Commissioner for Housing for the ACT -v- Eastman
[2007] ACTRTT 14
•18 May 2007
Commissioner for Housing for the ACT -v- Eastman ACTRTT14 [2007]
CATCHWORDS
Termination of tenancy; no breach of standard terms
ISSUES
Discretion of Tribunal
LEGISLATION
Residential Tenancies Act 1997 (ACT)
Section 47; Clause 94
CASES CITED
Eastman v Commissioner for Housing in the Australian Capital Territory [2006] ACTSC 52
Waltons Stores (Interstate) Ltd. v. Maher [1988] HCA 7
CASE REFERENCE NUMBER: RT 1518 of 2001
RE: Premises at 20C Jerilderie Court REID ACT 2601
DECISION
ORDERS
1) That the residential tenancy agreement relating to the tenant’s occupancy of premises at 20C Jerilderie court, REID in the Australian Capital Territory be terminated at 10 am on 21 May 2007.
2) That the Applicants be granted vacant possession of the premises from the 21st day of May 2007.
3) That the tenant and any other person claiming a right of possession through the tenant’s tenancy is to vacate the premises in accordance with this Order.
Member: Jann Lennard
Date: 18 May 2007
REASONS FOR DECISION
BACKGROUND
The tenancy
- Premises: 20 C Jerilderie Court REID ACT
- Lessor: Commissioner for Housing for the ACT
- Tenant: David Harold Eastman
- Periodic tenancy commenced 24 December 1981.
The application to Residential Tenancies Tribunal
1) On 1 May 2001 the Applicant lessor served Mr Eastman with a Notice to Vacate pursuant to clause 94 of the Standard Residential Tenancy Terms contained in Schedule 1 to the Residential Tenancies Act 1997.
2) Clause 94 provides:
The lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate at the end of the notice provided that –
(a) the notice is for 26 weeks; and
(b) the notice does not require the tenant to vacate the premises during a fixed term.
3) Mr Eastman was also sent a letter setting out his right to ask for a review of the Applicant’s decision to terminate the tenancy.
4) On 8 May 2001, Mr Eastman through his solicitor, Bernard Collaery, sought such a review on the following grounds:
a)Estoppel by virtue of an undertaking given on behalf of the ACT government by Ms Bernadette Maher.
b)The decision is oppressive.
c)The decision is unreasonable given the circumstances.
d)There has been no breach of the prescribed terms or of the covenants express or implied.
5) On 1 June 2001 Mr Bob Hutchinson, Executive Director, ACT Housing wrote to Mr Collaery and stated “ I have reviewed Mr Eastman’s file and have considered the contents of your letter of 8 May 2001 and have determined that the decision to terminate Mr Eastman’s tenancy should stand.
6) Mr Eastman did not vacate or surrender possession of the premises in accordance with the Notice to Vacate and the lessor made an application to the Residential Tenancies Tribunal for a termination and possession order to have effect as a warrant of eviction.
7) The matter came before the Residential Tenancies Tribunal in 2006 as a consequence of the decision of Ryan J in Eastman v Commissioner for Housing in the Australian Capital Territory [2006] ACTSC 52 to set aside the Tribunal’s order of 26 November 2001 terminating the tenancy and to remit the Application to the Residential Tenancies Tribunal to be heard and determined according to law.
8) The Residential Tenancies Tribunal held a directions hearing on 20 July 2006, and made orders that the Applicant file any further documents by 10 August 2006 and that Mr Eastman was to file his response and any further documents upon which he sought to rely by 18 September 2006.
9) On 13 November 2006 the Applicant filed written submissions with the Residential Tenancies Tribunal.
10) Mr Eastman filed no further documents. Mr Eastman indicated to the Residential Tenancies Tribunal that he would rely upon the documents contained in the Appeal Book for matter SCA 93 of 2001, a copy of which was supplied to the Residential Tenancies Tribunal.
11) The Residential Tenancies Tribunal heard the matter on 22 November 2006. The Applicant Commissioner for Housing for the ACT was represented by Mr David Mossop and Ms Genevieve Cuddihy. Mr Eastman appeared in person.
