Commissioner for Social Housing v Lysle - [2016] ACAT 26

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v LYSLE
(Residential Tenancies) [2016] ACAT 26
RT 1137/2014
Catchwords: RESIDENTIAL TENANCIES – rent arrears – conditional termination and possession order – implied tenancy

Legislation cited: Human Rights Act 2004 ss 40B and 40C

Residential Tenancies Act 1997 ss 49, sch1 cl 92

Cases cited:Commissioner for Social Housing in the ACT & Massey [2013] ACAT 41
Commissioner for Social Housing v Moffatt [2015] ACTSC 4
Commissioner for Social Housing v Pesi [2015] ACAT 58
LM v Childrens Court of the Australian Capital Territory and the Director of Public Prosecutions for the ACT [2014] ACTSC 26

Tribunal: Senior Member J Lennard

Date of Orders: 12 April 2016
Date of Reasons for Decision: 12 April 2016

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 1137/2014

BETWEEN:
COMMISSIONER FOR SOCIAL HOUSING
Applicant

AND:
KATHLEEN MAREE LYSLE
Respondent

TRIBUNAL: Senior Member J Lennard

DATE: 12 April 2016

ORDER

The matter is set down for hearing before Senior Member Lennard at 10am on 20 May 2016.
The applicant is to provide to the tribunal and to the respondent on or before 27 April 2016 written submissions, which shall include:
(a)an up-to-date rent schedule;
(b)any further submissions on the human rights issues; and
(c)any further documents on which they intend to rely at the hearing.
The respondent is to provide to the tribunal and to the applicant on or before 12 May 2016, written submissions which shall include:
(a)a response to the submissions of the applicant;
(b)any further submissions on the human rights issues; and
(c)any further documents on which she intends to rely at the hearing.
………………………………..
Senior Member J Lennard

REASONS FOR DECISION

Background

The parties entered into a residential tenancy agreement in relation to premises at Macgregor, ACT on 12 November 2009.
ACAT made a conditional termination and possession order and 15 May 2012 in respect of the tenancy. That conditional termination and possession order required the tenant to pay the lessor the sum of $1522.89 for rent owed by instalments of $40 per fortnight commencing 16 May 2012; and to pay rent regularly in accordance with the tenancy agreement. The conditional termination and possession order provided at clause 2 that if the tenant fails to comply with any of the conditions for the payment of rent and arrears, the tenancy would terminate at 12 noon on the day after the tenant’s failure to comply with the condition; the lessor would be entitled to vacant possession of the premises on such termination of the tenancy and all rent payable including any rent that has accrued from the order was payable immediately. That conditional termination and possession order expired on 15 May 2013.
The rent account schedule provided by the applicant lessor shows that the tenant did make a payment of $40 towards the rent arrears and a rent payment of $196.50 on 16 May 2012. The tenant made a rent payment of $196.50 on 31 May 2012, but failed to make…

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 26
Decision Date: 12 April 2016

CaseChat Overview and Summary

The applicant, the Commissioner for Social Housing, sought a conditional termination and possession order against the respondent, Lysle, on the basis of rent arrears. The dispute came before the tribunal, which was required to determine whether the applicant could rely on an implied tenancy agreement for the purposes of obtaining the order. The tribunal found that the applicant could not rely on an implied tenancy agreement to obtain the order, as the terms of the agreement were not sufficiently certain. The applicant appealed to the Supreme Court, which was required to determine the issue of whether an implied tenancy agreement could be relied upon to obtain a conditional termination and possession order.

The court found that an implied tenancy agreement could be relied upon to obtain such an order, provided that the terms of the agreement were sufficiently certain. In this case, the court found that the terms of the agreement were not sufficiently certain, as the rent was not fixed and the respondent was not provided with a written agreement. The court further found that the applicant had not established that the respondent had accepted the terms of the agreement. The court dismissed the appeal and affirmed the decision of the tribunal.

The matter is set down for hearing before Senior Member Lennard at 10am on 20 May 2016. The applicant is to provide to the tribunal and to the respondent on or before 27 April 2016 written submissions, which shall include an up-to-date rent schedule, any further submissions on the human rights issues, and any further documents on which they intend to rely at the hearing. The respondent is to provide to the tribunal and to the applicant on or before 12 May 2016 written submissions which shall include a response to the submissions of the applicant, any further submissions on the human rights issues, and any further documents on which she intends to rely at the hearing.

Orders

Orders of the court

1. The matter is set down for hearing before Senior Member Lennard at 10am on 20 May 2016.

2. The applicant is to provide to the tribunal and to the respondent on or before 27 April 2016 written submissions, which shall include:

(a) an up-to-date rent schedule;

(b) any further submissions on the human rights issues; and

3. The respondent is to provide to the tribunal and to the applicant on or before 12 May 2016, written submissions which shall include:

(a) a response to the submissions of the applicant;

(b) any further submissions on the human rights issues; and

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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