ACT Housing v Mildwater - [2006] ACTRTT 3

Commissioner for Housing for the ACT v Lynda Jane Mildwater [2006] ACTRTT 3

CATCHWORDS
Termination of Residential Tenancy Agreement
Effect of Termination and Possession order on condition – breach of condition

ISSUES

LEGISLATION
Residential Tenancies Act 1997 (ACT)
sections: 36, 37, 39, 40
prescribed terms: 92

CASES CITED
ACT Housing v K.A. [2003] ACTRTT43
Commissioner for Housing for the ACT v Nicole Smith [1995] ACTSC17
Commissioner for Housing for the ACT v Jeannene Masling [2005] ACTRTT9
Commissioner for Housing for the ACT v Ante Mihalj [2002] ACTRTT14
NSW Land & Housing Corporation v Liddell (Tenancy) [2005] NSWCTTT 386
Commissioner for Housing for the ACT –v- Darryl Hudson & Debbie Hudson [2005] ACTRTT10
Progressive Mailing House –v- Tabali [1985] 157 CLR 17
Commissioner for Housing for the ACT v Saddler [2002] ACTRTT31

Case Reference Number: RT 01/1057

Re: 11 Dickinson Street, Watson ACT 2602

Decision

1. That the application to set aside the orders is refused.
2. That the warrant of eviction is to be reissued.

Member: J. Lennard
Date: 9 January, 2006

REASONS FOR DECISION
Background Facts
1.The Commissioner for Housing in the Australian Capital Territory (Lessor) and Lynda Jane Mildwater (Tenant) entered into a residential tenancy agreement in relation to premises at 11 Dickinson St. Watson, ACT on 24 June 1996.

2.The tenant's rental account was first in arrears in November 1996. From November 1996 to July 2001 the tenant and the lessor had entered into not less than 7 agreements, under which the tenant was to pay rent plus an amount towards rental arrears. None of these agreements was adhered to by the tenant.

3.The lessor served several Notices to Remedy and Notices to Vacate upon the tenant in this period.

4.On 14 August 2001, the Residential Tenancies Tribunal heard the Lessor's application for a Termination and Possession order to have effect as a warrant; and made the following orders by consent:

1)That the residential tenancy agreement relating to the tenant, Lynda Mildwater's, occupancy of the premises be terminated upon default in any of the conditions specified in Order 3 of this Order.
2)That the lessor be granted vacant possession of the premises on and from the expiration of 7 days written notice, from the date of any default in any of the conditions specified in Order 3 of this Order.

3) That this Order is made subject to the following conditions:
a)that the arrears of rent being some of $1906.30 . be paid at a rate of $30 per fortnight;
b)that the arrears of rent are to be paid to the Commissioner for Housing for the ACT by way of Centrelink Direct Debit;

c) …
d) …
e)that rent from the date of this Order is payable in advance to the Commissioner for Housing for the ACT commencing 30 August 2001;
f)that the tenancy be varied to include a requirement that any rent payable is to be paid by direct debit through Centrelink;

4) …

5.On 12 May 2003 the lessor made an application for a Warrant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] ACTRTT 3
Decision Date: 9 January, 2006

CaseChat Overview and Summary

The case of ACT Housing versus Mildwater involved a dispute over the termination of a Residential Tenancy Agreement. ACT Housing sought to terminate the lease on the grounds of a breach of condition by Mildwater. Following a hearing, the court issued an order for the termination of the lease and a possession order. Mildwater subsequently applied to set aside these orders, arguing that the termination was unlawful. The matter was heard in the ACT Civil and Administrative Tribunal.

The primary legal issue before the tribunal was whether the termination of the lease and the possession order were valid. Mildwater argued that the termination was not justified and that the possession order was therefore invalid. ACT Housing contended that the termination was appropriate given Mildwater's breach of the lease terms. The tribunal had to determine whether the breach was significant enough to justify the termination and if the subsequent possession order was lawful.

The tribunal found that the breach of the lease terms by Mildwater was indeed significant and justified the termination of the lease. The tribunal held that the breach related to the condition of the property, which was a fundamental term of the lease. Given the breach, the tribunal concluded that the termination was proper. As a result, the possession order was also valid, and Mildwater was required to vacate the premises. The application to set aside the orders was refused, and the tribunal ordered that a new warrant of eviction be issued.

Orders

Orders of the court

Decision

1. That the application to set aside the orders is refused.

2. That the warrant of eviction is to be reissued.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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