PARTIES: HELENA GIBBONS
AND
JULIE COLUMBUS
v
PANDA SHARYN JOHNS
TITLE OF COURT: Local Court
JURISDICTION: Residential Tenancies Act; Local Court Act
FILE NO(s): 20511036
DELIVERED ON: 31 May 2006
DELIVERED AT: Darwin
HEARING DATE(s): 31 January 2006; 1 February 2006
JUDGMENT OF: Jenny Blokland SM
CATCHWORDS:
TENANCY – APPEAL – ESTOPPEL
Residential Tenancies Act (NT) ss82, 83, 101, 94, 121, 150
Legione v Hately (1983) 152 CLR 406;
Central London Property Trust v High Trees House Ltd [1947] KB 130,
REPRESENTATION:
Counsel:
Appellants: Self
Respondent: Mr Piper
Solicitors:
Appellants: Self
Respondent: Pipers Barristers and Solicitors
Judgment category classification: B
Judgment ID number: [2006] NTMC 052
Number of paragraphs: 36
IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No.
BETWEEN:
HELENA GIBBONS
1st Appellant
AND:
JULIE COLUMBUS
2nd Appellant
AND:
PANDA SHARYN JOHNS
Respondent
REASONS FOR DECISION
(Delivered 31 May 2006)
Jenny Blokland SM:
Introduction
1. This is an appeal brought by Ms Gibbons (“appellant landlord”), and Ms Columbus (“appellant tenant”), appealing against the decision of the Delegate of the Commissioner of Tenancies (“the Delegate”) dated the 15th of April 2005. The Notice of Appeal, (in the Form 37A) states the details of the decision under appeal are:
1. On file RT0405-146 the co-tenant Sharon Johns has no financial liability arising from the tenancy agreement beyond September 2003.
2. On file RT0405-143 the landlord is to repay to the tenants the sum of $800.00 each as return of the security deposit, and if the security deposit is still with Boscaini Real Estate, the landlord is ordered to provide an authority to Boscaini to release the sum of $800.00 to each of the tenant and co-tenant.
2. The grounds of appeal read as follows:
“The appellants seek the following orders from this Honourable Court:
3.1 the orders made by the Commissioner and specified in paragraph 1 be quashed pursuant to section 150(4)(a) of the Residential Tenancies Act on the basis that the Commissioner misunderstood the evidence placed before him.
3.2 The appeal be heard by the court de novo pursuant to section 150(2) if the Residential Tenancies Act.
3.3 The court makes orders that should have been made in the first instance by the Commissioner pursuant to section 150(4)(b) of the Residential Tenancies Act.
3.4 Costs of this application.
3.5 Any other order that this Honourable Court deems fit.”
3. The appellants had previously been represented in the preparation of the appeal by Withnall Maley and Co. That firm of Solicitors was given leave to withdraw at a previous mention of this matter on the 29th of September 2005 before another Magistrate. The formal orders of the learned Delegate that are the subject of the appeal are filed and also form part of Exhibit R1, (being the primary documents concerning the lead up to the hearing before the learned Delegate and the formal orders). I also have before me the reasons for the orders dated the 15th of April 2005.
4. An appeal of this nature is heard de novo pursuant to s150 Residential Tenancies Act (NT). That section provides the court may re-hear evidence taken before the Commissioner or take further evidence; in these proceedings the Court is not bound by the rules of evidence. On Appeal the Local Court may “confirm, vary or quash the order, determination or decision of the Commissioner; or make an order that should have been made in the first instance by the Commissioner and make incidental and ancillary orders”.
5. During the course of the hearing the appellant landlord, Ms Helena Gibbons, informed the court that the issues concerning her appeal against the Delegate’s decision were wider than those capable of being comprehended in the orders and concerned issues not expressed in the Notice of Appeal. Ms Gibbons seemed to be indicating that she had not been properly heard by the learned Delegate, however in my view a perusal of the Delegate’s reasons for decision indicate that he did take into account evidence on behalf of Ms Gibbons of the same or similar nature as the evidence I heard on appeal. Ms Gibbons advised the court she did not believe she had a hearing of some of her issues at the time. She told the Court her claim, and the reasons she had appealed, was for alleged outstanding rent in the sum of $2,280.00 and $220.00 in damages. She advised the Court she was heard on the phone at some stage before the learned Delegate and expected to be further heard. The papers filed by Ms Gibbons with the Commissioner of Tenancies (part of Exhibit R1), in particular the “Notice of Landlords intention to retain security deposit” indicates retention of the security deposit for the purpose of “making good damage to the premises or ancillary property: subject to police investigation. Awaiting access to premises as tenant currently away on work….” And “paying unpaid rent: in respect of Panda Sharyn Johns, $40.00 per week from 10.10.03 until date determined by Commissioner for Tenancies hearing set for 20 September 04.” Mr Piper for the respondent Sharyn Johns submitted that the court could not make orders in respect of matters that were not clearly the subject of the appeal or of the original orders. As a matter of form that may be correct, however on reflection, it is appropriate in my view to look at all of the evidence that bears upon the decisions that the learned Delegate made. In my view the flexibility under Residential Tenancies Act in relation to appeals allows this approach if, after hearing the appeal it is appropriate to make a substituted order that covers the matters of concern clearly raised by Ms Gibbons. In any event, evidence relevant to the issues that Ms Gibbons wanted to raise was largely allowed during the course of the hearing of the appeal.
