Commissioner for Social Housing v Pesi - [2015] ACAT 58

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v PESI
(Residential Tenancies) [2015] ACAT 58
RT 14/148
Catchwords: RESIDENTIAL TENANCIES – conditional termination and possession order – breach of the order – termination of tenancy – in action by a lessor – tenancies arising by implication

Legislation cited: Residential Tenancies Act 1997 ss 6A, 42A, 42B, 49, 53, 59

Cases Cited:Adams v Lambert (2006) 228 CLR 409
Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666
Commissioner for Social Housing v Moffatt [2015] ACTSC 4
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Ryan v ACT Housing [2003] ACTRTT 2
St Jude's Family Support Service v Myers [2005] ACTRTT 15
Walsh v Lonsdale (1882) 21 Ch 9

Tribunal: Ms J. Lennard – Senior Member

Date of Orders:  3 September 2015
Date of Reasons for Decision:         3 September 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL           RT 14/148

BETWEEN:
COMMISSIONER FOR SOCIAL
HOUSING
Applicant/Lessor

AND:
WILLIAM ALEJANDRO PESI
Respondent/Tenant

TRIBUNAL: Ms J. Lennard – Senior Member

DATE: 3 September 2015

ORDER
The Tribunal Orders that:
1.The application is dismissed.

…………………………..
Ms J. Lennard – Senior Member

REASONS FOR DECISION

Background Facts

The parties entered into a residential tenancy agreement in relation to premises in Rivett, ACT on 19 October 2004. The tenant has frequently failed to pay rent as required by the residential tenancy agreement. There have been several termination and possession orders made:
(a)on 18 February 2008 in matter RT 2008/54 a conditional termination and possession order was made by consent;
(b)on 18 August 2008 those consent orders were set aside and a new order was made;
(c)on 23 October 2008 an application was made by the lessor for a warrant. That application was refused and the order of 18 August 2008 was confirmed;
(d)on 20 February 2012 in matter RT 11/924 an unconditional termination and possession order was made; and
(e)the tenant lodged an appeal in relation to the unconditional termination and possession order and on 11 September 2012 the appeal was dismissed. A conditional termination and possession order was made for the repayment of $6719.74 for rent owed by instalments of not less than $30 per fortnight with the first payment to be made on 25 September 2012 and for rent to be paid in accordance with the residential tenancy agreement. That order expired on 19 February 2013.
The tenant’s weekly rent was $400.00, thus to comply with the order of 11 September 2012 a payment of $830.00 was required each fortnight.
The rental schedule provided by the lessor indicates that on 25 September 2012 the tenant made a payment of $150.00. Thus the tenant has breached the conditional termination and possession order. That order provided as follows:
If the tenant fails to comply with any of the conditions of the order:
(i)the tenancy terminates at 12.00 noon on the day after the tenant’s failure to comply with the condition;
(ii)the lessor is entitled to vacant possession of the premises on termination of the tenancy;
(iii)all rent payable including any rent which has accrued from the date of this order is payable immediately.
The order of 11 September 2012 provides that the arrears owing at that date are $6,719.74. It is noted that the rental schedule provided by the lessor shows the arrears as $11,700.74. No explanation of the difference was provided by the lessor. The submissions made by the lessor state “curiously, on the date the Order was made, Mr Pesi’s arrears, as indicated in the rental account statement…were in fact $11,700.74”. Nevertheless, the Tribunal has determined the amount to be $6,719.74 and there appears to have been no application to amend the amount immediately following the orders of 11 September 2012, nor any appeal concerning an error by the Tribunal as to the amount of arrears. The presently constituted Tribunal finds that the rental schedule should be amended to show that at 11 September 2012 the arrears were $6,719.74 as determined by the Appeal Tribunal.

