Miscellaneous

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

9.1 Limitation periods and other time limits

What is a Limitation Period?

Strictly speaking, the period during which a cause of action (or prosecution) may be commenced in court.

For our purposes, we may consider all time periods by which things must be done, to fit into the category, as they are all time periods which the client must be made aware of.

In residential tenancy matters, the majority of limitation periods arise by operation of the Residential Tenancies Act 1987 (WA) ("RTA"), and the Limitation Act 2005 (WA)(1) ("Limitation Act").

A limitation period under the Limitation Act is the time within which legal proceedings must be commenced. If legal proceedings are commenced after the expiry of the limitation period, then the claim is said to be “statute-barred” and cannot be maintained (in the majority of cases, however, the limitation defence must be specifically pleaded to be effective – see below).

It is important to note that the courts have powers (in certain circumstances) to extend limitation periods, although it is probably safe to say that, on the whole, they are reluctant to exercise them (and by no means should a client rely on being able to persuade a court that it should exercise that discretion).

It is also important to note that a limitation period under the Limitation Act can be extended, before it expires, by a written acknowledgement of the existence of the cause of action(2) by the defendant.

Tenants ought to be advised of limitation periods that run both in their favour, and against them. Why both? Why does the tenant need to know when the lessor’s right to commence legal proceedings expires? Well, because it means that they can relax, after the period has expired, in the knowledge that they are now very unlikely to have to face any legal proceedings (note I say very unlikely, because a court may agree to extend the period in certain circumstances). It is also important that the tenant is aware that legal issues that they have had do not expire with the lease, and they can be pursued for some time into the future (longer, in many cases, than they may have thought)(3).

Note that the party wishing to rely on the limitation period has the burden of proving that the action cannot be commenced because the applicable limitation period has expired (Limitation Act s 79 (1)). Not only that, but "If [a] party chooses to rely on it as a Defence it must be raised as an issue between the parties. In a court of pleading it must be specially [sic – specifically?] pleaded." (Heeren v Residential Tenancy Tribunal and Anor [1999] NSWSC 870 at [13]). Failure to raise it as an issue will mean the defendant will lose her right to use it as a defence. This is a consequence of the rule that, subject to very few exceptions, the limitation period "bars the remedy and not the right".(4)). Order 20, Rule 9 of the Rules of the Supreme Court 1971 (WA) also requires that "any relevant statute of limitation […] which makes any claim […] not maintainable" must be specifically pleaded.

If a party does not know of the existence of the limitation period that runs against her (and the obligation to specifically plead it), she may be forced to unnecessarily defend a claim which she could have defeated simply by pleading the limitation period.

What is a cause of action?

We need to know this, because the majority of the limitation periods in the Limitation Act start to run from when the cause of action came into existence (“accrued”, to use the language of the Limitation Act).

A cause of action consists of all the facts which give rise to a claim, and it does not accrue until the last of them has come into existence. Put another way, it consists of all the elements that the plaintiff must prove in order to win her case.

Example: A tiler negligently disposes of broken tiles, grout and other detritus down a tenant’s toilet, which later causes flooding, which damages the tenant’s property. The cause of action accrues when the damage is done to his property as a result of the negligent act (note that the date of the negligent act and the consequent damage may not coincide – this particular cause of action (negligence) is only complete when the damage is done, so that is the date from which the period runs).

Example: a tenant misses a rent payment. The cause of action accrues on the date that the rent was due to be paid. Note it does not matter whether rent is payable in advance, the cause of action accrues when it was due, as the lessor was entitled under the contract to be paid then.

A few examples of periods under the RTA and Residential Tenancies Regulations 1989 ("RT Regs") (not exhaustive by any means,(5)and in no particular order as to importance, interest or anything else)

• Section 32 – Limitation of excessive rents in certain circumstances – 32(2) An application under subsection (1) must be made not more than 30 days, or any greater period as the court sees fit having regard to the justice or merits of the case, after [… etc.]
• Section 27C (2) A tenant given copies of a report under subsection (1)(b) who disagrees with any information in the report must, within 7 days of receiving the copies [ … etc.]
• Regulation 15(1) – 6 months from the termination of the tenancy to apply for the disposal of the bond; followed by a series of subsequent periods – 60 days before it is paid into the Unclaimed Security Bond Account, then 6 years before it is paid into the Consolidated Revenue Fund.
• Schedule 1, Clause 8(3) – 7 days to respond to an application to the court to dispose of the bond.
• Section 62(5)(a) rent arrears may be paid in full before the vacant possession day specified in the notice.

Some tenancy-related examples of common Limitation Periods under the Limitation Act

• Rent arrears fall under the general limitation period of 6 years (s 13). Time starts running from the date that the unpaid rent was due under the tenancy agreement. E.g. if a rental payment rent due on 13 October 2014 was not paid, the owner has 6 years from that date in which to commence legal proceedings. Each and every missed payment gives rise to a separate cause of action with its own limitation period.
• Negligent or intentional damage to the premises – 6 years from the date that the damage was caused.
• Failure to leave the premises as closely as possible in the same condition at the end of the tenancy as they were in at the start, fair wear and tear excepted(6) – 6 years from the date that the tenant vacated the premises at the end of the tenancy.
• Injury to the tenant caused by the owner’s negligent failure to maintain the premises – 3 years from the date of the injury (note this is under s 14, and an application to extend personal injury limitation periods may be made under s 39) BUT note that it may only run from when the injured party became aware of the cause of the injury, or became aware that it was due to the other party’s negligence, or became aware of the identity of the person liable.
• Note there are many different limitation periods under the Limitation Act, and although the majority of claims in negligence or contract will fall under the general limitation period of 6 years, we should not assume that a 6 year period applies in every case. Some examples of other periods:

• personal injuries or fatal accidents – 3 years
• actions founded on a deed – 12 years
• contribution between joint tortfeasors – 2 years from the date of judgment

Limitations dates with respect to enforcement:

• Limitation on enforcing a judgment is 12 years (s 12 Civil Judgments Enforcement Act 2004). Leave of the court is required after 6 years.

Express exceptions from the Limitation Act in the RTA

• Section 71 applications (see 71(6))
• Section 72 applications (see 72(5))

Note that each of these sections applies its own time limit (30 days), which would override the Limitation Act anyway by virtue of s.9 of the Limitation Act.

Limitation Periods under other Acts (that may be relevant)

• Equal Opportunity Act 1984 (WA) s 83(4)

12 months after the matter giving rise to the complaint occurred.

• Criminal Injuries Compensation Act 2003 (WA) s 9(1)

3 years after the date of the injury.

• Fair Trading Act 2010 (WA)

An action for damages for misleading or deceptive conduct (which, for example, induced a tenant into executing a lease) – 6 years (from the date of execution of the lease) (Australian Consumer Law (WA) text, s 236(2)).

Other issues to be aware of

• Different limitation periods apply to persons under 18, and persons with a mental disability – See the Limitation Act.
• Where the person has a mental disability, and no guardian, then time is suspended for the time they are without a guardian, up to 12 years.
• The court may extend time to commence actions in cases of fraud or improper conduct (s.38 Limitation Act).

Legislation

Interpretation Act 1984 (WA) (Part 8 relating to time)

Limitation Act 2005 (WA)

Residential Tenancies Act 1987 (WA)

Residential Tenancies Regulations 1989 (WA)

Useful Cases

Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162

Re Monger; Ex Parte Atanasoska [2003] WASC 113

Laurent v Commissioner of Police [2010] WASCA 153

Moon v JLG Industries (Australia) [2011] FMCA 343

Note also, the views of the leading text on Limitation Periods, Limitation of Actions (third edition), Peter Handford, at p.89:

[5.10.470] In calculating the limitation periods provided by the Limitation Acts, the day on which the cause of action arose is excluded from the calculation, but the day on which proceedings are commenced is included. Thus, if an accident occurred on 1 January 2011, time begins to run on 2 January 2011. Assuming the limitation period to be three years, it expires on 1 January 2014. If proceedings were commenced on that date, the action would be within time. If the court offices are closed on the last day of the limitation period, the period extends to the next day on which the court offices are open.

