Commissioner for Housing v Terence Arthur Brooks
[2007] ACTRTT 28
•28 November 2007
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES TRIBUNAL
Commissioner for Housing v Terence Arthur Brooks
CITATION:[2007] ACTRTT ( 28 )
RT 538 of 2007
Catchwords: Rent strike
Tribunal:A. Anforth , Member
Date: 28 November 2007
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 538 of 2007
RE: Commissioner for Housing
(Applicant/landlord)
AND: Terence Arther Brooks
(Respondent/Tenant)
DECISION
Tribunal : A. Anforth, Member
Date : 2 November 2007
Decision: : 28 November2007
That the tenancy agreement has been breached.
That the Residential Tenancy Agreement relating to the tenant/s occupancy of the above premises shall terminate, unless the tenant complies with the conditions set out at order 4 below.
That the Residential Tenancies Agreement between the parties will terminate and the lessor is to be granted vacant possession of the premises at 10.00 am on the day after default in any of the conditions set out in order 4.
That this Order is made subject to the following conditions:
(a)the tenant is to pay the lessor the sum of $2,080.17 for rent owed;
(b)the outstanding rent is to be paid by instalments of $26.60 per fortnight, the first payment of which is to be on the 8th day of November, 2007.
(c)in addition to payment of owed rental arrears, the tenant is to pay rent regularly in
(d)accordance with the Tenancy Agreement. Once the arrears have been paid in full the tenant is to continue to pay rent, in advance, in accordance with the Tenancy Agreement.
(e)in default, this order is enforceable for any arrears of rent and unpaid rent which has accrued from the date of this order.
That where the tenant/s are in default of any the conditions specified in order 4 of these orders and the tenant/s fail to vacate, the lessor/s may apply under s42A of the Residential Tenancies Act 1997 to the Registrar for a Warrant of Eviction.
That this order will expire on the 1 November 2008.
…………………………….
Member
28 November 2007
REASONS FOR DECISION
The Respondent is a tenant of premises 16 Block B 41-55 Allambie Street Reid in the ACT and the Applicant is the landlord.
On 16 January 2007 the tenant signed a Residential Tenancies Agreement within the meaning of the Residential Tenancies Act 1997 (the Act) in respect of the premises. The residential tenancy agreement was in the standard form used by the Commissioner. The residential tenancy agreement was periodic from its inception. The rent was $300.00 per fortnight subject to the tenant’s entitlement to a rebate of rent in accordance with the Public Rental Housing Assistance Program made pursuant to the Housing Assistance Act 1987. A description of the statutory basis for the rebate scheme can be found in my decision in Donohoe and McGough v Havelock Housing Association [2007] ACTRTT 1.
A copy of the said Residential Tenancy Agreement was annexed to the Commissioner’s application.
At all material times the tenant was in receipt of a Centrelink disability support pension and was therefore on a rent rebate.
The respondent tenant failed to pay rent due and payable under that tenancy agreement.
On 16 April 2007 a Notice to Remedy for arrears of $308.50 was served on the tenant (prescribed term 92(b)). A copy of that Notice to Remedy and Statement of Service was annexed to the Commissioner’s application.
The tenant did not remedy his account.
On 29 May 2007 a second Notice to Remedy for arrears of $740.40 was served on the respondent tenant. A copy of that Notice to Remedy and Statement of Service was annexed to the Commissioner’s application.
On 9 July 2007 an officer of the Commissioners served a Notice to Vacate on the tenant (section 49(1)(b) and prescribed term 92(c)). The Notice to Vacate was a letter to the tenant advising of the tenant to vacate the premises on or before 30 July 2007 and outlining the options open to him in relation to an appeal. A copy of that Notice to Vacate, the letter from the Commissioner to the tenant and the Statement of Service of the Notice to Vacate was annexed to the Commissioner’s application.
10. On the 9 July 2007 the rent for the premises was in arrears to the extent of $987.20.
11. On 18 September 2007 the Commissioner sent a letter to the tenant advising that the matter was referred to the Residential Tenancies Tribunal for a Conditional Termination and Possession order (section 49(3)). A copy of that letter was annexed to the Commissioner’s application.