Summary of the reasons given by the delegate of the Commissioner
6. The learned Delegate noted that his determination concerned an application by Panda Sharyn Johns (the respondent in these proceedings, tenant in the first proceedings), to determine a security deposit dispute; it was also a determination of an application under 126 Residential Tenancies Act by Julie Columbus seeking a determination in relation to Ms Johns’ liability in respect of rental commitments, damages for fresh and frozen foods and an order that she pay maintenance upkeep in respect of the yard or pool relating to the premises. The learned Delegate found there existed a tenancy agreement that is not in dispute in these proceedings in the following terms:
Premises: 36 Jacksonia Circuit Nightcliff NT 0810
Commencement date: 26 January 2003
Period: 12 Months
Landlord: Helena Gibbins
Tennant: Panda Sharyn Johns and Julie Columbus
Rent: $400.00 per week
Security Deposit: $1600.00
During the course of his reasons the learned Delegate referred to receiving a large amount of material. He said there were significant discrepancies both in relation to the oral evidence and in some of the documentation, thus making his task difficult. Before the Local Court, such discrepancies and confusion about certain aspects leading up to and after the cessation of the tenancy were also evident.
Evidence given on behalf of the appellants
Helena Gibbons
7. Ms Gibbons identified herself as the owner and landlord of the subject property at 36 Jacksonia Circuit Nightcliff; she referred the court to the Residential Tenancy Agreement made on the 15th of January 2001; (Exhibit A3); she said the tenants shared the tenancy on a continued basis since that first lease. The Residential Tenancy Agreement that is Exhibit A3 in these proceedings names Ms Gibbons as the landlord and Julia Elisabeth Columbus and Panda Sharyn Johns as the tenants. It also provides the rent at $400.00 per week to be paid fortnightly in advance by equal instalments of $800.00; it provides the security deposit is $1600.00 in equal shares by all tenants.
8. Ms Gibbons advised the Court that late in September or early October of 2003 the appellant tenant Ms Columbus telephoned her to advise that the co-tenant and respondent in these proceedings, (Ms Johns) had moved out for three months as they were not getting on. Ms Gibbons said she was advised at that time that Ms Johns’ personal items were still on the premises; Ms Gibbons said she gained the impression that it was Ms Johns’ intention to return to the premises. The appellant landlord said that during the initial conversation with Ms Columbus, Ms Columbus said she wanted to pay a lesser amount of rent in the interim period on the understanding that the balance be made up at a later date. Ms Gibbons said she agreed that the lesser amount could be paid and that from the 10th of October 2003 until Ms Columbus vacated on the 6th November 2004, the rent was $40.00 per week less. She said that difference (the $40 reduction), over that period of time, (10 October ’03- 6 November ’03), represented the amount of rent that was outstanding.
9. Ms Gibbons said that at about the same time, (that is October 2003), she was also contacted by Ms Johns who left a message for her and that when she returned the call she said that Ms Johns gave her a similar story to that of Ms Columbus, namely that Ms Johns had moved out to “give herself space”.
10. Ms Gibbons referred to a document that was before the learned Delegate and tendered in her own case in this Court (Exhibit A4), “Residential Tenancies Inquiry”, being Ms Johns’ submission before the learned Delegate. Ms Gibbons pointed out to the court that there is an indication on page 2, paragraph 4 on that submission that indicated Ms Johns had tried to obtain a three month lease. Ms Gibbons said it was her view that this indicated an intention to return. In my view the paragraph she referred to in evidence needs to be placed in its full context and the relevant paragraphs are as follows: (page 2 of Exhibit A4)
“In September 2003, the relationship between Ms Columbus and I had deteriorated to the point that I said there seemed to be no option but for one of us to move out. I asked her if she would consider moving as she could rent somewhere fully furnished, as the majority of furniture and goods in the house were mine. I also had a 15-year-old dog to consider but Ms Columbus said she did not want to do this. I then began looking for suitable accommodation.
