Commissioner for Housing v Key - [2004] ACTCA 17

COMMISSIONER FOR HOUSING v KEY
[2004] ACTCA 17 (25 August 2004)

APPEAL – point of law not raised before the Tribunal below – whether Commissioner entitled to raise that point of law on appeal
LEASES AND TENANCIES – determining appropriate rental increase – relevance of s 68(2)(b) – considerations for determining whether rental increase excessive – whether rental component of Consumer Price Index a relevant consideration
WORDS AND PHRASES – 'any other matter the Tribunal considers relevant'

Residential Tenancies Act 1997 (ACT) ss 67, 68, 69

O'Sullivan v Watson (1986) 7 NSWLR 693 considered

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 55 - 2003
No. SCA 55 of 2003

Judges: Higgins CJ, Connolly and Moore JJ
Court of Appeal of the Australian Capital Territory
Date: 25 August 2004

IN THE SUPREME COURT OF THE  )   No. ACTCA 55-2003
  )  No. SCA 55 of 2003
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:COMMISSIONER FOR HOUSING
Appellant

AND:PAMELA KEY
Respondent

ORDER

Judges:  Higgins CJ, Connolly and Moore JJ
Date:  25 August 2004
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

IN THE SUPREME COURT OF THE  )  No. ACTCA 55-2003
  )  No. SCA 55 of 2003
AUSTRALIAN CAPITAL TERRITORY  )
  )
COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: COMMISSIONER FOR HOUSING
Appellant

AND: PAMELA KEY
Respondent

Judges:  Higgins CJ, Connolly and Moore JJ
Date:  25 August 2004
Place:   Canberra

REASONS FOR JUDGMENT

This is an appeal from the judgment of Ryan J of 5 December 2003 by the Commissioner for Housing ("the Commissioner"). His Honour was dealing with an appeal by the Commissioner against the decision of the Residential Tenancies Tribunal ("the Tribunal") made on 28 July 2003. The Tribunal is constituted under the Residential Tenancies Act 1997 (ACT) ("the Act"). The Tribunal ordered that the rent payable by the respondent to the Commissioner under a Residential Tenancy Agreement in respect of a house at 15 Bannister Gardens, Griffith in the ACT ("the premises") be increased by $40 a week rather than $55 a week which had been proposed by the Commissioner. The increase ordered by the Tribunal brought the total rent of the premises to $225 a week. Two of the orders made by the Tribunal were:

3. That the new rental of $225.00 per week is to take effect from 1 February 2003.
4. That in the event that the new rental rate creates a position where the tenant is eligible for a rental rebate, the rebate is to be applied retrospectively to the date of the rental increase.

In this appeal, the Commissioner raised five grounds of appeal though some concern the same issue. It is convenient to deal with the issues in the order in which counsel for the appellant addressed them at the hearing…

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.

Continue reading Commissioner for Housing v Key

Details

AGLC: Commissioner for Housing v Key [2004] ACTCA 17
Case: [2004] ACTCA 17
Decision Date

CaseChat Overview and Summary

The Court of Appeal of the Australian Capital Territory heard an appeal by the Commissioner for Housing against a decision of a Supreme Court judge, who had in turn reviewed a decision of the Residential Tenancies Tribunal. The dispute concerned a proposed rent increase for a residential property. The Tribunal had ordered a lesser increase ($40 per week) than that proposed by the Commissioner ($55 per week), setting the new rent at $225 per week from 1 February 2003, with provisions for rental rebates.

The appeal raised several legal issues. Firstly, it concerned whether the Commissioner was entitled to raise a point of law on appeal that had not been argued before the Tribunal below, specifically regarding the Tribunal's power to set the commencement date of a rent increase. Secondly, the appeal questioned the adequacy of the Tribunal's reasons for its decision. Thirdly, and as the principal point, the appeal challenged the Tribunal's consideration of the Consumer Price Index (CPI) as a relevant factor in determining whether a rental increase was excessive, particularly in relation to section 68(2)(b) of the Residential Tenancies Act 1997 (ACT).

The Court of Appeal dismissed the Commissioner's appeal on the first ground, holding that the Commissioner should not be permitted to raise the issue of the Tribunal's power to set the rent increase date, as a concession had been made before the Tribunal that allowed for flexibility on this point, and this concession could have cured any potential error. The Court found it unnecessary to consider the adequacy of the Tribunal's reasons, as they were not satisfied that the Tribunal had erred in law. Regarding the principal issue, the Court held that the index number, defined as the CPI for privately-owned dwelling rents, could be a relevant consideration for the Tribunal when assessing whether a rental increase was excessive, pursuant to section 68(3)(j) of the Act, which allows the Tribunal to consider "any other matter the Tribunal considers relevant." The Court rejected the Commissioner's submission that this provision should be interpreted narrowly, finding that the index number could be relevant, particularly in circumstances where comparable premises are not available.

The appeal was dismissed with costs.

Orders