COVID-19, property

Gross Abuse of 457 Visa Sees Man held in "Conditions Akin to Slavery"

22 April, 2015

The NSW State Government has recently passed new regulations affecting residential tenancies. The Residential Tenancies Amendment (COVID-19) Regulation 2020 imposes restrictions on landlords’ rights to evict tenants who are unable to pay rent or charges due to being impacted by COVID-19. The Regulations, which are to remain in place until 15 October 2020, also introduce mandatory rental negotiation conditions and increase minimum termination notice periods.

The Regulations at a glance

Subject to the conditions explored below, the Regulations establish a six-month moratorium on landlords:

  1. issuing an impacted tenant with a termination notice for non-payment of rent, water usage charges or utility charges;
  2. applying to the NSW Civil and Administrative Tribunal (NCAT) for a termination order in relation to a termination notice issued for failure to pay rent or charges; and
  3. applying to NCAT for orders relating to any other breach of the residential tenancy agreement arising from the failure to pay rent or charges.

These prohibitions will apply without any qualification for a period of 60 days, ending on 14 June 2020. This 60-day period is intended to protect tenants from receiving termination notices before they have had an opportunity to apply for and receive government financial support.

After this period, a landlord may then evict an impacted tenant for the failure to pay rent or charges if the landlord first satisfies the following conditions pursuant to the Regulations:

  1. the landlord has waited until 14 June 2020 before issuing the termination notice or applying to NCAT;
  2. the landlord and tenant have already participated in a dispute resolution process facilitated by NSW Fair Trading in good faith to try to negotiate a rental payment plan; and
  3. in the circumstances, it is fair and reasonable for the landlord to serve the termination notice or apply to NCAT for orders to the same effect.

Who do the Regulations apply to?

The Regulations apply to “households impacted by the COVID-19 pandemic”.

A household includes any tenants and other people living together in the same residential premises.

A household will be held to be impacted by the COVID-19 pandemic if the overall household’s weekly income has decreased by at least 25% after tax. In calculating a reduction in household income, the current weekly household income should be compared to the household’s weekly income during the period before any one or more rent-paying members of the household were impacted by the COVID-19 pandemic.

A rent-paying member will have been impacted by the pandemic if they have:

  1. lost their job as a result of the impact of the pandemic;
  2. had their work hours or income reduced as a result of the impact of the pandemic; or
  3. had to stop or materially decrease their working hours due to:
    1. becoming sick with COVID-19 themselves;
    2. having another member of the household become sick with COVID-19; or
    3. having carer responsibilities toward a family member sick with COVID-19.

Government payments must also be considered when assessing whether the weekly household income has been reduced by 25%.

If a household has been found to be “impacted by the COVID-19 pandemic”, then all tenants within that household will be classified as an “impacted tenant”. It is important to stress that this characterisation is determined at the household level and is not based on any one individual tenant’s circumstances.

New notice provisions

The Regulations have also increased the minimum notice period that landlords must provide to impacted tenants if they intend to terminate their lease.

During the six-month moratorium period, landlords must now give at least 90 days’ notice of the termination of any of the following arrangements:

  1. a fixed term tenancy;
  2. a periodic tenancy;
  3. a tenancy where the tenant has breached the residential tenancy agreement for reasons other than the failure to pay rent or charges; or
  4. a tenancy with a term of 20 years or greater.

Additional prohibitions

The Regulations prohibit landlords from listing impacted tenants on a residential tenancy database if they have breached their residential tenancy agreement as a result of failing to pay rent or charges.

However, there is no prohibition on continuing to list impacted tenants who have breached their residential tenancy agreement by other means though. Further, this prohibition does not extend to tenants who have failed to pay rent or charges but are not characterised as an “impacted tenant”.

Recommended steps for impacted tenants and landlords

  1. Negotiate honestly and fairly. It is preferable for tenants and landlords to negotiate a bespoke arrangement that suits their needs before incurring the expense and time required to pursue a formal rent negotiation process through NSW Fair Trading.
  1. Provide evidence of your financial position to further negotiations. Tenants seeking rental relief pursuant to the Regulations should provide documentation evidencing their loss of income such as letters from employers confirming they have been let go or stood down, current payslips and proof of income during the period prior to the tenant being impacted by COVID-19. Tenants should also disclose any government financial assistance.
    Similarly, landlords should be forthright about their financial situation. If landlords rely on rental income to repay a mortgage over that property, the landlord should convey the results of conversations they have had with their mortgage provider as well as the outcome of any other relief they have applied for to assist them to provide rental reductions.
  1. Seek legal assistance to ensure any agreed variations to the terms of a lease are properly documented in a Deed of Variation. It is critical to ensure the scope of any temporary arrangements are properly documented to avoid disputes about the agreed terms or their intended duration later.
  1. Parties should continue to review their circumstances. The provisions will only apply while an impacted household continues to be impacted by COVID-19. If for example, an impacted tenant gains new employment, such that the household income is no longer 25% lower than it was prior to being impacted by the pandemic, the above prohibitions will no longer apply to that lease.
  1. Consider government economic relief measures that may be available to you such as the jobseeker payments or land tax relief. You can read more about the NSW Government’s land tax relief package available to eligible landlords in our article here.
  1. Ultimately, if an agreement cannot be reached, either party can apply to NCAT to determine disputes about breaches or the termination of a lease. However, we highly recommend seeking legal advice before pursuing this path. In determining any orders relating to the termination of a lease, the Tribunal will consider a range of factors including:
    1. whether either party refused to make a reasonable offer regarding rent during the formal negotiation process;
    2. whether the tenant has continued to make any sort of payment towards the rent;
    3. the general financial position of the parties;
    4. whether reasonable alternative accommodation is readily available to the tenant; and
    5. any special vulnerabilities and the public health objectives to restrict the movement of citizens by having them remain in their homes during the pandemic.
  1. Finally, understand that temporary reductions in rent or rental deferrals do not automatically equate to a waiver of rent. Unless the parties otherwise agree, any unpaid amounts will still be owed by the tenant to the landlord. Further, the Regulations do not apply to households who have not been impacted by COVID-19 and as such, tenants of these households can still be evicted for breaches of their residential tenancy agreement.

McCabes has extensive experience advising tenants and landlords alike on their rights and obligations. Our Property Team is well placed to help facilitate rental negotiations to achieve solutions tailored to the needs of the parties.

If you have any questions about the new Regulations and their impact on you, we recommend you contact McCabes today.

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Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
29 August, 2023

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes
18 August, 2023
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay
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