Conditional termination and possession orders

Section 49 of the Residential Tenancies Act 1997[i] (ACT) [the Act] regulates the termination of the tenancy where the tenant has failed to pay rent.
Where a conditional termination possession order has been made by ACAT and the tenant breaches that order by either failure to pay rent or failure to pay the arrears by instalments, the effect of that breach is twofold: the tenancy terminates on the day after the breach, and any outstanding rent becomes due and payable immediately.
Section 42A of the Act provides that where there is a breach by the tenant of a conditional termination and possession order, the lessor may apply to the registrar for a warrant of eviction.[ii] Section 42B provides that an application under section 42A must be decided as if it were an application under section 49 for a termination and possession order.
In Commissioner for Social Housing v Moffatt [2015] ACTSC 4, Mossop M examined the words of the Act to determine the effect on the tenancy agreement of a breach by the tenant of a conditional termination and possession order. Mossop M stated at paragraph 43:
The starting point to interpretation of a statute should be with the words of the provision itself. The interpretation which promotes the purpose of the legislation must be preferred. Reference should be had to the broader legislative context of the Act, and, where relevant, also to extrinsic materials which provide evidence of the legislature’s intended operation or purpose.
After an examination of the provisions of the Act Mossop M concluded:
64. [T]he entirety of the RTA as I have considered it, is consistent with a conditional termination and possession order being self-executing. I have been unable to find any provision in the RTA which is inconsistent with a conditional termination and possession order being self-executing. While I do not consider that there is any ambiguity in subsection 49(4) to be resolved by reference to extrinsic material, I note that reference to the [Community Law Reform ] report confirms that such an order was intended to be self-executing.
65. It follows that I am satisfied that a conditional termination and possession order is self-executing in the sense that it terminates a residential tenancy agreement, although this does not mean that all of the rights and obligations of the parties under that agreement end at the time of termination.
The Act provides that the Tribunal may make a termination possession order if the tenant has failed to pay rent that has become payable under the residential tenancy agreement when the lessor has served a termination notice on the tenant on the basis of the failure to pay rent and the tenant has not vacated the premises in accordance with that notice.[1]
[1]Section 49 (1) of the Act
If the Tribunal is of the opinion that the tenant has agreed to and is reasonably likely to pay the rent that has become payable, as well as pay future rent as it becomes payable, then instead of making a termination and possession order, the Tribunal may make a conditional termination and possession order. The conditions imposed under such an order are that the tenant shall pay the rent as and when it falls due, and that the tenant shall pay an identified amount of arrears by instalments, as specified in the order. Section 49(4) provides that if the tenant fails abide by that order then, the tenancy terminates at a stated hour on the day after the day when any rent becomes payable, and is not paid and the lessor becomes entitled to possession of the premises and all rent payable to the date of termination is payable immediately.
Thus, where the tenant breaches a conditional termination and possession order by either a failure to pay rent that has become payable (that is the arrears identified in the order) or by failing to pay rent as it becomes payable, there are two important consequences:
(a)the tenancy terminates at the time set out in the conditional termination and possession order; and
(b)all rent payable until the termination of the tenancy becomes payable immediately.
If the tenant does not vacate the premises then the lessor may make an application pursuant to section 42A for a warrant of eviction. The purpose of that warrant is to enable the lessor to recover vacant possession of the premises.

Application of the law to the present matter

The tenant failed to comply with the order of 11 September 2012 by failing to make payment as required on 25 September 2012. The effect of the self-executing order was that, upon the breach of the conditional termination and possession order, the tenancy was terminated on 26 September 2012 at noon and rent in the amount of $7,169.74 became payable. The rent owed up to the date of termination is $7,169.74 (the arrears of $6719.74 as determined by the Appeal Tribunal plus $800 rent for the period from the order to the breach minus $350 paid by the tenant).

