Commissioner for Social Housing v Game
[2015] ACAT 59
•4 September 2015
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 parties.
For the reasons set out in Commissioner for Social Housing v Moffatt [2015] ACTSC 4 and Commissioner for Social Housing v Pesi, ACAT determines that no statutory tenancy arose in this instance, nor could it ever arise in these circumstances.
No implied tenancy has arisen.
(a)The applicant states that there is a statutory prohibition in the Housing Assistance Public Rental Housing Assistance Programme 2013 against the applicant entering into a residential tenancy agreement with a person who owes a debt to the applicant, unless a decision is made otherwise.
(b)The respondent makes submissions that a lack of power on the part of the applicant would be irrelevant to whether a tenancy agreement came into existence. If the Tribunal finds that a reasonable person would consider that the parties have met the requirements of section 6A of the Act then as a matter of law, the applicant would be prevented from asserting that they were acting beyond power. In any event to establish that the applicant/lessor has acted unlawfully, then the principles as set out in Gnych v Polish Club Ltd [2015] HCA 23 (relying on Fitzgerald v F J Leonhardt Pty Ltd [1997] HCA 17; (1997) 189 CLR 215 at 221) apply ‘A court examining the application of that consideration of public policy to the enforcement of an agreement made in breach of a statutory prohibition will examine the intention of a person in entering into the agreement and in seeking to enforce the agreement. The court will recognise that, “whilst persons who deliberately set out to break the law cannot expect to be aided by a court, it is a different matter when the law is unwittingly broken”. The court will weigh the consequences of withholding a remedy to enforce the agreement in light of the objects or policies which the statute seeks to advance and the means which the statute has adopted to achieve that end.’ [at 75].
(c)This application arises because the lessor did not make an application for a warrant to evict the tenant pursuant to section 42A of the Act: This indicates a decision, ‘made otherwise’ by the applicant lessor, to allow the tenant to remain in possession of the premises. If there was no decision specifically made to allow the tenant to remain, the delay is caused either by negligence, or an unlawful action. In either case any unlawful aspect of the applicant’s conduct would not render any implied tenancy unlawful or unenforceable. The applicant ought not to be able to rely on their own negligent or other unlawful conduct to avoid the implication of a residential tenancy agreement, or to relieve them of their obligations as a lessor to follow proper procedures, as set out in the agreement and the Act.
(d)ACAT rejects the remaining submissions about the lack of clarity in jurisprudence before Commissioner for Social Housing v Moffatt [2015] ACTSC 4. The applicant lessor has been well aware of the debate on these issues, and in any event, the matter is clarified in Commissionerfor Social Housing v Moffatt.
The law now makes it clear that breach of a conditional termination and possession order, terminates the tenancy.
The Tribunal adopts the reasoning of Member Daniel in her decision in Commissioner for Social Housing v Moffatt: while it may not have been the subjective intention of either party to create a new residential tenancy agreement, it is an objective test which must be applied to the acts of the parties when determining whether an agreement is implied. The conduct of the lessor in conducting inspections, calculating rental rebate, the effluxion of time, writing letters offering support to the tenant, referring the tenant to tenancy support services, accepting rents and approaching the tenant with regards to her rental arrears are, for the reasons set out in Commissioner for Social Housing v Pesi all factors taken into account in determining that an implied tenancy has arisen between the parties. Section 6A of the Act provides that a residential tenancy agreement in the ACT may be implied. ACAT accepts the submissions of the respondent that the relationship between the parties since 13 August 2013 meet the requirements of section 6A. As a result of the implied tenancy rent is payable by the respondent to the tenant from 14 August 2013.
The arrears which accrue until the termination of the initial residential tenancy agreement, in the amount of $1228.86, are already subject to the order made on 25 July 2013. As a consequence of the termination of the residential tenancy agreement on 13 August 2013, the operation of that order, and, of section 49 of the Act, that amount became due and payable by the tenant.
The applicant has not served a notice to remedy, or a notice to vacate in relation to the alleged breach by the tenant of the implied tenancy. Nor is there evidence which would allow the tribunal to accurately calculate the amount of arrears, if any, owed by the tenant.
The Tribunal therefore dismisses the application of the lessor.
………………………………..
Ms J. Lennard – Senior Member
HEARING DETAILS
FILE NUMBER: | RT 15/494 |
PARTIES, APPLICANT: | Commissioner for Social Housing |
PARTIES, RESPONDENT: | Nicole Game |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | Canberra Community Law |
TRIBUNAL MEMBERS: | Ms J. Lennard – Senior Member |
DATES OF HEARING: | 6 August 2015 |
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