COMMISSIONER for SOCIAL HOUSING in the ACT & JORDAN (Residential Tenancies)
[2013] ACAT 19
•28 March 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING IN THE ACT & JORDAN (Residential Tenancies) [2013] ACAT 19
RT 12/1276
Catchwords: RESIDENTIAL TENANCIES – enforcement and interpretation of consent order – exercise of injunctive powers – what is an order under section 83(b) - whether the order is ambiguous – whether the order requires performance of action - is the order enforceable – deficiency in the order could not be cured by interpretation
List of Legislation: Residential Tenancies Act 1997, ss. 48 & 83
List of Cases: Athens v Randwick City Council [2005] NSWCA 317
Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
Lucas & Commissioner for Social Housing in the ACT (Residential Tenancies) [2010] ACAT 71
Maclean v Shell Chemical (Australia) Pty Ltd
(1984) 2 FCR 593
Tribunal: Mary-Therese Daniel - Member
Date of Orders: 28 March 2013
Date of Reasons for Decision: 28 March 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 12/1276
BETWEEN:
COMMISSIONER FOR SOCIAL
HOUSING IN THE ACT
Applicant
AND:
LINDA ANN JORDAN
Respondent
TRIBUNAL: Mary-Therese Daniel - Member
DATE: 28 March 2013
ORDER
1. The application for a termination and possession order pursuant to section 48(1)(b) of the Residential Tenancies Act 1997 is dismissed.
………………………………..
Mary-Therese Daniel
Member
REASONS FOR DECISION
On 28 November 2012, the Commissioner for Social Housing in the ACT (applicant/lessor) filed an application for resolution of a tenancy dispute against Ms Linda Ann Jordan (respondent/tenant) seeking orders terminating the residential tenancy agreement between the parties.
Background to these proceedings
On 11 January 2012, the Tribunal had made an order by consent of the parties (the Order), in the following terms:
By consent:
The Tribunal orders in respect of premises at ...
1. The respondent tenant is ordered pursuant to S83(a) and (b) of the Residential Tenancy Act 1997 to refrain from any behaviour amounting to a breach of her obligations under the Residential Tenancy Act 1997 of the lease dated 2 January 2010 with particular reference to clause 70(b) and 70(c) and clause 73 of that lease.
From the documents before the Tribunal, it does not appear that there was a ‘lease dated 2 January 2010’ between the parties. This appears to be a typographical error in the Order. The residential tenancy agreement had been entered into by the parties on 14 April 2011.
The clauses of the lease referred to in the Order appear to be the following prescribed terms:
Tenant must not use the premises for illegal purposes and must not disturb the neighbours
70 The tenant must not:
(a) use the premises, or permit them to be used, for an illegal purpose to the detriment of the lessor’s interest in the premises; or
(b)cause or permit nuisance; or
(c)interfere, or permit interference, with the quiet enjoyment of the occupiers of nearby premises.
Tenant may be responsible for damage or other breach of tenancy agreement by visitors or guests
73 The tenant is personally responsible for the actions or omissions of visitors, guests or other people on the premises if:
(a)the action or omission would if performed by the tenant have constituted a breach of this tenancy agreement; and
(b)the person is on the premises with the permission of the tenant.
The current proceedings
In the current proceedings, the applicant asserts that, since the Order was made on 11 January 2012, it has received complaints regarding loud noise, nuisance, swearing, screaming and drunken parties. The applicant asserts that by virtue of these events the tenant has breached the order, and the applicant is entitled to seek termination of the tenancy under section 48(1)(b) of the Act.
Section 48(1)(b) provides that the Tribunal may terminate a tenancy agreement where the Tribunal has previously made an order under section 83(b), that order has been breached, and the breach justifies termination of the tenancy. There is no like provision in relation to breach of an order made under section 83(a) of the Act.
When the application first came before me on 17 December 2012, I indicated to the parties that I was concerned that the order was not, despite its prefatory words, an order under section 83(b) of the Act. I adjourned the matter to 30 January 2013 for hearing on this preliminary point.