The consequences of inaction by the lessor

In circumstances where the lessor fails to make an application pursuant to section 42A, and the tenant remains in possession of the premises, it may be that a new tenancy arises by implication from the conduct of the parties.
Section 6A of the Act defines a residential tenancy agreement as an agreement whereby a person gives to someone else (the tenant) a right to occupy premises and the premises are for the tenant to use as a home and the right is given for value. Section 6A(2) provides that the agreement may be express or implied or in writing, oral or partly in writing and partly oral.
Where the parties are in a continuing relationship which involves exchange of documents and other correspondence, it may be possible to state that the parties are in a contractual relationship, but difficult to genuinely label any particular action as an offer or acceptance. It may be more sensible to ask whether, in the circumstances, it can be shown that each party has assented to the contract. In Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 the Court examined the surrounding circumstances and asked whether a reasonable bystander would conclude from the conduct of the parties – that is the doing of work and the acceptance of payment for that work – that the parties were in a contractual relationship.
In Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 the Court concluded that it was not necessary to specifically identify an offer and acceptance before a contract can be said to be formed between the parties and concluded that there was sufficient authority for a court to find that a contract may be evidenced otherwise than by offer and acceptance. In Brogden v Metropolitan Railway Co (1877) to App Cas 666 it was found that conduct of the parties could lead to the inference that a contract which had been propounded had been in fact accepted. If one party had acted so that the other was reasonably entitled to believe that there was a contract, then there would be a contract which would bind them.
The common law in relation to leases recognised that a residential lease could arise from the conduct of the parties, in circumstances where the requirement that the agreement be in writing had not been met.[2] The statutory scheme provided for residential tenancies in the ACT means it is much easier to imply a residential tenancy than under the common law. The Act provides that a residential tenancy agreement may be entirely oral. Once a residential tenancy agreement has arisen by implication, its terms are the standard residential tenancy terms set out in the schedule to the Act.
[2]Walsh v Lonsdale (1882) 21 Ch 9
Whether a new tenancy has arisen by implication from the conduct of the parties is a question of fact, to be determined on a case-by-case basis. In making such a determination the Tribunal would have regard to the amount of time that had passed since the tenancy terminated on the breach by the tenant and the conduct of the parties, including but not limited to:
(a)correspondence between the parties;
(b)the demanding of rent;
(c)the payment of rent;
(d)the exercise by the lessor of rights arising under a residential tenancy agreement, such as routine inspections, or market rent increases;
(e)the meeting by the lessor of obligations, such as repairs to the premises; and
(f)the calculation of a rental rebate.
If the Tribunal determines that a new tenancy has arisen by implication from the conduct of the parties, then if the tenant breaches the new tenancy agreement by failing to pay rent, the lessor is obliged to serve a valid notice to remedy and a valid notice to vacate upon the tenant, before making an application to ACAT for termination and possession.
The applicant has made representations that upon termination of the tenancy resulting from a breach of a conditional termination and possession order, the tenant remains in occupation of the premises under a statutory tenancy, subject to the terms of the terminated contractual tenancy. The statutory tenancy is seen as extending protection from eviction to the tenant by the lessor until and unless the lessor obtains a possession order from ACAT.
There is nothing in the Act to support the assertion that a statutory tenancy arises immediately upon termination resulting from a breach of a conditional termination and possession order. A statutory tenancy must be a tenancy that arises from the operation of the statute. Indeed, unconditional termination and possession orders made pursuant to section 49 often result in a period of time between the termination of the tenancy and the issuing of a warrant of eviction. This comparable period of time cannot be characterised as a statutory tenancy. It could be argued that the legislative scheme anticipates that, where a lessor has obtained either a conditional or unconditional termination and possession order, that lessor will within a reasonably short period of time, take the necessary steps to obtain possession of premises A lessor’s failure to avail themselves of the remedy provided for within the Act cannot give rise to a statutory tenancy, or a tenancy at will under the common law. It is again noted that the effect of the self-executing orders is that the tenancy terminates as a result of the tenant’s failure to comply with the conditional termination and possession order.
In Commissioner for Social Housing v Moffatt the Court stated at paragraph 46:
There can be no doubt that the RT Act creates a right, pending an order of the Tribunal, to not be evicted after a lease is terminated by a CTPO. Adopting the terminology from the lessor and tenant legislation referred to above, that right can be described as a “statutory tenancy”. However, there is also absolutely no indication that the legislature intended to pick up any of the jurisprudence on statutory tenancies, either from the United Kingdom or Australia.[3] Therefore, caution must be exercised to ensure that any reliance upon earlier authorities is only to the extent that it is consistent with the terms of the RT Act. [emphasis added]
[3]For example, the National Security (Lessor and Tenant) Regulations (Cth) and State legislation is in similar terms such as the Lessor and Tenant Amendment Act 1948 (NSW) (NSW Act)
The applicant lessor made submissions based on Commissioner for Social Housing v Moffatt. In so far as there is a statutory protection afforded to the tenant against eviction by ‘self-help methods’ of the lessor, the period of time which elapses between the termination of the tenancy and the application by the lessor for a warrant of eviction may be a ‘type of statutory tenancy’. However, the effluxion of time and conduct inconsistent with an intention on the part of the lessor to make such an application for a warrant may be matters legitimately taken into account by the Tribunal in determining that, in all the circumstances, the relationship between the applicant and the respondent is now governed by a new residential tenancy agreement that has arisen by implication from the conduct of the parties.
To hold that a statutory tenancy arises immediately upon termination of the tenancy regulated by the conditional termination and possession order by the tenant’s breach of that order and that that statutory tenancy continues to regulate the relationship, is not consistent with the words or the intention of the Act. The chief difficulty is in determining the terms of such a tenancy. Either this is a tenancy subject to the Act and therefore containing the standard terms, or it is some other creature which contains only so many of those terms as suit the lessor, but allows the lessor to terminate by application to the ACAT, without the requirements of notices to remedy and vacate. There is no basis within the Act for such a statutory tenancy. The Act provides that a residential tenancy agreement must contain, and is taken to contain, terms to the effect of the standard residential tenancy terms mentioned in schedule 1.[4] Such terms include the requirements for service of notices to remedy and to vacate.

