A & L Gregory v Danielsson & Stone (Residential Tenancies)
[2009] ACAT 12
•26 May 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
A & L Gregory v Danielsson & Stone (Residential Tenancies) [2009] ACAT 12
RT 262 of 2009
Catchwords: RESIDENTIAL TENANCIES – Application to set aside orders - termination and possession – warrant to eviction
Residential Tenancies Act 1997 (ACT)
ACT Civil and Administrative Tribunal Act 2008 (ACT)
Tribunal:Jennifer David, Senior Member
Date: 26 May 2009
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) NO: RT 262 of 2009
RE: Andrew GREGORY & Leanne GREGORY
(Applicant/Lessor)
AND:Christer DANIELSSON & Julia STONE
(Respondents/Tenants)
DECISION
Tribunal : Jennifer David, Senior Member
Date : 21st May 2009
Decision :
That the application to stay Order is dismissed.
That the eviction is stayed for 7 days until the 28th of May 2009, as the Order of the Tribunal dated 7th May 2009 was not forwarded to the correct address for the Tenants, though the Tenants received a copy from the Lessor’s Property Manager.
That Order 9 of the 7th May 2009 is amended to read:
That the Tenants owe rental arrears of $4484.10 together with an occupancy fee of $100.00 per day, from today making a total of $5184.10 due on 28th May 2009.
That the Tenants are to pay to the Lessor C/- ACT Civil & Administrative Tribunal Registry the sum of $5184.10 on or before 4th June 2009.
That Order 8 of the 7th of May 2009 be amended to refer to a “Washing Machine”, not merely a “machine”.
That the Tenants provide ACT Civil & Administrative Tribunal Registry with a forwarding address on vacating the premises in accordance with Clause 99 of The Standard Residential Tenancy Terms.
…………………………….
Jennifer David – Senior Member
26th May 2009
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 262 of 2009
ANDREW & LEANNE GREGORY
(Applicants/Lessors)
AND
CHRISTER DANIELSSON & JULIA STONE
(Respondents/Tenants)
REASONS FOR DECISION
BACKGROUND
This is an application by the tenants to set aside ex-parte orders of the Tribunal made on 7 May 2009 on the basis the tenants could not attend the hearing as they were both suffering from a viral infection. Both tenants produced medical certificates dated 13 May 2009 certifying that each of them was suffering from a ‘viral infection’ and unable to work from 6 May 2009 to 8 May 2009.
The Orders sought to be set aside were:
“1. That the Tenancy Agreement has been breached.
2.That the Residential Tenancies Agreement is terminated and possession of the premises is to be given to the lessor/s at 3pm on Thursday the 7the day of May, 2009.
3.That the said tenant and any other person claiming right of possession through the tenant’s tenancy is to vacate the premises in accordance with this Order.
4.That a warrant of eviction is to be issued in accordance with Order 2 of these Orders.
5.That this Order is suspended for 7 days.
5.(sic) That the lessor may access the premises immediately to determine whether the tenant/s is still in possession.
6.That the tenant/s is to remove all goods and return the premises in a clean condition by 5.00pm on the 14 day of May 2009.
7.That any goods remaining on the premises after the date for vacant possession will be deemed uncollected goods and the Uncollected Goods Act applies to their storage and disposal.
8.That the Fridge, Machine and Dryer are not to be removed as they are the property of the Owner.
9.That the tenant/s shall pay the lessor rental arrears on the sum of $3,042.30 on or before the 28th May 2009.
10.That the tenant/s shall pay the lessor an occupancy fee at the rate of $100 per day from the 7th May 2009, until the date that possession is given.”
The residential tenancy commenced on 15 January 2009 for a fixed term of two years at a weekly rent of $700. A security bond of $2800 was lodged with the ACT Office of Rental Bonds. At the hearing on 21 May 2008 the Lessors gave evidence that the security bond had been released by the tenants to cover some of the rental arrears, however, the arrears had increased to $4,484.10 at the date of the hearing. The tenants had made no payment of rent or arrears since 11 February 2009, though the security bond of $2800 had been released to the lessors on 20 April 2009 to assist in reducing the arrears.
The Tribunal notes that the tenants had made no payment of any amount in the period between the Orders of 7 May 2009 and the hearing on 21 May 2009.
At the hearing on 21 May 2009 the tenants reiterated the information contained in their written submissions to the Tribunal dated 7 May 2009, that:
· On 30 January 2009 the tenant, Mr Danielsson, lost his job and has been unemployed since.
· On 7 May 2009 Mr Danielsson was appointed to a position with the Department of Prime Minster and Cabinet, to commence on 11 May 2009, pending security clearance.
· Mr Danielsson is unable to provide evidence of his appointment or rate of pay as he has “been awaiting clearance”.
At the hearing on 21 May 2009 the Tenants stated that Mr Danielsson still had not been appointed to the above position and the Department of Prime Minster and Cabinet had lost his papers and had not given him security clearance which could take up to three weeks. The tenants said that they had come to the hearing to offer to pay all that they owed to the lessors within 6 weeks.