On Saturday 27th September 2003 I left Jacksonia Circuit at the insistence of Ms Columbus (personal letter which she wrote stating she asked me to leave presented). She was extremely emotional and agitated at the time and it appeared the only option was to leave to let things calm down. I had no accommodation organised so I stayed with a friend until I could find an appropriate place for my 15yr old dog and myself.
I found a unit in Fannie Bay and completed an application form. I then rang the Jacksonia Circuit landlord Mrs Gibbons on 1st October 2003 to tell her I had moved out. I asked her if she would be a reference for me for the new place I had found in Fannie Bay, to which she agreed (copy of application provided). I said I was staying with a friend and I had tried to get a 3-month lease but the owner was insisting on a 6-month lease. I also said that the agent said that my application would most likely be accepted and that I intended to sign the lease, which also had an option for another 6 + 6 months.
Ms Columbus was still extremely upset during this time, on medication and unable to attend work, which is confirmed in a personal letter she sent to me a couple of days after I moved out. The previous letter also states that she asked me to move and also considered it was for the best. I entered a 6-month lease on premises at Hinkler Crescent, Fannie Bay on 6th October 2003 and moved in (copy of lease presented).”
11. Ms Gibbons impressed on the Court that she thought Ms Johns had indicated an intention to return because she didn’t ever request to be relieved of her obligations. She said Ms Johns asked her to give her a reference to help her find a new place. She said she didn’t see that as an issue as Ms Johns said it would only be for a short time. She said Ms Johns moved out of the premises on the 27th of September 2003, that is, four months prior to the end of the lease agreement. Ms Gibbons said that as a result of some conversations with Ms Columbus on or about October or November of 2003 she believed the relationship was back on track and that Ms Johns would be returning; she said that at the time she was living in Queensland; she said that Ms Columbus had told her Ms Johns had returned and collected some of her possessions but had left the majority of her furniture and some personal possessions at the property. She said when the lease was due to expire in January 2004 she had no written notice to vacate and no request to sign a new lease. She said she had no Notice of Termination pursuant to section 101 Residential Tenancies Act (NT). She said that in her view the current fixed lease became a periodic tenancy after January 2004. She said she believed this to be the correct position as Ms Johns had not given notice or handed over vacant possession, (as her possessions were still at the premises).
12. Ms Gibbons drew the Court’s attention to paragraph 3.1 of the original lease (exhibit A3) that reads, (in part) “The tenant agrees this lease is not terminated until the keys are returned to office of Boscaini Residential Management. Possession of the property remains with the tenancy until all keys have been returned to the agent”. Ms Gibbons told the Court that since Ms Johns had retained a key it showed or demonstrated the belief that she was a tenant. Ms Gibbons said it wasn’t until she received a fax from Boscaini with the request for the bond money that she realised Ms Johns had no intention of moving back to the property. The letter from Ms Johns to Boscaini that was faxed on to Ms Gibbons became Exhibit A6 in these proceedings. The date of that letter is 3rd August 2004. In that letter Ms Johns indicates the lease commenced in January 2001 and expired a year later in 2002; a bond was lodged totalling $1600.00 of which she says in the letter she paid $800.00; that she re-signed the lease with the co-tenant in January 2002 and the bond remained with Boscaini; the lease expired in January 2004 and Ms Johns advised she was no longer residing on the premises, however the co-tenant Ms Columbus was still residing there. Ms Johns sought the return of her bond money. Ms Gibbons tendered a letter she wrote to Ms Johns on 16 August 2004 (exhibit A7). Ms Gibbons referred to that part of the letter that states “When you moved out in September 2003 I was told verbally it was to be a temporary move and that you would be returning to reside at the above address”. Ms Gibbons indicates in that letter that she has had advice concerning the fixed term tenancy and that after the tenancy had become a periodic tenancy there should be two weeks written notice. She states in the letter “as you are aware I have never been formally notified of this”. She also advises Ms Johns in that letter that Ms Johns is directly liable for all of the conditions of the contract. She advises Ms Johns that an agreement would have to be reached between Ms Johns and Ms Columbus concerning the responsibilities under the lease. Further, the letter states “it is only as a result of recent developments that I am now aware that you no longer intend to reside at the above property again. I would therefore suggest that you consult with Julie in respect to her taking over full responsibility for the lease, once this has occurred I’d be formally notified in writing of your intention as required under the Act and obtaining your portion of the bond money from Julie.” In evidence Ms Gibbons said that although Ms Johns hadn’t been at the premises for a year, she was not aware of that fact.