Application of the law to the present matter

[4]See section 8 of the Residential Tenancies Act 1997

The lessor did not make any application to the Tribunal prior to the order expiring on 19 February 2013. The respondent gave uncontested evidence that since the termination of the tenancy on 26 September 2012 the lessor has solicited rent payment from the respondent, invited the respondent to fill out rental rebate forms, asserted their right to inspect the property under the residential tenancy agreement and sent other correspondence concerning the tenancy to the respondent. The respondent has provided information to the lessor in relation to income for the purpose of calculating rental rebate.
Documents dated 3 December 2012, in which Mr William Pesi is described by the applicant as a tenant and as currently being on full rent were provided by the applicant. The evidence supports the conclusion that soon after the termination of the tenancy by reason of the tenant’s breach of the conditional termination possession order, the applicant lessor was taking steps to calculate rental rebate. The calculation of rental rebate is clearly referable to the existence of a residential tenancy agreement.
The current application pursuant to section 49 of the Act is based upon a Notice to Remedy for arrears served on 5 August 2013 and a Notice to Vacate for arrears served on 4 September 2013. The service of such notices point to the relationship between the parties being one of lessor and tenant. The residential tenancy terms regulate the termination of a tenancy by a lessor for the tenant’s failure to pay rent at clause 92 which provides as follows: the tribunal may order the termination of the tenancy and eviction of the tenant on the ground of non-payment of rent in the following circumstances (1) the lessor has served a notice to remedy on the tenant for the failure to pay rent and (2) the lessor has served a notice to vacate. The notice was served by the applicant lessor purporting to be notices served pursuant to their rights are set out in clause 92. Again such conduct points to the existence of a residential tenancy agreement between the parties.
Taking into account the conduct of the parties, correspondence between the parties and the amount of time that has passed since the tenancy terminated on 26 September 2012, the Tribunal determines that a residential tenancy agreement arose by implication from the conduct of the parties at some time after 26 September 2012. Although the Tribunal acknowledges that it would not have been possible on 26 or 27 September 2012 to imply a residential tenancy agreement, the subsequent conduct of the parties when viewed from the ‘retrospective’ perspective described in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd, allows the Tribunal to set the commencement date for the implied tenancy at 27 November 2012. Thus, rent is payable by the tenant under the implied tenancy from 27 November 2012.