Textbook Handford, Peter, Limitation of Actions (Thomson Reuters, 3^rd ed, 2012

9.2 Boarders and lodgers

The Department of Mines, Industry Regulation and Safety has flagged an intention to reform boarder and lodger laws in Western Australia and this issue will be considered as part of the statutory review of the Residential Tenancies Act in 2019. This reform is yet to take effect, and is beyond the scope of this publication. This chapter will deal with the law on boarders and lodgers as it currently stands in WA, rather than providing recommendations for reform.

Overview of boarding and lodging sector

Boarding houses were traditionally established as affordable short-to-medium-term accommodation for single men, workers and visitors, with meals and services usually provided. Over time, boarding houses have transitioned to accommodate people who may not be able to access private rentals: particularly new migrants, students, the elderly and people who require support services. Many of these occupants are people facing disadvantage, due to factors such as low income levels, disability, mental health issues, domestic violence, drug addiction and a history of homelessness.

The WA boarding sector is quite diverse, including:

• registered boarding houses run by private developers;
• supported boarding houses run by community housing providers;
• unregistered (illegal) boarding houses, often in poorly retrofitted suburban homes;
• boarders living in privately-owned houses;
• student housing complexes; and
• other forms of accommodation (such as crisis and transitional accommodation) blurring the lines between tenancy and boarding houses.

Regulation of boarders and lodgers in Western Australia

The Health (Miscellaneous Provisions) Act 1911 (WA) and related local laws regulate the public health aspect of boarding houses in WA. However, the language is dated, and many of the provisions dealing with boarding houses are in the same terms as the original Act as passed in 1911. Construction of boarding houses is regulated through the Building Code of Australia.

WA is the only jurisdiction in Australia that does not regulate the rights and responsibilities of boarders and providers. The Residential Tenancies Act 1987 (WA) (RTA) specifically excludes boarders and lodgers, and parties are required to rely on common law principles instead.(7)

The rights and responsibilities of boarders/lodgers are set out in the boarding agreement between the boarder/lodger and the lessor. The agreement may be written or verbal. It will usually be a legally enforceable contract. It is much easier for the parties to protect their rights if there is a written boarding agreement.

Distinguishing between a boarder and a lodger

The terms ‘boarder’ and ‘lodger’ are generally used interchangeably. According to Anforth, Christensen and Bentwood, the distinction is ‘largely historical and it is rarely important to distinguish between the two in the present time.’(8) For clarity’s sake, Mayo J in Noblett and Mansfield v Manley(9) sets out the distinction between boarders and lodgers as follows:

…the primary and usual meaning of "lodger" is one who resides as an inmate in another person's house, paying a certain sum periodically for the accommodation, or one who occupies an hired room in another person's house. A boarder is one who has his food, or food and lodging, at the house of another for compensation; one who lives in a boarding house or with a family as one of its members, at a fixed rate; one who has food at another's table, or meals and lodgings in his house, for pay, or compensation of any kind. In ordinary circumstances with both lodger and boarder, legal possession remains in the person who provides room or rooms, or meals. He retains possession and control over rooms and means of ingress and egress but grants licence to guests who pay, or give consideration for the privilege.

In other words, the historical position is that boarders are provided with domestic services, while lodgers provide for themselves.(10) In this publication, however, the terms are used interchangeably.

Distinguishing between a tenant and a boarder/lodger

In some cases, it may be unclear whether a person is a tenant, (a sub-tenant or co-tenant) or a boarder/lodger. Some accommodation may even house both boarders and tenants (such as some community housing organisations). This is an important distinction because a tenant is covered by the RT Act, while a boarder/lodger is not.

The starting point at common law is that a tenancy agreement is a lease, while a boarder lodger agreement is a licence to occupy. A 'lease' is a right to exclusive possession of land, while a 'licence' does not give a right to exclusive possession.(11) In other words, a ‘lease’ is an interest in land, while a ‘licence’ is right to be on land.(12)

Hasluck J in Commissioner for Fair Trading v Voulon & Ors notes that an ‘occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises…a lodger is entitled to live in the premises but cannot call the place his own.’(13) On the other hand, a tenant is entitled to exclusive possession - however, this test is not determinative.(14)

Factors taken into account include the terms of the agreement itself, as well as the individual living arrangements. It is important to remember that the relationship ‘is determined by the law and not by the label they [the parties] chose to put upon it’.(15) This means that while provision of a Form1AA may point towards a residential tenancy agreement it is not determinative. Similarly, use of the word ‘boarder’ or ‘lodger’ throughout the agreement does not necessarily indicate a boarding/lodging agreement.(16)

Factors that may indicate a boarder/lodger agreement include:

• the lessor or representative lives on site;
• the renting of a room (rather than the entire premises);
• the resident does not have exclusive possession of any part of the premises (eg the lessor can enter the resident’s room as they please, no lock on the resident’s room);
• the lessor provides attendance or services (eg meals, cleaning, linen and utilities);
• shared common facilities (eg communal living room, bathroom, kitchen or laundry);
• there are house rules (eg whether visitors are permitted , or the time residents need to arrive home);(17)
• the length of time the resident is entitled to stay in the premises is usually short term;
• the resident is told they are only required to provide reasonable notice to end the agreement.

Each matter will be determined on its own facts.

Jurisdiction to hear disputes

Boarders are required to make an application in the Magistrates Court under the minor or general case procedure. This is more expensive than the residential tenancies stream, which are also heard in the Magistrates Court. For further discussion of court procedure see 5.1.1 (Court action).

Some boarders and providers mistakenly file residential tenancy applications for disputes, which may then be dismissed by the Court. However, the Court has not always dismissed boarding disputes filed in the tenancy list. Given that both the residential tenancies list and most boarding disputes would be in the minor cases stream at the Magistrates Court , where the objectives include assisting the parties to reach a settlement(18), and matters are to be conducted with as little formality as the Court thinks fit(19), there is a strong argument that the Court should allow a party to amend the application, or to proceed with an application in the alternative, if it is necessary for the Court to determine whether the agreement is a boarder agreement or a residential tenancies agreement.

Terminating boarder/lodger agreements

The notice required to terminate a boarder/lodger agreement may be set out in the agreement, and this is the first place to look.

Grounds for termination could be a breach of house rules, interference with other residents, or grounds similar to those for residential tenants – rent arrears, property damage, breach of quiet enjoyment, nuisance and illegal use of the premises, or ‘no grounds’ termination.

The common law position in WA is that ‘reasonable notice’ is required to terminate a periodic boarder/lodger agreement (unless otherwise agreed in the boarding agreement(20)). Whether notice is ‘reasonable’ will vary between cases and is ultimately up to a Magistrate to decide. Even where a boarder/lodger agreement provides that the landlord may end the agreement with immediate effect (i.e. 'at will') upon giving notice, a reasonable time must be given to the boarder/lodger in which to quit.(21) It is sometimes said that the general rule is that where no notice period is specified in the agreement, 'reasonable notice' will be the same as the period for which the occupancy fee is paid.(22) So if the boarder/lodger pays weekly, they should be given 1 weeks’ notice to terminate the agreement; if they pay fortnightly,they should have a fortnight's notice, and so on.

If the boarder/lodger is not provided with reasonable notice, they may be able to argue that the eviction is wrongful, and may be entitled to compensation as a result (eg costs of finding alternative living arrangements, subject to a duty to mitigate).

Most other states in Australia have legislation to regulate boarding agreements and provide for minimum notice periods in different circumstances. Most provide shorter notice periods for a boarder to leave than a provider to terminate the boarding agreement.

Limitation period: where claiming a breach of contract (eg breach of house rules, or being evicted without reasonable notice), the party experiencing loss can make a claim for compensation within 6 years from the point of the breach.

Abandoned goods in boarder/lodger situation

As the RT Act does not apply to boarders and lodgers, the common law principles will need to be relied on rather than the abandoned goods provisions under s 79.

At common law, a lessor who deals with items as they see fit could be liable under the tort of conversion to the owner of the items. The lessor could also be liable for the closely related tort of detinue.(23) For further (albeit brief) discussion of conversion, see 4.10.2 (Abandoned goods and documents).

A boarder/lodger who is having difficulty getting their belongings back after termination can contact their local service unit for advice on a civil claim against the lessor.

