COMMISSIONER for SOCIAL HOUSING in the ACT & URSINO (Residential Tenancies)

[2011] ACAT 89

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING IN THE ACT & URSINO (Residential Tenancies) [2011] ACAT 89

RT 645 of 2011

Catchwords:             Residential Tenancies – Termination and possession – Application for warrant of eviction – Breach of General Order

List of Legislation:   Residential Tenancies Act 1997 (ACT), ss. 48 and 83, and Clause 70(b) and (c) Standard residential tenancy terms

List of Cases:            Joyce Mary Lucas & Commissioner for Social Housing in the ACT [2010] ACAT 71

Tribunal:                  Ms J. David, Senior Member

Date of Orders:  5 December 2011 and 12 December 2011

Date of Reasons for Decision:        20 December 2011

IN THE ACT CIVIL &            )

ADMINISTRATIVE TRIBUNAL          )   FILE NUMBER

RT 645  of 2011  

The Commissioner for Social Housing in the ACT

Applicant

Roy Anthony Ursino

Respondent

Tribunal:          Ms J. David- Senior Member

Date :          5 December, 2011

ORDER

The Tribunal orders in respect of premises at Unit 19,41 Brigalow Court Brigalow Street O’Connor ACT 2602

1. Adjourned to Monday 12 December, 2011 at 9.30am  for the applicant to provide details on the issue of the charges to which the respondent pleaded guilty  before the Magistrates’ Court and for which he was sentenced to
   80 hours of community services for  common assault and was ordered to pay $450.00 for damage to property.
2. That the tenant comply with the terms of his Residential tenancy agreement in particular clauses 63, 70 (b) & (c), 73 (a) & (b) pursuant to section 83 of the Residential Tenancies Act 1997.

Signed   Mr James Gralton

Registrar

for Ms J. David        

Senior Member

ACT Civil & Administrative Tribunal

ACT CIVIL &   )
ADMINISTRATIVE TRIBUNAL )  RT  645 of 2011

TERMINATION AND POSSESSION ORDER

Between:       The Commissioner for Social Housing in the ACT  {Applicant Lessor}

And:              Roy Anthony Ursino  {Respondent Tenant}

Re:  PREMISES AT Unit 19, 41 Brigalow Court, Brigalow Street O’Connor ACT 2602

TAKE NOTICE that on Monday 12 December, 2011, the ACT Civil & Administrative Tribunal, made the following ORDERS:

1. That the Tenancy Agreement has been breached.

1. That the Residential Tenancies Agreement is terminated and possession of the      premises is to be given to the lessor at 3.00pm on Monday,
              12 December, 2011.

1. 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.

1. That a warrant for eviction is to be issued in accordance with Order 2 of these      orders.

1. That this order is suspended for a period of 21 days.

1. That the tenant is to remove all goods and return the premises in a clean     condition by 3.00pm on the 2 January, 2012.

1. That any goods remaining on the premises after the date for vacant possession      will be deemed uncollected goods and the Uncollected Goods Act 1996

   
              

   applies to their storage and disposal.

1. That the tenant shall pay the lessor an occupancy fee equivalent to the rent            until the date that possession is given.

1. That the tenant continues to comply with the terms of order 2 of orders of the       5 December, 2011.

DATED 28 May 2022.

Signed ...Mr James Gralton

Registrar

for Ms Jennifer David

Senior Member

ACT Civil & Administrative Tribunal

REASONS FOR DECISION

1. On 1 December 2010, the tenant entered into a residential tenancies agreement with the Applicant (the ‘Commissioner’) in respect of Flat 19, 41 Brigalow Street, O’Connor, ACT.  The complex of which the flat is a part is one that is a combination of private and public housing accommodation with the Commissioner owning a total of four units in the complex. 

2. Section 83(b) of the Residential Tenancies Act 1997 (the ‘RT Act’) allows the Tribunal to make a general order requiring performance of a residential tenancy agreement. On 2 May 2011, the Commissioner sought and was granted an order by consent under Section 83, ordering the tenant to “comply with the terms of his Residential Tenancy Agreement in particular clauses 63, 79(b) and (c), 73(a) and (b).”    

