Commissioner for Social Housing v Ryan - [2018] ACAT 51

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v RYAN (Residential Tenancies) [2018] ACAT 51

RT 966/2016
Catchwords: RESIDENTIAL TENANCIES – previous conditional termination and possession order – statutory tenancy – previous application for termination and possession order dismissed – res judicata – implied tenancy – previous arrears amounts contained in notices to remedy and vacate – waiver of defect in notices – lessor’s entitlement to appropriate payments to arrears debt or current rent

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 84
Residential Tenancies Act 1997 ss 6A, 7, 42, 42A, 48, 49, 79

Cases cited:Caltabiano v Electoral Commission(Qld) [2009] QCA 182
Chamberlain v Deputy Federal Commissioner of Taxation (1988) 164 CLR 502
Commissioner for Social Housing in the ACT v Moffatt [2015] ACTSC 4
Commissioner for Social Housing and Pesi [2016] ACAT 100
Commissioner for Social Housing and Pesi [2015] ACAT 58
Commissioner for Social Housing v Thorn [2016] ACAT 37
Commissioner for Social Housing v Ryan [2015] ACAT 87
Cory Bros & Co Ltd v The SS Mecca [1897] AC 286
Johnson v Gore Wood and Co (2001) 1 All ER 481
Leeson v Leeson [1936] 2 KB 156
Walsh; Ex parte Deputy Federal Commissioner of Taxation (1982) 60 FLR 355
Welch v Erica’s Aesthetics Pty Ltd [2017] ACAT 68
Williams v Commissioner for Social Housing [2016] ACAT 93

Tribunal:                   Presidential Member M-T Daniel
  Senior Member Robinson
Date of Orders:  28 September 2017
Date of Reasons for Decision:         4 May 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 966/2016
BETWEEN:
COMMISSIONER FOR SOCIAL HOUSING
Applicant

AND:
ERIN RYAN
Respondent

TRIBUNAL:Presidential Member M-T Daniel
Senior Member H Robinson

DATE:28 September 2017
ORDER

The Tribunal orders that:

1.The tenant is to pay to the lessor the sum of $2,507.00 for arrears of rent, such payment to be made in instalments as follows:

1.01The sum of $30.00 by 5:00pm on Thursday 19/10/17
1.02The sum of $30.00 by 5:00pm on Thursday 02/11/17
1.03The sum of $30.00 by 5:00pm on Thursday 16/11/17
1.04The sum of $30.00 by 5:00pm on Thursday 30/11/17
1.05The sum of $30.00 by 5:00pm on Thursday 14/12/17
1.06The sum of $30.00 by 5:00pm on Thursday 28/12/17
1.07The sum of $30.00 by 5:00pm on Thursday 11/01/18
1.08 ·The sum of $30.00 by 5:00pm on Thursday 25/01/18
1.09The sum of $30.00 by 5:00pm on Thursday 08/02/18
1.10The sum of $30.00 by 5:00pm on Thursday 22/02/18
1.11The sum of $30.00 by 5:00pm on Thursday 08/03/18
1.12The sum of $30.00 by 5:00pm on Thursday 22/03/18
1.13The sum of $30.00 by 5:00pm on Thursday 05/04/18
1.14The sum of $30.00 by 5:00pm on Thursday 19/04/18
1.15The sum of $30.00 by 5:00pm on Thursday 03/05/18
1.16The sum of $30.00 by 5:00pm on Thursday 17/05/18
1.17The sum of $30.00 by 5:00pm on Thursday 31/05/18
1.18The sum of $30.00 by 5:00pm on Thursday 14/06/18
1.19The sum of $30.00 by 5:00pm on Thursday 28/06/18
1.20The sum of $30.00by 5:00pm on Thursday 12/07/18
1.21The sum of $30.00 by 5:00pm on…

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: [2018] ACAT 51
Decision Date: 28 September 2017

