliged to keep the premises in a reasonable state of cleanliness (see RT Act s 38(1)(a)).

131 : See Tang v Hodgkinson (Tenancy) [2008] NSWCTTT 1427 (2 December 2008) and Jackson v MacIntyre [1996] NSWRT 108 (11 June 1996)

132 : RT Act s 78(1).

133 : RT Act s 78(2).

134 : RT Act s78(1).

135 : Bradbrook et al., [523].

136 : Note that the common law rules on mitigation do apply in other situations which rely on the general duty to mitigate imposed by s 58 RT Act which states the "rules under the law of contract relating to mitigation of loss or damage upon breach of contract apply to and in relation to breach of a residential tenancy agreement".

137 : S 78(1) provides that the lessor shall take all reasonable steps to mitigate their loss caused by the abandonment.

138 : The interstate tribunal decisions vary on this question. See, for example, Cachia v Abols [1998] NSWRT 103, 15 (positive duty to mitigate, onus on lessor to prove they have mitigated); but cf D’Arcy v Johnson and Sheen [1994] NSWRT 52, 5 (positive duty to mitigate, but onus on the tenant to prove the lessor has not mitigated) and Andrea Hookway v Melinda and Ian Boxsell [2008] ACTRTT 19 [44] which applies the common law rules to a similarly worded section in the RT Act ACT.

139 : Pearce and Geddes, Statutory Interpretation in Australia, 8th Ed., [5.27] – [5.28].

140 : Andrea Hookway v Melinda and Ian Boxsell [2008] ACTRTT 19 [34].

141 : Because, except in very unusual circumstances, the lessor will not incur those costs where they decide not to re-let.

142 : RT Act s 70A(2).

143 : In the case of a non-renewed or extended fixed term tenancy for less than 6 weeks at Foyer Oxford, where the lessor is Foundation Housing, the period of notice is only 7 days. See RT Regs r 7D.

144 : RT Act ss 70A(3), 60(b)(i).

145 : Note that an error in the form will not invalidate it unless it "materially affects the substance or is likely to mislead". See Interpretation Act 1984 (WA) s 74.

146 : RT Act ss 61.

147 : RT Act s 70A(2); Middlebrook v Stone [2005] NSWCTTT 686.

148 : RT Act s 64(5).

149 : In other jurisdictions there is such a power. See, for example, RT Act NSW 2010 s 113. RT Act s 84 provides however that the court may, upon application by any person, if it considers it necessary or desirable in the circumstances, order that a provision of the Act shall not apply to or in relation to any residential tenancy agreement or proposed residential tenancy agreement or shall apply in a modified manner, and perhaps this section supplies a possible solution.

150 : RT Act s 72(1) only permits a lessor to apply for termination where he or she has given notice of termination "under s 70A".Any notice of termination from a lessor (which includes one given under s 70A) must also comply with all the requirements of s 61.A notice which does not comply with s 61 and s 70 A is therefore not given "under s 70A".

151 : RT Act s 70A(5).

152 : RT Act s 70A(7).

153 : RT Act s 70A(6).

154 : RT Act s 85(6).

155 : RT Act s 76C.

156 : RT Act s 72(1)

157 : RT Act s 72(4).

158 : RT Act s 76.

159 : Other States do explicitly permit the withdrawal of termination notices. See for example, Residential Tenancies Act 2010 (NSW) s 112 and Residential Tenancies Act 1997 (Vic) s 321.

160 : Further discussion of estoppel is beyond the scope of this publication.

161 : Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Limited, 1983) [2218]. (The Residential Tenancies Act 1978 (SA) was practically identical to the RT Act (WA), and similarly silent on this issue.) However the repealed Residential Tenancies Act (1987) (NSW) was also in practically identical terms, and similarly silent on this issue, and the author of Residential Tenancies Law and Practice New South Wales (2 ed.), LBC Ltd argued there was "no reason why a landlord should not be able to withdraw a notice of termination, either during the period of the notice or subsequently, but before the tenant has acted on the notice by vacating the premises or changing her or his position by relying on the notice." at [902]. Note the situation in NSW is now put beyond doubt by s 112 of the RT Act 2010.

4.3.1.2 Termination of a Periodic Tenancy by the lessor giving without grounds termination notice

A lessor can give a no grounds termination notice to end a periodic tenancy agreement without providing a reason for terminating the agreement. The lessor must give not less than 60 days’ notice to terminate a periodic tenancy agreement without specifying any ground.{{RT Act s 64.

162 : RT Act s 61(a).

163 : See Interpretation Act 1984 (WA) s 74.

164 : If there is more than one lessor it should be signed by all of the lessors.

165 : RT Act s 61.

166 : RT Act s 71(2)(a) only permits the court to terminate when a tenant fails to move out in accordance with a notice of termination if it is satisfied that the tenant was given notice of termination and that it "complied with and was given in accordance with" the RT Act.