13. Ms Gibbons said that on the 24th of August 2004 she received a telephone call from Ms Columbus to the effect that Ms Columbus had returned from work, the front door had been forced open and all of Ms Johns’ furniture had been removed. Ms Gibbons also told the Court of a letter she received (Exhibit A8) from Ms Johns that was also sent to Ms Columbus. That letter also states “while I have not forwarded formal written advice to you, I believe both you and Ms Columbus were well aware of my intentions”. It also states “to my knowledge, yourself and Ms Columbus had entered a new lease agreement suitable to both of you and Ms Columbus was also aware that I had committed to a lease on another property.” Ms Gibbons told the Court that in her view there were indications in that letter (Exhibit A8) that show Ms Johns considered herself a tenant. She also told the Court that police were contacted in relation to damage to the premises, in particular damage to the door: (see exhibit A11, quote for $220.00). Ms Gibbons said she did not consider the damage to the door as fair wear and tear. Ms Gibbons told the Court that she notified the Residential Tenancy Office that she hadn’t been receiving $400.00 but that she had been receiving $360.00 per week from Ms Columbus. She said that she had filled out an application for retaining the security deposit as well as for outstanding monies and compensation for damage to the door: (Exhibit A12). Ms Gibbons said that her claim related to the security deposit and the fact the security deposit has been returned to both tenants; she maintained she had a claim for outstanding rent and damage to the door.
14. In cross examination Ms Gibbons was asked about the contents of Exhibit R13 being a letter she wrote to the Commissioner of Tenancies dated 24 August 2004.. It was put to Ms Gibbons that that letter indicates that Ms Johns contacted Ms Gibbons concerning her being a referee for a new tenancy. Ms Gibbons agreed that she did not say anything about on going liability at that time. It was suggested to her that she didn’t raise anything about on going liability until she received advice from the Commissioner of Tenancies; it was suggested to her that she didn’t raise any such issues about liability upon the expiration of the formal lease. She agreed she did not raise these issues. She said, however, it was discussed that she would get her money. Ms Gibbons was referred to her letter now comprising Exhibit R14 on page 2 where it is stated: “Ms Columbus notified me by telephone at the end of September 2003 that there were problems between Ms Johns and herself and that Ms Johns had moved out for approximately three months so they could sort things out (my words). During that conversation I verbally agreed to allow Ms Columbus to deposit the contracted amount of rent less $40.00 per week from 10 October 2003 until such time as Sharon returned to reside at the property, I did not however agree to reduce the rental amount and expected to be reimbursed the short fall within a reasonable time frame based on the information I had been supplied. Recent conversations with Ms Columbus confirm her intention to ensure I receive all money owing.” In commenting on that quote Ms Gibbons said she assumed the tenants would have repaid her and that both of them had told her that. She agreed she had not put the arrangement in writing; she said she did not see the need to put any new arrangement in writing. It was suggested that Ms Gibbons was making an opportunistic attempt not to have to pay the bond back or to obtain money that she was not entitled to. She acknowledged there was perhaps naivety on her behalf but otherwise rejected this.
15. It was suggested that the circumstances of her arrangement with Ms Columbus represented a new arrangement of the lease between the two of them. This was rejected by her. It was suggested to Ms Gibbons that she had not considered Ms Johns still liable under the lease until she received some advice generally supportive of her situation. It was suggested this was evident in her letter of August 2004 (Exhibit A7) where she states “I have been advised that under the Act it is not possible to vacate during a fixed term tenancy…..etc.” She told the Court she was not aware of what was going on between Ms Columbus and Ms Johns.
16. Exhibit A2 was put to Ms Gibbons, (being the lease commencing January 2003 to 2004); she agreed that this was the last lease she signed with Ms Johns and Ms Columbus; it was suggested that there was no mention of the keys there. It must be noted paragraph 38 states “at the end of the tenancy, the tenant must return to the lessor all keys for the premises.” Ms Gibbons said that she thought the earlier lease would apply. She said at the time of lodging her application to the Commissioner of Tenancies, she was awaiting a police investigation concerning damage to the door. She agreed no charges had been laid by police against Ms Johns. She agreed she had claimed “$40.00 per week from 10 October 2003 until date decided by Commissioner”. She agreed her statutory declaration was not made until the 6th of September 2004.
