Commissioner for Housing in the ACT ?v Terence Arthur BROOKS
[2008] ACTRTT 6
•14 May 2008
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES TRIBUNAL
CITATION:Commissioner for Housing in the ACT –V- Terence Arthur BROOKS ACTRTT 6 (2008)
RT 538 of 2007
Catchwords: Exparte decision
Tribunal:A. Anforth, Member
Date: 14 May 2008
IN THE RESIDENTIAL )
TENANCIES TRIBUNAL ) RT 538 of 2007
OF THE AUSTRALIAN )
CAPITAL TERRITORY )
APPLICANT: COMMISSIONER FOR HOUSING IN THE ACT
(Lessor)
RESPONDENT: TERENCE ARTHUR BROOKS
(Tenant)
DECISION
Tribunal: A. Anforth, Member
Date: 28 April 2008
That the Tenancy Agreement has been breached.
That the Residential Tenancies Agreement is terminated and possession of the premises is to be given to the lessor/s at 10.00am on the 12th day of May, 2008.
That 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.
That 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.
That this order is suspended for a period of nil days.
That the lessor may access the premises immediately to determine whether the tenants/s is still in possession.
That the tenant/s is to remove all goods and return the premises in a clean condition by 10.00am on the 12th day of May, 2008.
That any goods remaining on the premises after the date for vacant possession will be deemed uncollected goods and the Uncollected Goods Act applies to their storage and disposal.
That the tenant/s shall pay the lessor rental arrears in the sum of $3019.80 forthwith.
That the tenant shall pay the lessor an occupancy fee at the rate of $9.27 from the 13th May 2008 until the date that possession is given.
…………………………….
Member
IN THE RESIDENTIAL )
TENANCIES TRIBUNAL ) RT 538 of 2007
OF THE AUSTRALIAN )
CAPITAL TERRITORY )
APPLICANT: COMMISSIONER FOR HOUSING IN THE ACT
(Lessor)
RESPONDENT: Terence Arthur BROOKS
(Tenant)
REASONS FOR DECISION
Background
On 2 May 2008 the Respondent/Tenant requested a statement of reasons in relation to the Tribunal’s procedural direction of decision of 7 April 2008 and its decision of 28 April 2008. The text of the decision of 28 April 2008 is set out above. The reasons for decision follow.
The Respondent is a tenant of the Commissioner’s. For his own reasons he determined to engage in a “rent strike” to which the Commissioner took exception and commenced proceedings in the Tribunal to terminate the tenancy. The Commissioner’s application was heard by the Tribunal on 2 November 2007 and reasons were given (Commissioner for Housing v Brooks [2007] ACTRTT 28). The Tribunal declined to make the order for the eviction of the Respondent and in lieu thereof made what is known as a “condition termination order” which required the Respondent to pay his rent as it fell due and to progressively make good his rent arrears.
Conditional orders are made pursuant to section 49(3) of the Residential Tenancies Act 1997 which provides:
(3) Instead of making a termination and possession order under subsection (1), if—
(a) the tenant is, in the tribunal's opinion, reasonably likely to repay the rent due and payable as well as pay rent that becomes due and payable; and
(b) the tenant agrees to repay the rent due and payable, and undertakes to pay rent as it becomes due and payable, as required by the tribunal;
the tribunal may order that if the tenant fails to pay the rent due and payable, or rent that becomes due and payable, as required by the tribunal—
(c) the tenancy terminates at a specified hour on the day after the day when any rent was due and payable and not paid; and
(d) the lessor becomes entitled to possession of the premises and all rent due is payable immediately.
The Respondent was aggrieved by this decision and appealed to the Supreme Court. The Supreme Court granted leave for the appeal and set aside the Tribunal’s decision (Brooks v Commissioner for Housing [2008] ACTSC 22). Unfortunately for the Application the Court set aside the Tribunal’s decision on the basis of the error of law involved in the Tribunal coming to the decision not to evict the Respondent, but instead to apply section 49(3). The Court held that on the evidence the Tribunal could not have been satisfied that the Respondent was “reasonably likely to repay the rent due…as well as pay the rent that becomes due” and therefore should not have made the conditional termination order under section 49(3). Implicit in the Court’s decision is the recognition that, given the rent strike and the validity of the Commissioner’s Notice of Termination served on the Respondent, the Tribunal should have granted the Commissioner’s order for eviction. The Court remitted the matter to the Tribunal to be determined according to law.
The matter was listed before the Tribunal on 7 April 2008 for directions only. On 1 April 2008 the Respondent delivered a letter to the Tribunal seeking an adjournment of the directions hearing. The letter read:
I hereby seek an adjournment of the hearing set down for 2.00pm on Monday the 7th day of April 2008, on the grounds that:
1. Chronologically my matter in the Discrimination Tribunal comes first and
2. In the interest of humans rights and
3. In the interests of an attempt to bring about the introduction of democracy to this nation.
The Respondent’s request for an adjournment was send to the Commissioner who indicated his/her opposition to the adjournment.
On 7 April 2008 there was no appearance of the Respondent. Ms Field of the ACT Government Solicitors Office appeared for the Applicant. The matter was adjourned to 28 April 2008 with the following notation:
1. The tenant is counselled that he must attend on 28 April 2008 in default of which the matter may proceed in his absence.
2. The Commissioner is asked to alert the Community Advocate of the need to consider a financial management order in the case of Mr Brooks.
A copy of the procedural order made on 7 April 2008 was sent to the Respondent’s residential address at 16 Block B, 41-55 Allambee Street, Reid and a second copy was send to him C/- Civic Square Post Office, Civic Square being the address given on his letter of 1 April 2008.
On 11 April 2008 the solicitors for the Commissioner wrote to the Public Advocate and drew her attention to the Respondent’s case in accordance with the Tribunal’s request.
10. On 28 April 2008 Ms Knox of the ACT Government Solicitors Office appeared for the Applicant but again the Respondent failed to appear. The Tribunal had received no communication from the Respondent.
11. The Tribunal then dealt with the matter exparte and made the order sought by the Commissioner to evict the Respondent. The Respondent was notified by the Tribunal and by the Commissioner of the decision.
12. The Respondent attended the Tribunal registry on 2 May 2008 and applied to set aside the decision of 28 April 2008. This application has been listed 26 May 2008 and the Public Advocate has been notified.
Reasons for making the exparte order on 28 April 2008:
13. The Tribunal has power to made orders exparte (section 91).
14. The Respondent had failed to attend on 7 April 2008 and the matter had been adjourned at his request on that occasion. The Respondent was specifically counselled that he must attend on the 28 April 2008. He did not do so and did not notify the Tribunal of any reason for his non-attendance.
15. On the 28 April 2008 the Commissioner advised the Tribunal that the Respondent still had not paid rent and therefore, having regard to the terms of the Supreme Court’s decision, the merits of the Respondent’s case seemed poor.
16. The Tribunal had specifically asked for the Public Advocate to become involved but this had not occurred in the sense of the Public Advocate contacting the Respondent and coming to an independent assessment of the Respondents capacity to represent his own interests.
17. The Commissioner is ultimately entitled to decision on his/her application.
18. The Tribunal was cognisant of the fact that if the order for eviction was made that the Respondent would be served with a copy of that order and that he would have the right to apply to set aside that order (which he has in fact done). In this sense the Respondent would have a last opportunity to attend the Tribunal and come to some sensible arrangements with the Commissioner. The Tribunal was not confident that merely adjourning the matter again would have achieve this result.
A Anforth
14th May 2008
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