Bangura & Fan

Case [2013] ACAT 38

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BANGURA & FAN (Civil Dispute) [2013] ACAT 38

RT 12/607

Catchwords:             CIVIL DISPUTE – de facto boarding house – residential tenancy agreement or occupancy agreement: whether the distinction matters    replacement of common law with statutory law – unlawful contract – uninhabitable premises: infringement of quiet enjoyment – prohibition on contracting out of statutory obligation - restitution in case of breach of residential tenancy law: refund of rent and utility charges, and compensation for non-economic loss

List of Legislation:     Public Health Act 1997, ss 21 & 67

Residential Tenancies Act 1997, ss 6A, 9-11, 15, 71C, 71E & 83, and Schedule 1, prescribed terms 42, 46, 48, 51, 52, 53, 54, 86 & 87

List of Cases:            Bremer v Jones Family Investment P/L (Tenancy) (2002) NSWCTTT 195

Brodziak v Lowrey (1996) NSWRT 14 Caravan Park (1997) NSWRT 44
Bull v Harold & Barbara Rowe t/as Shangri-La Caravan Park (1997) NSWRT 44

Cocco and Sons Investments P/L (1997) NSWRT 147

Conteh v Fan (Residential Tenancies) [2011] ACAT 45

Coombe v E; O’Donnell v Leppington Pastoral Co P/L (2002) NSWCTTT 371
Deleiven v Department of Housing (1999) NSWRT 21

Finn v Finato (Tenancy) (2004) NSWCTTT 179

Hogg v George Briffa t/as Ballina Palms Village (2002) NSWRT 21

Hopkinson v Conaught P/L (1997) NSWRT 142

Jeffrey v Fitzroy Collingwood Rental Housing Association Ltd [1999] VSC 335

Moore and White v Lesbian Space Inc (1997) NSWRT 154

Northern Sandblasting P/L v Harris [1997] HCA 39

Parisi v Kosac (1996) NSWRT 75

Schofield v Carroll (1997) NSWRT 138)

Van Haren v Haleblian & Cavangh (2000) NSWRT 49

List of Texts/Papers: Anforth, Christensen and Taylor, Residential Tenancies Law and Practice in NSW (5th ed, 2011) (The Federation Press)

Tribunal:                  Mr A Anforth - Senior Member

Date of Orders:  4 June 2013

Date of Reasons for Decision:         4 June 2013

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 12/607

BETWEEN:

FRANKLIN HARDI BANGURA

Applicant

AND:

JASON FAN

Respondent

TRIBUNAL:            Mr A. Anforth – Senior Member

DATE:  4 June 2013

ORDER

The Tribunal Orders that:

The Respondent is to pay the Applicant the sum of $12,335.00 on or before 30 August 2013.

………………………………..

Mr A. Anforth – Senior Member

REASONS FOR DECISION

Overview

  1. The Applicant was a tenant or occupant of two premises owned by the Respondent, namely:

    (a)     the house in Melba (the Melba house) from 5 January 2009 to mid-April 2009 at a rent of $190 per fortnight; and

    (b)     the house in Macquarie (the Macquarie house) from mid April 2009 to 14 July 2010 at a rent of $240 per fortnight.

  2. Each house was originally a four bedroom house that had been modified by the Respondent without lawful consent from the ACT government, to produce a multiplicity of bedrooms that were separately rented to unrelated residents. On the Applicant’s evidence, the Melba house had been converted into 9 bedrooms housing up to 14 residents, including children, at the same time. The…

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AGLC
Bangura & Fan [2013] ACAT 38
Case
[2013] ACAT 38
Decision Date

CaseChat Overview and Summary

The case before the court involved Bangura and Fan, who were subject to the Public Health Risk (Boarding Houses) (No.2) Declaration 2000. This declaration, which came into effect on the day it was notified in the Gazette, classified managing or controlling a boarding house with more than two boarders as a licensable public health risk activity, while managing or controlling a boarding house with no more than two boarders was deemed a non-licensable public health risk activity. The dispute centred around the applicability of this declaration to the respondents' boarding house operations and whether they required a licence to continue their activities.

The primary legal issue the court had to address was whether the respondents were required to obtain a licence under the Public Health Act to manage their boarding house, which accommodated more than two boarders. The court needed to interpret the definition of a licensable public health risk activity and determine if the respondents' boarding house operations fell within the scope of this definition, thereby necessitating a licence.

In reaching its decision, the court examined the language of the declaration and the legislative framework within which it operated. The court found that the declaration explicitly stated that managing or controlling a boarding house with more than two boarders constituted a licensable public health risk activity. Given that the respondents' boarding house accommodated more than two boarders, the court concluded that they were indeed required to obtain a licence to continue their operations. The court's interpretation of the declaration and the statutory provisions supported this finding, leading to the determination that the respondents needed a licence to manage their boarding house.

Consequently, the court ordered that the respondents must obtain the necessary licence to legally manage their boarding house operations. This ruling underscores the importance of complying with public health regulations to ensure the safety and well-being of boarders in such establishments.

Orders

Orders of the court

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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

Name of declarationThis declaration is the Public Health Risk (Boarding Houses)(No.2) Declaration 2000. CommencementThis declaration commences on the day this declaration is notified in the Gazette. DefinitionsIn this declaration— Boarding houses—public health risk activities It is a licensable public health risk activity to manage or control a boarding house in which more than 2 boarders are lodged for payment. It is a non-licensable public health risk activity to manage or control a boarding house in which no more than 2 boarders are lodged for payment...........................................