Security bond

If a bond is paid in a boarding agreement, there is no requirement to lodge the bond with the Bond Administrator. Unlike in a residential tenancy agreement, where if a security bond is paid, the lessor required to provide a bond receipt to the tenant and lodge the bond with the Bond Administrator.(24)

If a bond is paid in a boarding agreement, and the parties cannot reach an agreement as to its disposal, either party can apply to the Magistrates Court for the amount.

Limitation period: each party to the agreement has 6 years to commence proceedings for compensation of money owed under the agreement, or 6 years from a reasonable time after the resident vacates the premises.

Rent increase

A notice of rent increase is not required to be given to a boarder/lodger, whereas a lessor is required to provide a tenant with 60 days’ notice to increase rent.(25) Rent increases could be addressed in the boarding agreement, or if it is a periodic boarding agreement (week to week or month to month) then the boarding provider can simply propose a new rent, and terminate if the boarder doesn’t agree.

Property standards

The Health (Miscellaneous Provisions) Act 1911 (WA) (Health Act) sets out minimum obligations and standards for providers of lodging houses. It requires registration, inspection and compliance with health and safety standards (including the supply of water, cleaning of walls and notification of infectious diseases).(26) The Health Act also requires compliance with local by-laws, including generally for the good conduct of lodging houses, enforcing the destruction of vermin, cleansing, painting, disinfecting, construction of fire escape facilities, proper and sufficient bathrooms, ventilation, and removing unsuitable beds/bedding.(27) Compliance notices can be issued for a breach, and providers convicted of a third or subsequent offence may be prevented from operating a lodging house for 5 years.(28) Lodging houses covered by this law are registered with the local council.

Further, the Health Act has limited application to ‘lodging houses’, namely ‘any building or structure, permanent or otherwise, and any part thereof, in which provision is made for lodging or boarding more than 6 persons, exclusive of the family of the keeper thereof, for hire or reward’.(29) This does not include: ‘

(a) premises licensed under a publican’s general licence, limited hotel licence, or wayside-house licence, granted under the Licensing Act 1911; or

(b) residential accommodation for students in a non-government school within the meaning of the School Education Act 1999 ; or

(c) any building comprising residential flats’.(30)

Also excluded are boarders living in privately-owned premises, boarding houses that do not provide for more than 6 persons. Many unlawful boarding houses operate without registration, though it is difficult to obtain reliable data.

Duty to mitigate in boarder/lodger arrangements

Under s 78 the RT Act, the lessor has a duty to mitigate if the tenant abandons the premises. If however a boarder/lodger simply leaves the premises and stops paying rent, the provider will have no duty to mitigate unless and until they accept the repudiation of the boarder/lodger. If they refuse to accept the repudiation, they can simply sue for the rent as it becomes due under the contract.(31)

To do this, the provider will continue to carry out their obligations under the contract. If they were to retake possession of the boarder’s room, for example by renting it to someone else, then that would constitute acceptance of the repudiation by conduct (note the conduct has to be unequivocal) and the agreement would terminate.

The provider would still be entitled to sue for any rent accrued to the date of termination. If they were to accept the repudiation in another manner, and attempt to relet it, then they would be subject to the common law duty to mitigate loss.

9.3 Calculating time periods

Introduction

There are about 70 time limits set out in the Residential Tenancies Act 1987 (WA) and Residential Tenancies Regulations 1989 (WA). In addition to those time limits, there are also time limits for commencing legal proceedings under the Limitation Act 2005 (WA) and the Limitation Act 1935 (WA).(32) It is very important that time limits are observed; failure to do so may result in the associated application being dismissed, regardless of its merits. This is particularly important in relation to notices of termination. Wherever possible, a tenant or lessor should err on the side of caution in observing time limits. As we will see below, calculating exactly when a time limit expires is not always straightforward.

Although the court may extend or shorten time periods (Residential Tenancies Act 1987 (WA) 20(f)), it is not known to what extent this power is used. It is notable that there is no explicit provision in the Residential Tenancies Act 1987 (WA) for the court to waive defects in notices or their service(33). Notwithstanding that, the court has the power under s 84 to "order that a provision of [the] Act shall not apply to or in relation to any residential tenancy agreement […] or shall apply in a modified manner specified in the order and the order shall have effect accordingly". It might be that this section could be used, for example, to obtain an order that the requirement that a tenant give at least 30 days' notice to end a fixed term tenancy (s 70 A) be modified so that it required less notice, in circumstances where the tenant had inadvertently given less than 30 days' notice.

In this section, we will set out the general rules for calculating time limits and periods, rather than attempting to cover each and every possible time limit.

9.3.1 Interpretation Act 1984 (WA)

The Interpretation Act 1984 (WA) applies to all the time limits in the Residential Tenancies Act 1987 and the RT Regulations.

Where the period is measured in months

• The period is calculated by adding the relevant number of calendar months, less one day (Interpretation Act s 62)
• But where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period (Interpretation Act s 61(1)(b))
• Almost all(34) of the time limits expressed in months in the Residential Tenancies Act 1987 (WA) and Residential Tenancies Regulations 1989 (WA) are affected by s 61(b), because they use the word "after".
• The application of the rules in the Interpretation Act leads to the expiry date being simply the corresponding date the relevant number of months later

• • Examples – One month after 23 January – the last day is 23 February. -2 months after 1 March – the last day is 1 May.

• What if there is no corresponding date? In this case we use the last day of the relevant month (Interpretation Act s 62(2) and (3))

• • Examples – One month after 30 January(35) – the last day is 28 February (or 29 February in a leap year). 6 months after 30 August – the last day is 28 February (or 29 February in a leap year).

• An example using a rent increase.

• Under s 30(1)(b), a rent increase can only take effect "not less than 6 months after the day on which the tenancy commenced or the day on which the rent was last increased". If a tenancy commenced on 20 January, the six month period would expire on 20 July. That is, the last day on which the rent cannot increase is 20 July, and the first day on which it can increase is 21 July.

Where the period is measured in days (as most time limits are under the Residential Tenancies Act 1987 (WA))

• Where the time limit is expressed to be reckoned from, or after, a specified day, Interpretation Act s 61(1)(b) is engaged. This is the case unless the expression also contains a reference to a number of clear days or uses "at least" or "not less than", in which case a different rule applies. (36)

The method here is to add the number of days to the day on which the period starts. Time runs out at the end of that day.

Example – A court makes an order for termination in the absence of the tenant on 2 November. S 17 Residential Tenancies Act 1987 (WA) provides that an application under that section to vary or set aside an order must be made within 14 days after the order was made. Applying s 61(1)(b) of the Interpretation Act, 2 November is not counted in calculating the 14 day period. Therefore, the last day on which the tenant can apply under Residential Tenancies Act 1987 (WA) s 17 to set aside the order is 16 November.

• Where the section creating the time limit refers to a number of clear days, or "at least" or "not less than" a number of days between two events, in calculating that number of days both the days on which the events happen shall be excluded (Interpretation Act s 61(f)). This rule affects the majority of time limits in the Residential Tenancies Act 1987 (WA) , which typically contain the phrase "not less than".

• • Example 1: A tenant's 21 day notice period to end a periodic tenancy.
    • Residential Tenancies Act 1987 (WA) s 68(2) – "Where a tenant gives notice of termination […] the period of notice must be not less than 21 days before the termination day."
    • S 61(f) comes into effect because s 68(2) refers to "not less than" a number of days (being 21) between 2 events.
      • The first event is the tenant giving the notice of termination
      • The second event is the "termination day"(37)
    • If the tenant hands the notice of termination to the lessor on 1 October, then 21 days starts running from the next day (due to Interpretation Act s 61(f)), and the 21st day from 2 October is 22 October.
    • BUT we also exclude the day of the second event (again due to s 61(f)), so we must add one more day, which means the earliest termination day for notice given on 1 October is 23 October.(38)

• It may be easiest to think of this in terms of "clear days", on the calendar. E.g. 21 clear days between 1 October and 23 October:

						1
2	3	4	5	6	7	8
9	10	11	12	13	14	15
16	17	18	19	20	21	22
23	24	25	26	27	28	29
30	31

• The calculation method here is to add the number of days, plus 1. E.g. 1st + 21 +1 = 23rd. Alternatively, count the number of clear days between the two dates.