3. On 26 July 2011, the Applicant sought an unconditional termination and possession order under section 48(1) of the RT Act on the basis that further complaints concerning the tenant’s behaviour had been received by the Commissioner. The further complaints were listed as:

   ·   27 May 2011   Constantly playing loud music

   ·   31 May 2011   Arrested for assault on a resident of complex, broke window of complainant’s property while he was attending the police station to make a report (resident’s wife was at property)
   
   

   ·   2 June 2011     Units 27, 28 and 29 have moved out of their residence due to fear of Mr Ursino.  Unit 20 has advised will also be moving out of the complex.

4. After an ex parte hearing on 11 August 2011, the Tribunal made an unconditional termination and possession order in respect of the premises.   The tenant subsequently sought an order that the unconditional termination and possession order be set aside and a further hearing be held as he stated “he did not receive a letter saying when to come in for the hearing”.  The orders of
   11 August 2011 were subsequently set aside and the Registrar made procedural orders on 7 September 2011 directing the Commissioner to file and serve copies of all statements and other documentary evidence and the tenant to file a response.  The Commissioner filed a statement by David Jenkins, a resident in the complex dated 23 November 2011 and the tenant filed a statutory declaration in response dated 29 November 2011.

5. In his statement Mr Jenkins stated that there had been ‘ongoing problems and antisocial behaviour from the tenant”.  Mr Jenkins said:

   The tenant has threatened me in the past and on 28 October 2011, whilst trying to retrieve my mail from my letter box, obstructed access to my mail box.

   I have recently been awoken at the early hours of the morning to the sound of the tenant in unit 19 slamming what sounds like a sledge hammer into the floor of his unit.

   Apart from simply disturbing my sleep I found the sounds unnerving. On November 3 2011 while leaving my home the tenant of unit 19 leered and barked at me through his unit window.

   The tenant of unit 19 has no regard for others in the complex and his ongoing threatening behaviour has caused me stress and worry.

   The tenant has been intimidating friends and family who visit me and the behaviour is interfering with the quiet enjoyment of my premises that I am entitled to.

6. In his statutory declaration the tenant responded to Mr Jenkins’ statement.  The tenant said he only recalled one incident of disputation with Mr Jenkins which occurred when Mr Jenkins moved in and accused the tenant of turning off a neighbour’s power.  The tenant denied doing that.  After that Mr Jenkins left a bible at the door of the tenant’s unit.  The tenant told Mr Jenkins he did not believe in the bible and asked him not to do that again.  Mr Jenkins kept doing so  and the tenant did respond a ‘little angrily’. Repeating his request that Mr Jenkins not leave bibles at his door.

7. Concerning Mr Jenkins’ account of the tenant obstructing Mr Jenkins retrieving his mail, the tenant stated:

   I was collecting my mail when Mr Jenkins leaned across me to get his mail.  I said “Are you right, there?” He responded by saying: “I live here too.”  I said “yes, I know that.  It doesn’t hurt to use manners because it does not cost anything.”  There was absolutely no physical contact between us.  In fact I never have had physical contact with Mr Jenkins.

8. The tenant also stated that he had never “lost the plot with Mr Jenkins nor have I threatened him in any way.”  He stated that he had no recollection of threatening (or even seeing or meeting) any member of Mr Jenkins’ family or friends.  Finally the tenant stated that the sound in the early morning
   Mr Jenkins complained about may have been that of his weight bar slipping from his hands as, when that happens, it can make a loud noise.  Finally, the tenant stated that he shouted at Mr Jenkins only on one occasion when the tenant was woken by Mr Jenkins slamming his front door, which makes the windows in the tenant’s flat rattle reminding the tenant of a traumatic occasion in his childhood.  The tenant stated he shouted out “Could you please not slam the door?”  When Mr Jenkins did not answer, the tenant swore at him.

9. At the Commissioner’s request the hearing of the application for an unconditional termination and possession order was stood over generally pending the outcome of criminal proceedings in the Magistrates Court in which the tenant was named as Defendant.  Those proceedings arose out of the incident that occurred on 31 May 2011 set out in paragraph 3 above.   The application for the termination and possession order was ultimately heard on
   5 and 12 December 2011.  The tenant was represented on both days by
   Mr Emerson-Elliot, Welfare Rights and Legal Centre (the ‘WRLC’).

