Commissioner for Social Housing v Moffatt - [2015] ACTSC 4

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Commissioner for Social Housing v Moffatt
Citation:	[2015] ACTSC 4
Hearing Date(s):	7 November 2014
DecisionDate:	30 January 2015
Before:	Mossop M
Decision:	1. The question of law referred is answered, “No”. 2. There is no order as to costs.
Category:	Principal Judgment
Catchwords:	LANDLORD AND TENANT – termination of tenancy ‑ operation and effect of conditional termination and possession order (CTPO) pursuant to the Residential Tenancies Act 1997 (ACT) s 49(4) ‑ breach of CTPO – meaning of “terminates” – whether, following termination under a CTPO, the residential tenancy agreement continues to operate until a warrant for eviction is issued – alternatively, whether the residential tenancy agreement is terminated but may be statutorily revived by order of the ACAT – need for review of legislation
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT) Court Procedure Rules 2006 (ACT) Landlord and Tenant Amendment Act 1948 (NSW) National Security (Landlord and Tenant) Regulations (Cth) Residential Tenancies Act 1997 (ACT)
Cases Cited:	Anderson v Bowles (1951) 84 CLR 310 Andrews v Hogan (1952) 86 CLR 223 Bonnington & Co Pty Ltd v Lynch (1952) 86 CLR 259 Butler v Attorney General (Vic) (1961) 106 CLR 268 Commissioner for Social Housing v Lowe [2013] ACAT 49 Dickstein v Kanevsky [1947] VLR 216 Fry v Metzelaar [1945] VLR 65 Furness v Sharples (1951) 51 SR (NSW) 13 Gargaro v Moore [1948] VLR 365 Krupa v Zacabag Pty Ltd (1950) 50 SR (NSW) 304 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Read v Morris (1952) 53 SR (NSW) 39
Texts Cited:	The Community Law Reform Committee of the Australian Capital Territory, Report No. 8 (1994), Private Residential Tenancy Law Halsbury’s Laws of England 3^rd ed Volume 23 Harrison, The Problem of the Statutory Tenancy (1952) 26 ALJR 232 Lewis and Cassidy’s Tenancy Law New South Wales (Butterworths 1966)
Parties:	Commissioner for Social Housing in the ACT (Initiating Party) Melissa Moffatt (Other Active Party)
Representation:	Counsel: Mr G McCarthy (Initiating Party) Mr S Whybrow (Other Active Party)
Solicitors: ACT Government Solicitor (Initiating Party) Welfare Rights and Legal Centre (Other Active Party)
File Number(s):	SCA 69 of 2014

Stated case

On 11 June 2014 Appeal President Stefaniak ordered that the following question of law be referred to the Supreme Court for determination pursuant to s 84 of the ACT Civil and Administrative Tribunal Act 2008 (ACT):

Did the Tribunal, in its decision of Commissioner for Social Housing in the ACT v Moffatt [2013] ACAT 83, err in determining that the operation and effect of the conditional termination and possession order made pursuant to section 49(4) of the Residential Tenancies Act 1997 was that the respondent's tenancy was terminated in accordance with the terms of that order following a breach of the conditions of that order?

The parties prepared a special case pursuant to r 5802 of the Court Procedure Rules 2006 (ACT) which set out the background facts…

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] ACTSC 4
Decision Date: 30 January 2015

CaseChat Overview and Summary

The Commissioner for Social Housing (the "Commissioner") brought an action against Moffatt (the "Tenant") in the Civil and Administrative Tribunal of the Australian Capital Territory. The Commissioner sought a declaration that, upon the termination of a conditional termination and possession order (CTPO) under section 49(4) of the Residential Tenancies Act 1997 (ACT), the residential tenancy agreement was terminated, and therefore, the Tenant's occupation of the premises was unlawful. The Commissioner argued that the tenancy agreement ended upon the termination of the CTPO and that a warrant for eviction was necessary for the Commissioner to lawfully regain possession of the premises. In response, the Tenant contended that the tenancy agreement remained in effect until a warrant for eviction was issued and that it could be revived by an order from the Administrative and Commercial Tribunal of the Australian Capital Territory (ACAT).

The primary legal issue for the court to determine was whether, following the termination of a CTPO under section 49(4) of the Act, a residential tenancy agreement continues to operate until a warrant for eviction is issued, or whether the agreement is terminated but may be revived by an order of the ACAT. The court considered the statutory language and legislative history to resolve this issue. The court held that upon the termination of a CTPO, the residential tenancy agreement is terminated, and the Tenant's occupation of the premises becomes unlawful. The court found that the tenancy agreement does not continue to operate until a warrant for eviction is issued. However, the court also noted that the legislation may require review to clarify the consequences of the termination of a CTPO.

The court answered the referred question of law in the negative, holding that the residential tenancy agreement does not continue to operate until a warrant for eviction is issued. The court found that the tenancy agreement is terminated upon the termination of a CTPO. The court further noted that the legislation may require review to address the consequences of the termination of a CTPO and to clarify the statutory framework. The court made no order as to costs.

Orders

Orders of the court

1. The question of law referred is answered, “No”.

2. There is no order as to costs.

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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