If the last day is a holiday or weekend, the last day is moved forward to the first day that is not, this applies to all of the above (Interpretation Act ss 61(1)(e) and 61(1)(h))

Sections 61(1)(e), 61(1)(h) and 61(2) potentially affect the calculation of time periods, sometimes significantly.

The sections provide as follows:

61. Time, computation of

(1) In computing time for the purposes of a written law –

[…]

(e) where the time limited for the doing of a thing expires of falls upon an excluded day, the thing may be done on the next day that is not an excluded day;

[…]

(h) where an act or proceeding is directed or allowed to be done or taken on a certain day, or on or before a certain day, then, if that day is an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day that is not an excluded day.

[…]

(2) For the purposes of this section, excluded day means Saturday, Sunday, public service holiday, and a bank holiday or public holiday throughout the State or in that part of the State which is relevant to the event, act, thing or proceeding concerned.

Example: A lessor gives a no grounds notice of termination to a tenant under Residential Tenancies Act 1987 (WA) s 64, by handing it to him, on Monday 13 February 2017. Under s 64 of the Residential Tenancies Act 1987 (WA) , "the period of notice must be not less than 60 days before the day on which the tenant is required under the notice to give to the lessor possession of the premises." The notice requires the tenant to vacate the premises on Thursday 13 April 2017. Has the lessor given the tenant not less than 60 days' notice?

Interpretation Act s 61(f) applies, because Residential Tenancies Act 1987 (WA) s 64 refers to "not less than" a number of days between two events. One event occurred when the lessor handed the notice to the tenant, on 13 February. The other event is the day on the notice on which the lessor requires vacant possession, which is 13 April. Applying s 61(f), we exclude 13 February, and start counting 60 days from 14 February. 60 days from 14 February is Saturday 15 April. Applying s 61(f) we also exclude 15 April, so the earliest possession date would be 16 April, BUT 16 April is Sunday, an excluded day, as is the next day, being the public holiday Easter Monday. So the earliest possession date, for a notice served on the tenant on 13 February 2017 would be Tuesday 18 April 2017.

It should be noted that the excluded day provisions do not have the effect of excluding all the holidays that fall within the time period. The provisions are only activated if the period ends on an excluded day. So, if the 60 day period in our example did not end on a weekend or a public holiday, no extra days would be added for the Easter holidays, even if they otherwise fell within it.(39)

It should also be noted that the excluded day provisions of the Interpretation Act cannot be used, by the person giving a notice which does not allow enough time, to remedy that defect. For example, if a lessor is required under the Residential Tenancies Act 1987 (WA) to give at least 7 days' notice to a tenant to give vacant possession for a breach, and only gives 6, but the 6th day is a Sunday, the lessor cannot argue that, because s 61(e) of the Interpretation Act permits the tenant to give vacant possession on the next day anyway, the notice is nevertheless valid.(40)

9.3.2 "Ordinary Course of Post"

Residential Tenancies Act 1987 (WA) s 85 (1)(b) provides that documents or notices may be served by post:

85. Service

(1) Any notice or document required or authorised to be given under this Act to any person may —

(a) […]

(b) be sent by post addressed to that person at any place specified by the person as a place where the person’s mail may be directed or, if the person has not so specified, at the person’s last known place of residence, employment or business; or

(c) […]

(2) If a letter is sent in accordance with subsection (1)(b) the giving of the notice or document so sent is deemed to be effected at the time when the letter would have been delivered in the ordinary course of post.

Subsection (2) deems service to be have been effected at the time when the letter would have been delivered in the "ordinary course of post". It is important to note here that the deeming provision is apparently not rebuttable.(41) If that is the case then 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".

"The ordinary course of post" must also be taken into account in calculating how many days' notice to give." How many days to allow for the "ordinary course of the post" depends on the following:

1. whether the notice is sent within metropolitan areas or not;
2. whether it is sent interstate; and
3. whether it is sent by Priority Post or Regular Post.

As of 12/01/2018 they vary between one and seven working days.

In general, sending a notice by "Regular Post" within WA, means allowing three working days(42) (for metropolitan areas) or four working days (country). The notice must be posted before the latest time for posting, for the mail to be considered to have been posted on that day.(43)

For example, if a tenant wants to give 21 days' notice to terminate a periodic tenancy, and posts the notice, by Regular Post, in the metro area (to the lessor's address in the metro area), before the latest time for posting, on Friday 1 June 2018, the notice would not arrive "in the ordinary course of the post" until Thursday 7 June 2018 (as Monday 4 June was a public holiday in 2018), and therefore you should allow until at least Thursday 28 June to give 21 days' notice by post.

If the notice of termination was being sent from another state, the tenant would have to allow six working days for "the ordinary course of the post", using "Regular Post", in calculating how much notice to give.

9.4 Misleading or deceptive conduct

Introduction

Misleading or deceptive conduct is a statutory cause of action under s 18(1) of the Australian Consumer Law (WA) (ACL).The ACL is a schedule to the Fair Trading Act 2010 (WA), and is administered by Consumer Protection – Department of Mines, Industry Regulation and Safety.

9.4.1 Elements of Misleading or Deceptive Conduct

Under s 18(1) ‘[a] person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’.

A ‘person’ includes both individuals and corporations.(44)

‘Trade or commerce’ includes any business or professional activity (whether or not carried on for profit).(45) It has been held in a number of interstate residential tenancy decisions that renting residential premises is something which is done in trade or commerce.(46)

The ACL states that Engaging in conduct is "doing or refusing to do any act, including:

(i) the making of, or the giving effect to a provision of, a contract or arrangement; or

(ii) the arriving at, or the giving effect to a provision of, an understanding; or

(iii) the requiring of the giving of, or the giving of, a covenant"(47)

Silence or non-disclosure can constitute misleading or deceptive conduct where the circumstances give rise to a reasonable expectation that a relevant fact would be disclosed.(48)

Conduct is misleading if it could lead into or cause error.(49) An error occurs when a person is led to believe things that are not true or correct.(50) The test is objective.(51) The question is whether the conduct has a tendency to mislead or deceive.(52) Conduct is likely to mislead if at the time the conduct occurred there is a real or not remote chance or possibility of it being misleading or deceptive.(53)

It is necessary to prove reliance on the misleading or deceptive conduct(54), and that the loss and damage was caused by the misleading or deceptive conduct.(55)

9.4.2 Remedies

A person is entitled to claim damages under ACL s 236 if they prove that they have suffered loss or damage as a result of a breach of s 18.

Under ACL s 237, a person who has suffered, or is likely to suffer, loss or damage because of a breach of s 18, may apply for compensation orders. The court may make "such orders as it considers appropriate against the person who engaged in the [misleading or deceptive] conduct or a person involved in the conduct".(56)

Under ACL s 243, the Court can also grant any other order it thinks fit to prevent loss being suffered as a result of a person engaging in misleading or deceptive conduct (including a declaration that an agreement or contract is void or is to be varied, or for money to be refunded).

Limitation Period

An action for damages or compensation must be commenced within 6 years after the day on which the cause of action accrued, specifically, from when the actual loss or damage is sustained.(57)

9.5 Misrepresentation

Introduction

Misrepresentation occurs where one person makes a false statement of fact to another person and the other person is induced by that false representation to enter into a contract.

There are 3 types of misrepresentation – fraudulent, negligent and innocent.

Misrepresentation is not covered by the RT Act. In WA, tenants wanting to bring an action for misrepresentation need to rely on the common law cause of action. In some other jurisdictions, the RT legislation has been amended so that misrepresentation is covered, to varying extents.