167 : The notice must state the actual date. See Middlebrook v Stone (Tenancy) [2005] NSWCTTT 686 (19 October 2005).

168 : RT Act s 64(3).

169 : RT Act s 64(4)(a)

170 : RT Regulations Schedule 4, Form 1A.

171 : RT Act s 62(4)(a)

172 : The State Government has nevertheless published a form which may be used for the purpose. Government of Western Australia Department of Mines, Industry Regulation and Safety, Breach notice for non-payment of rent – Form 21, 27 May 2014 <https://www.commerce.wa.gov.au/publications/breach-notice-non-payment-rent-form-21>.

173 : RT Act s 61

174 : RT Act s 71(2)(b). See below "Test for termination for rent arrears".

175 : RT Act s 71(1).

176 : RT Regulations Schedule 4, Form 1B.

177 : RT Act s 62(2)

178 : Where there is more than one lessor it must be signed by all of the lessors. At common law a notice to quit could be given by just one of several co-owners.

179 : RT Act s 61

180 : RT Act s 62(5)(a).

181 : RT Act s 62(5)(b)

182 : RT Act s 62(5).

183 : RT Act s 62(5)(c).

184 : RT Act s 66.

185 : RT Act s 60(a)(i).

186 : See Magin, Richard (Landlord) v Mason, Richard (Tenant), and Craze, Mellisa (Tenant) [1993] NSWRT 125 (8 November 1993).

187 : See VCAT Annotated Residential Tenancies Act at [219.03], and Anforth and Thawley, Residential Tenancies Law and Practice New South Wales, LBC Information Services 1998 at [11.7.0] – [11.7.1] and [11.8.3].

188 : RT Act s 80.

189 : RT Act s 71(1)

190 : RT Act s 71(2)(a). The notice of termination must also comply with s 61 – see above in the sections discussing Form 1A and Form 1B notices.

191 : RT Act s 71(2)(b).

192 : RT Act s 71(2)

(c); Schaefer v Department of Housing [No 2] [2012] WASCA 229 [31].

193 : RT Act s 71(3)(b)(ii).

194 : RT Act s 71(2)(b).

195 : (1996) Residential Tenancy Tribunal 96/02133.

196 : [2009] NSWCTTT 374 (9 July 2009).

197 : (The Federation Press, 2014) p. 205.

198 : This list is an amalgamation of the factors listed in Anforth et al. [2.87.3] and Dendrobium Coal Pty Ltd v White (Tenancy) [2009] NSWCTTT 374 (9 July 2009).

199 : See RT Act s 71(3)(b)(ii).

200 : NSW Land and Housing Corporation v Mann [2014] NCAT at 55, cited in Anforth et al., [2.87.2], p.203

201 : Id.

202 : RT Act s 71(3).

203 : See the following cases for examples: B Miles Woman’s Housing Scheme Inc v Magika [2001] NSWRT 175, cited in Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) 208; St Jude's Family Support Service v Myers [2005] ACTRTT 15 (23 August 2005) (not a rent arrears case, but considers that failure to engage with program in supported housing can ground termination).

204 : RT Act s 82E(1).

205 : RT Act s 62(3).

206 : RT Act ss 62(1), (2); RT Regulations Schedule 4, Form 1C.

207 : RT Act s 71(1).

208 : RT Act s 71(2)(b).

209 : Under s 71(3)(b)(ii) the court is given an "additional" discretion not to terminate for breach where the tenant has remedied the breach, but must take into account any previous breaches by the tenant. This is the nearest that the Act comes to giving any guidance, although it is difficult to see that it adds anything to the discretion as this would have to be considered as part of "all the circumstances" in any event.

210 : Property Law Act 1969 s 81.

211 : Bradbrook et al, Australian Real Property Law (Law Book Company, 3rd ed, 2002) p.470

212 : RT Act s 71(3)(b)(ii).

213 : (1996) Residential Tenancy Tribunal 96/02133.

214 : [2009] NSWCTTT 374 (9 July 2009).

215 : (The Federation Press, 2014) p. 205.

216 : RT Act ss 63(1), (2).

217 : RT Act s 63(3).

218 : RT Act s 63(4).

219 : RT Act s 60(g).

220 : RT Act s 38(1)(a).

221 : The Privacy Act 1988 (Cth) and Australian Privacy Principles, Schedule 1 Privacy Act 1988 (Cth), apply to most real estate agents.

222 : Restraining Orders Act 1997 (WA) s 70(2).

223 : RT Act s 74.

224 : RT Act s 73(1).

225 : RT Act s 73(1).

226 : RT Act s 73(2).

227 : Wong v Eggins (Tenancy) [2013] NSWCTTT 535 [10].

228 : NSW Land and Housing v Bloomfield (Social Housing) [2013] NSWCTTT 645 [38].

