Commissioner for Social Housing in the Act v Angela Marie Clarkson (Residential Tenancies)
[2010] ACAT 30
•29 April 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING IN THE ACT v ANGELA MARIE CLARKSON (Residential Tenancies) [2010] ACAT 30
RT 797 of 2009
Catchwords: Termination – termination notices
Legislation:Residential Tenancies Act 1997 (ACT) ss 48, 70, 73, 74
Case law:March v E & MH Stramere P/L (1991) 171 CLR 506
Tribunal:Mr A Anforth, Senior Member
Date of Orders: 29 April 2010
Date of Reasons for Decision: 10 May 2010
IN THE AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 797 of 2009
BETWEEN: COMMISSIONER FOR SOCIAL
HOUSING IN THE ACT
Applicant/Lessor
AND: ANGELA MARIE CLARKSON
Respondent/Tenant
Tribunal: Mr A Anforth, Senior Member
Date: 29 April 2010
ORDER
- The application is dismissed.
……………………………….
Mr A Anforth
Senior Member
REASONS FOR DECISION
The Commissioner is the lessor and the Respondent is a tenant of residential premises in the ACT since 24 June 2008.
On 12 October 2009 the Commissioner commenced proceedings in the Tribunal seeking an order that the tenancy be terminated. The application was based on two Termination Notices served on the Respondent. The first Notice was dated 30 June 2009 and alleged that “on 15 June 2009 a guest urinated in front of the premises in view of other residents”. This was said to be a breach of prescribed term 73 of the Residential Tenancies Act 1997 (ACT) (the Act).
The second Termination Notice was dated 29 September 2009 and alleged that “on or about 23 August 2009 the tenant and visitors were witnessed engaging in arguments at the front of the house, screaming, yelling, swearing and fighting as a result, the police were contacted and attended the property.”
There were Notices to Remedy served on the Respondent for other alleged breaches by the Respondent of prescribed term 70 of the Act but, with one exception, no Termination Notice was subsequently served on the Respondent based on these alleged breaches. The exception concerned a Termination Notice dated 15 July 2009 based on rubbish alleged to be lying around the Respondent’s property. Before the hearing of the matter, the Commissioner advised that the rubbish issue had been remedied and the Commissioner no longer pressed this matter.
The matter was before the Tribunal on 16 November 2009 on which occasion the Tribunal made orders for the filing and serving of evidence and submissions by both parties.
On 1 December 2009 the Commissioner filed and served witness statements and a police incident report. On 5 January 2010 the Welfare Rights and Legal Centre (WR&LC) filed and served an affidavit from the Respondent.
The matter was then before the Tribunal on 15 February 2010. Mr Adkins appeared for the Commissioner and Mr Emerson-Elliott from the WR&LC appeared for the Respondent. On that occasion, Mr Adkins advised that the Commissioner only sought to rely upon the Termination Notice dated 29 September 2009. The Tribunal made procedural orders for the Commissioner to particularise the allegations and serve such other evidence as was relied upon in relation to the allegations in the Notice, including any police reports.
On 4 March 2010 the Commissioner filed various witness statements and police reports in relation to the allegations contained in both Termination Notice and advised that the Commissioner proposed to rely upon both Notices.
On 24 March 2010 the WR&LC, on behalf of the Respondent, filed her submissions on the law and advised that she did not intend to file statements of any witnesses or to call any witnesses other than the Respondent herself. The submissions pointed out that for an order for possession to be made under Section 48(1) it is necessary for the Tribunal to be satisfied inter alia, that:
(a) the Respondent has breached a term of her residential tenancy agreement; and
(b) a Termination Notice has been served on the Respondent based on that breach.
10. The submission concluded that the inquiry before the Tribunal was necessarily limited to the contents of the Termination Notice of 29 September 2009 for which there was no relevant evidence in any of the material filed by the Commissioner to date.
11. It seems that the Respondent may not have noticed the Commissioner’s advice that they also relied upon the Termination Notice of 30 June 2009.
12. The matter was listed for hearing on 29 April 2010. Mr Shillington of counsel appeared for the Applicant and Mr Emerson-Elliott from WR&LC appeared for the Respondent.
13. At the outset the Tribunal endeavoured to clarify the issues in dispute. Mr Shillington advised that the Commissioner still relied upon both Termination Notices.
14. The Tribunal put to the parties that unless convinced otherwise, the statutory scheme in Section 48 of the Act required the Tribunal to find that a breach of the residential tenancy agreement had occurred that was the subject of a Termination Notice; and that no order for possession could be made unless and until such a breach was established on the evidence. If such a breach was established then, and only then, could regard be had to the other alleged breaches that were not the subject of a Termination Notice in determining whether to make the order for possession sought by the Commissioner. There was concurrence by the parties in that proposition. On that basis, it was agreed that the evidence would first be taken in relation to the two events that had been made the subject of a Termination Notice and a ruling delivered on that issue first. Only if one or more of these breaches were made out would the evidence be taken on the other breaches not featured in any Termination Notice.
