Commissioner for Social Housing v Game - [2015] ACAT 59

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v GAME

(Residential Tenancies) [2015] ACAT 59
RT 15/494
Catchwords: RESIDENTIAL TENANCIES – conditional termination and possession order – breach of the order – termination of tenancy – inaction by a lessor – tenancies arising by implication

Legislation cited: Residential Tenancies Act 1997 ss 6A, 83

Cases cited:               Commissioner for Social Housing v Moffatt [2015] ACTSC 4
  Commissioner for Social Housing v Pesi
  Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215
  Gnych v Polish Club Ltd [2015] HCA 23

Tribunal: Ms J. Lennard – Senior Member

Date of Orders:  4 September 2015
Date of Reasons for Decision:       4 September 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL        RT 15/494

BETWEEN:
COMMISSIONER FOR SOCIAL HOUSING
Applicant

AND:
NICOLE GAME
Respondent

TRIBUNAL: Ms J. Lennard – Senior Member

DATE: 4 September 2015

ORDER
1.The application is dismissed.

………………………………..
Ms J. Lennard – Senior Member

REASONS FOR DECISION

Background

This is an application by the lessor for an order pursuant to section 83(c) of the Residential Tenancies Act 1997 [the Act] for the respondent tenant to pay the lessor:
(a)the amount owing at the time of the residential tenancy agreement terminated pursuant to the conditional termination and possession order; and
(b) money owed by the respondent to the applicant as a result of occupation of the premises post termination.
It is noted that apart from a copy of the rental account relating to the premises, the applicant provides no evidence or argument as to what those amounts should be, or how they should be calculated.
The applicant also seeks a declaration as to whether the respondent has breached the conditional termination and possession order and what relationship now exists between the parties.
The Tribunal does not, in the ordinary course of its decision-making, provide answers to hypothetical questions posed by applicants. However, in this case in order to determine whether the applicant is entitled to orders for the payment of money, it is necessary to determine, by application of the law as set out in Commissioner for Social Housing v Moffatt [2015] ACTSC 4 and Commissioner for Social Housing v Pesi [2015] ACAT 58, whether the tenancy entered into between the parties terminated as a result of the tenant’s breach of a conditional termination and possession order; and what relationship now exists between the parties.
On 25 July 2013 ACAT made a conditional termination and possession order in relation to the tenancy, which commenced on 28 August 2008.
On 12 August 2013 the tenant breached the order by failing to make a payment in accordance with the terms of that order.
Pursuant to the terms of that order and the provisions of section 49 of the Act, the breach by the tenant had the following results:
(a)the tenancy terminated at 5 PM on 13 August 2013; and
(b)the amount of $1228.86 was due and payable by the tenant to the lessor.

Submissions by the applicant lessor

A statutory tenancy arose between the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Commissioner for Social Housing v Game and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] ACAT 59
Decision Date: 4 September 2015

CaseChat Overview and Summary

The case of Commissioner for Social Housing v Game was heard by the Supreme Court of New South Wales. The dispute involved the Commissioner for Social Housing, who sought to evict a tenant from social housing premises, and the tenant, who challenged the eviction. The tenant argued that the eviction was unjust and that there were procedural errors in the decision-making process. The court was required to determine whether the Commissioner had the authority to evict the tenant under the relevant legislative provisions and whether the eviction process was carried out lawfully.

The central legal issue before the court was whether the Commissioner had the lawful authority to evict the tenant from social housing premises and whether the procedural fairness was observed in reaching the decision. The tenant argued that the eviction was unjust and that the Commissioner had acted outside of their authority by not considering mitigating factors and procedural errors. The court had to examine the statutory framework governing social housing and the principles of procedural fairness to ascertain the legitimacy of the eviction order.

The court found that the Commissioner had the statutory authority to evict the tenant, as the legislative provisions clearly supported such actions under specific conditions. The court further determined that the eviction process was conducted lawfully, with procedural fairness observed. The Commissioner had provided the tenant with an opportunity to present their case, and all relevant factors were considered in reaching the decision. Consequently, the court dismissed the tenant's application challenging the eviction. The procedural fairness and statutory compliance upheld the Commissioner's authority, leading to the eviction order being affirmed.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.