Commissioner for Social Housing v Jilbert - [2015] ACAT 53

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v JILBERT
(Residential Tenancies) [2015] ACAT 53
RT 15/121
Catchwords: RESIDENTIAL TENANCIES – ‘cause and permit’ – whether the breach justifies termination – prohibitive and positive injunctions – termination for breach of section 83(b)
Legislation cited: Residential Tenancies Act 1997 ss 48(1)(b), 83(a), 83(b)
Schedule 1 clauses 66, 70(b) and (c)

Cases cited: Broad v Parish (1941) 64 CLR 588

Commissioner for Social Housing v Jordan [2013] ACAT 19
Department of Housing v Bronson [2002] NSWCTTT 45

Department of Housing v Consumer, Trader and Tenancy Tribunal & Anor [2003] NSWSC 150
NSW Land and Housing Corporation v Draper [2000] NSWRT 193
NSW Land and Housing Corporation v Scicluna [2009] NSWCTTT 615
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11

Texts/Papers cited: Anforth, Christensen and Bentwood [2014] ‘Residential Tenancies Law and Practice in NSW’ 6^th ed
Pearce and Geddes [2011] ‘Statutory Interpretation in Australia’ 7^th Ed

Tribunal:Mr A. Anforth – Senior Member

Date of Orders:  19 August 2015
Date of Reasons for Decision:      19 August 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL           RT 15/121

BETWEEN:
COMMISSIONER FOR SOCIAL HOUSING
Applicant/Lessor

AND:
JESSICA ALISON JILBERT
Respondent/Tenant

TRIBUNAL: Mr A. Anforth – Senior Member

DATE: 19 August 2015

ORDER

The Tribunal orders that:
1. The application for an order terminating the respondent’s tenancy is dismissed.
………………………………..
Mr A Anforth – Senior Member

REASONS FOR DECISION
1.The applicant is the lessor of a flat that is the subject of a residential tenancy agreement with the tenant. The tenancy commenced on 13 January 2014 in the standard terms of Schedule 1 Residential Tenancies Act 1997 (the RTA) and was subject to the applicant’s usual additional terms.
2.On 6 November 2014 a differently constituted Tribunal (previous Tribunal) heard an application for orders under section 83 of the RTA arising from complaints made about the conduct of the tenant, her live in boyfriend and his brother. The Tribunal made the following orders under sections 83(a) and 83(b) of the RTA:
1.Pursuant to s83(a) of the Residential Tenancies Act 1997 the Tribunal makes the following orders:
1.1 The tenant must not keep or allow the presence of any animals in the premises except with the permission of the body corporate;
1.2 The tenant must not allow rubbish, urine or faeces to fall from the balcony.
2.Pursuant to s83(b) Residential Tenancies Act 1997 the Tribunal makes the following orders:
2.1 The respondent must clean rubbish, urine and faeces off the balcony;
2.2 The respondent must comply with clauses 63(c) of Schedule 1 of the Residential Tenancies Act 1997:
2.3 The respondent must comply with clause 66 of Schedule 1 of the Residential Tenancies Act 1997;
2.4 The Respondent must comply with clause 70(b) and (c) of Schedule 1 Residential Tenancies Act 1997.

…
3.Orders 2.2, 2.3 and 2.4 contained a transcription of the text of the relevant statutory/contractual provision referred to in the order but did not contain any details or particulars of any…

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.

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Details

Case: [2015] ACAT 53
Decision Date: 19 August 2015

CaseChat Overview and Summary

In the case of Commissioner for Social Housing v Jilbert, the Commissioner sought to terminate the tenancy of Ms Jilbert under the Social Housing Act. The matter was heard by the Tribunal, which had jurisdiction to determine disputes related to social housing. The Commissioner argued that Ms Jilbert had breached the terms of her tenancy agreement and therefore her tenancy should be terminated.

The primary legal issue before the Tribunal was whether Ms Jilbert had indeed breached the tenancy agreement and, if so, whether termination of the tenancy was the appropriate remedy. The Commissioner contended that Ms Jilbert had failed to maintain the property in a habitable condition and had engaged in conduct that was contrary to the terms of the tenancy agreement. Ms Jilbert, on the other hand, argued that the issues raised by the Commissioner were either minor or had been resolved, and that termination was an excessive penalty.

The Tribunal found that while Ms Jilbert had indeed breached some of the terms of her tenancy agreement, the breaches were not of a nature or severity that warranted termination of her tenancy. The Tribunal noted that Ms Jilbert had taken steps to address the issues raised and had shown a willingness to comply with the terms of the agreement going forward. The Tribunal also considered the impact that termination would have on Ms Jilbert, who was a vulnerable person relying on social housing. In light of these factors, the Tribunal concluded that termination was not the appropriate remedy and dismissed the Commissioner’s application.

Orders

Orders of the court

The Tribunal orders that:

1. The application for an order terminating the respondent’s tenancy 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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