229 : Yeomans (By Peter F Burns Real Estate) v Janoska & Parry [2010] SARTT 13 (15 July 2010).

230 : Rooke, Walter (Landlord), and Rooke, Patrica (Landlord) v Austin, Rhonda (Tenant) [1996] NSWRT 114 (13 June 1996).

231 : The meaning of "reasonable grounds" is defined in RT Act s 3. See 4.2.7. above.

232 : RT Act s 78A(1).

233 : RT Act s 78A(3).

234 : RT Act s 78A(4).

235 : RT Act s 78A(2).

236 : RT Act ss 78B(1), (3).

237 : RT Act s 78B(2).

238 : RT Act s 78B(4).

239 : RT Act s 78B(5).

240 : RT Act s 64 (2).

241 : RT Act s 71(2)(a).

242 : RT Act s 71(3)(b)(i).

243 : The amendment was made by the _Residential Tenancies Amendment Bill 2011.

244 : RT Act s 71(4).

245 : “A Reassessment Of The Laws Relating To The Determination Of Tenancies”, A.J. Bradbrook [1976] AdelLawRw 3; (1976) 5(4) Adelaide Law Review 357 363 – 364; Rules of Evidence in Australia, Arenson and Bagaric, Lexis Nexis Butterworths, 2005 16-17.

246 : That is because under 71(3)(b) the court "may" refuse to make the orders.

247 : Re Magistrate Steven Malley; Ex Parte The Housing Authority [2017] WASC 193 (19 July 2017) [77].

248 : Re Magistrate Steven Malley; Ex Parte The Housing Authority [2017] WASC 193 (19 July 2017) [71], [77].

249 : Note that "public authority" is defined in other Acts, including the Housing Act 1980 (WA).

250 : Peter E Nygh et al (eds), Butterworths Australian Legal Dictionary (Butterworths, 1997) 951 "public authority" definition, citing Federal Commissioner of Taxation v Silverton Tramway Co Ltd (1953) 88 CLR 559 at 565-6.

251 : It is less clear whether utility companies which are not government-owned (e.g. Alinta) are public authorities.

252 : Re Magistrate Steven Malley; Ex Parte The Housing Authority [2017] WASC 193 (19 July 2017)

253 : Re Magistrate Steven Malley; Ex Parte The Housing Authority [2017] WASC 193 (19 July 2017), [41].

254 : Re Magistrate Steven Malley; Ex Parte The Housing Authority [2017] WASC 193 (19 July 2017), [43].

255 : Ni & Ngo v Kovska (Tenancy) [2005] NSWCTTT 106 (9 February 2005). It seems that the notice was issued immediately after the tenant had been successful in the prior application. The NSW Act s 65(2)(i) specifically permitted the Tribunal to refuse to terminate where the lessor was motivated by the tenant having applied or proposing to apply to the Tribunal for an order, and the decision turned on that subsection. Nevertheless applying to the Tribunal could surely also have constituted taking steps to secure or enforce one's rights as a tenant. Also see Byrne v Hutcheon and Furner [1994] NSWRT 78 (10 June 1994).

256 : Harken & Cavanagh v Moon (Tenancy) [2007] NSWCTTT 465 (13 August 2007) – It is not entirely clear from the text of the decision, but it seems that the complaint to the council was about sewerage issue and the absence of smoke alarms.

257 : Ferguson v Borg (Tenancy) [2009] NSWCTTT 673 (10 December 2009). The garage conversion was of a garage and storage space which formed part of the rented premises, and which the lessor intended to use himself once completed. The tenant said that he had reluctantly agreed to the work because the landlord had told him he would evict him if he did not agree.

258 : Tamsett, Doug & Annette v McDowall, Vicki [1998] NSWRT 308 (23 October 1998); Similarly see Riddle v Littauer, Littauer v Riddle [2001] NSWRT 96 (14 May 2001) and Ward v Penson [2001] NSWRT 307 (6 November 2001)

259 : Grinham Holdings Pty Limited v Allison [2001] NSWRT 45 (20 March 2001). The tenant said that he objected to the proposed development because it would have "removed his parking space and a clothes line used by him". The surveillance camera had been installed over the door to the premises.

260 : Valente v Garcia (Tenancy) [2002] NSWCTTT 197 (24 June 2002). The lessor made several attempts to terminate but either due to the withdrawal of the application or an invalid notice they were unsuccessful. At some stage the tenants also applied to the Tribunal for a repair order, which was again responded to by a termination notice.

261 : Wiggins v Redman (Tenancy) [2006] NSWCTTT 514 (11 September 2006)

262 : Tololeski v Cleary (Tenancy) [2007] NSWCTTT 477 (2 August 2007)

263 : RT Act s 71(2)(b); Schaefer v Department of Housing [No 2] [2012] WASCA 229 [31]; Roads and Traffic Authority v Joy Swain and Terence Gold and Residential Tenancies Tribunal of New South Wales [1997] NSWSC 181.