15. The Commissioner called Ms Sonya Bassett, who had previously provided a witness statement. She gave evidence in chief, was cross-examined and questions were put to her from the Tribunal.
16. In relation to the allegations in the Notice of 30 June 2009, Ms Bassett said that she saw a car pull up on the road outside the Respondent’s unit. An unidentified male person alighted from the car and went into the Respondent’s unit for a short time. A second unidentified male person alighted from the car and urinated on the back wheel of the car. Ms Bassett could not identify the men or the car.
17. In relation to the allegations in the Notice of 29 September 2009, Ms Bassett said that late on 23 August 2009 she heard screaming and swearing coming from the direction of the Respondent’s unit. She heard the names ‘David” and ‘Mel” mentioned and she heard smashing glass. On questioning from the Tribunal, Ms Bassett said that the voices that she heard did not include the Respondent’s voice and were that of a male person and that of Melanie Freeman whose voice she recognised. Ms Bassett noted the police arrived some time later but she did not call the police.
18. The Commissioner did not call any other witnesses on the allegations in the two Notices.
19. The Respondent gave evidence. She said that about a week before the 23 August her friend Melanie Freeman and her partner David had been staying with her for a few days. One evening a domestic dispute arose between Melanie and David that led to shouting and abuse. The Respondent told Melanie and David that they had to leave that night; which they did.
20. On 23 August 2009, Melanie and David came around to see the Respondent to apologise for their previous conduct and stayed for dinner. Late in the evening another domestic dispute erupted between Melanie and David, causing the Respondent to order them out of the house. Melanie and David continued their shouting of abuse at each other out the front of the Respondents unit but probably not on the Respondent’s property. The Respondent again told them to leave and Melanie threw a rock through the Respondent’s window. The Respondent called the police to remove them.
21. In relation to the event alleged in the Notice of 30 June 2009 the Respondent denied any knowledge of any such visit and did not know of the men or car referred to.
22. This was the whole of the evidence relevant to the two allegations contained in the Notices.
23. Mr Shillington did not cross-examine the Respondent on the allegations contained in the Notice of 30 June 2009 and when invited to do so said words to the effect that the evidence in support of that allegation was weak, such that cross-examination was not warranted.
24. The Tribunal delivered oral reasons dismissing the application and the Respondent has now sought a statement of reasons for the decision.
THE RELEVANT LAW
25. Section 48 of the Act provides:
(1) On application by a lessor, the tribunal may make a termination and possession order if satisfied that—
(a) the tenant has breached the standard residential tenancy terms (other than
by failing to pay rent due and payable); and
(b) the lessor has served a termination notice on the tenant based on that
breach; and
(c) the tenant did not vacate the premises in accordance with the notice; and
(d) the breach of the standard residential tenancy terms was not in accordance with a term of the residential tenancy agreement endorsed by the tribunal; and
(e) the breach justifies the termination of the tenancy.
(2) The tribunal 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; or
(b)make a termination and possession order but suspend it for a period of no more than 3 weeks if satisfied that—
(i)were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and
(ii)that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period.
26. Prescribed terms 70, 73 and 74 which form part of the standard terms of the residential tenancy agreement, provided:
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.
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.
74 The tenant is not personally responsible for the actions or omissions of a person who is on the premises:
(a) at the request of the lessor; or
(b) to assist the lessor perform any of the duties of the lessor under this tenancy
agreement (whether at the request of the lessor or the tenant); or
(c) without the consent of the tenant.
CONSIDERATION OF THE ISSUES
27. Section 48(1)(a) and (b) provides that it is a statutory prerequisite for the making any order for possession for breaches (other than rent arrears) that there have been a Notice of Termination served in relation to the breach(s) relied upon.
28. An allegation of a breach that does not feature in a Notice of Termination cannot satisfy the terms of section 48(1)(a) or (b) although such factors may be relevant to the determination of the issue under Sections 48(1)(e) and 48(2). However, the issues in Sections 48(1)(e) and 48(2) do not arise unless and until the requirements of Section 48(1)(a) and (b) are satisfied.
29. There is no restriction in the Act that limits a Termination Notice to alleging one breach only and it was always be open to the Commissioner to include in a Termination Notice any or all breaches alleged against the Respondent. Similarly, there is no restriction in the Act preventing the service and reliance upon more than one Termination Notice.
30. Therefore, the logically prior issue to be determined by the Tribunal was whether either of the breaches specified in either Notice of Termination was established on the evidence. This entails two subordinate issues:
(a) what in fact happened on each occasion; and
(b) whether either or both of these events constitute a breach of prescribed term 70,73 or 74.