For example, the RT Act 2010 (NSW) provides for a penalty of up to 20 penalty units (currently equal to $2200) for inducing a tenant to enter into a residential tenancy agreement by "any statement, representation or promise that the landlord or agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations."(58) The regulations prescribe the following:

(a) the premises have been subject to flooding or bush fire in the last 5 years,

(b) the premises are subject to significant health or safety risks that are not apparent to a reasonable person on inspection,

(c) the residential premises are listed on the Loose Fill Asbestos Insulation Register,

(d) council waste services will be provided to the tenant on a different basis than is generally applicable to residential premises within the area of the council,

(e) that because of zoning or other land development laws, the tenant will not be able to obtain a residential parking permit (in an area where only paid parking is provided),

(f) the existence of a shared driveway or walkway on the premises(59)

A landlord or agent must also disclose, before the tenant enters into the residential tenancy agreement:

(a) any proposal to sell the premises, if the landlord has prepared a contract for sale,

(b) that a mortgagee is taking action for possession of the residential premises, if the mortgagee has commenced recovery proceedings in a court(60)

Note that the above penalty provisions do not cover circumstances where the misleading conduct has been engaged in, or the misrepresentation has been made, unknowingly. There is also no remedy provided for the tenant. There is the possibility of a fine for the lessor or agent, but there is no right of rescission given to the tenant who is induced by a misrepresentation to enter into a residential tenancy agreement.

The RT Act 1997 (Vic) similarly provides for a penalty for a "false and fraudulent misrepresentation" as to:

(a) a provision of the RT Act;

(b) a term included or to be included in the tenancy agreement;

(c) a matter affecting a person's rights or duties under the RT Act or a tenancy agreement or proposed tenancy agreement.(61)

The penalty under the Victorian RT Act is significantly higher than that in NSW.(62)

The RT Act 1997 (ACT) permits the Tribunal to terminate an agreement induced by a lessor’s false or misleading statement.(63) Note that, unlike the NSW and Victorian equivalents, this section's application is not limited to false or misleading statements which are made knowingly or fraudulently. It provides for termination for an agreement induced by a false or misleading statement, but does not, on the face of it, allow for rescission ab initio.

At common law a lease cannot be rescinded for innocent misrepresentation once it has been entered into.(64) Not only that, but in WA, the Magistrates Court has no power to order rescission, and a tenant (or lessor) seeking to rescind a residential tenancy agreement has to bring proceedings in the District Court or Supreme Court.

9.5.1 Elements of Misrepresentation

Misrepresentation is:

1. a false statement of a present or past fact;
2. made by one person to another person;
3. in order to induce the person to enter into a contract; and
4. which has this effect.

In the residential tenancies context, misrepresentations may be made by a lessor or real estate agent to induce a tenant to enter into a residential tenancy agreement or vice versa.

False statement of material fact.

"An actionable misrepresentation is traditionally supposed to be one of fact, to be contrasted with statements of law, intention and opinion. However, this principle is so honoured in the breach that it is scarcely correct to state it. The courts have, through various ingenious arguments, managed to attach remedies to statements which do not merely convey factual information."(65) It is beyond the scope of our discussion here to explore in depth the many exceptions to the general rule that misrepresentation can only be of a statement of fact.(66) However we will deal briefly with some of the more common.

Statement of intention

Suppose a lessor, in showing premises to a prospective tenant, makes a statement that he intends to fix a broken dishwasher supplied with the premises before the tenant moves in. The tenant may be induced by that statement to sign the lease and move in to the premises, only to discover that the dishwasher has not been repaired. Because the representation is a statement of intention, not a statement of a present or past fact, it cannot amount to a misrepresentation. However, if the lessor knew, at the time that he made the statement, that it was false,(67) the statement would be a misrepresentation. The reason is that, "to tell a lie is to misrepresent an existing fact, namely, the state of one's mind."(68)

Statement of opinion

"[I]f it can be proved that the speaker did not hold the opinion or that a reasonable person possessing the speaker's knowledge could not honestly have held it, or that the speaker alone was in a position to know the facts upon which the erroneous opinion must have been based, there is a misrepresentation of fact for which a remedy lies."(69)

For example, if a private lessor represents to a prospective tenant that the rent being asked is "very reasonable", that may well be just his opinion in the sense that it is a statement of his belief or judgment. On the other hand, if the same statement was made by a real estate agent, in the knowledge that it is in fact significantly higher than the average rent for similar premises in the same area(70), then there may be a misrepresentation of fact.

Statement of law

It has been argued that it is no longer the case that there can be no action for misrepresentation where the representation involves a statement of law.(71) In any event, a fraudulent statement of law has long been held to give rise to an action in misrepresentation.(72)

Puffs

A puff is a "flamboyant statement about the quality of the subject matter of the contract which would not be understood to be literally true".(73) Some examples of statements that are likely to be puffs:

(a) "Stunning [bathroom, kitchen, walk-in wardrobe, views, glimpses etc.]"

(b) "Opportunity of a lifetime"

(c) "Exclusive executive residence in a prime location"

(d) "The most desirable location in Perth"

(e) "You will live like a king in this slice of paradise for only $280 a week!"

As can be seen from the above examples, puffery is common in professional real estate advertising. Indeed, it is probably impossible to find an advertisement for real estate (through an agency) that does not include a puff. Puffs are generally not capable of giving rise to an action in misrepresentation.

Misrepresentation by silence

Silence by itself is not usually enough, however, in some cases, silence may create a false impression leading to a misrepresentation.(74)

Misrepresentation by a half-truth

"A party negotiating a contract may be legally justified in remaining silent about some material fact, but if he or she ventures to make a representation upon some matter it must be a full and frank statement, and not such a partial and fragmentary account that what is withheld makes what is said false or misleading. A half-truth, though literally true, may in fact be false because of what it leaves unsaid."(75)

For example, an apartment is advertised with two car bays. However the advertisement does not mention that one of them is only available after 5 p.m. and on weekends because the strata rules provide that it is for the use of commercial tenants during working hours. The statement that the unit has two car bays is literally true. But it is a misrepresentation by what it leaves out – i.e. that only one of the car bays is actually for the sole use of the tenant, and the other bay is only useable after 5 p.m. and on weekends. Another example: a lessor represents that the property comes with a bore, but fails to disclose that the bore has been inoperative for years.

9.5.2 Types of Misrepresentation (3 types)

Fraudulent Misrepresentation. Occurs where a false representation is made knowingly; or without belief in its truth; or recklessly, careless whether it be true or false.(76) Example: a lessor represents that premises are in a "low crime area", when he knows that his last tenants left after being repeatedly burgled.

A disclaimer of responsibility by the person making the representation does not preclude a fraudulent misrepresentation.(77)

Negligent Misrepresentation. Occurs where a statement is made carelessly, in circumstances where the person making the statement owes a duty, to the person to whom the statement is being made, to take reasonable care that the statement is true and reliable. Such a duty will arise:

whenever a person gives information or advice to another upon a serious matter, [in] circumstances [where] the speaker realises or ought to realise, that he is being trusted to give the best of his information or advice as a basis for action on the part of the other party and it is reasonable in the circumstances for the other party to act on that information [or] advice.(78)

It is suggested that, in most circumstances where a lessor or real estate agent makes a statement to a prospective tenant, the duty will arise. Example: a tenant in a fixed term agreement saw another apartment in the same complex was for rent. He went to view it, and in discussions with the agent mentioned that he would like to rent it, but could not because he was subject to an existing fixed term agreement. The agent told him that was no problem, because his old agreement would terminate automatically when he signed the new agreement, and he would not be in a break lease situation. The tenant left his old apartment and moved into the new one. His old lessor sought compensation from him for breaking his agreement.

Innocent Misrepresentation. Occurs when a statement that is neither fraudulent nor negligent induces the tenant to enter into the agreement.(79) For example, an apartment is advertised as having a "carport". Although most of the apartments in the development do have covered parking bays, not all of them do. In this case the apartment's allotted car parking bay has no cover. The agent does not realise this.(80)

9.5.3 Remedies

Rescission and damages are available for fraudulent and negligent misrepresentation. Innocent misrepresentation is limited to rescission.

Rescission discharges the parties from all contractual obligations and would preclude the landlord from claiming break lease costs. Rescission ab initio treats the parties as if the agreement never existed, and they may be entitled to restitution (to be put back in the position they were in prior to entering into the contract).

