Chen v United Arab Emirates (Residential Tenancies)
[2023] ACAT 42
•12 May 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CHEN & ANOR v UNITED ARAB EMIRATES (Residential Tenancies) [2023] ACAT 42
RT 243/2023
Catchwords: RESIDENTIAL TENANCIES – jurisdictional issue – where an agreement was made between the applicants and a foreign State purporting to be a residential tenancy agreement – where disputes arose after termination of the agreement in relation to release of moneys paid to the Territory as the bond amount – where the Territory referred the dispute to the tribunal under section 35(3) of the Residential Tenancies Act 1998 – whether the tribunal has jurisdiction – whether a foreign State can be a tenant within the meaning of the Act – whether the agreement is a residential tenancy agreement – application dismissed for lack of jurisdiction – where an application for damages for breach of contract may be available in the alternative – considerations arising from the Foreign States Immunities Act 1985 (Cth) discussed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 16
Foreign States Immunities Act 1985 (Cth) ss 3, 9, 10, 11, 13, 14
Legislation Act 2001 ss 6, 160
Residential Tenancies Act 1997 ss 6, 6A, 32, 35, 72 76
Cases cited:Burns v Corbett [2018] HCA 15
Tribunal:Senior Member M Orlov
Date of Orders: 12 May 2023
Date of Reasons for Decision: 15 August 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 243/2023
BETWEEN:
QIAN CHEN
1st Applicant
YINGLIE YANG
2nd Applicant
AND:
UNITED ARAB EMIRATES
Respondent
TRIBUNAL:Senior Member M Orlov
DATE:12 May 2023
ORDER
The Tribunal declares that:
(a)the agreement in writing dated 3 July 2020 (the agreement) was made between Qian Chen and Yinglie Yang (described in the agreement as the “lessor”) and the United Arab Emirates (described in the agreement as the “tenant”), a foreign State within the meaning of the Foreign States Immunities Act 1985 (Cth);
(b)the agreement is not a “residential tenancy agreement” within the meaning of section 6A(1)(a) of the Residential Tenancies Act 1997 (RT Act);
(c)as a consequence of the matters in (a) and (b) –
(i) the notice of a dispute about the release of bond moneys referred to the ACAT by ACT Rental Bonds is not a “tenancy dispute” within the meaning of Part 6 of the RT Act; and
(ii) the Tribunal does not have jurisdiction to hear and decide the matter under section 76 of the RT Act.
Application RT 243/2023 is dismissed.
The Registrar is requested to refund the filing fee of $612.00 paid by the applicant in error on 8 May 2023.
The Tribunal will give reasons in writing for its decision at a later date.
……………Signed………..
Senior Member M Orlov
REASONS FOR DECISION
Introduction and overview
On 3 July 2020, the applicants entered into an agreement to rent their property in O’Malley to the United Arab Emirates. It was common ground the premises were for use as the ambassador’s official residence. The agreement provided for a fixed term expiring on 16 September 2022. On 30 November 2022, a differently constituted tribunal made orders terminating the agreement and requiring the tenant to give vacant possession by 5 December 2022.
On 21 March 2023, the ACAT received a notice of dispute about the release of bond money for the premises. The bond amount was $17,080, all of which the lessors claimed should be paid to them as compensation for damage to the premises and reimbursement of charges for water usage.
On 14 April 2023, I listed the matter for hearing to decide whether the Tribunal has jurisdiction to decide the bond dispute, considering three issues:
(a)First, whether the ‘tenant’ under the written agreement styled “Residential Tenancy Agreement” dated 3 July 2020 (the Agreement) is:
(i) the United Arab Emirates (UAE), a foreign State within the meaning of the Foreign States Immunities Act 1985 (Cth) (the FSI Act); or
(ii) the Embassy of the United Arab Emirates in Canberra (the Embassy) and, if so, whether the Embassy is recognised at law as a separate legal entity having capacity to enter into the Agreement in its own right.
(b)Second, whether the Agreement is a ‘residential tenancy agreement’ within the meaning of section 6A(1)(a) of the Residential Tenancies Act 1997 (RT Act).
(c)Third, whether the Tribunal has jurisdiction to hear and determine any rental bond dispute, residential tenancy dispute and/or contract claim brought by the applicant in reliance on the Agreement, considering the operation of the FSI Act.
The hearing was held on 12 May 2023. As to the first issue, I decided the UAE is the tenant, not the Embassy. As to the second issue, I decided the Agreement is not a ‘residential tenancy agreement’ within the meaning of the RT Act. As to the third issue, I decided the dispute about the release of bond moneys referred to the tribunal on 8 March 2023 is not a ‘tenancy dispute’ within the meaning of part 6 of the RT Act and therefore the tribunal does not have jurisdiction to hear and decide the matter under section 76 of the RT Act. Accordingly, I dismissed the application and advised I would give written reasons later.
These are my reasons.
The first issue
This issue arose because the Agreement identifies “The United Arab Emirates” as the tenant on the front page. The signature page at the end of the Agreement identifies the “Primary Tenant” as “Embassy of the United Arab Emirates in Canberra”.
I determined that the UAE is the ‘tenant’ under the Agreement for several reasons.
First, primacy should be given to the statement on the front page identifying the parties who made the agreement:
The parties
This agreement is made between:
Lessor’s name
the lessor: Qian Chen, Yinglie Yang
…
Tenant’s name
and the tenant/s: the United Arab Emirates
Second, the UAE is a ‘foreign State’ within the meaning of the FSI Act, with capacity to make contracts and, subject to immunities from the jurisdiction of Australian courts provided by that Act, may bring proceedings, or have proceedings brought against it, in its name.