CaseChat Overview and Summary

The case of Commissioner for Social Housing v Ryan was heard in the ACT Civil and Administrative Tribunal. The dispute involved the Commissioner for Social Housing, the lessor, and Ryan, the tenant. The Commissioner sought to enforce a previous conditional termination and possession order, as well as recover unpaid rent from Ryan. The primary legal issues before the tribunal were whether the previous application for termination and possession order was res judicata, and whether the notices to remedy and vacate contained the required information to establish an implied tenancy. The tribunal also considered whether the lessor could waive any defects in the notices and was entitled to appropriate payments towards the arrears debt or current rent. The tribunal held that the previous application for termination and possession order was not res judicata, as it had been dismissed. However, the tribunal found that an implied tenancy existed and that the lessor could waive any defects in the notices. The tribunal also determined that the lessor was entitled to appropriate payments towards the arrears debt or current rent. The tribunal ordered that Ryan was to pay the arrears of rent in instalments, pay future rent as it became payable, and vacate the premises if the tenancy agreement was terminated. If Ryan failed to comply with the orders, the tenancy agreement would terminate, and the lessor would be entitled to possession of the premises. The tribunal also ordered that if Ryan failed to vacate the premises, the lessor could request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.

Orders

Orders of the court

The Tribunal orders that:

1. The tenant is to pay to the lessor the sum of $2,507.00 for arrears of rent, such payment to be made in instalments as follows:

1.01 The sum of $30.00 by 5:00pm on Thursday 19/10/17

1.02 The sum of $30.00 by 5:00pm on Thursday 02/11/17

1.03 The sum of $30.00 by 5:00pm on Thursday 16/11/17

1.04 The sum of $30.00 by 5:00pm on Thursday 30/11/17

1.05 The sum of $30.00 by 5:00pm on Thursday 14/12/17

1.06 The sum of $30.00 by 5:00pm on Thursday 28/12/17

1.07 The sum of $30.00 by 5:00pm on Thursday 11/01/18

1.08 · The sum of $30.00 by 5:00pm on Thursday 25/01/18

1.09 The sum of $30.00 by 5:00pm on Thursday 08/02/18

1.10 The sum of $30.00 by 5:00pm on Thursday 22/02/18

1.11 The sum of $30.00 by 5:00pm on Thursday 08/03/18

1.12 The sum of $30.00 by 5:00pm on Thursday 22/03/18

1.13 The sum of $30.00 by 5:00pm on Thursday 05/04/18

1.14 The sum of $30.00 by 5:00pm on Thursday 19/04/18

1.15 The sum of $30.00 by 5:00pm on Thursday 03/05/18

1.16 The sum of $30.00 by 5:00pm on Thursday 17/05/18

1.17 The sum of $30.00 by 5:00pm on Thursday 31/05/18

1.18 The sum of $30.00 by 5:00pm on Thursday 14/06/18

1.19 The sum of $30.00 by 5:00pm on Thursday 28/06/18

1.20 The sum of $30.00by 5:00pm on Thursday 12/07/18

1.21 The sum of $30.00 by 5:00pm on Thursday26/07/18

1.22 The sum of $30.00 by 5:00pm on Thursday 09/08/18

1.23 The sum of $30.00 by 5:00pm on Thursday 23/08/18

1.24 The sum of $30.00 by 5:00pm on Thursday 06/09/18

1.25 The sum of $30.00 by 5:00pm on Thursday 20/09/18

1.26 The sum of $30.00 by 5:00pm on Thursday 04/10/18

1.27 The sum of $30.00 by 5:00pm on Thursday 18/10/18

1.28 The sum of $30.00 by 5:00pm on Thursday 01/11/18

1.29 The sum of $30.00 by 5:00pm on Thursday 15/11/18

1.30 The sum of $30.00 by 5:00pm on Thursday 29/11/18

1.31 The sum of $30.00 by 5:00pm on Thursday 13/12/18

1.32 The sum of $30.00 by 5:00pm on Thursday 27/12/18

1.33 The sum of $30.00 by 5:00pm on Thursday 10/01/19

1.34 The sum of $30.00 by 5:00pm on Thursday 24/01/19

1.35 The sum of $30.00 by 5:00pm on Thursday 07/02/19

1.36 The sum of $30.00 by 5:00pm on Thursday 21/02/19

1.37 The sum of $30.00 by 5:00pm on Thursday 07/03/19

1.38 The sum of $30.00 by 5:00pm on Thursday 21/03/19

1.39 The sum of $30.00 by 5:00pm on Thursday 04/04/19

1.40 The sum of $30.00 by 5:00pm on Thursday 18/04/19

1.41 The sum of $30.00 by 5:00pm on Thursday 02/05/19

1.42 The sum of $30.00 by 5:00pm on Thursday 16/05/19

1.43 The sum of $30.00 by 5:00pm on Thursday 30/05/19

1.44 The sum of $30.00 by 5:00pm on Thursday 13/06/19

1.45 The sum of $30.00 by 5:00pm on Thursday 27/06/19

1.46 The sum of $30.00 by 5:00pm on Thursday 11/07/19

1.47 The sum of $30.00 by 5:00pm on Thursday 25/07/19

1.48 The sum of $30.00 by 5:00pm on Thursday 08/08/19

1.49 The sum of $30.00 by 5:00pm on Thursday 22/08/19

1.50 The sum of $30.00 by 5:00pm on Thursday 05/09/19

1.51 The sum of $30.00 by 5:00pm on Thursday 19/09/19

1.52 The sum of $30.00 by 5:00pm on Thursday 03/10/19

1.53 The sum of $30.00 by 5:00pm on Thursday 17/10/19

1.54 The sum of $30.00 by 5:00pm on Thursday 31/10/19

1.55 The sum of $30.00 by 5:00pm on Thursday 14/11/19

1.56 The sum of $30.00 by 5:00pm on Thursday 28/11/19

1.57 The sum of $30.00 by 5:00pm on Thursday 12/12/19

1.58 The sum of $30.00 by 5:00pm on Thursday 26/12/19

1.59 The sum of $30.00 by 5:00pm on Thursday 09/01/20

1.60 The sum of $30.00 by 5:00pm on Thursday 23/01/20

1.61 The sum of $30.00 by 5:00pm on Thursday 06/02/20

1.62 The sum of $30.00 by 5:00pm on Thursday 20/02/20

1.63 The sum of $30.00 by 5:00pm on Thursday 05/03/20

1.64 The sum of $30.00 by 5:00pm on Thursday 19/03/20

1.65 The sum of $30.00 by 5:00pm on Thursday 02/04/20

1.66 The sum of $30.00 by 5:00pm on Thursday 16/04/20

1.67 The sum of $30.00 by 5:00pm on Thursday 30/04/20

1.68 The sum of $30.00 by 5:00pm on Thursday 14/05/20

1.69 The sum of $30.00 by 5:00pm on Thursday 28/05/20

1.70 The sum of $30.00 by 5:00pm on Thursday 11/06/20

1.71 The sum of $30.00 by 5:00pm on Thursday 25/06/20

1.72 The sum of $30.00 by 5:00pm on Thursday 09/07/20

1.73 The sum of $30.00 by 5:00pm on Thursday 23/07/20

1.74 The sum of $30.00 by 5:00pm on Thursday 06/08/20

1.75 The sum of $30.00 by 5:00pm on Thursday 20/08/20

1.76 The sum of $30.00 by 5:00pm on Thursday 03/09/20

1.77 The sum of $30.00 by 5:00pm on Thursday 17/09/20

1.78 The sum of $30.00 by 5:00pm on Thursday 01/10/20

1.79 The sum of $30.00 by 5:00pm on Thursday 15/10/20

1.80 The sum of $30.00 by 5:00pm on Thursday 29/10/20

1.81 The sum of $30.00 by 5:00pm on Thursday 12/11/20

1.82 The sum of $30.00 by 5:00pm on Thursday 26/11/20

1.83 The sum of $30.00 by 5:00pm on Thursday 10/12/20

1.84 The sum of $17.00 by 5:00pm on Thursday 24/12/20

2. The tenant is to pay future rent as it becomes payable under the tenancy agreement, less any rebate granted by the Commissioner for Social Housing, the next payment of rent being due on or before Thursday 19 October 2017 and the sum of $155.50 fortnightly thereafter.

3. If the tenant fails to make one of the payments required by paragraph 1:

(i) the tenancy agreement shall terminate at 5:00 pm the following day;

(ii) upon termination of the tenancy agreement the lessor is entitled to possession of the premises; and

(iii) the instalments remaining under paragraph 1 are immediately due and payable.

4. If the tenant fails to make a payment of future rent as required by paragraph 2:

(i) the tenancy agreement shall terminate at 5:00 pm the following day;

(ii) upon termination of the tenancy agreement the lessor is entitled to possession of the premises; and

(iii) the instalments remaining under paragraph 1 are immediately due and payable.

5. If the tenancy agreement is terminated by operation of paragraph 3 or paragraph 4 of this Order, the tenant must vacate the premises on or before the date of termination.

6. If the tenant fails to vacate the premises as required by paragraph 5 of this Order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.

7. Orders 3 and 4 expire at 5:00 pm on Wednesday 27 September 2018.

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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