The Grounds for the Application
12) The Application is made pursuant to section 47(1) of the Residential Tenancies Act 1997 (the Act) which states:
No breach of standard residential tenancy terms
(1) On application by a lessor, the tribunal may make a termination and
possession order if satisfied that –
(a) a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); and
(b) the lessor has served a termination notice on the tenant based on that ground; and
(c) the tenant has not vacated the premises as required by the termination notice.
13) The termination notice was served pursuant to clause 94 of the prescribed terms (as the standard residential tenancy terms were then called) on 1 May 2001. The notice to vacate (termination notice) required Mr Eastman to vacate the premises on or before 1 November 2001.
Clause 94 provides:
Termination of tenancy without cause
The lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate at the end of the notice provided that –
(a) the notice is for 26 weeks; and
(b) the notice does not require the tenant to vacate the premises during a fixed term.
14) It was not disputed between the parties that the Applicant had complied with s47 and clause 94. Section 47 set out the matters which the Applicant had to establish: grounds for termination, service of a notice of termination and failure by the tenant to vacate the premises. The Residential Tenancies Tribunal is satisfied that each of these matters has been established.
The discretion of the tribunal as provided for in section 47 of the Act
15) The Residential Tenancies Tribunal, being satisfied that the necessary prerequisites (as outlined in para 14) for the granting of a termination and possession order have been established, next considered whether it should nevertheless refuse the application by exercise of the discretion given to it in s47. Section 47 of the Act states that… the tribunal may make a termination and possession order if satisfied that –
(a) a ground for termination exists under the standard residential tenancy terns (other than for a breach of the standard residential tenancy terms); and
(b) the lessor has served a termination notice on the tenant based on that ground; and
(c) the tenant has not vacated the premises as required by the termination notice.
16) Ryan J considered the existence and scope of this discretion in Eastman v Commissioner for Housing in the Australian Capital Territory [2006] ACTSC 52 where he considered the question of whether the Tribunal had a discretion to make any order other than one for termination and possession or to decline to make any order at all [para 24].
17) His Honour provisionally concluded that section 47 does, in the use of the word may, confer on the Residential Tenancies Tribunal discretion to be exercised in the application of the section. That is, the Tribunal is not bound to make a termination and possession order upon being satisfied of each of the matters in section 47. His Honour went on to state That is not to say that the discretion…is unfettered. [para 33].
18) The Residential Tenancies Tribunal must exercise the discretion in the light of the purpose and scope of the Act. The factors which may be considered in the exercise of that discretion are to be determined by the interpretation of the legislation conferring that discretion. Thus the Residential Tenancies Tribunal may consider relevant factors relating to its discretion under s47 in light of the rest of the Act. Elsewhere in the Act the Tribunal has discretion to refuse to make termination and possession orders, albeit somewhat limited. Clause 94 clearly contemplates a lessor having the right to terminate a tenancy without any fault or default on the part of the tenant. It is inconsistent with the process set out in the Act, and the right in the lessor to terminate a tenancy without cause, that the Residential Tenancies Tribunal should have a broad discretion to refuse to make such an order. Nevertheless the existence of the discretion as found by Ryan J in Eastman v Commissioner for Housing in the Australian Capital Territory [2006] ACTSC 52, means that the Residential Tenancies Tribunal is bound to hear and consider arguments advanced by the tenant as to why the Residential Tenancies Tribunal should not make the termination and possession order sought. Neither his Honour nor the Act provides any guidance for the Residential Tenancies Tribunal as to which factors should be considered, save that the scope and operation of the Act will limit the factors.
19) The Residential Tenancies Tribunal is of the opinion that matters which go to the fundamental nature of a residential tenancy, which reflect the balance of the interests of lessors as investors or providers of housing and the interests of tenants as householders as well as those concerned with the contractual basis of a residential tenancy agreement would fall within the range of factors to be taken into account in the exercise by the Residential Tenancy Tribunal of the discretion conferred in s47.
Factors which Mr Eastman puts to Residential Tenancies Tribunal
20) The Tribunal proceeded on the basis that the not unfettered discretion conferred by s47 would allow the consideration of one party’s alleged unconscionable conduct.