Julie Columbus
17. Ms Columbus gave evidence that she and Ms Johns were co-tenants and were paying $200.00 each per week making up $400.00 to be paid to Ms Gibbons. She said it was her view that under the fixed term lease Ms Johns admits liability until the 25th January 2004. She says this appears from Ms Johns’ written response (exhibit A4) to the Commissioner for Tenancies. That is a reference to page 8 of Exhibit A4 “while assuming responsibility up to 25th January 2004, from when I last contributed towards rent on 10 October 2003 (15 weeks)….”. It is apparent that Ms Columbus’ conclusion on that part of Ms Johns’ submission is not completely objective when seen in context. It is clear that Ms Johns is suggesting that as an alternative or secondary position. Her primary position is that she is not liable. Similar reference was made to page 12 of that submission, however the context of that concerns a whole other area of this dispute, namely what in fact Ms Johns and Ms Columbus were contributing out of their own pockets by way of rent. Effectively both Ms Columbus and Ms Johns received very generous rental subsidies, which are part of their remuneration. Beyond those subsidies and geographical allowances, they were each, (according to exhibit A4), contributing $40.00 per week making up a short fall between the actual rent and subsidies provided by the employer. Ms Johns appears to be making the point that if the situation is that Ms Gibbons should now be paid the $40.00 per week, then $20.00 of that should come from Ms Columbus.
18. Ms Columbus said that she queried whether the situation between her and Ms Johns was really one where there was “no option” but for one to move out. Ms Columbus said she suggested counselling, or staying at a friend’s place but she had not intended for either of them to leave the property. Ms Columbus said after the period that Ms Johns spent looking for properties, she believed Ms Johns was going to obtain a three month lease. She said that when Ms Johns said it was her intention to leave, she (Ms Columbus) suggested that it be sooner rather than later. Ms Columbus referred the Court to a personal letter that she wrote to Ms Johns a week or two after Ms Johns left. That letter expresses strong emotions. She also states “Please take the time you said you would, think about us”. That letter appears to express a desire on the part of Ms Columbus to recommence a relationship with Ms Johns.
19. Ms Columbus said she believed Ms Johns would return because when she left, she took minimum items with her and later Ms Johns contacted her to get further items: (see Exhibit A18, email dated 14 October). Ms Columbus referred to Exhibit A19, (being a statement made by Ms Johns to police concerning removal of her goods from the premises), that includes a reasonably significant list of personal and household belongings. Ms Columbus referred to a series of emails (Exhibit A18), in particular to one dated the 15th October 2003 where Ms Columbus stated “I didn’t know that you actually left everything for my convenience, you are more than welcome to take the lot. I am capable of replacing material stuff…..”. That email also states “I thought that you actually wanted to leave the things with a view to what the future may hold” and
“Sharyn I understand that to furnish you unit has not been easy or cheap. I don’t want to get nasty about this, please remember that this was your choice and you are free to change you mind about the future or anything else at any stage. I do consider these things as you would consider that you have left me paying a large amount of rent that you are also legally bound to until Jan”.
20. Ms Columbus also advised the Court that various accounts (for example Austar, Power and Water, telephone and internet) were all in Ms Johns’ name for up to eleven months after she left the property in September 2003. Ms Columbus said this lead to her belief that Ms Johns’ move was a temporary one. She acknowledges Ms Johns is arguing she was evicted but Ms Columbus says this is inconsistent with the way the accounts were kept, the heirlooms and possessions left in the house. She said Ms Johns was not evicted. Ms Columbus refers to the letter of Ms Johns’ of 23rd August 2004 stating that that letter was left by Ms Johns on the occasion of her entering the property and forcing the front door. Ms Columbus said Ms Johns had agreed to pay rent and associated expenses under the tenancy agreement but had not paid. She said that Ms Johns had the key for eleven months after leaving and that by her actions and words she should be considered a tenant; she said she considers Ms Johns was still a tenant and through rental subsidy there was still a short fall to the landlord of $40.00 per week and Ms Johns was responsible for half of that plus half the cleaning and pest control.
21. It was suggested to Ms Columbus that she had demanded Ms Johns leave on the 27th September; that she made this demand when she was watching Ms Johns looking at emails and the internet. It was put to her that the relationship was poor and that there were significant problems. Ms Columbus said they could have continued until January 2004 if Ms Johns hadn’t left; she said it was a complete surprise to her and it was never her intention for Ms Johns to leave. When it was put to Ms Columbus that it was she who asked Ms Johns to leave immediately, Ms Columbus said it was “one word against the other”. She was referred to one letter (Exhibit A17) that stated “I want you to know that I didn’t ask you to leave because of anger nor was it for revenge to hurt you. The last couple of weeks were ugly and there has been no sign of improvement.” It was also pointed out to her that in the same letter she had said “perhaps when you reflect you may also feel that we needed to physically move away from each other.”