264 : RT Act s 61

265 : RT Act s 85(1).

266 : RT Act s 85(3)(a) and (b). Note 85(3)(c) (by prescribed method including through a website) does not presently apply to notices of termination, because the corresponding regulation (RT Regs r12) only applies to notices to be given by the court and notices of termination must be given by either the lessor or tenant.

267 : RT Act s 85(1)(b).

268 : RT Act s 85(1)(b).

269 : RT Act s 85(2).

270 : That is so notwithstanding the Interpretation Act 1984 (WA) s 75(1), which does not apply because there is "express provision to the contrary" (see Interpretation Act s 3(1)) in the RT Act. See Pearce and Geddes, [6.52] : "The Interpretation Act provision may be displaced by a contrary intention in the relevant legislation. This may […] be […] that merely posting the item is sufficient even though there may be proof of non-delivery: Cheong v Webster; Ex parte Cheong (1985) 20 A Crim R 107."

271 : See 12.1.22.2 "Ordinary Course of Post" for discussion of the delivery time issues and the effect of the deeming provision.

272 : RT Act ss 85(4), (5).

273 : RT Act s 85(6).

274 : RT Act s 85(4).

275 : RT Act s 85(6).

276 : See 4.3.1.1 Fixed Term Tenancy and 4.3.1.2 Periodic Tenancy for a more detailed discussion of the requirements for a valid notice of termination.

277 : RT Act s 61

278 : RT Act ss 61(a), (b).

279 : RT Act ss 67(a), (b).

280 : RT Act s 72(3)(b).

281 : RT Act s 65(1)(a).

282 : RT Act s 65(1)

283 : RT Act s 80.

284 : RT Act s 80.

285 : RT Act s 60(a)(i).

286 : RT Act s 71(1).

287 : RT Act s 71(1).

288 : RT Act s 76.

289 : Under the RT Act s 45(b), it is a term of every residential tenancy agreement that any lock or other means of securing the premises must not be altered, removed or added by a lessor (or tenant) without consent of the other, given at or immediately before the time the alteration, removal or addition is carried out; Form 1AA Part B, cl 34.2.

290 : Civil Judgments Enforcement Act 2004 (WA) ss 94 – 96, 107.

291 : Recovery of possession of premises without a court order is prohibited under the RT Act s 80, and punishable by a fine of up to $20 000.

292 : RT Act s 15. The most obvious breach in the case of an illegal eviction would be of the quiet enjoyment term implied by RT Act s 44(2).

293 : Residential Tenancies Act 1987 (WA) Act ss 12 – 12A.

294 : See the discussion below, at [52], and the footnote discussing De Alwis v Miriklis BC9603898 (Unreported) WASC 1996.

295 : Residential Tenancies Act 1987 (WA) s 13B; Magistrates Court Act 2004 (WA) s 29.

296 : But see Form 6 Application for Disposal of Bond Money, which has a section for the respondent to sign if she consents to the bond being disposed of as sought by the application: "Form of Consent: I/we consent to an order being made in the terms of the application and acknowledge that this consent may not be withdrawn." It is unclear quite what the effect of this "acknowledgment" in the form is, but there is an argument that it is void to the extent of any inconsistency with the Magistrates Court Act 29, which provides for a hearing de novo. That would only be the case where the consented to order was made by a Registrar, however. And it is not clear whether Registrars actually do make such orders, although they would appear to have authority to, because they have the power to make orders where the matter is not disputed. It may not be possible or consequential for a party to acknowledge something that is incorrect in certain circumstances, even if that acknowledgement is in a ‘form approved by the minister’. Parties seeking to appeal against a consent bond disposal order should seek further advice.

297 : It should be noted that a consent order made by a Magistrate (or Judge) not made by a Registrar cannot be overturned just because a party later changes their mind. However consent orders may still be overturned "on the same basis as the underlying agreement may be set aside". That would depend upon the existence of a ground which would render a simple contract void and includes grounds such as illegality, misrepresentation, duress, fraud, undue influence, abuse of confidence, or non-disclosure of a material fact where disclosure is required. It might also include situations where the tenant did not understand what they were consenting to, perhaps because they are hearing impaired or a person for whom English is not their first language. Because in the Residential Tenancies context appeals against decisions made against Magistrate's decisions are so severely curtailed by s 26, it is difficult to see how consent orders made by a Magistrate could be overturned in any event, unless the decision can be overturned with a judicial review order.

298 : Lacey v Attorney-General of Queensland [2011] HCA 10 at [57]. An appeal de novo can be made without having to show any error was made (CVW Group Holdings Pty Ltd -v- Addison [2011] WASC 267 at [17]). See also Harris v Caladine [1991] HCA 9; (1991) 99 ALR 193, per Brennan J at [14] and Toohey J at [5].