21) Mr Eastman referred to a letter written by Ms Bernadette Maher, Delegate of the Commissioner for Housing on 5 September 2000. This letter was addressed to Mr Eastman and stated:
The Housing Review Committee considered your appeal against ACT Housing’s decision to terminate your tenancy at 20 Jerilderie Court Reid on 17 July 2000. As you are aware Mr Collaery represented you at the hearing.
After careful consideration of your case, the Committee recommended to me that your appeal be upheld.
I have agreed with the recommendation and approved for you to retain your tenancy of 20 Jerilderie Court Reid until such time as the ACT Government has made a decision on your application for a judicial review.
Once the decision on your application for a judicial review has been made, your tenancy rights will be reviewed.
22) Mr Eastman alleged that this letter have rise to a binding agreement between himself and ACT Housing and that for ACT Housing to renege on that agreement is unconscionable.
23) Mr Eastman asserted that ACT Housing was bound to continue the Residential Tenancy Agreement between the parties until such time as all matters relating to the Judicial Review of his matter are completed. He bases that assertion upon the claim that ACT Housing is estopped from resiling from its promise as contained in the letter written by Ms Bernadette Maher on 5 September 2000.
24) Estoppel arises from the conduct of the parties and may allow one party to prevent the other from breaking a promise given, where in all the circumstances it would amount to unconscionable conduct for the promisor to resile form the promise.
25) The law sets out the following prerequisites which must be established by the person seeking to avoid the resiling from the promise. See Waltons Stores (Interstate) Ltd. v. Maher [1988] HCA 7
(a)the plaintiff must have made an assumption that a particular relationship or a particular state of affairs exists between the parties,
(b)the plaintiff must establish that the assumption as to the state of affairs was induced by the conduct of the other party,
(c)the plaintiff must have relied upon that assumption, in the sense that the plaintiff has altered his position on the basis that the assumption would be adhered to,
(d)the defendant must have had knowledge of the reliance upon the assumption by the plaintiff,
(e)the plaintiff would suffer detriment if the assumption is not met
(f)the defendant has failed to act to avoid the detriment
26) Mr Eastman addressed the elements as set out above. The Residential Tenancies Tribunal summarises his submissions in relation to those elements:
a) Mr Eastman stated that he took the statement made by Ms Maher to mean that his tenancy would continue and that the lessor would not exercise its rights under the Residential Tenancies Act 1997 to terminate the tenancy until the Judicial Review was complete;
b) Mr Eastman asserted that he had continued to pay many thousands of dollars in rent, based on his assumption that the tenancy was protected from termination;
c) Mr Eastman gave evidence that he still thought of the flat as his home, that he had an emotional attachment to it. He asserted that the loss of this home would be distressing to him.
27) Mr Eastman stated that the Residential Tenancies Tribunal should also take into account that the flat had produced income for the Territory, the flat was well maintained and that the disadvantage to him was greater than any perceived disadvantage to the lessor or the Territory.
28) Mr Mossop, for the lessor referred the Residential Tenancies Tribunal to Eastman v Commissioner for Housing in the Australian Capital Territory [2006] ACTSC 52 at paragraphs 34 to 36, where His Honour stated:
In particular, I am not persuaded that any estoppel arising from the recommendations of the Committee or the decision taken in reliance on that recommendation by Ms Maher as a delegate of the Commissioner would compel the Tribunal to exercise its presumptive discretion by declining to make a termination and possession order [34]…..
…the Commissioner cannot, by any form of estoppel, including one arising from the findings of the Committee or the statements of the Commissioner or his delegate, preclude himself or any successor from exercising the discretion at all, or in a particular way, in the future….[35]
How, it may rhetorically be asked, can Mr Eastman point to any change of position on his part which would operate to his detriment if the assurance in Ms Maher’s letter of 5 September 2000 were resiled from?...[36]
Mr Mossop submitted that this decision prevented the Residential Tenancies Tribunal from considering the estoppel arguments raised by Mr Eastman, because the Supreme Court had found that estoppel was not made out. However, His honour also stated that that is not to say that the recommendations of the Committee and Ms Maher’s consequent letter are matters which the Tribunal could not take into account in exercising the discretion which I have imputed to it.