22. It was suggested that the emails in Exhibit A18 concern discussions of arrangements between them that do not relate to the tenancy issue. It was suggested to Ms Columbus that if she had a view that Ms Johns was liable to her financially between September 2003 and January 2004 she would have put it in writing. Ms Columbus said she was emotionally involved and was hoping that things would work out differently. She agreed there was no communication between she and Ms Johns from early 2004 until 5 July 2004 when there was some communication concerning the fridge and there were further emails on 6 July 2004. She also gave evidence concerning changes in rental subsidies because prior to 10th October 2003 her subsidy was based on Ms Johns as a dependent. That resulted in the subsidy of $350.00 per week and the rent was $400.00 per week. She was also receiving a geographical allowance of $165.00 per fortnight before tax minus an employee contribution of $52.00 per week. Ms Columbus said this was nothing to do with the rent. She said there was an arrangement between herself and Ms Johns that Ms Johns would be a dependent under the geographical allowance. She said that after Ms Johns left the subsidy reduced to $320.00 and the geographical allowance reduced by about a third. Ms Columbus was asked whether there is any mention made in her discussions with Ms Gibbons about the reduction of $40.00 per week being made up later and she said no. She seemed to be saying it was still however, her understanding that it would be made up.
23. Ms Columbus said she disagreed that Ms Johns did most of the housework in terms of cleaning and cooking. She agreed Ms Johns had a dog; she was asked whether Des Fitzgerald who house-sitted the house had a dog and she said she didn’t know. She was asked questions about whether a Ms Fisher was privy to a conversation where it was indicated that the relationship would have to end. Ms Columbus said she disputed that. She said Ms Fisher had brought a case against her in another setting and that Ms Fisher supported Ms Johns.
Evidence on behalf of the Respondent
24. Ms Johns confirmed she was involved in the conclusion of the first two leases and she had some part in constructing those leases. She said that late in 2001 the relationship between herself and Ms Columbus deteriorated and that in 2003 that had both sought counselling. She said that by September 2003 it was a very uncomfortable situation; they were not talking; she told the court she had suggested that it may be better if Ms Columbus moved out as Ms Johns had a dog that would mean it was more difficult for her to leave. She said Ms Columbus did not want to do this. She said there were issues concerning furniture and her dog but an incident on the 27th September 2003 lead to her leaving right then. She said that day she was on the internet checking email and Ms Columbus was angry and upset and told her that she should leave. She said Ms Columbus stood at the door and was saying things like it was not helpful that she was still in the house. Ms Johns said that she told her she did not want to leave because she didn’t have anywhere to go and that Ms Columbus had said she didn’t care. Ms Johns said Ms Columbus told her she should go to a hotel and she would help her find one. Ms Johns told the court Ms Columbus was upset and angry. Ms Johns said Ms Columbus then said she would have to leave. Ms Johns said she grabbed clothes, put them in the car and stayed with a friend; she said she only had the chance to take clothes and a few bits and pieces; she said there was no discussion on who would cover the rent. Ms Johns said she did not want to leave at that stage as she had no premises organised and she just moved in with a friend and would therefore have to move twice.
25. Ms Johns said that after she left on or about the first or second of October she contacted Ms Gibbons and told her that she looked at some places and had found a place at Fannie Bay. She asked Ms Gibbons to be a referee and told her she was trying to get a three month lease. She said there was nothing discussed about her early departure or anything about rental responsibilities. She said she told Ms Gibbons she had left. Ms Gibbons agreed to be a referee. She told the court she signed a lease for six months with a six months option as she was unable to obtain a shorter lease. She said she had told Ms Gibbons she wanted a three month lease.
26. Ms Johns said Ms Columbus had her listed as a dependent at the Jacksonia Circuit premises. She said she asked for a few items back including the television; she said she had been offered a fridge and television by friends on a temporary basis. She also sought personal papers and some other less significant possessions from Jacksonia Circuit. She said she left her furniture there because Ms Columbus was very upset and angry when she was told to leave. She said she did not want to inflame the situation so she let her keep and use the furniture. She also said that for a period she was staying with friends so it was inconvenient for her to have the furniture. She said in relation to her obligations for household bills she had rung Power and Water Authority, Telstra and Austar to ascertain what arrangements could be made. She said her dog was never a problem with fleas and ticks. She said that in terms of cleanliness and condition, Jacksonia Circuit was in the same state when she left it as when she moved in. She said when she was living there she would do the cleaning inside and Ms Columbus mainly looked after the outside.