When the matter came before me on 30 January 2013, the applicant sought that I list the matter for hearing and make directions for filing of evidence going to the breaches asserted. I was not prepared to put either party to the expense of preparing evidence for a substantive hearing, if the application might founder on the preliminary point. Consequently, I adjourned the matter to hearing on 6 March 2013 with the parties to exchange written submissions in the adjournment period.
When the matter came before me on 6 March 2013, I heard brief oral argument on behalf of the parties on the preliminary point and reserved my decision, which now follows.
What is an order under section 83(b) of the Residential Tenancies Act 1997?
The best starting point for a determination of whether the Order is an order under section 83(b) of the Act is to first consider what an order under section 83(b) of the Act is.
Section 83 of the Act provides for orders that may be made by the Tribunal, relevantly for this matter in the following terms:
83Orders by ACAT
Without limiting the orders the ACAT may make, the ACAT may make the following orders in relation to an application about a tenancy dispute or occupancy dispute:
(a)an order restraining any action in breach of a residential tenancy agreement or occupancy agreement;
(b)an order requiring performance of a residential tenancy agreement or occupancy agreement;………..
The powers available to the Tribunal under sections 83(a) and (b) are in the nature of statutory injunctive powers. This is clear not only from the wording of the provisions, but from the extrinsic material such as the explanatory statement to the amendments to section 48 which, in inserting section 48(1)(b), referred to an order made under section 83(b)[1] as a ‘specific performance order’.
[1] then numbered section 104(b)
The distinction between section 83(a) which restrains actions in breach of the residential tenancy agreement and section 83(b) which requires performance of the residential tenancy agreement – is important. Broadly speaking, an order under 83(b) is an order in the nature of specific performance or a positive injunction. It requires the performance of an action or actions rather than preventing actions.
There is a vast body of law in relation to the exercise of the sorts of injunctive powers provided by sections 83(a) and (b). While not strictly binding, these long-established principles can by analogy assist in determining when, and how, the powers under these provisions are exercised. So, for example, there may be cases where the Tribunal considers it would be inappropriate to make an order requiring performance because the order sought would require the Tribunal’s constant supervision, or because the issue of breach of the agreement could be more appropriately dealt with by way of a financial remedy such as a reduction of rent. These approaches mirror that taken in relation to the availability of specific performance in superior courts.
Where legislation provides for the making of orders for injunctive relief, the consequences of breach of such an order are usually serious. Breach may amount to contempt or may expose the non-compliant party to a penalty. Similarly, the consequences of breach of an order under section 83(b) of the Act are serious. Breach exposes the tenant to potential termination of the tenancy agreement, and also to the risk of a fine of up to $5000 under section 86 of the Act. Because the consequences of non-compliance are so significant, the exercise of the injunctive power must be both deliberate and incontrovertible.
It is useful to set out some excerpts of the judgment of Lockhart J in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259-260:
“Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction. Contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed: ...
...judgements refer to the dangers of orders being cast in broad terms which “train the heavy guns of the law upon the respondent” ... without giving him adequate guidance.
As Toohey J observed in Maclean v Shell Chemical (Australia) Pty Ltd (1984) 2 FCR 593 at 599:
“Any injunction granted should be in such terms that is reasonably capable of being obeyed ...[The order sought] would create uncertainty and place the respondent in a position where it would not know with any precision what was required of it. It follows that, faced with an application to enforce such an injunction, the court would be in an equally difficult position.””
Later in that decision his Honour quoted the words of the Full Court of the Federal Court of Australia in Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574:
“Nevertheless, such an injunction as that sought by the Commission in this case would have been open to the objection that it was of undesirable width because ... it did no more than reproduce, but this time with the risk of sanctions for contempt, that which the Act in terms forbade by s.48. Any practice of awarding injunctions in such a form is to be discouraged. Such injunctions conflict with the general precept, applicable to the exercise of power under s.80 of the Act as much as to the framing of injunctions in aid of legal and equitable rights, that a final injunction should bear upon the case alleged and proved against the defendant, and should indicate that conduct which is enjoined or commanded to be performed, so that the defendant knows what is expected of him as a matter of fact.”
With these general principles in mind, I turn to consider whether the Order in this case is an order under section 83(b).