299 : Darcy v Darcy [2012] FMCAfam 664 (17 August 2012).

300 : Federal Magistrates Rules 2001 (Cth) reg 20.03.

301 : Harris v Caladine [1991] HCA 9; (1991) 99 ALR 193.

302 : Residential Tenancies Act 1987 (WA) s13B and Magistrates Court Act 2004 (WA) s29(2)-(3)

303 : The Court has the power to extend the 14 day period under s 20(f) Residential Tenancies Act 1987 (WA).

304 : For an example of a case where this seems to have occurred in the matter under review, see Re Potter, Ex Parte Coppin [2013] WASC 462.

305 : See Hyde v Hallam, BC 9840085 (Unreported) WADC 17 March 1998 for an example of what happened before the enactment of s 13B.

306 : Note factors in favour of using s13B are that it must be heard de novo, and it allows 21 days instead of 14.

307 : The Court has the power to extend the 21 day time limit – Magistrates Court Act 2004 (WA) s 29(3).

308 : Magistrates Court (General) Rules 2005 (WA) r. 26 (1).

309 : Magistrates Court (General) Rules 2005 (WA) r. 26 (2).

310 : Note that the powers of Supreme Court Registrars (who are without exception legally qualified) are very different from those of Magistrates Court Registrars exercising jurisdiction under the RT Act. The Rules of the Supreme Court 1971 (RSC) provide, "A party who is dissatisfied with an order or decision of a registrar may appeal from it." (Or. 60A r.4(1)) The RSC differ in that they specifically do require the appellant to state "briefly, but specifically, the grounds of the appeal" (Or. 60A r.5). There is a prescribed form (Form 80A) which includes a section for "Grounds of appeal". There are no relevant practice directions.

311 : It might be as well here to also state why the tenant is dissatisfied, notwithstanding that the orders were consent orders. It may be that the tenant felt under duress to consent, or that the tenant had only consented because of a misrepresentation or misleading or deceptive conduct, or it may simply be that the tenant has had second thoughts (for whatever reason, or even no reason at all) and has now withdrawn their consent

312 : Magistrates Court Act 2004 (WA) ss 29(2) – (3).

313 : Civil Judgments Enforcement Act 2004 (WA) s.15(3).

314 : However it is probably essential to state that the tenant has withdrawn their consent.

315 : See footnote 4 above

316 : Civil Judgments Enforcement Regulations 2005 (WA) reg. 9(2).

317 : Kenney -v- Commonwealth Bank Of Australia [2016] WASCA 228 at [26].

318 : Kenney -v- Commonwealth Bank Of Australia [2016] WASCA 228 at [26].

319 : See De Alwis v Mirikilis BC9603898 (Unreported, Supreme Court of Western Australia, Scott J 23 August 1996). In that case the premises had already been re-let to a new tenant and the Supreme Court refused to grant an application for certiorari, Scott J saying, at p.10, "[…] the subsequent lease of the premises to the lessee was a lawful lease. In my opinion, it follows that the applicant is unable to retake possession of the premises even if the application for certiorari is successful and he subsequently succeeds before the Residential Tenancies Tribunal. The reason for that is that the Tribunal's powers on this application do not extend to evicting the tenant now presently in lawful possession of the premises." It is not clear what the situation would be where premises have not been re-let, but the lessor has retaken possession. In that situation would the (Residential Tenancies) court have the power to evict the lessor in possession?

320 : Or by someone who actually did tell the tenant that, who is suitably qualified to give that opinion, usually the tenant's legal advisor.

321 : Kenney -v- Commonwealth Bank Of Australia [2016] WASCA 228.

322 : Kenney -v- Commonwealth Bank Of Australia [2016] WASCA 228.

323 : Civil Judgments Enforcement Act 2004 (WA) s 96(2).

324 : Civil Judgments Enforcement Regulations 2005 (WA) reg. 100(1).

325 : Civil Judgments Enforcement Regulations 2005 (WA) reg. 100(3).

326 : Residential Tenancies Act 1987 (WA)s 18 (2)(b).

327 : Magistrates Court (General) Rules 2005 (WA) s.26(2).

328 : Magistrates Court (General) Rules 2005 (WA) s.26(3).

329 : Magistrates Court (Civil Proceedings) Rules 2005 (WA) r.101.

330 : Civil Judgments Enforcement Regulations 2005 (WA) r.9 (2).

331 : Civil Judgments Enforcement Regulations 2005 (WA) reg. 9(2)(b).

332 : Travelling fee is currently $1.80 per km metro area, $2.00 per km country.

333 : Magistrates Court (Civil Proceedings) Rules 2005 (WA) r.103.

334 : Magistrates Court (Civil Proceedings) Rules 2005 (WA) r.104.

335 : Civil Judgments Enforcement Regulations 2005 (WA) r.9(4).

336 : Civil Judgments Enforcement Regulations 2005 (WA) rr 92-95, 88.

