Commissioner for Housing v Key

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.