10. After hearing oral submissions by both the parties and receiving documentary evidence, the Tribunal determined that the tenant had breached the general order of 2 May 2011 and made an unconditional termination and possession order, together with other orders.  As the tenant’s legal representative informed to the Tribunal prior to the close of the proceedings that he was instructed to lodge an appeal from that decision, the orders were stayed for 21 days. 

11. WRLC requested written reasons for the Tribunal’s decision at the hearing, those reasons follow.

FINDINGS AND REASONING

Relevant Law

1. The Commission sought the unconditional termination and possession order under subsection 48(1) of the RT Act. That subsection allows the Tribunal to make a termination and possession order if the Tribunal is satisfied with the matters set out in that subclause. These are:

   (1)On application by a lessor, the ACAT may make a termination and
          possession order if—

   (a)   .....

   (b)the ACAT—

   (i)has made an order under section 83 (b); and

   (ii)is satisfied that the tenant has breached that order; and

   (iii)is satisfied that the breach justifies the termination of the tenancy.

2. Therefore, at the hearing the initial question for the Tribunal was whether the tenant had breached the general order made under section 83 on 2 May 2011 and, if so, did that breach justify the termination of the tenancy.

3. In Joyce Mary Lucas & Commissioner for Social Housing in the ACT [2010] ACAT 71, Acting Presidential Member Mr Chenoweth considered the effect of sections 83 and 48(1) (b) and determined that where a general order had been made under section 83, section 48(1)(b) then allows the termination of the tenancy where the Tribunal is satisfied that the tenant has breached that order and the breach justifies the termination.

4. The tenant also submitted that, alternatively, if the Tribunal found the tenant had breached the order made under section 83 and the breach justified the termination of the tenancy, the tenant sought to rely on section 48 (2) of the RT Act which provides as follows:

   (2)The ACAT may, if satisfied that it is appropriate and just to do so in relation to an application mentioned in subsection (1)—

   (a)refuse to make a termination and possession order if—

   (i)the tenant has remedied the relevant breach; or

   (ii)the tenant undertakes to remedy the breach within a reasonable specified period and is reasonably likely to do so.

   It was submitted on behalf of the tenant that the Tribunal should exercise its discretion under section 48(2)(a)(ii) on the basis that the tenant would undertake to remedy the breach and was reasonably likely to do so.

Commission’s Submission and Evidence

1. At the hearing on 5 December 2011, the Commissioner argued that there had been a long history of aggressive behaviour by the tenant.  The Commissioner relied on the statement of Mr Jenkins set out above to constitute a breach of the general order of 2 May 2011.  The Commissioner also relied on assault and criminal damage charges arising out of the incidents on 31 May 2011.  The Tribunal decided not to hear the oral evidence of Mr Jenkins after accepting the tenant’s submission that the behaviour set out in Mr Jenkins’ statement was low grade disruptive behaviour, not of sufficient significance to justify a finding of a breach of the general order. 

2. The Tribunal adjourned the hearing on 5 December, 2011 for the Commissioner to provide detailed evidence of the facts of the incident on
   31 May 2011 the subject of the two criminal charges to which the tenant had pleaded guilty.   The Commissioner produced a transcript of the criminal proceedings in relation to those charges at the hearing on 12 December 2011.

3. The Commissioner submitted that the tenant had breached the general order of
   2 May 2011 by his conduct as the tenant had assaulted a neighbour and had thrown an object through a bathroom window in the complex on 31 May 2011.  The tenant had pleaded guilty in the Magistrates Court to charges of common assault and criminal damage in relation to the incident.  He was sentenced to perform 80 hours of community service work for the assault and fined $450 in respect of the broken window.    The facts on which the Magistrate found that the tenant had committed a common assault were set out on pages 8 and 9 of the transcript.  The transcript of the reading of the neighbour’s account of the incident can be summarised as: 