The rental schedule provided by the applicant is relied upon for the calculation of the arrears of rent, from time to time. As at 27 November 2012 the arrears are set to zero. On 5 August 2013 the arrears were $2971.30; the Notice to Remedy served on that date states that “Our records show that as at 5 August 2013 you are $10,141.04 DR behind in your rent. To be two weeks in advance, you must also pay $121. This makes a total due of $10,262.04”. The Notice to Remedy served by the applicant requires the tenant to remedy a breach of the residential tenancy agreement by the payment of $10,262.04 within seven days of the date of service of the notice.
On or about 4 September 2013 the rental arrears were $2953.70. The Notice to Vacate served on for September 2013, stated that “your rent account is in arrears by $10,062.54 DR as at Saturday, 31 August 2013”.
There are very few decisions in relation to residential tenancies which deal with the purpose of notices to remedy or the circumstances under which the Tribunal should exercise its power to correct a defect in a notice. Section 83 of the Act provides that the Tribunal may make an order in relation to an application about a tenancy dispute correcting a defect in a notice or in the service of the notice.
In Ryan v ACT Housing [2003] ACTRTT 2, the Tribunal determined that in considering whether to correct a defect in a notice, the effect of the correction upon the tenant should be considered. In St Jude's Family Support Service v Myers [2005] ACTRTT 15 Member Anforth, referring to the decision in Ryan v ACT Housing stated at paragraph 8 that:
the implication is that correction should only take place where the tenant suffers little or no loss as a result. Certainly this is a proposition which sits comfortably with the power dynamic within this particular lessor/tenant relationship - the lessor, being a government-funded organisation with greater resources than the individual tenant who is in serious personal crisis, has a responsibility to ensure that it adheres to the law when it wishes to take steps which would be detrimental to the tenant.
The Tribunal should consider the effect of any correction to a notice upon the tenant: In this case, as in St Jude's Family Support Service v Myers, any correction would assist an otherwise far from perfect attempt to terminate the residential tenancy agreement, resulting in potential homelessness for the respondent tenant.
This approach accords with section 59 of the Act which provides that where a lessor has served a termination notice which is not in the form approved under the Act, and the tenant does not vacate the premises, the lessor may apply to ACAT for a waiver of the defect in the notice, or in the service of the notice, and for the making of a termination and possession order. Section 53(2) provides that the Tribunal must not waive a defect and make a termination and possession order unless satisfied that the defect did not, and is not likely to, place the tenant in a significantly worse position than the tenant would have been in had the notice been in, and served in, accordance with the standard residential tenancy terms.
In oral submissions the applicant asserted that if the Tribunal corrected the defect in the notice, there would be no prejudice to the tenant, as on any calculation the arrears are significant and the rent schedule shows that the tenant has failed to pay rent in accordance with his obligation pursuant to the residential tenancy agreement. In written submissions the applicant stated that the final calculation of the amount does not speak to the validity of a notice to remedy and notice to vacate issued pursuant to clause 92 of the standard terms. The applicant asserts that there is no dispute that the respondent owes money to the applicant for failure to pay rent and rental arrears – the failure to pay rent is the ground on which the applicant relied to issue the notice to remedy and the notice to vacate.
The service of a notice to remedy is a necessary step for a lessor seeking to terminate a residential tenancy agreement where the breach is the tenant’s failure to pay rent. A lessor is not entitled to issue a notice to vacate unless they have served a notice to remedy, and the tenant has failed to remedy. Clause 92 of the residential tenancy agreement provides that the Tribunal may order the termination of the tenancy and the eviction of the tenant on the ground of non-payment of rent in the following circumstances:
(a)rent has been unpaid for 1 week. The first day of this period concludes at midnight on the day when the unpaid rent was due;
(b)the lessor has served a notice to remedy on the tenant for the failure to pay the rent, being a notice—
(i)served not earlier than 1 week after the day when the rent was due; and
(ii)containing a statement that if the tenant pays the rent outstanding to the date of payment within 7 days of the date of service of the notice to remedy, no further action must be taken and the tenancy continues;
(c)if all rent is not paid within 1 week of the date of service of the notice to remedy—the lessor may then serve a notice to vacate on the tenant requiring the tenant to vacate the premises within 2 weeks of service of the notice to vacate;
Section 49 of the Act provides that on application by a lessor, the ACAT may make a termination and possession order if:
(a)the tenant has failed to pay rent that has become payable under the residential tenancy agreement; and
(b)the lessor has served a termination notice on the tenant on the basis of the failure to pay rent; and
(c)the tenant has not vacated the premises in accordance with the notice.
If the Tribunal should find that either the notice to remedy or the notice to vacate is invalid then the lessor’s application for termination cannot succeed. Where both a notice to remedy and a failure by the tenant to remedy are conditions precedent to the issuing of a notice to vacate, then the Tribunal must consider the purpose of the notice to remedy. In relation to leases generally, the common law provides that the notice should give the tenant accurate information as to the breach alleged by the lessor and what action will be necessary by the tenant to remedy the breach. The tenant should have the opportunity of determining whether or not the breach is admitted and, where the breach is capable of being remedied, the tenant should have the opportunity to remedy.[5] If a notice to remedy, or a notice to vacate served upon the tenant contains a defect which could readily mislead the tenant about an essential element of the breach that had to be remedied, so that the decision as to what action they should take is influenced by the defective information, then taking into account the serious consequences (potential homelessness) for the tenant, the Tribunal should be extremely cautious about correcting a defect in relation to the quantum of arrears, said to be owed by the tenant.[6]
[5]See for a discussion of this area of the law Sharon Christensen and Bill Duncan, Breaches of the lease 'capable of remedy': A technical or practical approach? Australian Property Law Journal 13 (2): 204
[6]This approach is analogous to that taken by the High Court in relation to defects in a bankruptcy notice in Adams v Lambert [2006] HCA 10. Both bankruptcy proceedings and applications to terminate tenancies have serious consequences for the parties concerned
In the present case the Tribunal notes:
(a)that the tenant has frequently failed to pay rent in accordance with the residential tenancy agreement;
(b)that no accurate rental schedule has been provided by the applicant, and so the amounts in relation to rent payable under the implied tenancy have been calculated by the Tribunal based on the information before it. This rental amount should be seen as an approximation;
(c)the Notice to Remedy served on 5 August 2013 contains an error with regard to the amount of rental arrears owed by the tenant;
(d)that error is by a factor of three: so the tenant is asked to remedy by paying $10,141.04 within seven days of the service of the notice whereas the arrears which have arisen under the implied tenancy are in the vicinity of $2,971.30;
(e)that error would have a significant impact upon the actions of the tenant: the tenant may have been able to take steps to remedy an amount of arrears less than $3000, but may have viewed the payment of an amount in excess of $10,000 as not possible; and
(f)an application for termination and possession made in circumstances in which the arrears owed are significant, may result in termination of the residential tenancy agreement and homelessness for the tenant and his family.
The Tribunal has determined that it is not appropriate to correct the defect as to the quantum of arrears in either the Notice to Remedy or the Notice to Vacate. It is a pre-requisite for an application for termination and possession that the lessor has served valid notices in accordance with the requirements of the residential tenancy agreement and the Act. The Tribunal finds that the lessor’s Notice to Remedy and Notice to Vacate are defective, and therefore their application must fail.
………………………………..
Ms J. Lennard - Senior Member

