Commissioner for Social Housing v Jones - [2016] ACAT 75

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v JONES (Residential Tenancies) [2016] ACAT 75

RT 23/2016
Catchwords: RESIDENTIAL TENANCIES – tenancy agreement – termination and possession – tenant incarcerated

Legislation cited: Crimes (Sentence Administration) Act 2005 s 120
Human Rights Act 2004 ss 12, 40B, 40C
Residential Tenancies Act 1997 ss 47, 83, standard term 94

Cases cited:Eastman and Commissioner for Housing for the ACT [2006] ACTSC 52
Commissioner for Social Housing in the ACT v A [2015] ACAT 13
Commissioner for Social Housing in the ACT v Massey [2013] ACAT 41
Commissioner for Social Housing v Lysle [2016] ACAT 26
Commissioner of Housing of the Australian Capital Territory v Nicole Smith [1995] ACTSC 17

Tribunal: Senior Member J Lennard

Date of Orders:  15 July 2016
Date of Reasons for Decision:         15 July 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 23/2016

BETWEEN:
COMMISSIONER FOR SOCIAL
HOUSING
Applicant

AND:
STEPHEN MICHAEL JONES
Respondent

TRIBUNAL: Senior Member J Lennard

DATE: 15 July 2016

ORDER

The Tribunal Orders that:

The application is dismissed.

………………………………..
General President L Crebbin
for and on behalf of Senior Member J Lennard

REASONS FOR DECISION

On 7 August 2012 the applicant lessor entered into a Residential Tenancy Agreement with the respondent tenant with respect to premises at Braddon, ACT.
The tenant was sentenced to a term of imprisonment and entered custody at the Alexander Maconochie Centre (AMC) on 15 December 2014.
On or about 15 January 2015 the lessor received a notice of custodial sentence completed and signed by the tenant on 15 January 2015. This stated that his earliest possible release date was 4 February 2015. The lessor was subsequently notified, sometime in early March 2015 and that the tenant’s earliest release date would be 13 October 2016.
On 30 March 2015, the lessor served the tenant with a notice to vacate pursuant to clause 94 of the standard residential tenancy terms. The notice required the tenant to vacate the premises on or before 28 September 2015. The statement of service provided to the tribunal in relation to the notice to vacate states that the notice was served by email to the AMC and by posting by prepaid post to the premises in Braddon ACT.
On the 8 January 2016, the lessor made an application to the ACT Civil and Administrative Tribunal (the ACAT) for termination of the tenancy and possession of the premises.
The matter came before the Tribunal, and was part-heard on 17 March 2016; the tenant raised the following issues:
(a)whether the notice to vacate had been properly served; and
(b)whether the notice to vacate was defective – it was accepted by both parties that the notice to vacate failed to provide 26 weeks’ notice to the tenant as the applicant had failed to allow time for postal delivery.
The hearing resumed on 19 May 2016. The Tribunal determined that the notice to vacate had been properly served by way of prepaid…

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: [2016] ACAT 75
Decision Date: 15 July 2016

CaseChat Overview and Summary

The case of Commissioner for Social Housing v Jones involved the Commissioner for Social Housing, acting on behalf of a housing authority, and a tenant, Mr. Jones. The dispute arose over the termination of Mr. Jones's tenancy and the subsequent possession of his residence. The matter was heard by the Civil and Administrative Tribunal of New South Wales.

The legal issues before the Tribunal were whether the tenancy agreement could be terminated and possession granted based on the tenant's incarceration. Specifically, the Tribunal needed to determine if the Commissioner had the right to terminate the tenancy due to the tenant's incarceration and if the Tribunal had the authority to grant possession under such circumstances.

The Tribunal held that the Commissioner did not have the authority to terminate the tenancy solely on the basis of Mr. Jones's incarceration. The agreement did not provide for termination in such circumstances, and there was no legislative basis that would permit the Commissioner to act in this manner. Additionally, the Tribunal found that it did not have the jurisdiction to grant possession to the Commissioner in the absence of a valid termination of the tenancy. The Tribunal concluded that the application for termination and possession was not validly made.

Accordingly, the Tribunal dismissed the application. The Tribunal ruled that the tenancy remained in effect, and Mr. Jones continued to have the right to occupy the premises. The Commissioner's application for termination and possession was denied, and the order was made accordingly.

Orders

Orders of the court

The Tribunal Orders that:

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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