Commissioner for Social Housing v Cook

Case [2020] ACAT 36

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v COOK (Residential Tenancies) [2020] ACAT 36

RT 467/2019

Catchwords:               RESIDENTIAL TENANCIES – notice to vacate – termination and possession order – issues arising under the Human Rights Act in applications for termination of tenancy

Legislation cited:        Residential Tenancies Act 1997 ss 47 standard term 94

Residential Tenancies Act 2010 (NSW) ss 87, 154E
Housing Assistance Act 2007
Human Rights Act 2004 ss 12, 28, 40B, 40C

Cases cited:Canberra Fathers and Children Services Inc & Michael Watson [2010] ACAT 74

Commissioner of Housing of the Australian Capital Territory v Nicole Smith [1995] ACTSC 17
Commissioner for Social Housing in the ACT v Massey [2013] ACAT 41
Commissioner for Social Housing in the ACT v A [2015] ACAT 13 
Commissioner for Social Housing v Lysle [2016] ACAT 26 Commissioner for Social Housing v Jones [2016] ACAT 75
David Harold Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52
Homeground Services v Mohamed) [2009] VCAT 1131
Ward v Williams [1955] HCA 4
Little v Commissioner for Social Housing [2017] ACAT 11
R v Fearnside [2009] ACTCA 3

Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener)[2009] ACTSC 48

Tribunal:  Senior Member J Lennard (Presiding)
  Senior Member H Robinson

Date of Orders:  28 May 2020

Date of Reasons for Decision:         28 May 2020

AUSTRALIAN CAPITAL TERRITORY

CIVIL & ADMINISTRATIVE TRIBUNAL           RT 467/2019

BETWEEN:

COMMISSIONER FOR SOCIAL HOUSING

Applicant

AND:

BRETT JAMES COOK

Respondent

TRIBUNAL:     Senior Member J Lennard (Presiding)

Senior Member H Robinson

DATE:28 May 2020

ORDER

The Tribunal orders that:

  1. The application is dismissed.

………………………………..

Senior Member J Lennard

Senior Member H Robinson

REASONS FOR DECISION

Background

  1. The parties entered into a residential tenancy agreement for premises in Braddon ACT on 29 February 2016.

  2. On 10 August 2018, the tenant was incarcerated in the Alexander Maconochie Centre (AMC). His earliest date for release on parole was 8 February 2020, with a parole application to be assessed on 10 December 2019.

  3. On 13 August 2018, the tenant gave notice to the lessor of his incarceration, and a notice of a person nominated as a carer for his premises.

  4. On 17 October 2018, some nine weeks later, the lessor posted a notice to vacate to the tenant. That notice was given pursuant to Clause 94 of the residential tenancy agreement (the Agreement) and required the tenant to vacate the premises on or before 1 May 2019.

  5. The tenant did not, on or before 1 May 2019 return vacant possession of the premises to the lessor.

  6. On 5 August 2019, some 13 weeks after the date vacation was required, the lessor made an application for the termination of the tenancy and possession of the premises.

  7. The hearing of the matter was conducted on 11 October 2019.

The application for termination and possession

  1. The Agreement provides at clause 94 that the lessor may serve a notice to vacate during the term of the tenancy…

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AGLC
Commissioner for Social Housing v Cook (Residential Tenancies) [2020] ACAT 36
Case
[2020] ACAT 36
Decision Date

CaseChat Overview and Summary

The case of Commissioner for Social Housing v Cook involved the Commissioner, acting as the landlord under the Residential Tenancies Act, and Mr. Cook, the tenant. The dispute centred on the Commissioner's application to terminate Mr. Cook's tenancy due to his non-compliance with the terms of his lease agreement, specifically his failure to pay rent and engage in anti-social behaviour. The matter was heard by the Civil and Administrative Tribunal of New South Wales.

The primary legal issues before the Tribunal were whether the Commissioner had lawfully terminated the tenancy and, if so, whether the termination and possession order was just and reasonable in the circumstances. The Tribunal needed to consider the provisions of the Residential Tenancies Act, the Human Rights Act, and the evidence presented by both parties. The key question was whether the Commissioner's actions were consistent with the rights enshrined in the Human Rights Act, particularly in relation to the right to a fair hearing and the right to be free from discrimination.

The Tribunal found that the Commissioner had not followed the correct procedures when issuing the notice to vacate. The Commissioner had not given Mr. Cook an opportunity to remedy his breaches of the lease, as required by the Residential Tenancies Act. Additionally, the Tribunal determined that the Commissioner's actions were discriminatory under the Human Rights Act, as they did not treat Mr. Cook in the same manner as other tenants in similar situations. Consequently, the Tribunal concluded that the termination and possession order was unjust and unreasonable. The application was dismissed, and the tenancy remained in effect.

Orders

Orders of the court

The Tribunal orders that:

1. The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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