Third, in common parlance, ‘embassy’ may refer to the diplomatic mission representing a foreign State in Australia, or to the official headquarters of the ambassador. The fact that the “primary tenant” is identified on the signature page as “Embassy of the United Arab Emirates in Canberra” suggests the second meaning was intended. The fact that a diplomatic mission is not a legal entity in its own right and does not have capacity to contract, or to sue or be sued in its own name, means the preferable construction of the Agreement is one that gives it legal effect.
The second issue
Section 6(1) of the RT Act provides that a person is a ‘tenant’ if the person has a right of occupation under a residential tenancy agreement.
Section 6A(1) provides that an agreement is a ‘residential tenancy agreement’ if, under the agreement, a person gives the ‘tenant’ a right to occupy stated premises for value and the premises are for the tenant to use as a home, whether or not together with other people. There are exceptions but none are presently material.
Section 160(1) of the Legislation Act 2001 provides that a reference in an Act to a ‘person’ generally includes a reference to a corporation as well as an individual. The section is a non-determinative provision and may be displaced expressly or by a contrary intention.[1] In this case, the intention that ‘person’ may include a corporation where the RT Act refers to a ‘tenant’ is displaced by a contrary intention.
[1] Legislation Act 2001 section 6(3)
A defining characteristic of a residential tenancy agreement is that the premises are for the tenant to use as a home – i.e. a place for the tenant to live – whether or not it is used as a home for “other people”. A corporation cannot occupy premises for use as a home. Neither can a foreign State. Only a natural person, or a group of natural persons, can do so. In my view, it is clear from the statutory text and context that only a natural person can be a ‘tenant’ for the purposes of the RT Act.
In this case the ‘tenant’ is the UAE, a foreign State. The Agreement is not a residential tenancy agreement. The fact that the premises are used by the ambassador as his official place of residence does not make him the tenant under the Agreement.
The third issue
The tribunal has jurisdiction to hear and decide an application about a ‘tenancy dispute’, which is a dispute between parties to a residential tenancy agreement that is about, arises from, or relates to, the agreement.[2] A ‘bond release application’ is an application to the Territory for payment out of the trust account of the amount of the bond paid under a residential tenancy agreement.[3] The Territory must refer a dispute about the release of all or part of bond amount paid under a residential tenancy agreement to the tribunal.[4] A referral is taken to be an application about a tenancy dispute.[5]
[2] Residential Tenancies Act 1998 sections 72, 76
[3] Residential Tenancies Act 1998 section 32
[4] Residential Tenancies Act 1998 section 35(2)
[5] Residential Tenancies Act 1998 sections 35(3) and 72(2)(b)
The main consequence of finding that the Agreement is not a residential tenancy agreement is that the disputed sum of $17,080 held by ACT Rental Bonds is not a bond amount paid under a residential tenancy agreement. It follows that the application seeking an order for the funds to be released to the applicants is not an application about a tenancy dispute and therefore, that the Tribunal does not have jurisdiction to decide the application under the RT Act.
That does not mean that the applicants are necessarily without a remedy. The tribunal’s civil dispute jurisdiction under section 16 of the ACT Civil and Administrative Tribunal Act 2008 permits it to decide applications for damages for breach of contract. Although the Agreement is not a residential tenancy agreement, it is a contract. Claims that the property was returned to the owners in a damaged condition may sound in damages for breach of contract.
An application of that kind would make it necessary to consider the operation of the FSI Act. In broad summary, a foreign State is immune from the jurisdiction of Australian courts,[6] except as provide by the Act.[7] The exceptions include, among other things, where:
(a)the foreign State has submitted to jurisdiction, including by taking a step as a party to the proceedings, subject to certain exceptions and caveats;[8]
(b)the proceeding concerns a commercial transaction;[9]
(c)the proceeding concerns loss or damage to tangible property caused by an act or omission in Australia;[10] and
(d)the proceeding concerns an interest of the State in, or possession or use of, immovable property in Australia or an obligation of the State that arises out of its interest, possession or use of such property.[11]
[6] The tribunal is a ‘court’ as defined in section 3 of the Foreign States Immunities Act 1985 (Cth)
[7] Foreign States Immunities Act 1985 (Cth) section 9
[8] Foreign States Immunities Act 1985 (Cth) section 10
[9] Foreign States Immunities Act 1985 (Cth) section 11
[10] Foreign States Immunities Act 1985 (Cth) section 13
[11] Foreign States Immunities Act 1985 (Cth) section 14
Whether a foreign State has submitted to the jurisdiction of the tribunal, or whether it is not immune from jurisdiction considering the nature of the proceedings, are matters arising under a law of the Commonwealth. Where these threshold issues are in dispute, the tribunal lacks jurisdiction to decide the matter, which would involve the tribunal in exercising federal jurisdiction. Only a court vested with appropriate authority under Chapter III of the Constitution can do so.[12]
[12] Burns v Corbett [2018] HCA 15 see the discussion of “The Constitution” by Kiefel CJ, Bell and Keane JJ at [15]-[23]
The applicants chose not to lodge a civil dispute application. The only course open to the Tribunal in those circumstances was to dismiss the application.
………………………………..
Senior Member M Orlov
| Date of hearing: | 12 May 2023 |
| Applicant: | Danielle Gavin, authorised representative |
| Respondent: | Tarek Alshaikh, representative (not authorised) |
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