Is the Order in question an order under section 83(b)?
The Order refers to section 83(b) of the Residential Tenancies Act 1997 in its prefatory words, but does not expressly require the performance of any act. Rather, the order restrains actions in breach of the residential tenancy agreement, albeit in broad and unspecified terms. Thus, the respondent submitted that the substance of the order was an order under section 83(a), and that the reference to section 83(b) had no operative effect.
The applicant submitted that the Order should be interpreted so as to give full effect to the respondent’s obligations under the tenancy agreement. The basis for this assertion was unclear, and no statutory or other authority was provided. In my view, this proposition is incorrect. It is tantamount to saying that because an order could have been made in the most extreme terms, the Order should be taken to be such an order. I do not accept this as a proper basis for resolving the question of whether the Order is an order under section 83(b).
The proper approach is that first, an order should be clear on its face and capable of being interpreted by a stranger to the litigation. Secondly, any ambiguities in the words used in an order should be interpreted so as to give effect to the intention of the Tribunal in making the Order.
There is a fundamental difference between interpreting an ambiguity in words that are present in an order, and rewriting an order to include significant operative words that are lacking in the original order. There is abundant provision in the ACT Civil and Administrative Tribunal Act 2008 for the correction of accidental omissions and errors, and subsequent amendment of final orders, which should be utilised in the latter case. Substantive defects or omissions in an Order should be addressed through those provisions or even by appeal, rather than by requiring the parties, the public, and ultimately the Tribunal or a court, to interpret an order as including operative words that it does not contain.
The applicant relied on a number of cases in support of the proposition that any ambiguity in the Order could be cured by reference to the content of the clauses of the residential tenancy agreement referred to in the Order, and by reference to the documents before the Tribunal when the Order was made. This is an appropriate course to take where there is ambiguity. The difficulty with this submission in the current matter is that the deficiency in the Order, in my view, goes beyond a mere question of ambiguity. It is not just a matter of interpreting what things were required by the Order to be done by the tenant. The Order does not in its terms require any acts be performed. For the reasons I have set out in the preceding paragraph, it is not appropriate to refer to extrinsic material to imply into the Order words of compulsion which are not present.
The second difficulty with the applicant’s submission is that, even if this were a mere matter of ambiguity (caused perhaps by the prefatory reference to section 83(b)), the extrinsic material to which the applicant referred the Tribunal is of no assistance in resolving that ambiguity.
The clauses of the residential tenancy agreement referred to in the Order contain concepts such as ‘nuisance’ and ‘interference with the quiet enjoyment’. The Notice to Remedy issued 21 November 2011 recites the relevant clauses of the tenancy agreement and specifies that the tenant was required to remedy the breach by “ceasing yelling and screaming from your property, conducting parties were (sic) music exceeds the legal limit and to cease acting in a disruptive and anti social manner.” The Notice to Remedy does not expressly require any act to be undertaken. The application that was before the Tribunal on 11 January 2012 did not specify that the tenant was to be required to perform any act.
A nuisance or interference with quiet enjoyment can occur in a multitude of ways. While some clarity as to the acts the tenant was restrained from undertaking is provided by the Notice to Remedy, after a consideration of all of the extrinsic material, I remain at a loss to comprehend what act or acts the tenant was required to perform.
In this regard, the submissions of the applicant referred to the Tribunal decision of Lucas & Commissioner for Social Housing in the ACT (Residential Tenancies) [2010] ACAT 71 as authority for the proposition that, in certain circumstances, full compliance by a tenant with clause 70 of the prescribed terms impliedly involves the taking of positive steps, such as requiring guests to leave the premises. That is undoubtedly true. However, if an order is to be made under section 83(b) requiring performance of such implied steps, those steps must be specified.
It was also submitted on behalf of the applicant that the words ‘to refrain from any behaviour amounting to a breach’ where appearing in the Order were ‘superfluous’. This submission seemed to suggest that an order under section 83(b) might be made in bare terms asserting an order was made under section 83(b) with reference to a particular clause of the Act.