31. In relation to the allegations contained in the Notice of 30 June 2009, the Tribunal indicated its finding of fact that:
(a) the urination did not occur on the Respondents premises;
(b) there was no evidence that the Respondent invited either man onto her premises but the man who urinated at no stage went upon the premises of the Respondent; and
(c) there was no evidence that the Respondent had any knowledge at all of the event.
32. Prescribed term 70(b) requires that the Respondent ‘cause or permit’ the urination. Prescribed term 70(b) is not limited to nuisances occurring on the tenant’s premises and could embraces nuisances caused or permitted by the tenant in the neighbourhood and therefore could embrace urination on the nearby street. However, the Tribunal was satisfied on the balance of probabilities that the Respondent had no knowledge of the urination occurring and therefore did not ‘permit’ it in any sense.
33. Similarly the mere fact that the urination occurred on the street outside her unit by a passenger in a car, whose driver went to the Respondent’s unit, does not mean that the Respondent ‘caused’ the waiting passenger to urinate. Not even a sine qua non test (‘but for’ test) of causation would be satisfied by these facts let alone the common sense test of causation in March v E & MH Stramere P/L (1991) 171 CLR 506.
34. Prescribed term 73 is limited to nuisances occurring on the tenants premises by a person on the premises with the tenant’s consent and therefore could not apply to the urination on the street.
35. Prescribed term 73 is not explicitly limited to those nuisances by guests that the tenant ‘causes or permits’ and on its face may extend so far as to make a tenant vicariously liable in an absolute or strict sense for any and all action committed by guests whether anticipated or foreseen by the tenant or not. On this view, if a tenant’s guest were to suffer an acute onset of mental illness and take to smashing the premises, then the tenant would stand vicariously liable to the lessor for the crimes of the guest.
36. Although it was not strictly unnecessary to decide this issue for the reason given at paragraph 32-34 above, the Tribunal did put to the parties that it was inclined to read prescribed term 73 as being subject to the same implied condition of ‘causation or permission’ as occur in prescribed term 70. A failure to adopt this construction may result in any number of extreme and unjust outcomes that could not have been within the contemplation of the legislature in what is essentially a piece of remedial or beneficial legislation.
37. In relation to the allegations contained in the Notice of Termination of 29 September 2009, the Tribunal found as a fact that:
(a) there was no evidence that any of the screaming or abuse came from the Respondent, in fact Ms Bassett did not identify the Respondent’s voice at any point of the episode;
(b) the allegation pertained to the events of 23 August only; and
(c) the Respondent asked the guest to leave twice, once inside the house and once outside. She called the police.
38. Mr Shillington contended that the fact of David and Melanie being on the premises on the night of 23 August should be enough to satisfy prescribed term 70 given the events of a week previously. The Tribunal found that the Respondent had no knowledge or expectation that David and Melanie would erupt into another domestic dispute and she acted prompted and appropriately to caused them to leave as soon as the dispute occurred.
39. Again, the Tribunal was not satisfied that the mere fact of the dispute erupting between the two guests leads to a conclusion of fact or law that the Respondent caused or permitted it. The Respondent’s action in asking the guests to leave points against any such finding.
40. In any event, it seems that the noise that disturbed the neighbours was that occurring out the front of the house after the Respondent had asked the guests to leave; and possibly after she had called the police. Certainly the smashing glass occurred at this point and the Notice itself only alleged noise coming from outside the Respondent’s unit. It is not even clear that these events occur on the land belonging to the Respondent’s unit.
41. At the point that the Respondent asked the guests to leave she had revoked their license to be upon her property; they became trespassers and hence the involvement of the police.
42. In what sense can a tenant be said to ‘cause or permit’ the actions of a trespasser who maliciously damages the premises?
43. The issue is addressed by prescribed term 74(c) of the Act which provides that a tenant is not personally responsible for the actions of a person ‘who is on the premises…without the permission of the tenant’. At the point that the Respondent told the guests to leave, they were trespasses and therefore on the premises without the permission of the Respondent and therefore the Respondent is not personally responsible for their subsequent conduct outside her unit.
44. These are the reasons given by the Tribunal after the hearing.
………………………………………….
Mr A Anforth
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: RT 09/797
APPLICANT: COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
RESPONDENT: ANGELA MARIE CLARKSON
SOLICITORS: APPLICANT: MR C ADKINS
RESPONDENT: MR D EMMERSON-ELLIOT
TRIBUNAL MEMBER/S: Mr A Anforth, Senior Member
DATE/S OF HEARING: 29 April 2010 PLACE: CANBERRA
DATE/S OF DECISION: 29 April 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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