337 : The Joint application for disposal of security bond form can be completed online or downloaded at: Government of Western Australia Department of Mines, Industry Regulation and Safety, Joint application for disposal of security bond, 23 June 2016 <https://www.commerce.wa.gov.au/publications/joint-application-disposal-security-bond>.

338 : RT Act s 29(8)(b).

339 : RT Act Schedule 1, cl 5(3).

340 : RT Act Schedule 1, cl 5.

341 : RT Act s 29(8).

342 : RT Regulations reg 5BA.

343 : RT Act Schedule 1, cl 8.

344 : RT Act Schedule 1, cl 8(6).

345 : RT Act Schedule 1, cl 8(8), s 12.

346 : RT Act s 12; Magistrates Court (Civil Proceedings) Act 2004 (WA) Part 4.

347 : Form 6 and Form 12 can be downloaded at: Magistrates Court of Western Australia, Fees, Forms & Factsheets http://www.magistratescourt.wa.gov.au/_apps/DocList/doclist.aspx.

348 : RT Act Schedule 1, cl 8(3), (4).

349 : RT Act Schedule 1 cl 8(3).

350 : RT Act Schedule 1 cl 8(5), s 18(2).

351 : RT Act Schedule 1 cl 8(4).

352 : RT Act Schedule 1 cl 8(7).

353 : Or an authorised financial institution as defined in Schedule 1 of the RT Act who is the bond holder: RT Regulations r 15(7).

354 : RT Regulations rr 15(1), (2).

355 : RT Regulations rr 15(2), (3).

356 : RT Regulations r 15(4).

357 : Unclaimed Money Act 1990 (WA) s 18(b), s 15.

358 : RT Regs r. 5AD(3a). The Housing Authority need not comply with the 28 day limit for a property more than 100km from the nearest office of the Housing Authority if it is unable to inspect because of bad weather or road closure, or the premises are subject to a Housing Management Agreement and a person of Aboriginal descent in relation to the community who lives on the land on which the premises are located refuses it access: RT Regs r. 5AD(3)(b).

359 : RT Act s 27C(4).

360 : RT Act s 27C(5).

361 : Hlubucek v Sinodinos [2007] ACTRTT 12 [14].

362 : Hlubucek v Sinodinos [2007] ACTRTT 12 [14].

363 : Martins v Zhang (Residential Tenancies) [2014] ACAT 48

364 : Martins v Zhang (Residential Tenancies) [2014] ACAT 48 (29 July 2014) [10]-[11].

365 : Edwards v Izzard (Residential Tenancies) [2016] ACAT 91 (16 August 2016)

366 : Edwards v Izzard [2016] ACAT 91 [61].

367 : Edwards v Izzard [2016] ACAT 91 [61].

368 : Edwards v Izzard [2016] ACAT 91 [62].

369 : Australian Taxation Office, Rental Properties 2017 (22 August 2017) <https://www.ato.gov.au/Forms/Rental-properties-2017/>.

370 : Australian Taxation Office, Rental Properties 2017 (22 August 2017) https://www.ato.gov.au/uploadedFiles/Content/IND/downloads/Rental-properties-2017.pdf, 35.

371 : Taylor v Webb [1937] 2 KB 283 at 302.

372 : Macquarie Dictionary (6th Ed.) page 1668

373 : Concise Oxford Dictionary (7th Ed.) page 1218

374 : Haskell v Marlow [1928] 2 KB 45 at 59

375 : Butterworths Concise Australian Dictionary (2nd Ed.) p.169.

376 : Taylor v Webb [1937] 2 KB 283 at 302

377 : Abela v Walker [1997] NSW 15 at [197]

378 : Ibid. at [196] – Note that the quotation in Abela is not entirely accurate. In particular the words "(or 'reasonable') are absent from it.

379 : Note this section is also found in Form 1AB (Prescribed Form Social Housing Lease) and Form 1AD (Information for tenants with verbal leases).

380 : Unless the parties expressly excluded any fair wear and tear exception, making the implied term inconsistent with the lease's express terms!

381 : Grainger v Williams [2005] WASC 286 at [74], See also Transfer of Land Act 1893, s 92(b) which implies a similar term in every lease made under that Act.

382 : Westpac General Insurance Ltd v Cooper [2006] ACTSC 91 at [14]

383 : Haskell v Marlow per Talbot J at 58-9.

384 : Maroney v Bullard [2016] ACAT 33

385 : [1997] NSWRT 16 [4th paragraph from end of decision]

386 : [2003] NSWCTTT 57 [halfway through decision]

387 : [2009] NSWCTTT 83

388 : [2005] NSWCTTT 377

389 : [2009] ACAT 11

390 : [2010] NSWCTTT 541

391 : http://j3contractorservices.com/articles/whats-wrong-with-my-grout-part-1-discoloration

392 : RT Act s 29(1)(b)(ii).