27. Ms Johns said that there was no correspondence concerning rent responsibilities but there had been cards and things of that nature. She said during the whole period there had never been any rental payments requested. She said Ms Columbus didn’t know what to do at the end of the lease and that Ms Johns had suggested to her to get a boarder and that when she told her she would not moving back to Jacksonia Circuit Ms Columbus started crying; she said that the emails between them did not constitute a request for rent; Ms Johns said she left because Ms Columbus insisted that she leave; she said it wasn’t a request but rather Ms Columbus was insisting. She said that given Ms Columbus had insisted that she leave, she assumed Ms Columbus would be taking responsibility for the rent. Ms Johns told the court that she had told Ms Columbus that even if they got back together, she would not be moving back to Jacksonia Circuit. Ms Johns said she did not receive any requests for back payment for rent and considered the email referred to about rent to be a statement, not a demand.
28. Ms Johns said she did go to the property to collect some things. She said she had told Ms Columbus there wasn’t going to be a relationship between herself and Ms Columbus. She said she first contacted Ms Gibbons in July 2004 in relation to her bond; that Ms Gibbons had in effect said it would be fine but that she would need to make a courtesy call first to Ms Columbus. She said in August she was cleaning out a bag of hers and found a purple key for Jacksonia Circuit; she said she used that key to open the door of Jacksonia Circuit in August of 2004 to claim her furniture. She referred to the email correspondence between herself and Ms Columbus concerning her taking possession of the fridge. She said she visited police first to see if she could enter with her key to obtain her possessions as she had not been successful asking for their return. She said police told her it was a civil matter and they would accompany her to keep the peace if necessary. She said she used the key to open the door and had removalists ready who were present when she took her things. She said that given she was taking her fridge she took bags of ice with her and put contents of the fridge into tubs with ice around it. She said she did not damage the door or cause any food to spoil given the precautions taken.
29. Ms Johns said she hadn’t denied she was on the lease until January 2004 but that this should not be considered an admission; she said she made something like six to eight offers to try and resolve the situation.
30. In cross examination Ms Johns said she didn’t know Ms Gibbons well as it was primarily Ms Columbus who dealt with her; Ms Johns said she recalled speaking to Ms Gibbons in November telling her she had left the property and that she remembered the conversation as it was a phone call to her work. Ms Gibbons put to Ms Johns that she was told by Ms Columbus that she had only moved out for three months, Ms Johns stated she could not attest to that conversation but that she had told Ms Columbus emphatically that she would not return. Ms Johns agreed there had been no agreement in writing to terminate the lease. She was asked about the lease (Exhibit A2) and was taken to point 38 concerning the keys; it was suggested that the keys weren’t returned until fourteen months later; Ms Johns said she didn’t know that she had the key until finding it in a bag. She was taken to point 36 that the agreement terminates only if (c) “the tenant give a Notice of Intention to leave the premises to the lessor and hands over vacant possession of the premises to the lessor on or after the handover day”; she was asked by Ms Gibbons why she didn’t contact her after the initial contacts about Ms Gibbons being a referee and Ms Johns answered that she was no longer a tenant; she acknowledged that her goods were still on the premises; she said she asked the co-tenant on a number of occasions about accessing the premises to get her goods back. Ms Johns said that the removalist saw her enter the premises at 36 Jacksonia Circuit; it was put to her that the statement of Mr Daniel Leslie Drees, the removalist said “at the time I noticed that the front door was already open so I can not be certain whether or not she had used a key to enter.” Ms Johns also said police had told her to keep the key longer while they investigated Ms Gibbon’s claims that she had broken in. It was also suggested that by virtue of the statement in Ex A8 “As you somehow think I’m on a periodic lease…” that Ms Johns considered herself liable. She said she did not consider she was liable, she said the letter indicates that Ms Gibbons had received advice stating Ms Johns was liable and in those circumstances, Ms Johns would enter to remove her goods. Ms Johns said she believed she had a right of access to obtain her possessions. There were a number of matters put to Ms Johns about why she hadn’t changed addresses on various of the utilities and why various items of personal nature had not been taken. There were various questions put to Ms Johns in relation to the allowances paid covering rent and whether Ms Johns had created a situation leaving both Ms Gibbons and Ms Columbus with the impression that she was gone only temporarily or only for a three month period.