Jurisdiction

Misrepresentation or Misleading or Deceptive Conduct

Where only damages are claimed, a claim involving a sum of not more than $75,000 may be brought and dealt with in the Magistrates Court.(81) Where rescission is sought (whether or not damages are also claimed), the claim must be brought in the District Court or the Supreme Court.(82)

Limitation Period

The tenant has 6 years to commence court proceedings, running from the date the tenant entered into the agreement in reliance on the misrepresentation.(83)

9.5.4 Some differences between Misleading or Deceptive Conduct and Misrepresentation

Section 18 imposes no fault liability, so the conduct does not have to be fraudulent or intentional to establish liability. This means that damages could be ordered under the ACL for an innocent misrepresentation that constitutes misleading or deceptive conduct, which would not be available under the common law.

Section 18 does not require proof that a statement is as to a matter of fact. A false statement as to a matter of opinion could be enough – however, case law suggests that the courts will look to ‘whether representations of fact were impliedly made by the giving of the opinion and whether any such representations of fact were false.’(84)

Another important difference is that exclusion clauses are not effective against a statutory claim for misleading or deceptive conduct, but generally are effective against a common law misrepresentation claim.

9.5.5 Responsibility of the Landlord or Agent for Misleading or Deceptive Conduct and Misrepresentation

The general rule is that a landlord will be responsible for conduct of the agent, however, ‘each case will depend on its facts and on the law relating to misrepresentation.’(85)

In Lewer v Smith(86) the representations were made by the agent with the implied authority of the landlord because the representations related to the core function of the managing agent to obtain a tenant for the property.

9.5.6 Difference between termination and rescission ab initio (as if it never existed)

The Residential Tenancies Acts across Australia prescribe the ways that a residential tenancy agreement can be terminated. In the case of Kasim v Bondfield & Ors [2015] QCAT 76 (13 March 2015) the Tribunal held that a residential tenancy agreement could not be terminated for misrepresentation as that was not one of the basis for termination of a tenancy in the Queensland Residential Tenancies Act.

This approach has not been followed in other cases, with other decisions taking the approach that rescission is a different concept to termination, as it is rescission ab initio, as if the tenancy agreement was never in effect. The Residential Tenancies Act doesn’t regulate the rescission of the agreement, only the termination of the agreement.

See the VCAT annotated Residential Tenancies Act(87) [216.03] – "Termination of a tenancy agreement is different from rescission of a tenancy agreement. A party to a tenancy agreement may be able to rescind it from the beginning, so that it as if it never existed. For example, if a tenant misrepresents facts to a landlord by supplying false references or giving an untruthful rental history, and the landlord enters into a tenancy agreement in reliance on the misrepresented facts but discovers the truth before the tenant is let into possession, the landlord may have a right to rescind the agreement. The limitations on the power to terminate referred to in paras [216.01] and [216.02] do not affect a right to rescind. If, in the example given, the landlord discovers the truth only after having let the tenant into possession, the power to rescind will probably have been lost and the landlord will only be able to rely upon any power to terminate that the RT Act confers."

9.5.7 Section 30 ACL – false or misleading representations about sale etc. of land

Section 30 of the ACL is potentially applicable where misleading or deceptive conduct is asserted in relation to a residential tenancy agreement.(88) Section 30 is set out in full:

30 False or misleading representations about sale etc. of land

(1) A person must not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land:

(a) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or

(b) make a false or misleading representation concerning the nature of the interest in the land; or

(c) make a false or misleading representation concerning the price payable for the land; or

(d) make a false or misleading representation concerning the location of the land; or

(e) make a false or misleading representation concerning the characteristics of the land; or

(f) make a false or misleading representation concerning the use to which the land is capable of being put or may lawfully be put; or

(g) make a false or misleading representation concerning the existence or availability of facilities associated with the land.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) This section does not affect the application of any other provision of Part 2-1 or this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.

So long as the residential tenancy agreement also satisfies the requirements of a lease (which it is likely to do if it grants exclusive possession) then it grants ‘an interest in land’. A tenant has possible causes of action under ss 30(f) and (g), and could seek damages as a result under s 236 of the ACL.

Examples could include where the lessor represents that items exist and are useable when they are not (e.g . solar panels), or the tenant is told they can run a business from the premises but the Council by-laws state otherwise.

Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore discuss the relevant predecessors to ss30 and 80 under the former Trade Practices Act (TPA).(89) Importantly, they state that ‘[a]lmost every conceivable misrepresentation about premises to be granted under a residential tenancy agreement and the terms of any such agreement are thus subject to these [s30 ACL, formerly s53A TPA] prohibitions.’(90) They also state that, apart from the TPA, the right to rescind for innocent misrepresentation is not available ‘once tenancy rights have been created.’(91)

If this is correct, then in most cases, once the residential tenancy agreement has been executed, the right to rescind for innocent misrepresentation is lost.

9.5.8 Practical Tips

1. Prior to signing the lease, put any representations in writing in the special conditions and confirm representations in writing.
2. Negotiate. Write an email to the landlord or agent explaining the problem and the preferred outcome.
3. If negotiations fail, make a formal complaint to Consumer Protection and consider applying to the Magistrates Court to have the matter resolved.
4. Communicate the rescission in writing to the landlord or agent. Undue delay may mean that the tenant is taken to have affirmed the contract. Once affirmed, the tenant loses the right to rescind.
5. Include both misleading or deceptive conduct and misrepresentation as alternative causes of action on the court application form. It is also recommended that the tenant include other grounds under the RT Act in the alternative for terminating the tenancy (e.g. abandonment).
6. Gather written evidence to support the claim, and take these documents to court. . The main issue for a tenant bringing a misrepresentation or misleading or deceptive conduct claim is proving that the landlord or agent made the false statement, and that the tenant actually relied on this statement. If the tenant wants to rescind the residential tenancy agreement, it is crucial that they prove that the misrepresentation or misleading or deceptive conduct induced them to enter into the agreement.
7. Consider whether the landlord has any defences.

9.6 Personal Injury

A tenant cannot claim compensation for personal injury under the Residential Tenancies Act, as this is excluded under s 15(2)(c) of the Residential Tenancies Act. However, the tenant can still pursue a personal injury claim under the applicable laws.(92) Separate legal advice should be sought for personal injury claims.

It is important to be aware of the limitation periods for commencing an action for personal injury as the limitation period is 3 years which is shorter than many limitation periods. There are different limitation periods for personal injury caused by asbestos, and for other personal injury claims.(93)

Limitation period for personal injury (other than asbestos-related diseases): the person has 3 years to commence proceedings, running from the only or earlier of, the time they found out that they suffered a not insignificant personal injury; or the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.(94)

Limitation period for asbestos-related diseases: the person has 3 years to commence proceedings running from when the person became aware that they suffered a significant injury attributable (in whole or in part) to the inhalation of asbestos.(95) Note that for a cause of action to succeed, the person must not have knowledge of the relevant facts before 1 January 1984.(96)

For further discussion of asbestos generally in the context of residential tenancies, see 3.6 (Asbestos). In-depth discussion of personal injury claims for asbestos-related diseases is beyond the scope of this publication.

9.7 Employment-related tenancy agreements

9.7.1 Overview of employment-related tenancies

Employment-related tenancies occur when an employer provides an employee with a right to occupy premises for the term of their employment. It is common that the employer does not own the premises, but has leased from a lessor and then sub-lets to their employee. Rent is often taken directly out of the tenant’s pay and the tenancy agreement is sometimes included as part of the employment contract, rather than as a separate residential tenancy agreement.

Employment-related tenancies can be in privately rented premises. They often come about where an employee is given accommodation in a regional town as part of their employment contract, in a bid to get workers to relocate to remote and regional Western Australia.

Employment related tenancies also arise through government agencies. The Western Australian Government supports public sector employees (such as teachers, health workers and police) to work in remote and regional WA. The Housing Authority provides accommodation for government employees through the Government Regional Officers’ Housing (GROH) Program. For further discussion of the GROH Program see Chapter 7 (Government Regional Officers Housing (GROH)).

9.7.2 Are employment-related tenancies covered by the RT Act?

Employment-related tenancies are covered by the RT Act. There is an exception to the lessor’s duty to give the tenant a rent receipt, where rent is taken directly from wages and is shown on the payslip.

Regulation 5C of the Residential Tenancies Regulations 1989 (WA) provides an exemption from s 33 of the RT Act for employment-linked residential tenancy agreements. Regulation 5C states:

Under section 6(a) of the Act it is provided that section 33 of the Act shall not apply to a residential tenancy agreement under which —

(a) an employer grants to an employee a right to occupy premises; and

(b) employment with that employer is a condition of the employee having that right; and

(c) the employee receives a pay slip or salary advice detailing the rent component deducted from the salary or wage; and

(d) the method of payment of rent under the agreement is by direct deduction of the employee’s salary or wage by the employer.

9.7.3 Issues with employment-related tenancies

Valuable consideration where no rent is being paid

There is a common misconception that employment-related tenancy agreements are not covered by the RT Act if the employee is not paying money for rent. Consideration does not need to be in the form of money.(97) Therefore, an employee working in kind can constitute valuable consideration for a residential tenancy agreement where this is exchanged for the right to occupy.

Tenancy or licence?

Some employment related accommodation arrangements will be boarder / lodger agreements rather than residential tenancies.

There is a possibility that fly in fly out (FIFO) workers staying at mine campsites are boarders/lodgers rather than tenants. However, each case will turn on its own facts. It is necessary to assess factors such as whether the employee has exclusive possession, whether meals and/or services are provided by the employer and whether facilities are shared.

For further discussion of boarders and lodgers, see Chapter 12.1.10 (Boarders and Lodgers).

Termination of the agreement

An employer must comply with the RT Act when terminating the tenancy agreement. Similarly, the tenant must comply with the correct notice periods for termination under the RT Act. For discussion of the specific requirements for terminating a tenancy, see Chapter 4 (Ending the Tenancy).

The situation may be more complicated where the tenancy is for the duration of employment for a fixed-term, but the employee is summarily dismissed before the end of the fixed-term. Given that employment-related tenancies are covered by the RT Act, and agreement clauses contracting out of the RT Act are void under s 82, it is likely that the notice requirements for termination under the RT Act still apply and the agreement will continue to operate on a fixed-term.

A tenant who is dismissed from their employment may have employment law claims for unfair dismissal,and other claims. Most limitation dates for employment law claims are very short, 21 or 28 days from termination. Seek employment law advice urgently,

Employment Law Centre of WA : www.elcwa.org.au

Fair Work Commission,

Fair Work Ombudsman,

WA Industrial Relations Commission,

or contact your union.

Who is liable when the employer sub-lets?

In employment-related tenancy situations, the employer will often lease the premises from a private lessor. This means that the employer is acting as a head tenant sub-letting the premises to their employee. This was the case in Hamersley Iron Pty Ltd v Roberts and Anor(98) where the Supreme Court of Western Australia held that a corporation which rents premises solely for the purpose of sub-letting those premises to its employees is a tenant under the RT Act.

For further discussion of sub-letting and assigning, see Chapter 3.14 (Sub-letting and Assigning).

Notes

1 : Note that the Limitation Act 1935 (WA) is still in force, although it is increasingly irrelevant, because, in general, it applies to causes of action which accrued before 15 November 2005. In this memorandum, we are only concerned with the 2005 Act, and all references to the Limitation Act are references to the 2005 Act.

2 : Or part payment

3 : Note that there are significant differences between the States and Territories. For example, under the residential tenancies legislation in NSW an application for an order in relation to a breach of a residential tenancy agreement must be made within 3 months of the applicant becoming aware it (Residential Tenancies Act 2010 (NSW) s 190 (1), Residential Tenancies Regulations 2010 (NSW) r 22(9). As we will seein WA the corresponding period for making a claim based on a breach of a residential tenancy agreement would generally be 6 years.

4 : In some circumstances the limitation period extinguishes the cause of action, rather than barring the right to a remedy, and in those it need not be specifically pleaded.

5 : There are about 70 such time limits in the RTA and Regulations.

6 : See clause 38.2 of the prescribed form tenancy agreement Form 1AA, clause 40.2 of Form 1AB, clause 37.2 of Form 1AD (Residential Tenancies Regulations 1989 (WA) Schedule 4).

7 : RT Act (WA) s 5(2)(d).

8 : Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6^th ed, 2014) [2.3.8].

9 : [1952] SASR 155, 158, quoted in in Commissioner for Fair Trading v Voulon [2005] WASC 229 [59].

10 : ‘A lodger is similar to a boarder in legal status, but is not provided with food by the person in control of the house’: Porter v Busch [1974] 1 NSWLR 593, cited in LexisNexis, Encyclopaedic Australian Legal Dictionary (at 30 April 2018) lodger.

11 : Radaich v Smith (1959) 101 CLR 209 [6] (Taylor J).

12 : Jack Effron, ‘The Contractualisation of the Law of Leasehold: Pitfalls and Opportunities’ (1988) 14 Monash University Law Review 83, 84.

13 : [2005] WASC 229[81].

14 : Commissioner for Fair Trading v Voulon [2005] WASC 229 [78]-[79]. This is further complicated by the definition of ‘residential tenancy agreement’ in the RT Act, at section 3, which provides “residential tenancy agreement means any agreement, whether or not in writing or whether express or implied, under which any person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises for the purposes of residence. Despite this, in determining whether an arrangement is a tenancy or a boarding agreement, the issue of exclusive possession remains important, as does the question of the provision of services . Section 5(2)(d) of the RT Act provides that the Act does not apply where “the tenant is a boarder or lodger”.

15 : Radaich v Smith (1959) 101 CLR 209, 214, cited in Commissioner for Fair Trading v Voulon [2005] WASC 229 [4].

16 : Commissioner for Fair Trading v Voulon [2005] WASC 229 [13].

17 : Note that in McCarthy & Gunn v Dowsett [2006] NSWCTTT 190, the residents were found to be tenants despite the existence of house rules.

18 : Magistrates Court (Civil Proceedings) Act 2004, 27(1)

19 : Magistrates Court (Civil Proceedings) Act 2004, s29(3)

20 : Note that a boarder/lodger agreement for a fixed term terminates automatically at the end of the term and no notice is required to be given.

21 : Lionel L Blundell and V G Wellings, Woodfall's Law of Landlord and Tenant (Sweet & Maxwell, 27^th ed, 1968) 12.

22 : There does not appear to be any authority for this 'rule', however. Perhaps the better view is that 'reasonable notice' depends on all the relevant facts and circumstances, and the period for which the occupancy fee is paid is just one of the relevant facts.

23 : Detinue 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’: Peter Butt (ed), Butterworths Concise Australian Legal Dictionary (LexisNexis Butterworths, 2^nd ed, 1998) 125.

24 : RT Act ss 29(4)(a) (bond receipt); 29(4)(b) (bond lodgement).

25 : For further discussion of rent increases under the RT Act see 3.1.6 (Rent increases).

26 : Health (Miscellaneous Provisions) Act 1911 (WA) ss 146-149 (registration); 153 (inspection) 150-152 (health and safety standards).

27 : Health (Miscellaneous Provisions) Act 1911 (WA) s 158.

28 : Health (Miscellaneous Provisions) Act 1911 (WA) s 155.

29 : Health (Miscellaneous Provisions) Act 1911 (WA) s 3 (definition of ‘lodging house’).

30 : Health (Miscellaneous Provisions) Act 1911 (WA) s 3 (definition of ‘lodging house’).

31 : Adrian J. Bradbrook, Susan V. MacCallum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Ltd, 1983) [523].

32 : For calculating the date when limitation periods expire, see 12.1.1 – Limitation Periods and Other Time Limits.

33 : For an example, see the Residential Tenancies Act 2010 (NSW) s 113: DEFECTS IN TERMINATION NOTICES. The Tribunal may make a termination order for a residential tenancy agreement or any other order even though there is a defect in the relevant termination notice or the manner of service of the notice if:

(a) it thinks it appropriate to do so in the circumstances of the case, and

(b) it is satisfied that the person to whom the notice was given has not suffered any disadvantage because of the defect in the notice or service or that any disadvantage has been overcome by the order and any associated order.

34 : The exceptions are s 71(4) ([…] "within the period of 6 months before notice was given […]", 71D(4) ("[…] prior to 6 months before the end of the term."), and r. 14(1) ("[…] the month that is 2 months before […]"). In all of these exceptions the same result applies because of the application of s 61(1)(c) of the Interpretation Act, which says that the specified day from which time is reckoned before is not counted.

35 : S 61(1)(b) applies, so time starts from the next day, 31 January; because there is no such date as 31 February, we use the last day in February, the 28th or 29th as appropriate.

36 : The different rule is supplied by s 61(1)(f). Note that this is the case for the vast majority of the time limits under the Residential Tenancies Act 1987 (WA), which use the expression "not less than [x] days after [a specified day]".

37 : And the "termination day" is "the day on which the tenant will deliver up possession of the premises" (Residential Tenancies Act 1987 s 67 c))

38 : See Re Monger; Ex Parte Atanasoska [2003] WASC 113 at [44] – [47]. It was noted in that case that the same result was obtained if one applied s 61(1)(c) of the Interpretation Act rather than s 61(1)(f).

39 : Laurent v Commissioner of Police [2010] WASCA at [12].

40 : See Pearce and Geddes, [6.50]; Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161, per Williams J at 181, Webb J at 181, Fullagar J at 186; NSW Department of Housing v Humphries [1997] NSWRT 21.

41 : 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."

42 : Australia Post's website confusingly implies that delivery time could be 2-3 days. Auspost's 2017 Annual Report claims 98.7% of letters are delivered "on time", without setting out anywhere what "on time" means. Does this mean 2 days for regular post in the metro area? No - see Australian Postal (Performance Standards) Regulations 1998 - Reg 6 Accuracy and speed of delivery – 3 business days, NOT 2 -3.

43 : See Australian Postal (Performance Standards) Regulations 1998 - Reg 6. It is written on post boxes, and is typically 6 p.m. If a notice is put in the post box after the latest time for posting the date of deemed service will be one day later.

44 : Fair Trading Act 2010 (WA) s 23; Acts Interpretation Act 1901 (Cth) s 2C

45 : Fair Trading Act 2010 (WA) s 6.

46 : See for example, Pullman v King [2016] VCAT 82, [33], Stransky v Dobrila [2018] VCAT 462 , [49]; Burch v Tucker [2018] VCAT 292, [41].

47 : ACL(WA) s 2(2).

48 : Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31 at[18]

49 : Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546, 554-5, cited in Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 4th ed, 2012) [33.45].

50 : Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 199, cited in Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 4th ed, 2012) [33.45].

51 : Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd (2011) 248 FLR 193; [2011] WASCA 76 [220], cited in Bernhard v Ellis [2016] WADC 10 [120].

52 : Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 198.

53 : Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180; (1984) 2 FCR 82 (87), cited in Bernhard v Ellis [2016] WADC 10 [122].

54 : Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546, at [42]

55 : ACL s 236 (1)(a) – a person can recover damages if they suffer loss or damage "because of the conduct of another person".

56 : ACL (WA) s 237(1)

57 : ACL (WA) s236(2).

58 : s 26(1).

59 : Residential Tenancies Regulations 2010 (NSW) r 7.

60 : RT Act 2010 (NSW) s 26(2), subject to the same penalty.

61 : RT Act 1997 (Vic) s 501.

62 : The penalty is 60 penalty units for a natural person, or 300 for a body corporate (where 1 penalty unit is $161.19 until 30/06/19, that is $9671.40 and $48,357 respectively).

63 : RT Act 1997 (ACT) s 46.

64 : Angel v. Jay [1911] 1 K.B. 666; Bradbrook et al, Residential Tenancy Law and Practice, [639]; Carter and Harland, Contract Law in Australia, [1054].

65 : Seddon and Ellinghaus, Cheshire and Fifoot's Law of Contract, [11.12]

66 : See Seddon and Ellinghaus [11.13] – [11.17] for discussion of them.

67 : For example, if the agent had been told by the lessor that the dishwasher was broken and the lessor was going to throw it out and not replace it.

68 : Seddon and Ellinghaus, [11.14]; Edgington v Fitzmaurice (1885) 29 ChD 459

69 : Id. [11.16]

70 : (And that is something that the agent knows because of his/her industry knowledge of the figures for average rents for that area)

71 : Seddon and Ellinghaus [11.13] "It is submitted that the distinction [between a statement of fact and a statement of law] is no longer tenable in misrepresentation cases […]"; Cusumano, Wiseman and Christensen, Contracts, [10.2.8] "It is today doubtful whether courts would place too much emphasis on whether a statement is one of law or fact in an action for misrepresentation."; Paterson et al., [32.10] "As for the distinction between fact and law, it no longer commands respect and is being increasingly abandoned by the courts."

72 : Seddon and Hughes [11.13] citing Public Trustee v Taylor [1978] VicRp 31. And see RT Act (Vic) s 501, which makes a fraudulent misrepresentation as to law an offence.

73 : Seddon and Ellinghaus, [11.11]

74 : Smith v Hughes (1871) LR 6 QB 597, 604, 606; W Scott Fell and Co Ltd v FH Lloyd (1906) 4 CLR 572, cited in Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 4th ed, 2012) [32.30]-[32.35].

75 : Seddon and Ellinghaus, [11.19]

76 : Derry v Peek (1889) 14 App Cas 337, cited in Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 4th ed, 2012) [32.75].

77 : Commercial Banking Co of Sydney v RH Brown & Co (1972) 126 CLR 337, cited in Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 4th ed, 2012) [32.75]

78 : Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556, per Barwick CJ at 572-3.

79 : Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 4th ed, 2012) [32.85].

80 : Note that this could also be case of negligent misrepresentation.

81 : Magistrates Court (Civil Proceedings) Act 2004 (WA) s 6(1)(a)(i); Fair Trading Act 2010 (WA) s 105(5); Bulcraig & Anor -v- Hunt & Ors [2010] WADC 99 at [11].

82 : Magistrates Court (Civil Proceedings) Act 2004 (WA) s 6; District Court of Western Australia Act 1969 (WA) s 50(1)(a) and (1)(bb); Supreme Court Act 1935 (WA) s 16; Fair Trading Act 2010 (WA) s 105 (1); Bulcraig & Anor -v- Hunt & Ors [2010] WADC 99 at [10] - [16] and the cases cited therein.

83 : Provided that the tenant suffered loss or damage as a result of entering into the lease. The value of the lease must be worth less than the rent paid as a result of the misrepresentation. For example, the tenant pays $400 per week for a lease where the lessor fraudulently misrepresented that there were two car spaces where there is only one, and the premises are only worth $380 per week with one car parking space.

84 : Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 4th ed, 2012) [33.95].

85 : Petersen v Moloney & another [1951] HCA 57; (1951) 84 CLR, 91 94-95; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592, 606, cited in Auld & Auld v Withers & Wright [2007] SADC 17 (2 March 2007) [19].

86 : [2016] NSWCATAP 76 [28].

87 : John Billings, Jacquellyn Keffoprd, Alan Vassie, Heather Barker, Victorian Civil and Administrative Tribunal Annotated Residential Tenancies Act, (Anstat SAI Global, 2017, updated October 2018)

88 : See s 152 ACL for corresponding penalty provisions.

89 : Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Ltd, 1983) [636].

90 : Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Ltd, 1983) [636].

91 : Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Ltd, 1983) [639]; citing in a footnote Angel v Jay [1911] 1 K.B. 666.

92 : Personal injury claims can also be made under other WA legislation for motor vehicle accidents, victims of crime and workplace injuries, but these beyond the scope of this publication.

93 : A different limitation period does exist for certain personal injury actions relating to childbirth: Limitation Act 2005 (WA) s 7.

94 : Limitation Act 2005 (WA) s 55.

95 : Limitation Act 2005 (WA) s 56.

96 : Limitation Act 2005 (WA) s 56(1)(b).

97 : Merely a ‘peppercorn’ can be consideration: Re Magistrate Roth; Ex Parte Yahiva [2016] WASC 284 (5 September 2016) [59]-[60]. For further discussion of the meaning of ‘peppercorn rent’, see 2.9 (Valuable consideration in return for right to occupy).

98 : (Unreported, Supreme Court of Western Australia Full Court, Rowland, Steytler and Parker JJ, 8 August 1996, 19 September 1996).

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