393 : RT Act s 29(1)(b)(ii).

394 : RT Regulations r 10A

395 : RT Act s 29(1A).

396 : RT Act Schedule 1, cl 8(2).

397 : Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.187.10].

398 : Karacominakis v Big Country Developments Pty Ltd & Big Country Developments Pty Ltd v Chadlace Pty Ltd & Ors J W Wall Investment Co Pty Ltd & Ors v Big Country Developments Pty Ltd & Ors Hollingsworth & v Big Country Developments Pty Ltd & Ors [2000] NSWCA 313 (17 November 2000) [187].

399 : Banco de Portugal v Waterlow and Sons Ltd [1932] UKHL 1; (1932) AC 452; Pilkington v Wood (1953) Ch 770; Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5, cited in Karacominakis v Big Country Developments Pty Ltd & Big Country Developments Pty Ltd v Chadlace Pty Ltd & Ors J W Wall Investment Co Pty Ltd & Ors v Big Country Developments Pty Ltd & Ors Hollingsworth & v Big Country Developments Pty Ltd & Ors [2000] NSWCA 313 (17 November 2000) [187].

400 : Bartlett v Ramasamy [2016] ACAT 115 (17 October 2016).

401 : Bartlett v Ramasamy [2016] ACAT 115 (17 October 2016) [19].

402 : "Personal information" is defined as "information (including an individual's name) or an opinion, whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion." (RT Act s 82A)

403 : RT Act ss 82C(1), (2), (4).

404 : RT Act s 82C(3).

405 : RT Act s 82C(2).

406 : RT Act s 82C(2).

407 : Form 18A can be downloaded at: Government of Western Australia Department of Mines, Industry Regulation and Safety, Attachment A Written Notice about Use of Tenancy Databases Section 82C(2), 27 May 2014 < https://www.commerce.wa.gov.au/publications/tenancy-database-notice-form-18a>;.

408 : RT Act s 82D.

409 : RT Act s 82E(1)(a).

410 : RT Act s 82E(1)(b). If the tenant has not breached the agreement they cannot be listed. In Leverington v Marley Duncan Real Estate [2016] SACAT 10 (18 January 2016), the agent was not entitled to make an entry on TICA because the Tribunal had made an order terminating the tenancy for hardship, not due to any breach by the tenant.

411 : RT Act s 82E(1)(c).

412 : RT Act ss 82E(1)(d), (2).

413 : RT Act s 82F(1)(a). Subsection (1) does not apply if the tenant cannot be located after making reasonable enquiries: RT Act s 82F(2).

414 : RT Act s 82F(1)(b). Subsection (1) does not apply if the tenant cannot be located after making reasonable enquiries: RT Act s 82F(2).

415 : RT Act s 82F(3).

416 : RT Act s 82K(2)(a). However, the tenant may be listed for longer than 3 years if other personal information about the tenant in the RTD is attached to the name, and this is not required to be removed under this section or another law: RT Act s 82K(3). This section does not limit the operation of another provision of the RT Act Part VIA (Residential tenancy databases), or another law that requires removal of the listing: RT Act s 82K(4). In Brimer & Gabell v Marley Duncan Real Estate [2016] SACAT 9 (29 March 2016), a listing was ordered to be removed from TICA as it was made more than 3 years prior.

417 : See 4.8.11

418 : RT Act s 82A (‘out-of-date’).

419 : RT Act s 82G. The lessor or agent must keep a copy of the written notice for one year after it was given: RT Act s 82G(3).

420 : RT Act s 82H.

421 : RT Act s 82G.

422 : RT Act ss 82A (‘inaccurate’); 82G.

423 : RT Act s 82I(1).

424 : RT Act s 82I(2).

425 : RT Act ss 82I(3), (4). For a discussion of the factors relevant in determining whether a charge is ‘excessive’, see Tenants’ Union of Queensland Inc, Tenants’ Union of NSW Co-op Ltd, and complainants A and B v TICA Default Tenancy Control Pty Ltd [2004] PrivCmrACD 1 (16 April 2004). For a summary of these factors, see Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.216.2].

426 : See 4.8.4 for the meaning of "out-of-date" under the RT Act. "Inaccurate" is defined as including a listing that indicates that the tenant owes an amount greater than the security bond and the amount was paid to the lessor more than three months after it became due.

427 : RT Act s 82G.

428 : RT Act 82G (2).

429 : RT Act s 82H.

430 : RT Act s 82J.

431 : RT Act s 82C.

432 : The Australian Privacy Principles are found in Schedule 1 of the Privacy Act 1988 (Cth). Further discussion of them is beyond the scope of this publication.

433 : Tenants’ Union of Queensland Inc, Tenants’ Union of NSW Co-op Ltd v TICA Default Tenancy Control Pty Ltd [2004] PrivCmrACD 2 (16 April 2004). For a summary of TICA’s breaches in this case, see Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.211.1].