Arguably such an injunction could be made in reference to a clause of the residential tenancy agreement that required the performance of an act – say for example, payment of water consumption charges[2]. The reference to the clause is sufficient to identify the act to be undertaken. However, in my view it would not be possible to make an injunction in such terms in relation to clauses of the residential tenancies agreement that impose obligations in terms of legal concepts such as ‘quiet enjoyment’ or ‘nuisance’.
[2] An order in such terms could be made, but with consideration to the general principles of injunctive relief should not, it should be more clearly worded.
For these reasons, I am not satisfied that the Order is an order under section 83(b) of the Act.
If the Order is an order under section 83(b), is it enforceable?
For completeness, I have nonetheless considered the interrelated question of whether, if the Order is an order under section 83(b), it is capable of being relied upon to ground proceedings under section 48(1)(b). This is a question of enforceability.
The principles relating to this inquiry were discussed, in the context of contempt proceedings, in Athens v Randwick City Council [2005] NSWCA 317 :
“The construction of an order in respect of which a finding of contempt is sought may involve two inter-related questions. First, what does the order require, on its true construction? And second, is this sufficiently clear to the person affected by the order to support enforcement of that order against that person?”
There was some discussion during oral submissions of the fact that the Order was obtained by consent of the tenant, in a situation where she may or may not have had legal advice or fully understood the ramifications or content of the Order. These are factors which go to the second limb of the test. I indicated during the parties’ oral submissions that I did not feel the need to go in any detail into the circumstances surrounding the making of the Order, although clearly these may be factors which would concern a Tribunal considering enforcement proceedings or a section 48(1)(b) application in a different matter.
In the current matter, it was not necessary to go down this line of inquiry, because it is not possible for the Tribunal to be satisfied as to what the order requires, on its true construction.
If the Order in this case is an order under section 83(b), it is an order which clearly falls foul of the requirements of an enforceable injunctive order as traversed in the cases I have cited above, that is:
· It is not drafted in clear and unambiguous terms
· It leaves determination of the construction of the order to the enforcement proceedings
· It does no more than reproduce, with sanctions, the terms of the legislation
Nonetheless, I have considered whether it is possible, through the process of interpretation, to reach some certainty as to what the Order requires. As outlined above at paragraphs 24 - 29 it is not possible to be satisfied, even by reference to the surrounding material, what the Order requires the tenant to do.
Without certainty as to what the Order requires, it is not possible to determine whether that requirement had been breached.
The Order is not capable of providing a basis for inquiry and action by the Tribunal under section 48(1)(b) of the Act.
Conclusion
The Order under consideration in this matter contains a reference to section 83(b) of the Act, but does not contain any express words requiring performance of an act or acts by the tenant. This deficiency is not a gap that is filled by the reference in the Order to the clauses of the residential tenancy agreement.
The deficiency goes beyond a matter of ambiguity that can be cured by interpretation of the words that appear in the Order. In substance, the Order is not an order under section 83(b) of the Act.
Even if one approaches the question as a matter of resolving ambiguity, the extrinsic material does not make it clear that an order for specific performance was sought, or that the tenant was required to undertake certain acts.
In the end, I am not satisfied that the Order is an order under section 83(b), notwithstanding the reference to that section in the prefatory words.
Even if the Order is an order under section 83(b), it is too vague and imprecise in what it requires of the tenant by way of performance of her obligations to provide a basis for proceedings under section 48(1)(b) of the Act.
………………………………..
Mary-Therese Daniel - Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | RT 12/1276 |
PARTIES, APPLICANT: | Commissioner for Social Housing in the ACT |
PARTIES, RESPONDENT: | Linda Ann Jordan |
COUNSEL APPEARING, APPLICANT | Ms Katavic |
COUNSEL APPEARING, RESPONDENT | |
SOLICITORS FOR APPLICANT | Mr Kwan, ACT Government Solicitor |
SOLICITORS FOR RESPONDENT | Ms Faulder, Welfare Rights and Legal Centre |
TRIBUNAL MEMBERS: | Mary-Therese Daniel, Member |
DATES OF HEARING: | 6 March 2013 |
PLACE OF HEARING: | ACAT Canberra |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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