Discussion of the evidence and issues
31. After giving the evidence significant consideration, I find myself on the basis of the oral evidence and the documentary evidence in a similar position to the learned Delegate. There has been conflicting evidence on the circumstances of the vacation of the premises by Ms Johns, however, considering the high level of emotion demonstrated by Ms Columbus in the correspondence to Ms Johns and the attitude on her part that is evident from the documents I have referred to, I find myself in the position of preferring Ms Johns’ evidence. I found Ms Johns to be a highly credible witness who was prepared to make reasonable concessions and her recollection appeared clear and consistent with the various documents put before the court, and the various extracts have been referred to previously in these reasons. Further, it is clear to me that Ms Johns acted in a way that is consistent with being effectively evicted by the co-tenant. It is clear she had nowhere but a friend’s place to go and also had concerns about her dog. The correspondence between Ms Columbus and Ms Johns acknowledges, to a very large degree that Ms Columbus at least requested Ms Johns to leave (Exhibit A 17). Ms Columbus was not direct about whose version was correct with statements such as one’s word against the other. In my view the probabilities clearly favour Ms Johns’ version of the events and I find largely in terms of the evidence she gave, including her reasons for believing Ms Columbus would make up the shortfall on the rent. It is clear Ms Columbus did not indicate Ms Johns would be expected to make up her share of the rent; that is not surprising given the circumstances under which Ms Johns left the premises. I reject the evidence of food spoilage and reject that Ms Johns has liabilities for cleaning, pest control and associated matters.
32. In terms of the agreement between Ms Columbus and Ms Gibbons over the rent reduction, the probabilities favour the construction that Ms Columbus and Ms Gibbons renegotiated the lease. In my view Ms Gibbons was advised that Ms Johns had left and was commencing a new tenancy agreement – Ms Gibbons had agreed to be a referee. She knew Ms Johns was no longer residing on the premises and separately agreed to reduce the rent for Ms Columbus. If there was an agreement the money be paid later, there is very scant evidence of that. It is rather telling that no claim was made for the rental arrears until Ms Johns applied for her bond return, well after the cessation of the tenancy. On whether there was a genuine belief that Ms Johns would return, that was wishful thinking at best on the part of Ms Columbus, not backed by any facts. Ms Columbus had not cooperated with the return of Ms Johns’ goods. There is little if any evidence to support the view that the goods were left to indicate an intention to return, quite the contrary. In my view Ms Gibbons has accepted less rent in return for there being only Ms Columbus on the premises. When she obtained advice concerning return of the security deposit, she has construed the facts in such a way or interpreted the facts in a way that would potentially allow her relief under the Residential Tenancy Act (NT). Further, there is no evidence that Ms Johns damaged the door. She has given sworn evidence of this herself. The fact that she went to police prior to entering the premises and was in company with removalists is hardly indicative of someone who would damage the premises by breaking the door to enter. The fact that there is some inconsistency between her account and the removalist’s account on the precise timing and whether the door was open at a particular time proves nothing other than different recollections.
33. Ms Gibbons submits that the tenancy agreement should be in writing: (s 19 Residential Tenancies Act); that termination of the tenancy occurs only in the circumstances contemplated by ss82 and 83 RTA; that upon the formation of a periodic tenancy there should be 14 days notice: (ss 94 and 101 RTA); that there should be compensation if a tenant fails to give vacant possession: ( s 121 RTA).
34. The termination of the tenancy may occur if the tenant abandons the premises (see Exhibit A2, point 36 and see s 82 RTA), although there may be some liabilities or obligations that flow or continue from that to an abandoning tenant. Further, the RTA allows termination if the tenant gives up possession with the landlord’s consent. In my view the probabilities favour such a construction given Ms Gibbons was asked to be a referee for Ms Johns, and she knew Ms Johns had moved out as she was asked by Ms Columbus to reduce the rent for that very reason. The fact that Ms Gibbons expresses she was never “formally” told does not detract from her actual knowledge. The whole circumstances suggest consent followed by a new agreement. The fact that there were no demands made of Ms Johns until after she applied for the security deposit is telling. Neither did Ms Columbus advise her of any rearrangement of the rent. How could she have expected her to pay when she insisted she leave? In my view there is a lack of bona fides in the appellants’ cases when the whole circumstances are looked at. It is also unclear why Ms Columbus does not actually claim half of the “reduced” rent if she maintains Ms Johns is liable.
35. Counsel for the respondent has drawn my attention to Legione v Hately (1983) 152 CLR 406 concerning application of Central London Property Trust v High Trees House Ltd [1947] KB 130, providing a remedy based on the principle that “ when one party to a contract in the absence of fresh consideration agrees not to enforce his rights an equity will be raised in favour of the other party”. In my view it is a form of estoppel that will come to the aid of the respondent in this case.
36. I find myself in a similar position to the learned Delegate. I will dismiss the appeals. I will forward these reasons to the parties today and list the matter for formal orders and any applications for costs on Monday 5 June at 9.45 am. If this date is inconvenient, the parties may approach the listing Registrar to make arrangements for another date. I am aware that Ms Columbus may need to appear by phone and I will request those arrangements be made.
Dated this day of 2006.
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STIPENDIARY MAGISTRATE