The Lessors were not willing to negotiate any further with the tenants as they said the tenants now owe them $4,484.10 with no payment made since 11 February 2009 and no bond remaining. The Lessors’ Property Managers also said that they had entered into various negotiations with the tenants since February 2009 and that none had had a positive outcome.
The Tribunal having had the benefit of observing the tenants (and the lessors) at the hearing is unconvinced by the tenants’ submissions that it should exercise it’s discretion under section 49(2) of the Residential Tenancies Act 1997 (‘the Act’) for the following reasons:
· There is no documentary evidence confirming any appointment for Mr Danielsson to any position in the Australian Public Service or any other employment, only the tenants’ statements about Mr Danielsson having been given an appointment to a position in the Department of Prime Minister and Cabinet “after security vetting/clearance”.
· There is no documentary evidence confirming that the Department of Prime Minister and Cabinet has “lost” Mr Danielsson’s papers which is the reason the tenants gave for the length of time it had taken for the appointment to take effect. The Tribunal noted that the tenants stated in the tenant’s letter of 7 May 2009 to the Tribunal, that Mr Danielsson’s commencement date in the position was 11 May 2009. This does not accord with the tenants’ statement at the hearing that it would take 3 weeks for such a high security clearance.
· In their letter of 7 May 2009 to the Tribunal, the tenants said they would vacate by the date given to them by the Tribunal if the Tribunal ruled against them at the hearing on 7 May 2009. In fact, the tenants sought a stay of the Orders.
· Though the Tribunal twice brought section 49(2)(a) of the Act to the tenants’ attention and sought evidence of the outstanding rent having been paid and evidence to satisfy the Tribunal that the tenants would be able to pay the rent as it falls due in the future, no such evidence was forthcoming from the tenants, other than the unconfirmed appointment of Mr Danielsson referred to above.
· The tenants stated that they are “on the dole” and, therefore, the Tribunal is not satisfied that they could possibly pay a weekly rent of $700 in the future
· At the hearing on 21 May 2009, the tenants’ main evidence was of their dissatisfaction with the lessors’ Property Managers. This was irrelevant to the exercise of the Tribunal’s discretion or to any setting aside of the Orders of 11 May 2009 as the Tribunal pointed out to the tenants a number of times during the hearing.
· The tenants have made no payment of rent since 11 February 2009 other than by the release of the bond in April 2009. They made no effort to make even a token payment between the hearing on 7 May 2009 and the hearing on 21 May 2009.
· There is no hardship argument as the lessors have suffered a total of 2 months without receiving rent for the premises and should not be put in the position of providing “no-cost housing” for the tenants. The Lessors have to pay the usual outgoings on the property without receiving any income and without any definite date on which the tenants will be able, not only to pay rent as it becomes due but also, to repay the arrears.
Therefore, the Tribunal dismissed the application to set aside the Orders of 7 May 2009. However, the Tribunal stayed the Orders for 7 days as it noted that the Registry made an administrative error and sent the Orders to the tenants at 31 “Realm” 7 Sydney Avenue, Barton ACT and not to 34 “Realm”7 Sydney Avenue, Barton ACT. So, though the lessors’ Property Manger forwarded a copy of the Orders to the tenants, who applied on 12 May 2009 to set aside the Orders, the Tribunal considered it just and appropriate to stay the eviction for 7 days until 28 May 2009.
10. The tenants having sought to add the word “Washing” before the work “Machine” in Order 8 of 7 May 2009, the Tribunal ordered that: “Order 8 of the 7th May 2009 be amended to refer to a “Washing Machine”, not merely a “Machine”.
DETERMINATION
11. For all the above reasons, the Tribunal made the following orders:
1.That the application to set aside the Orders of 7 May 2009 is dismissed.
2.That the eviction is stayed for 7 days until the 28th May 2009 as the Orders of the Tribunal dated 7th May 2009 was not forwarded to the correct address for the Tenants, though the Tenants received a copy of the Orders from the Lessors’ Property managers.
3.That Order 9 of the 7th May 2009 is amended to read:
That the Tenants owe rental arrears of $4,484.10 together with an occupancy fee of $100 per day from today, making a total of $5,184.10 due on 28 May 2009.
4.That the Tenants are to pay the Lessor C/- ACT Civil and Administrative Tribunal Registry the sum of $5,184.10 on or before 4th June 2009.
5.That Order 8 of the 7th May 2009 be amended to refer to a “Washing machine”, not merely to a “Machine”.
6.That the Tenants provide ACT Civil & Administrative Tribunal Registry with a forwarding address on vacating the premises in accordance with Clause 99 of the Standard Residential Tenancy Terms.
Jennifer David
Senior Member
26 May 2009
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: RT09/262
APPLICANT/S: ANDREW & LEANNE GREGORY
RESPONDENT/S: CHRISTER DANIELSSON & JULIA STONE
TRIBUNAL MEMBER/S: MS J DAVID
DATE/S OF HEARING: 21 May 2009 PLACE: CANBERRA
DATE/S OF DECISION: 21 May 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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