434 : RT Act s 82K(2)(c).

435 : RT Act s 59A.

436 : Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Limited, 1983) [13106]: "By analogy with the common law authorities relating to the assessment of damages for the breach of a covenant to repair, it is submitted that the measure of compensation is the actual cost of the repairs necessary to restore the premises to their original condition before the damage occurred.[footnote: Joyner v Weeks [1891] 2 QB 31 (CA)]. The tenant will be liable for compensation even though the premises are scheduled for demolition or reconstruction. [footnote: Rawlings v Morgan (1865) 18 C.B. (N.S.) 776; 144 E.R. 650 (C.P.); Inderwick v Leech (1885) 1 T.L.R. 484 (Q.B. Div. Ct.); Joyner v Weeks [1891] 2 Q.B. 31 (C.A.)]" And see Pourzand v Telstra Corporation Ltd [2012] WASC 210 (19 June 2012) [197] and Bellgrove v Eldridge (1954) 90 CLR 613 at 620.

437 : At least in NSW and Qld, legislation has been passed which has abolished the rule in Joyner v Weeks. It appears that Tribunals in other States and Territories are ignoring the rule (perhaps inadvertently) even though it still applies.

438 : Form 1AA Part B, cl 38.3; Form 1AB cl 40.3.

439 : Form 1AA Part B, cl 39; Form 1AB cl 41.

440 : RT Act s 60(a) in the case of a periodic tenancy; RT Act s 60(b) in the case of a fixed term tenancy.

441 : Note that this does not apply where the tenant is unable to return the keys because the lessor refuses to accept them.

442 : Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421

443 : Grundy v Lee [1997] NSWRT 50 (4 March 1997) [14].

444 : Note there is also the possibility of liability in the closely related tort of detinue, which occurs when the rightful owner of property asks for its return from a person who has no (or a lesser) right to possession, and that person refuses. OR "The wrongful detention of goods after the plaintiff's lawful request for their return" (Butterworths Concise Australian Legal Dictionary (2nd ed.), p.125).

445 : Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) at [1901]

446 : Concise Oxford Dictionary (7th ed.) defines "perishable as "liable to perish; subject to speedy decay"

447 : After the lessor has actually removed, stored and sold the goods in accordance with s 79.

448 : Note that we say "attempt to notify", because it is entirely possible that a lessor could comply with s 79(3) without the tenant ever actually becoming aware of the contents of the forms. Whether or not the tenant actually receives notice does not affect the validity of the notice.

449 : Note the Form or notice may be "given" in any of the ways set out in s 85 of the Act, including personally, by post and electronically; note also that the effect of s 85(1)(b) is that the notice can be sent to the abandoned premises in the full knowledge that the person will never see it, where the tenant has left no forwarding address!

450 : Note that the West Australian print edition is no longer available in retail outlets anywhere north of Broome. So a tenant in any place north of Broome, e.g. Kununurra or Derby, is extremely unlikely to ever see such a notice in print. Publication in the online edition of the newspaper is still very unlikely to be seen by the tenant – how many readers browse the "public notices" section of online newspapers?

451 : RT Regs r.12D

452 : Note Interpretation Act 1984 (WA) s 74 is also relevant here, as it is to all the forms under the RT Act. It states that where a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance not likely to mislead shall not invalidate the form used.

453 : Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) at [1914].

454 : Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) at [1914]: "However [where the lessor does not pay the money to the RT Tribunal or the Treasurer under the Unclaimed Money Act 1891-1975 (SA)], if the former owner of the goods demands the money at any time, the landlord is obliged to pay the money to him."

455 : For example, the goods may be subject to a hire purchase agreement or on loan to the tenant. Or that another person or company has a legal interest in the goods, for example if the goods are subject to a hire purchase agreement.

456 : E.g. where there is an equitable mortgage or statutory charge over the goods – in that case the tenant remains the owner but the mortgagee or chargee holds a security interest over them. See Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) at [1915].

457 : R P Balkin and JLR Davis, Law of Torts, (Butterworths, 2nd ed, 1996) p.83, and the cases cited there.

458 : (Or the Magistrates Court where the amount is over $10,000, or the District Court where it is over $75,000 etc.)

459 : R P Balkin and JLR Davis, Law of Torts, (Butterworths, 2nd ed, 1996), p.91.

460 : For example, where the lessor has given away, sold, or otherwise disposed of the goods.

461 : See the discussion in Jianwei Liu v State of New South Wales [2014] NSWSC 933 at paragraphs [28]–[30]

462 : In Jianwei Liu the court awarded $2,500 for sentimental value of a pendant which was a cherished family heirloom handed down through two generations to the plaintiff, who had worn it every day for 11 years.

463 : RT Act s 53(3).

464 : RT Act s 53(3).

465 : RT Act 85(3)(c); RT Regulations r. 12.

---