Residential Tenancies Act 1997
42AFailure to comply with conditional order
(1)A lessor may apply to the registrar for a warrant for the eviction of a person if—
(a)the ACAT has issued a conditional termination and possession order; and
(b)the order has not expired; and
(c)the lessor satisfies the registrar that the condition has been satisfied; and
(d)the person to whom the order was directed continues to live at the premises.
(2)On receiving an application for a warrant, the registrar must—
(a)list the application for hearing before the ACAT not earlier than 1 week after the day the notice under paragraph (b) is given to the person; and
(b)give notice to the person to whom the conditional termination and possession order is directed stating—
(i)that an application for a warrant for eviction has been made; and
(ii)the time when, and the place where, the application is to be heard; and
(iii)that the person should seek legal advice about the application if the person wants to continue to live at the premises.

Failure to pay rent
(1)On application by a lessor, the ACAT may make a termination and possession order if—
(a)the tenant has failed to pay rent that has become payable under the residential tenancy agreement; and
(b)the lessor has served a termination notice on the tenant on the basis of the failure to pay rent; and
(c)the tenant has not vacated the premises in accordance with the notice.
(2)If a lessor has made an application under subsection (1), the ACAT may refuse to make a termination and possession order if—
(a)the tenant has paid any rent that has become payable and is, in the ACAT’s opinion, reasonably likely to pay future rent as it becomes payable; and
(b)the ACAT considers it just and appropriate to do so.
(3)Subsection (4) applies if—
(a)the tenant is, in the ACAT’s opinion, reasonably likely to pay the rent that has become payable as well as pay future rent as it becomes payable; and
(b)the tenant agrees to pay the rent that has become payable, and undertakes to pay future rent as it becomes payable, as required by the ACAT.
(4)Instead of making a termination and possession order under subsection (1), the ACAT may order (conditional termination and possession order) that if the tenant fails to pay the rent that has become payable, or future rent as it becomes payable, as required by the ACAT—
(a)the tenancy terminates at a stated hour on the day after the day when any rent becomes payable and is not paid; and
(b)the lessor becomes entitled to possession of the premises and all rent payable is payable immediately.
(5)If—
(a)the ACAT makes an order under subsection (1); and
(b)the ACAT is satisfied that—
(i)were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and
(ii)that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period;
the ACAT may suspend the operation of the termination and possession order for a specified period of no more than 3 weeks.

HEARING DETAILS

FILE NUMBER:	RT 14/148
PARTIES, APPLICANT:	Commissioner for Social Housing
PARTIES, RESPONDENT:	William Alejandro Pesi
SOLICITORS FOR APPLICANT	ACT Government Solicitor
SOLICITORS FOR RESPONDENT	Welfare Rights & Legal Centre
TRIBUNAL MEMBERS:	Ms J. Lennard – Senior Member
DATES OF HEARING:	4 December 2015