12. On 16 September 2007 the rent for the premises was in arrears to the extent of $1,665.90. A copy of the statement of account in respect of the tenant was annexed to the Commissioners application.
13. The tenant did not vacated the premises in accordance with the Notice to Vacate.
14. On 24 September 2007 the Commissioner applied to the Tribunal for a Conditional termination and possession order.
15. The matter was listed before the Tribunal on 15 October 2007. On that day the Ms Burgess appeared for the Commissioner and the tenant appeared in person.
16. The tenant gave the Tribunal a handwritten letter which indicated his intention to defend the matter. That letter said:
I further advise you that as my disabilities are multiple and impact severely on my mobility; especially if I’m laden; that I may not be able to meet you’re your demands.
17. The tenant informed the Tribunal that he was on a “rent strike” arising out of dissatisfaction with the standard of his housing and certain unspecified grievances with the Commissioner’s staff. The Tribunal questioned the tenant concerning the nature of his disabilities and dissatisfaction with his housing but was unable to elicit any coherent response. The tenant seemed to be of the view that the Commissioner should already be well aware of his disabilities and his complaints. Ms Burgess for the Commissioner denied that this was the case.
18. The Tribunal endeavoured to explain to the tenant the significance of a “rent strike” and the gravity of any eviction in terms of his prospects of obtaining alternative housing in the ACT. The Tribunal discussed with the tenant the possibility of a transfer to more suitable government housing and Ms Burgess indicated that this may be possible. The difficulty for the Tribunal and Ms Burgess was that the tenant refused to indicate what was unsuitable about his existing housing or the nature of his disabilities.
19. The Tribunal formed the view that the tenant was an intelligent man but that he appeared to suffer from any some psychiatric impairment as a consequences of which he did not sufficiently comprehend the gravity of his circumstances. For this reason the Tribunal adjourned the proceedings and urged upon the tenant that he attend Welfare Rights and Legal Centre for advice and representation, including advice on providing the Commissioner with the information the Commissioner required to consider any transfer.
20. The matter resumed on 2 November 2007. Again Ms Burgess appeared for the Commissioner and the tenant appeared in person.
21. The tenant informed the Tribunal that he had been to Welfare Rights and Legal Centre who had given him certain advice but could not represent him. The tenant showed the Tribunal a copy of the advice from Welfare Rights and Legal Centre. Notwithstanding the issue of legal privilege associated with his advice and the tenants difficulties in comprehending the proceedings, the Tribunal determined to read the advice to ascertain whether there may be any relevant facts or circumstances in favour of the tenants case of which the Tribunal was unaware. That advice did not disclose any further factual material and generally provided advice on the consequences of a rent strike. The advice urged the tenant to come to some arrangement to pay his rent and his rent arrears through the Tribunal process.
22. In the adjournment period the tenant had not provided the Commissioner or the Tribunal with any information concerning the unsuitability of his housing or his grievances with the Commissioner.
23. The Tribunal spent some time asking the tenant further questions and urging him to co-operate in order to preserve his tenancy. The tenant was simply unable or unwilling to co-operate. He continued to raise issues relating to his disabilities, unsuitable housing and some general non-specific grievances about the attitude of some unidentified employee of the Commissioner. He was unable or unprepared to indicate the specific nature of any of these issues or how it was relevant to his claimed right to engage in a rent strike.
24. At the end of the process the Tribunal formed the view that the tenant was not sufficiently capable of acting in his own best interests and was more concerned with making public statements of his dissatisfaction with the Commissioner.
25. The Tribunal informed the tenant that unless he paid his rent and something towards the arrears then he would leave the Tribunal no choice but to evict him. Notwithstanding his explicit declarations of intent not to pay the rent the Tribunal was of the view that once the opportunity for a degree of public “grandstanding” in the Tribunal had passed, and upon cooler reflection in the privacy of his flat, the tenant would see the wisdom of avoiding an eviction. For that reason the Tribunal informed the tenant that a conditional order would be made pursuant to section 49(3) for the payment of the rebated rent of $172.40 per fortnight together with a further $26.26 per fortnight towards the arrears.
26. At no sage did Ms Burgess urge the Tribunal to adopt any other course of action.
A. Anforth
Member
28 November 2007
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