Commissioner for Housing for the Act v Iris Frank - [2006] ACTRTT 8

Commissioner for Housing for the ACT v Iris Frank [2006] ACTRTT 8
(22 March 2006)

CATCHWORDS

Right to quite enjoyment
Requirement to serve notice to vacate
Termination of tenancy for breach of neighbours enjoyment

LEGISLATION

Residential Tenancies Act 1997 (ACT)-section 48, 104
Prescribed Terms to Residential Tenancies Act 1997 - 70

CASELAW:
ACT Housing v Margules [2003] ACTRTT 6

Case Reference Number: RTT 05/1318

Re: 9 Cowan Street, Downer ACT 2602

Decision

1That the Tenancy Agreement has been breached.
2That the Residential Tenancies Agreement is terminated and possession of the premises is to be given to the lessor/s at 10:00am on the 16th day of February, 2006.
3That 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.
4That if the tenant/s fails to vacate the premises in accordance with Order 2 & 3 above, the lessor may apply to the Registry of the Residential Tenancies Tribunal for a Warrant for Eviction.
5That this order is suspended for a period of 21 days.
6That the tenant/s is to remove all goods and return the premises in a clean condition.
7That any goods remaining on the premises after the date for vacant possession will be deemed uncollected goods and the Uncollected Good Act applies to their storage and disposal.
8That the tenant/s shall pay the lessor an occupancy fee at the rate of $7.79 per day from the 17th day of February, 2006, until the date that possession is given.

9 That the Orders of 25 August 2005 remain in force until vacation of premises.

Member: Jann Lennard
Date: 22 March, 2006

Reasons for decision

The Applicant Lessor and the respondent tenant entered into a residential tenancy agreement on 27 March 2003, in relation to premises at 9 Cowan Street, Downer, ACT.
In June 2004 the lessor began receiving complaints from the neighbours in relation to the conduct of the tenant.
The lessor served a Notice to Remedy for a breach of clause 70 of the residential tenancies agreement – that the tenant should not use the premises in a manner that interfered with the quiet enjoyment of the neighbours. This Notice was served on 14 February 2005. The tenant failed to remedy that breach to the satisfaction of the lessor and as a result the lessor made an application for an order to comply with the terms of the Residential Tenancy Agreement.
On 12 May 2005 the Tribunal heard that application. Both parties had legal representation. The lessor was represented by Mr Christensen and the tenant by Mr Elmarrazzay.
The Application was for an order that the tenant comply with the terms of the residential tenancy agreement, and in particular that the tenant remove from her premises signs which were alleged to be defamatory of her neighbours, and which were causing distress and upset to those neighbours.
The lessor had indicated on the Application form that a termination and possession was being…

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 8
Decision Date: 22 March 2006

CaseChat Overview and Summary

The case of Commissioner for Housing for the ACT v Iris Frank was heard by the Residential Tenancies Tribunal and involved a dispute between the lessor, the Commissioner for Housing for the ACT, and the tenant, Iris Frank. The central issue was whether Frank had breached the terms of her residential tenancy agreement, specifically Clause 70, which mandates that tenants must not interfere with the quiet enjoyment of nearby occupants. The lessor sought to terminate the tenancy and evict Frank due to her alleged continuous breaches of this clause. The dispute came before the tribunal multiple times, with Frank consistently failing to comply with previous orders to cease her disruptive behavior.

The tribunal had to decide whether Frank's actions constituted a breach of the tenancy agreement and whether such a breach justified the termination of her tenancy. The tribunal examined evidence from various neighbours who testified about Frank's loud, abusive, and foul-language directed towards them, which made it impossible for them to use and enjoy their homes. Despite some inconsistencies in the neighbours' testimonies, the tribunal found that Frank's conduct had indeed caused significant distress and fear among the neighbours.

The tribunal concluded that Frank's actions were a clear breach of Clause 70 and that her failure to comply with previous orders indicated either an unwillingness or an inability to adhere to the terms of the tenancy agreement. Given the persistent nature of the breaches and the severe impact on the neighbours, the tribunal deemed that eviction was justified. The tribunal issued an order terminating the tenancy and granting possession of the premises to the lessor, with a 21-day suspension to allow for possible relocation of Frank. The order also mandated that Frank vacate the premises, pay an occupancy fee, and return the property in clean condition.

Orders