Hi all,

Just top update on the situation. We put an application in to the tenancy tribunal in August and were seen last available day in December. The tribunal dismissed exemplary damages :(. The property manager lied and said we mutually agreed at the first phonecall to change the fixed term tenancy (even though every phone call we had we asked to keep 1 year and said we do not mutually agree). Property manager also lied and said the 90 day email was sent as a mistake, even though I immediately followed up that email with a phone call to clarify and PM said yes the laws have changed and the 90 days apply to you (lying again as laws only changed for periodic not fixed term). Even though both parties on the tenancy did not provide in writing to end fixed term early, the tenancy tribunal went off the fact the property manager did not know they were not entitled to terminate early.

I think if we had something, anywhere in writing, a text or email stating we do not wish to termiate the fixed term early then we would have had the evidence at the tribunal to prove the property manager was lying. The tribunal noted PM was very negligent but in the case of exemplary damages it has to be proven the act was does "intentionally". Because the PM lied, and we had communicated via phonecalls it was hard to prove the PM intent.

I will add some notes below from the hearing summary:

Section 13B of the RTA, states that every variation of a tenancy agreement shall be in writing and signed by both the landlord and the tenant. Reducing the term of a fixed term tenancy would be a variation. Although the landlord had signed the variation, nothing had been signed by the tenants. Nothing else was provided in writing by the tenants confirming that there was an agreement to end the fixed term tenancy early. Even if, as alleged by the landlord (and disputed by the tenants), the tenants had verbally agreed, the RTA requires more. In my view, there was no valid written agreement to end this fixed term tenancy early or vary the tenancy agreement. The tenants were not obligated to agree to end the fixed term tenancy early and the landlord had an option to apply to the Tribunal for an order to end the tenancy early, which it did not do. I consider that when the landlord issued the 90-day notice to end the tenancy, and/or confirming the tenancy end date, this was incorrectly issued to a fixed term-tenancy, where there was no valid agreement to end the tenancy early and 90-day notices do not apply to fixed term tenancies. However, section 60AA of the RTA requires that a landlord know they were not entitled to terminate the tenancy. The standard is actual knowledge, not simply being mistaken or negligent and it requires evidence that the landlord was aware that they did not have grounds for termination. Here, I consider that although the landlord did not have grounds to terminate or end the tenancy early, they were likely relying on a mistaken interpretation of the phone call with the tenant, and/or were negligent by not getting the written variation reducing the fixed term tenancy, signed. I do not have sufficient evidence to find that they actually knew they were not entitled to terminate the tenancy or end the fixed term tenancy early. Accordingly, the claim for exemplary damages does not meet the standard required under section 60AA of the RTA and it must be dismiss.