29) The estoppel issues are inextricably intertwined in Mr Eastman’s submissions with the consideration by the Residential Tenancies Tribunal of the representations made by the Commissioner and her delegates. Thus, the Tribunal allowed Mr Eastman to make these submissions and weighs them, and any issue of subsequent unconscionable conduct, in the balance in the exercise of its discretion. The Tribunal is of the view that Mr Eastman is not able to establish an estoppel based on the representations contained in Ms Maher’s letter of 5 September 2000. Mr Eastman is not able to point to any conduct or action on his part that would amount to detrimental reliance by him on the assumed state of affairs.
30) Even though the representations made by Ms Maher do not give rise to an estoppel, they may still be relevant to the exercise of the Tribunal’s limited discretion under s 47. Mr Eastman asserts that the Applicant has promised to continue his tenancy until the matter of the Judicial Review is completed, and, that the initiation of action to terminate the tenancy is unconscionable. This ‘promise’ must be examined in the light of the surrounding circumstances, the intention and understanding of the parties and subsequent events. The Residential Tenancies Tribunal takes into account the following matters:
a) The Applicant is the primary supplier of low cost public housing in the ACT. In an affidavit before the Residential Tenancies Tribunal David Matthews, Senior Manager – Operational Services for ACT Housing stated, inter alia, that demand for public housing always exceeds supply in the Territory and that there are significant waiting lists for all types of accommodation. Details supplied with the affidavit showed that there was a wait of more than 1000 days for standard allocations and that there were at the date of the hearing 2292 applications on the Housing Register.
b) That the Lessor understood form the representations made to the Committee by Mr Collaery (in 2000) that the contemplated time frame for the conduct of the Judicial Review was 6 months;
c) That from the correspondence between the parties it was clear that the Commissioner for Housing, whenever delaying the process of terminating the tenancy did so on the understanding that a final decision in relation to the Judicial Review would be made shortly.
d) That there was considerable confusion arising form the number of applications for a review;
e) That Mr Eastman had in a letter dated 18th September 1996, stated, in relation to his appeal to the High Court of Australia, if that decision should happen to be adverse, I will surrender the flat. Mr Eastman has not honored that undertaking;
f) In all the circumstances it was never the intention of the Commissioner for Housing to delay termination of Mr Eastman’s tenancy indefinitely or until all forms of legal process have been exhausted. Indeed if an estoppel had been made out, it would be true to say that the circumstances of the estoppel were met by the completion of the Judicial Review and the decision of the executive as set out in the letter written by Mr Jon Stanhope, Chief Minister for the Australian Capital Territory, dated 22 February 2006 which states:
The Executive has fully considered the report of the Honourable Jeffrey Allan Miles. His Honour found that:
1. there was no miscarriage of justice in your trial; and
2. it was not shown that it was likely that you were unfit to plead.
Accordingly, the executive is taking no further action in connection with the matter of your fitness to plead.
31) The Applicant has satisfied the requirements for an application for a termination and possession order based upon the operation of clause 94 of the Standard Residential terms and s47 of the Residential Tenancies Act 1997.
32) The Commissioner , in all the circumstances has acted in good faith and the action taken to terminate the tenancy is not, in all the circumstances, unconscionable.
33) The Residential Tenancies Tribunal has taken into account the submissions made by Mr Eastman in relation to matters which ought to be considered in the exercise of its discretion in relation to the making of a termination and possession order pursuant to s47. The matters considered are summarised above.
ORDERS
1) That the residential tenancy agreement relating to the tenant’s occupancy of premises at 20C Jerilderie court, REID in the Australian Capital Territory be terminated at 10 am on 21 May 2007.
2) That the Applicants be granted vacant possession of the premises from the 21st day of May 2007.
3) That the tenant and any other person claiming a right of possession through the tenant’s tenancy is to vacate the premises in accordance with this Order.
Jann Lennard
Member
18 May 2007
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