   The neighbour walked out of the neighbour’s apartment, observed the tenant about 5 metres away and walked towards the car park, away from the tenant.  The tenant yelled at the neighbour who continued to walk away from the tenant.  The tenant again yelled at the neighbour, who took out his mobile phone to call the police.  The tenant then yelled “Come on, Dickhead, call the cops.  Call your dad.”  The neighbour then saw the tenant run slowly towards him.  The neighbour quickly got into his car and locked the doors as he felt his welfare was in danger.  The tenant hit the driver’s side windscreen area of the neighbour’s car which his closed fist.  The neighbour attempted to drive away from the defendant who walked in front of the car and stood obstructing the path of the car.  The neighbour attempted to drive around the tenant, who then moved away from the front of the car. The tenant attempted to hit the car again as it drove past him.  The neighbour drove to the police station to report the incident.  Whilst he was at the police station the tenant threw something at the neighbour’s bathroom window, breaking the glass.  The neighbour’s wife was in his flat at the time.

4. The Magistrate described the assault as a prolonged one that was in the mid-range of common assaults and the damage to the window as also mid-range because when it was committed the tenant would have known the neighbour’s wife was in the flat.   The Magistrate said that the tenant’s problem was anger management and that the Chief Magistrate had sent the tenant off for anger management counselling in 2001.  “He has had a decade at least of knowing that that is his problem and that it gets him into trouble. He has had plenty of time to sort it out for himself.”  (Transcript, p 11)  The Magistrate noted that the tenant had sought assistance from the Canberra Men’s Counselling Centre, Belconnen Community Service, and the Campbell Page Employment.  Also, his record had 14 entries for offences of violence, though the last entry was in 2005. 

5. On the basis of the above transcript evidence, the Tribunal found that the tenant had breached the general order of 2 May 3011 and that this had occurred within
   29 days of the order being made. Given the seriousness of the breach, in that the assault was prolonged, included hitting the car window on the driver’s side and included the breaking of the bathroom window when the tenant was aware that the neighbour’s wife was in the flat, the Tribunal also held that the breach was serious enough to justify terminating the tenancy under section 48(1)(b) of the RT Act.

6. Then it was submitted on behalf of the tenant that the Tribunal should exercise its discretion under section 48(2)(a)(ii)of the RT Act on the basis that the tenant would undertake to remedy the breach and was reasonably likely to do so.

7. The Tribunal declined to exercise its discretion in all the circumstances of this matter.  The tenant has a long history of aggressive behaviour, he breached the general order only 29 days after it was made and has had complaints made about him by Mr Jenkins since then.  Whilst those complaints were of disruptive behaviour of a more moderate level than the common assault of 31 May 2011, the Tribunal is of the opinion that if the tenant was serious about reforming his behaviour and trying to control his anger and aggression, he would have ensured he did not cause any complaint to be made during the period from 2 May 2011, the date of the general order, and especially from 26 July 2011, the date the application in these proceedings was lodged.  

8. The Tribunal accepts the tenant’s legal representative’s assertion that the evidence of Mr Jenkins was not tested by cross-examination, nor was the evidence of the tenants of Units 20, 27, 28 and 29 who the Commissioner stated to have left the complex due to their fear of the tenant’s behaviour.  The Tribunal also notes that Mr Jenkins has also left the complex.  However, the history of the tenant’s behaviour is such that the Tribunal was not satisfied in all the circumstances the tenant would be able to undertake to remedy the breach and not breach the general order in future. The Tribunal has taken into account that the general order of 2 May 2011 was made with the tenant’s consent, and thus akin to an undertaking, was breached by the tenant within 29 days.  As a result the tribunal made the orders set out.

………………………………..

Ms J. David

Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      RT 645 of 2011

APPLICANT:               Commissioner for Social Housing in the ACT

RESPONDENT:           Roy Ursino

COUNSEL APPEARING:      APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          

RESPONDENT:      Welfare Rights & Legal Centre

OTHER:  APPLICANT:          

RESPONDENT:      

TRIBUNAL MEMBER/S:        Ms J. David, Senior Member

DATE/S OF HEARING:  PLACE: CANBERRA

DATE/S OF DECISION:  PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )       CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: