Commissioner for Social Housing v Tenant Aa202154 & Ors (Appeal)
[2022] ACAT 57
•27 June 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING v TENANT AA202154 & ORS (Appeal) [2022] ACAT 57
AA 54/2021
AA 55/2021
AA 56/2021
AA 57/2021
AA 58/2021
AA 59/2021
Catchwords: APPEAL – residential tenancies – endorsement of inconsistent terms – joint application required – term permitting no cause termination notice to be given during fixed term to take effect 30 days after end of fixed term – term inconsistent with Residential Tenancies Act – term inconsistent with standard term 94 – decision to endorse term is discretionary – lack of determined criteria – meaning of fraud and undue influence – other factors relevant to exercise of discretion – no determined criteria – tribunal process
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 26, 55, 56, 119
Australian Capital Territory (Self-Government) Act 1988 (Cth) ss 28, 109
Legislation Act 2001 ss 94, 126, 138
Residential Tenancies Act 1997 ss 8, 9, 10, 12, 36, 37, 47, 76, 77, 83, standard term 4A, 83, 94
Subordinate
Legislation cited: Residential Tenancies (Criteria) Determination 1998 DI1998-82
Cases cited:Australian Boot Trade Employees Federation v Whybrow & Co (Bootmakers Case (No 1)) (1910) 10 CLR 266
Blackley v Devondale Cream (Vic) Pty Ltd [1968] HCA 2
Commissioner for Social Housing v Social Housing Tenants [2021] ACAT 95
Devenport v Commissioner for Housing in the ACT and Residential Tenancies Tribunal [2007] ACTSC 30
Downey v Pryor [1960] HCA 49
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Ex parte McLean (1930) 43 CLR 472
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508
Kalil v Bray (1977) 1 NSWLR 256
Kotzbeck v Khoundavong [2018] ACAT 94
Mansour v Dangar [2017] ACAT 49
Metal Trades Industry Association v Amalgated Metal Workers and Shipwrights Union (1983) 152 CLR 632
Miller v Miller [1978] HCA 44
Minister for Aboriginal affairs v Peko-Wallsend Ltd (1986) 12 CLR 24
Minister for Immigration and Citizenship v Li [2014] FCAFC 1
R v Momcilovic [2010] VSCA 50
Norbis v Norbis (1986) 161 CLR 513
Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68
Nursing and Midwifery Board of Australia v Oakleigh [2015] ACAT 83
Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283
R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45
R v Licensing Court of Brisbane; Ex parte Daniell [1920] HCA 24
Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579
Swan Hill Corporation v Bradbury (1937) 56 CLR 746
The Commonwealth of Australia v The Australian Capital Territory (2013) 250 CLR 441
Water Conservation and Irrigation Commissioner (NSW) v Browning (1947) 74 CLR 492
Victoria v The Commonwealth [1937] HCA 82
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2
List of
Texts/Papers cited: Community Law Reform Committee of the Australian Capital Territory, Private Residential Tenancy Law (Report No 8, 1994)
Explanatory Statement to the Residential Tenancies Legislation Amendment Bill 2016
Macquarie Dictionary (7th ed, 2017)
Tribunal:Presidential Member M-T Daniel (Presiding)
Presidential Member H Robinson
Date of Orders: 27 June 2022
Date of Reasons for Decision: 27 June 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )
AA 54/2021
AA 55/2021
AA 56/2021
AA 57/2021
AA 58/2021
AA 59/2021
BETWEEN:
COMMISSIONER FOR SOCIAL HOUSING
Appellant
AND:
TENANT AA542021
TENANT AA552021
TENANT AA562021
TENANT AA572021
TENANT AA582021
TENANT AA592021
Respondents
APPEAL TRIBUNAL: Presidential Member M-T Daniel (Presiding)
Presidential Member H Robinson
DATE:27 June 2022
ORDER
The Tribunal orders that:
The applications for appeal are to be heard jointly.
The orders of 6 October 2021 on each application for endorsement are confirmed.
Each application for appeal is otherwise dismissed.
………………………………..
Presidential Member M-T Daniel
For and on behalf of the Tribunal
REASONS FOR DECISION
This is an appeal from a decision of the Original Tribunal not to endorse an additional term included in six residential tenancy agreements between the Commissioner for Social Housing (CSH) and various tenants.
Summary of the Appeal Tribunal decision
We have found that the Original Tribunal was not in error in concluding that it could not and should not endorse the additional term in each case.
The Original Tribunal erred procedurally in hearing the applications jointly in the absence of an order to that effect under section 56 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
However, on our review of each of the applications we have reached the same conclusion as the Original Tribunal, albeit for slightly different reasons.
The proceedings before and decision of the Original Tribunal
The six matters that are the subject of this appeal were among fourteen separate applications for endorsement filed by CSH on behalf of itself and each tenant in early 2021. All of the applications sought endorsement of the same additional term, which read:
(1)The Commissioner for Social Housing may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice (Notice to Vacate) for the residential tenancy agreement that is to take effect on or after the end of the fixed term.
(2)The termination notice (Notice to Vacate) must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given.
These applications were processed as a part of a backlog of endorsement applications which arose during the first 12 months of the COVID-19 pandemic. Some of the applications were the subject of a directions hearing on 22 April 2021, at which CSH appeared, Canberra Community Law (CCL) appeared on a duty lawyer basis, and one tenant participated. The other applications were listed for consideration in chambers around that time.
At the directions hearing on 22 April 2021 the Original Tribunal identified that each application sought endorsement of the same clause and involved the same lessor and the provision of social housing. The Original Tribunal explained to CSH and CCL its concerns about endorsement of the proposed clause and indicated that it would adjourn the applications for a short period to enable the parties to consider these issues.
It seemed clear from that directions hearing that the Original Tribunal proposed to hear the matters jointly, and that this approach was acceptable to CSH and CCL, however no orders to that effect were made.[1]
[1] Section 56 of the ACT Civil and Administrative Tribunal Act 2008 provides that the Tribunal may ‘by order’ hear an application jointly with another application.
On 29 April 2021 CSH emailed the tribunal providing a single submission in relation to the issues raised by the Original Tribunal at the directions hearing. CCL provided a single submission in reply on 26 May 2021.
By 27 May 2021, when the matters were listed for further consideration in chambers, only six of the applications remained extant, the others having been withdrawn by CSH.
The Original Tribunal made orders on 27 May 2021 (expressed as a single order applying to all the applications) as follows:
Noting the following:
(i) The term proposed for endorsement is:
(1) The Commissioner for Social Housing may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice (Notice to Vacate) for the residential tenancy agreement that is to take effect on or after the end of the fixed term.
(2) The termination notice (Notice to Vacate) must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given.
(ii)Section 26 of the ACT Civil and Administrative Tribunal Act 2008 (which provides that the Tribunal may inform itself in any way considers appropriate in the circumstances).
(iii)That Canberra Community Law advises and represents many tenants of the Commissioner for Social Housing;
(iv)The endorsement of the additional term will impact upon many of Canberra Community Law's clients;
The Tribunal directs the Commissioner for Social Housing, and invites Canberra Community Law, to make submissions in accordance with the directions below.
The Tribunal orders:
1. Decision reserved: the matters are adjourned for a decision on the papers after 9 July 2021.
DIRECTIONS
2. The Commissioner for Social Housing shall, on or before 18 June 2021, provide to the Tribunal and to Canberra Community Law (attention to Ms Naomi Gould) further written submissions. Those submissions should, inter alia:
(a)address whether the additional term is inconsistent with section 36 of the Residential Tenancies Act 1997;
(b)provide details of the circumstances relating to the agreement of the tenants in accordance with Section F of the application form;
(c)provide evidence relating to the requirement of section 10(3)(b) of the Residential Tenancies Act 1997; and
(d)address the jurisdiction of the Tribunal to make a termination and possession order should a tenant fail to vacate after receiving a Notice to Vacate.
3. Canberra Community Law shall, on or before 9 July 2021, provide to the Tribunal written submissions in reply.
On 21 June 2021 CSH provided its further submissions. In large part, those submissions replied to the submissions of CCL lodged on 26 May 2021. Less than half a page was devoted to directions 2(b) and (c), as follows:
2. Details of the circumstances relating to the agreement of the tenants in accordance with Section F of the application form
Please see Section F of each application. In the case of applications that do not provide enough information to satisfy the Tribunal, the Applicant asks that the Tribunal sets a hearing date for both parties to attend.
3. Provide evidence that the inclusion of the inconsistent term in the residential tenancy agreement was not obtained by fraud or undue influence
Please see Section F, parts (a) and (b) of each application. In the case of applications that do not provide enough information to satisfy the Tribunal, the Applicant asks that the Tribunal sets a hearing date for both parties to attend.
CCL did not provide any further submissions.
On 6 October 2021 the Original Tribunal ordered that the applications for endorsement be dismissed and published its reasons.[2]
[2] Commissioner for Social Housing v Social Housing Tenants [2021] ACAT 95
In its reasons the Original Tribunal set out two issues for determination. First, was the additional term inconsistent with the Residential Tenancies Act 1997 (RT Act)? Second, was consent to the additional term obtained by fraud or undue influence?
In relation to the first question, the Original Tribunal considered whether the additional terms were inconsistent with sections 36 and 47 of the RT Act. In doing so, the Original Tribunal applied the ordinary meaning of ‘inconsistent’, as defined in the Macquarie Dictionary, concluding that the test asks whether two facts or circumstances are “lacking in harmony or agreement.”
The Original Tribunal proceeded to consider the meaning of provisions of the RT Act that might be engaged by the operation of the additional terms. The Original Tribunal found that the power of termination provided by section 83(1)(i) was a power to terminate in accordance with a provision of the RT Act not otherwise listed in section 36 (at [26]-[29]) but should not be interpreted as a power ‘at large’ to terminate on other bases – for example on the basis of an endorsed term.
After considering some authorities on the concept of ‘inconsistency’, the Original Tribunal concluded that the circumstances listed in section 36(1) of the RT Act are, or were intended to be, the only ways in which a residential tenancy can be terminated.
The Original Tribunal reached the same conclusion in relation to section 47, which provides for termination where there has been no breach of the standard terms. The Original Tribunal concluded (at [44]) that section 47 “governs for all purposes the ability of a lessor to terminate a lease in accordance with the lease where a tenant does not vacate.” The Original Tribunal concluded that the additional terms, if endorsed, would enable a lessor to defeat section 47 by way of an endorsed term. As such, the Original Tribunal concluded the additional terms were inconsistent with the RT Act and could not be endorsed.
Turning to the second question, under the heading ‘Negotiations’, the Original Tribunal set out the matters which might support a finding of undue influence. In this part of the written reasons, the Original Tribunal also adverted to the need to “be satisfied that the tenant understood that the application for endorsement was made by both parties”.[3]
[3] Paragraph 51 reasons of 6 October 2021
The Original Tribunal noted that only one of the initial 14 tenants (tenant B) had responded to the notice of hearing and participated in the directions hearing, and that tenant B was visibly upset and believed the CSH was seeking to terminate the tenancy. The Original Tribunal found that tenant B “did not understand that she was a party to an application to endorse the Terms”.[4]
[4] Paragraph 52
The Original Tribunal accepted that the tribunal had endorsed similar terms before and that there were valid policy reasons for the additional term (at [48] and [51]).
The Original Tribunal noted (at [49]) that the tenants were social housing tenants and “are often, by reason of financial, health, personal and other circumstances, vulnerable and disadvantaged. Often the tenants have no option, but to rent from the commissioner. There is thus a great imbalance of power between the commissioner and the tenant.”
The Original Tribunal had regard to the CLRC report[5] which led to the passage of the RT Act as evidencing the intention of the legislature to provide by the RT Act a scheme where the tenant had security after the end of the fixed term by way of periodic tenancy.
[5] Community Law Reform Committee of the Australian Capital Territory, Private Residential Tenancy Law (Report No 8, 1994)
The Original Tribunal wrote that the tribunal needed to be satisfied that the tenant in each application understood the additional terms and voluntarily agreed to them and understood the application for endorsement was made by both parties. In this regard the Original Tribunal noted that the applications were apparently made by both parties, but also noted there was no evidence of the circumstances of the joint application (at [51]).
The Original Tribunal commented that the additional term was the same in every case, but the circumstances of each tenant were different. The Original Tribunal observed that the applications contained scant detail in some aspects, but provided detail about when the additional term would be utilised that would have been better contained in the additional term itself (at [53] to [56]).
In the end, the Original Tribunal did not positively find that the consent of the tenants in each matter was affected by fraud or undue influence. The Original Tribunal concluded:
57. I am not satisfied on the evidence before me that the tenant, in each case, voluntarily agreed to the Terms or understood them or the consequence of their enforcement. It is also not evident that any of the tenants understood the process of endorsement.
58. For these reasons, I would not endorse the Terms even if they were consistent with the Act.
The application for appeal
The applications for appeal were lodged on 3 November 2021 and raised the following questions of fact or law to be addressed by the appeal:
(a)Are the Terms inconsistent with the Act?
(b)Were the Terms included in the tenancy agreement obtained by fraud or undue influence?
The applications for appeal asserted:
(a)In making the decision, the Tribunal erred in its application of section 36(1) of the Act and the scope the section places on the Tribunal’s power in section 83(1)(i) of the Act.
(b)The Tribunal made findings of fact relating to whether the Terms in the residential tenancy agreement were obtained by fraud or undue influence without any evidence before it allowing the Tribunal to make such findings.
The applications for appeal each indicated that “The Appellant may wish to introduce new evidence for the purposes of this appeal.”
On 21 January 2022 CSH filed an updated list of errors as follows:
A. Errors relating to [the finding the additional term was inconsistent with the Act] the first issue for determination
1.The Tribunal erred in law in relation to its interpretation of section 36(1)(e) Residential Tenancies Act 1997 (the Act) regarding termination of residential tenancy agreements (at paragraphs [26] and [27] of the Decision).
B. Errors relating to the [issue of undue influence] second issue for determination
Errors of law
2. The Original Tribunal erred in law when making the findings against the evidence in relation to the following:
(a) The Original Tribunal did not give sufficient or any weight to the fact that the Terms were agreed by the Tenants.
(b) The Original Tribunal made findings on assumptions rather than evidence available at the time of the hearing and incorrect consideration was given to evidence that was not before it (at paragraph [49] of the Decision).
(c) The Original Tribunal made findings based on [tenant B’s] account which was not admitted into evidence and her application, following the first day of the hearing, was dismissed before the Decision was handed down.
(d) The Original Tribunal should have determined each application on its own merits, considering each tenant’s circumstances and only after receiving each tenant’s evidence.
Discretionary errors
3. The Original Tribunals discretionary errors are as follows:
(a) The Original Tribunal did not give any weight to previously endorsed terms which were substantially the same as the Terms proposed by the parties in this matter (at paragraph [48] of the Decision).
(b) Given that the Original Tribunal accepted and referred to the Appellant’s policy reasons as valid, it should have considered it when determining the matter (at paragraph [48] of the Decision).
(c) The Original Tribunal should not have considered The Community Law Reform Committee of the Australian Capital Territory entitled “Private Residential Tenancy Law” when making the decision (at paragraph [51] of the Decision).
CSH also filed written submissions on 21 January 2022. Directions had been made about applications for fresh evidence to be heard on appeal, but the CSH did not seek to introduce further evidence on the hearing of the appeal.
CCL was invited to participate in the appeal as amicus curiae and did so, filing submissions on 22 February 2022.
A final directions hearing was held on 2 March 2022. At the final directions hearing we gave the parties a list of issues for the interpretation of section 10 of the RT Act which might arise at the hearing and asked them to be prepared to address those matters.
The appeal was heard on 3 March 2022. The CSH was represented by counsel, and Ms Gould appeared for CCL as amicus curiae.
No tenant participated in the directions hearings, or in the final hearing of the appeal.
The questions raised in the appeal touched on the Original Tribunal’s interpretation of section 10 and the termination and possession provisions of the RT Act, its consideration of the evidence or information available to it, and its exercise of discretion. As is apparent from our reasons below, the legal, factual, procedural and discretionary issues can intersect and interrelate, and facts which are relevant to one question are often relevant to the other.
We have found that the clearest way to tease out and consider the questions raised by the appeal is to address them in the order that they ordinarily arise for the tribunal in considering an application for endorsement. In doing so, we have been conscious at each step of the role of the Appeal Tribunal in conducting an appeal by way of a review.[6] Also, for completeness we have considered every aspect of section 10, although the Original Tribunal, for reasons of efficiency given the conclusions it had reached, did not.
What information may a Tribunal have regard to?
[6] Mansour v Dangar [2017] ACAT 49 at [22]-[23]; Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46] to [54]
Before turning to section 10, we must first make some comment on the information available to the Original Tribunal in considering the applications for endorsement, and how it may be used.
Section 26 of the ACAT Act provides that the tribunal may inform itself in any way it considers is appropriate in the circumstances of the case. This means that the tribunal may have regard to the documents filed by the parties, communications to the tribunal by the parties, and evidence and submissions provided by the parties. Where an order is made for applications to be heard jointly, information provided on one application may be considered for another. In addition, the tribunal has its own knowledge and experience of practices in the real estate sector, (whether private or social housing) and of the usual conduct of matters in the tribunal. This latter category of information might be referred to as the tribunal ‘taking notice’ of certain facts or practices or applying its own specialist expertise.[7]
[7] Eg, Kalil v Bray (1977) 1 NSWLR 256, at 261 per Street CJ (Moffitt P and Glass JA agreeing); Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579
However, the tribunal is not unrestrained in the use that may be made of this vast array of information. The tribunal must use the information available to it in accordance with law. For example, the tribunal must observe natural justice by apprising a party of information that it intends to rely upon in its decision-making that is not already apparent to the party. When reaching conclusions of fact the tribunal must consider only information of reliability and reasonable substance; give ‘appropriate’ weight to each piece of information and draw only those inferences that are rationally available.[8]
[8] See Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283 at [8] to [11] per Refshauge J; Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [40]
What information did the Original Tribunal have in making its decision? It had both the information provided for each application, and its knowledge of residential tenancies generally and endorsement applications in particular.
The information provided for each endorsement application is summarised in Annexure A to these reasons. We set out below our general observations on how a residential tenancy agreement containing an additional term is usually entered into, the usual content of residential tenancy agreements, and the conduct of endorsement applications in the tribunal, as this information can be assumed to have been known by the Original Tribunal just as it is by the Appeal Tribunal.
Usually the lessor or their agent prepares the residential tenancy agreement and the endorsement application form. While a residential tenancy agreement may be oral, or even implied from circumstances, the approach of the RT Act to inconsistent terms contemplates a written tenancy agreement. Section 12 of the RT Act requires:
(1)The lessor must give the tenant a copy of the proposed residential tenancy agreement and, if they are not included in the copy of the agreement, the standard residential tenancy terms, and allow the tenant a reasonable time to consider the proposed agreement.
(2)A copy of a residential tenancy agreement provided under subsection (1) that contains a provision that is inconsistent with a standard residential tenancy term must be annotated in a way that draws the attention of the tenant to the provision and the fact that it is inconsistent with a standard residential tenancy term.
It seems common practice for lessors to prepare and then all parties to sign a bundle of documents when signing the residential tenancy agreement. Most commonly these consist of a covering schedule setting out the tenancy details, a copy of the standard terms (sometimes out of date), and additional terms at the end. There are sometimes further documents in the bundle, described as ‘explanatory notes’ or ‘information sheets’ which, in their terms, are expressed to be binding and which the tenant is required to sign as an ‘acknowledgement’ of being provided with the information and/or bound by it.
In our experience, it is not uncommon to find additional terms or ‘explanatory notes’ in these documents that appear to be inconsistent with the standard terms or potentially with the Act, and yet no application for endorsement is made. Sometimes, an application for endorsement of only some of the potentially inconsistent terms is made.
No doubt for reasons of efficiency, the lessor or their agent almost invariably obtains the tenant’s signature to the endorsement application form at the time of signing the tenancy agreement. One might visualise a bundle of A4 pages, with ‘sign here’ stickers interspersed.
It is also almost invariably the lessor or their agent that submits the endorsement application to the tribunal. The application form itself is usually light on detail about the circumstances of the parties’ negotiations.
Once received, an application for endorsement is listed for consideration by the tribunal in chambers, to determine whether it is appropriate for the entering of consent orders without a hearing. The parties are sent a notice advising them of this process, and that they will be advised in writing of any next steps. It is not an unusual occurrence for the tribunal registry to be contacted at this point by a distressed or confused tenant, having received the tribunal’s correspondence, and often believing that action has been instituted by the lessor to evict them.
If an endorsement application is listed for hearing, it is a rare event for a tenant to participate. Most tenants that participate in a hearing seem to start from a position of minimal understanding of the legal process they are involved in, the fact that they have themselves instigated it, and what the outcome might mean. It is not unusual for a tenant who participates to continue to express concern that they are about to be evicted or may be evicted if the additional term is not endorsed.
All of this background information about this area of practice may be known by the tribunal when it comes to consider an endorsement application. Indeed, the endorsement applications before the Original Tribunal demonstrated many of the above features. All but one of the applications were signed on the day the residential tenancy agreement was signed. All were submitted by the lessor. The Original Tribunal noted that there was scant detail in part F of the application forms about negotiations between the parties, or the impacts of the additional terms. The detail that was included, indicated that the tenancy agreements were entered into in circumstances of significant personal stress for the tenant[9], and that there were representations about the operation of the additional term or the circumstances in which it would be utilised which were external to the written agreement. Tenant B participated in a directions hearing, apparently under the impression they were to be evicted.
[9] See Annexure A: the circumstances included the death of a relative who was the previous tenant, the tenant’s own property having become uninhabitable and the tenant having to relocate urgently, and domestic violence
The residential tenancy agreements provided for each of the six applications also demonstrated many of the features, and deficiencies, outlined above. Each consisted of a covering schedule which listed attached documents said to comprise the agreement between the parties. Attachment A was said to be the standard terms. In every case the copy of the standard terms used was not the version of the terms in force at the time of signing but was years out of date. The ‘Commissioner’s additional clauses’ at Attachment B contained clauses which were apparently inconsistent with the then current version of the standard terms, yet no application for endorsement of those terms was made. The ‘rules of complex’ sometimes included as Attachment C were of unclear application, as they were expressed to apply only to certain kinds of premises. Further, those rules as they related to the keeping of animals were questionable, given the standard terms provided were out of date and did not contain clauses in relation to the tenants’ right to keep an animal.
As an additional complication, for tenant 202156 the residential tenancy agreement signed 8 February 2021 and submitted with the endorsement application indicated that the additional term was not a part of the residential tenancy agreement. After the tribunal queried this, a further copy of the residential tenancy agreement was provided, with a new first page now showing the additional term was part of the agreement, but still dated 8 February 2021. For tenant 202154 the tenancy agreement provided to the tribunal contained no signature page at all.
Against this background, we turn to consider the application of section 10 of the RT Act and the issues raised on the appeal.
Section 10 of the RT Act
Section 10 of the RT Act with deceptive simplicity provides:
10Endorsement of inconsistent tenancy terms by ACAT
(1) The parties to a residential tenancy agreement may apply in writing to the ACAT for endorsement of a term of the agreement (the inconsistent term) that is inconsistent with a standard residential tenancy term.
(2) If the parties apply for endorsement of the inconsistent term, the ACAT must do 1 of the following:
(a)endorse the inconsistent term;
(b)substitute the equivalent standard residential tenancy term for the inconsistent term.
(3) In making a decision under subsection (2), the ACAT must consider—
(a)the criteria determined under subsection (6); and
(b)whether the inclusion of the inconsistent term in the residential tenancy agreement was obtained by fraud or undue influence.
(4) The ACAT must not endorse a term that is inconsistent with this Act (other than a standard residential tenancy term).
(5) The ACAT must not endorse a term mentioned in section 15 (5) in relation to a tenant unless satisfied that the tenant owes an amount to the housing commissioner.
(6) The Minister may determine criteria for subsection (3) (a).
(7) A determination is a disallowable instrument.
Section 10(1) – the jurisdictional requirements
Section 10(1) of the RT Act provides that “the parties to a residential tenancy agreement may apply in writing to the ACAT for endorsement of a term of the agreement (the inconsistent term) that is inconsistent with a standard residential tenancy term.”
There are multiple elements to section 10(1) which we would roughly parse as follows:
(a)the parties
(b)to a residential tenancy agreement
(c)apply in writing for endorsement
(d)of a term of the agreement
(e)that term being inconsistent with a standard term.
It is only when the tribunal is satisfied as to those elements that the discretion under section 10(2) to endorse the additional term becomes available.[10] If one of the elements is not satisfied, the tribunal must dismiss the application.[11]
[10] It might seem overkill to parse section 10(1) in this way, but the tribunal does occasionally receive applications to endorse a term which is not part of the agreement, applications where the agreement is not a residential tenancy agreement, or applications that are not signed by all of the parties to the agreement.
[11] The bifurcate approach dictated by section 10(2) applies later, to the exercise of jurisdiction
In the applications before the Original Tribunal the second, third and fourth elements were clearly satisfied. Each of the applications was in writing, attached an agreement that was a residential tenancy agreement, and ultimately all included the additional term.
In order to enliven the discretion to endorse the additional term, the Original Tribunal still needed to be satisfied that the endorsement application was made by both lessor and tenant, and that the additional term was inconsistent with the standard terms.
Is the application made by all the parties?
Section 10(1) provides that an application for endorsement is brought by both lessor and tenant – that is, it must be a joint application. If the tribunal is not satisfied that both parties knowingly and intentionally make the application for endorsement, it should not proceed but should dismiss the application.
The Original Tribunal was not satisfied that the tenants understood they were engaged in a legal process of seeking endorsement of an additional term.[12] This was one of the reasons why it dismissed the applications.
[12] At paragraph 57
The CSH submitted that the Original Tribunal was in error in reaching this conclusion because it:
(a)gave insufficient weight to the fact that each application was signed by each tenant;
(b)relied upon the behaviour and information of tenant B from the first directions hearing, although tenant B’s application was withdrawn prior to the decision;
(c)made findings on assumptions (about a power imbalance between tenants and CSH) rather than the evidence available at the time of the hearing.
CCL, acting as amicus, did not address the facts of the individual matters before the Tribunal. Rather, it addressed section 10 in broad terms, relying upon the experience of its solicitors. CCL’s written submissions were that:
(a)the tenants they advise rarely have a choice whether to sign, or are limited to a choice between signing and homelessness;
(b)the tenants often do not understand what they are being asked to sign or what the ramifications are (eg. it might be explained that they are being offered a three month fixed term tenancy without understanding that a tenancy cannot be terminated without cause without a 26 week notice); and
(c)signing usually takes place at the same time as entering into the tenancy agreement and tenants therefore view an endorsement application as one of the requirements of accepting public housing.
Turning to each argument in turn, CSH submitted on appeal that the fact that each application form was signed by the tenant, and the residential tenancy agreement containing the additional term was signed by the tenant, was sufficient evidence that the tenant knew that they were applying for endorsement of the additional term and did so freely.
We agree that in some circumstances such bare information may be sufficient to satisfy the tribunal that the endorsement application is made by both parties. However, much will turn on the surrounding information contained in the application – such as the nature of the tenancy, the circumstances of the negotiation (if any) and the content of the additional term. Sometimes the information in the application form – or missing from the application form – combined with its knowledge of the jurisdiction, will prompt the tribunal to inquire further to satisfy itself that it does have before it an application by both parties.
In our view the Original Tribunal was correct in seeking to inquire further in order to satisfy itself that each tenant, as well as the lessor, intentionally made the application to endorse the additional term. The information in each application form about the circumstances of the lessor and tenant, the significance of the term and uncertainty as to its operation, coupled with the matters of which the Original Tribunal might take judicial notice necessitated this inquiry.
Having attempted this inquiry, the Original Tribunal noted that out of the six applications, there was no communication to the tribunal from any tenant. While tenant B participated by telephone at the first directions hearing, in some distress about what the proceedings might mean, the application in relation to that tenancy was then withdrawn. The Original Tribunal noted the response of tenant B and found “the absence of any response from all but one of the tenants was also troubling” [at 53]. These are matters that, in the ordinary course of events, a tribunal may take into account in the individual application in deciding whether the application is brought by both parties. For matters heard jointly, such information might be considered on each application and where appropriate inferences could be drawn.
Our review of the files for the original proceedings demonstrates that these six matters did not follow the ordinary course of events.[13] Most tenants were not served with notice of receipt of the application, or that it was being considered in chambers. Only one of the six tenants was advised of a directions hearing. In a misunderstanding of CCL’s role as amicus curiae the six tenants were not sent a copy of the directions of 27 May 2022, instead those orders were sent to CCL. The tenant in AA59/21 does not appear to have received any communication in relation to the proceedings at all at all, other than perhaps through CCL. In any event, the directions did not require the tenants to themselves do anything. The Original Tribunal did not make an order for the matters to be heard jointly.
[13] The original 14 applications lodged by the CSH were caught up in the processing of a backlog of endorsement applications that arose during COVID-19.
Where a tenant is not notified of the proceedings, is not given a copy of the directions, and is not required by the directions to do anything, no inferences can be drawn from the failure of the tenant to participate. The Original Tribunal erred to the extent that it did so.
Where there is no order for matters to be heard jointly, the tribunal is not at liberty to have regard to evidence or information specific to one application, in deciding another. The Original Tribunal was in error in doing so in the absence of an order under section 56.
The situation was different in the proceedings before the Appeal Tribunal. As set out in Annexure A, after being notified of the appeal proceedings by email or by mail, the tribunal was contacted by four of the six tenants. On a review of the relevant files, we identified correspondence that suggested that two of these four (tenants 202154 and 202159) did not understand the endorsement process[14], and that one of the two (tenant 202159) denied signing the endorsement application.
[14] See Annexure A
Should this email correspondence from the tenants be characterised as fresh evidence, now sought to be admitted on appeal, or is it in the nature of a submission which may be put to the Appeal Tribunal without leave being granted? We invited CSH and CCL for their views on this subject.[15]
[15] Orders 1 April 2022
CSH submitted that the Tribunal should disregard the correspondence as it does not have any evidentiary value.[16] The tenants did not participate in the original hearing, and clearly had little knowledge of the present proceedings, but not understanding the appeal process in the Tribunal does not equate with not understanding the endorsed terms which they signed when they entered into the lease. None of the tenants wrote to the tribunal indicating a wish to heard, and it was asserted that neither tenant 202154 nor tenant 202159 expressed any dissatisfaction with CSH or with having to sign the endorsed terms.
[16] Applicant’s Submissions dated 11 April 2022
CCL noted they were not instructed and were not in a position to make substantive submissions about the email correspondence. However, CCL noted that while it agreed with CSH that the emails did not, in themselves, provide evidence as to whether or not the tenants understood the terms CSH was seeking to have endorsed, they do evidence that there was ignorance that they were making a joint application to the Tribunal for endorsement of those terms and support CCL’s argument that the tribunal must hold a full hearing for each endorsement application to satisfy itself of the requirements in section 10(3)(b) of the RT Act.
In the end, we have decided that the Original Tribunal’s failure to properly notify the tenants of the proceedings, and give them the opportunity to be heard, necessitates our having regard to this information on appeal. To the extent each communication includes fresh evidence, that was not available at the original hearing due to a failure of procedural fairness, it could have had a determinative effect on the outcome of the endorsement application and should now be considered on the appeal.
Considering all of the information now available, it is difficult to see how the two endorsement applications involving tenant 202154 and tenant 202159 could be considered to be applications intentionally brought by both parties. At best, the lessor has made the application, and the tenant has acquiesced. At worst, the tenant’s signature to the endorsement application has been obtained without the tenant’s knowledge of the substance therein. The Original Tribunal was correct in dismissing these two applications.
In relation to the four applications for endorsement that are still before the Appeal Tribunal, we note the continued failure of CSH to bring any evidence about the circumstances of the negotiations between the parties which might allay the concerns of the tribunal as to whether the applications were knowingly brought by the tenants. Directions for the provision of such evidence were made by the Original Tribunal, and not complied with. The CSH in the appeal submitted that its failure to comply with that direction was due to a misunderstanding and that the Original Tribunal should have held a face to face hearing at which such evidence could be provided. However, the CSH did not seek to introduce on appeal the evidence which would have been provided pursuant to the direction (had there been no misunderstanding) or at that face to face hearing (had it been held).
We are thus left with the information contained in each application form, which for each tenancy when combined with knowledge of the jurisdiction raises a question about whether the application is a joint application. To add to this picture there is the fact of each tenant’s lack of involvement in the appeal proceedings despite each tenant being invited, under the directions of 6 December 2021, to provide submissions to the Appeal Tribunal.
CSH submitted, and we agree, that no reliable inferences for each endorsement application can be drawn from each tenant’s lack of engagement in the appeal process. For many of the tenants their lives may have moved on, indeed many of the tenancies may no longer be on foot.[17]
[17] CSH indicated in its submissions that many of the tenancies had ended, but the appeal was continued due to the important legal issues contained therein.
CSH also submitted that the Original Tribunal erred in making assumptions about a power imbalance between CSH and each tenant, without evidence before it. In our view, the information in each application about the circumstances of the tenant coming to occupy the premises, the circumstances of CSH as a social housing provider, coupled with knowledge of the current rental market conditions, is sufficient basis on which to conclude there is a significant power imbalance between CSH and each of the tenants.[18]
[18] The existence of a power imbalance does not mean that the power has been misused.
Considering each application individually, we are concerned that the information in each application form, coupled with our knowledge of the usual circumstances of execution and the apparent circumstances of each tenant at the time of execution, raise questions about whether each application is intentionally and knowingly brought by each tenant. The parties have failed to provide any evidence that would resolve this question in the affirmative.
The engagement of legal process is a serious thing, not a mere box ticking exercise. Where legislation requires a joint application as a prerequisite to the exercise of jurisdiction, it is incumbent upon the tribunal to be positively satisfied that it has such an application before proceeding to an exercise of jurisdiction. We, like the Original Tribunal, are not satisfied that each of the applications for endorsement was knowingly and intentionally made by each tenant.
Although our pathway to this conclusion has been different, and we have considered each application separately, we consider that the Original Tribunal was correct to dismiss each endorsement application on the jurisdictional basis of not being satisfied that the endorsement application was intentionally made by both parties to the residential tenancy agreement.
Is the additional term inconsistent with a standard term?
Section 10 of the RT ACT refers to inconsistency between the additional term and the standard terms which is a prerequisite for the exercise of jurisdiction (section 10(1)), and inconsistency between the additional term and the RT Act which prevents the exercise of jurisdiction to endorse the term (section 10(4)).
The Original Tribunal found that the additional clause was inconsistent with standard term 94[19] and further that it was inconsistent with section 36 of the RT Act.[20]
[19] At [16]
[20] At [36]
For both tasks, one must first consider what the word ‘inconsistent’ means.
The Original Tribunal adopted the ordinary English meaning of the word ‘inconsistent’ as follows:
32. First, ‘inconsistent’ is not defined in the Act for the purposes of section 10 or otherwise. It should be given its ordinary meaning. The Macquarie Dictionary defines it as follows:
lacking in harmony between the different parts or elements; self-contradictory. 2. lacking agreement, as one thing with another, or two or more things in relation to each other; at variance. 3. not consistent in principles, conduct, etc. 4. acting at variance with professed principles. 5. Logic incompatible.[21]
33. It becomes apparent that inconsistency is not confined to a “textual”[22] or “direct collision”[23] between two facts or circumstances. It also entails subjective judgement about whether two facts or circumstances are lacking harmony or agreement between each other. In this case, are the Terms ‘in harmony’ with section 36?
[21] Macquarie Dictionary (7th ed, 2017) ‘inconsistent’
[22] Miller v Miller [1978] HCA 44 at [11]
[23] Blackley v Devondale Cream (Vic) Pty Ltd [1968] HCA 2
Neither CSH nor CCL took issue with the interpretation of the word ‘inconsistent’ adopted by the Original Tribunal, nor the Original Tribunal’s reference to cases which addressed the meaning of the word in the context of the ACT Self-Government Act[24] and, later, in the context of section 109 of the Constitution.
[24] Australian Capital Territory (Self-Government) Act 1988 (Cth), section 28
We agree that the ordinary English meaning of the term should be adopted, however we find that starting with the jurisprudence in relation to section 109 of the Constitution is more useful.[25]
[25] This is because section 28 of the Self-Government Act expressly incorporates the concept of concurrent operation which is not included in section 10.
The classic approach to inconsistency (between provisions of two acts) is thoroughly discussed in Victoria v The Commonwealth[26] and R vMomcilovic.[27]
[26] Victoria v The Commonwealth [1937] HCA 82
[27] R vMomcilovic [2010] VSCA 50
Instances of inconsistency are usually classified as being ‘direct’ or ‘indirect’. Direct inconsistency has been described as occurring when a State law, if valid, would “alter, impair or detract from the operation of a law of the Commonwealth Parliament”. It has also been described as occurring when there is a conflict between the “rights, privileges, immunities and obligations created by one law and the rights, privileges, immunities and obligations created by the other law”. Examples of direct inconsistency of laws include:
(a)Where the text of the two laws is inconsistent.[28]
(b)Where one law can’t be obeyed without disobeying the other.[29]
(c)Where one law interferes with or takes away a right conferred by the other.[30]
[28] Miller v Miller (1978) 141 CLR 269
[29] Australian Boot Trade Employees Federation v Whybrow & Co (Bootmakers Case (No 1)) (1910) 10 CLR 266; R v Licensing Court of Brisbane; Ex parte Daniell [1920] HCA 24
[30] Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253
It seems to us that similar sorts of direct inconsistency might exist between an additional term and the standard terms.
Indirect inconsistency is present where the superior legislation is said to ‘cover the field’ of the activity or topic the subject of that legislation. The superior legislation is interpreted as meaning that ‘this, and only this’ is the law on that topic. In such a case, the inferior legislation cannot seek to regulate the activity, even where contemporaneous obedience of both laws is possible. The question of indirect inconsistency can only be resolved by considering the purpose of the legislature in effecting the superior legislation.[31] Examples of indirect inconsistency include:
(a)Where there is an express intention to cover the field.[32]
(b)Where the provisions are so extensive, elaborate, complex or exhaustive in detail that an intention to cover the field can be inferred from them.[33]
[31] Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 per Gageler at 83-85
[32] Metal Trades Industry Association v Amalgated Metal Workers and Shipwrights Union (1983) 152 CLR 632
[33] Ex parte McLean (1930) 43 CLR 472 at 483
It seems to us that in relation to inconsistency with the standard terms, there is no intention by the RT Act that the standard terms ‘cover the field’. On the contrary, the scheme of the RT Act involves the enactment of standard terms that may be supplemented by additional terms, and such additional terms may be either consistent with the standard terms or inconsistent (if endorsed). A degree of concurrent operation seems to be contemplated by the legislation.
We turn then to consider whether the additional term is directly inconsistent with a standard term.
The additional term is written as follows:
(1)The Commissioner for Social Housing may at any time before the end of the fixed term of a fixed term agreement, give a termination notice (Notice to Vacate) for the residential tenancy agreement that is to take effect on or after the end of the fixed term.
(2)The termination notice (Notice to Vacate) must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given.
Looking at the additional term, it provides for the lessor to give the tenant a no cause termination notice in certain circumstances.
Term 94 of Attachment A is identical to term 94 of the standard terms, in providing for a no cause termination notice to be given on 26 weeks’ notice.
Each Attachment A did not delete term 94. It must be concluded that the additional term was intended to be additional to (standard) term 94, in that it provided to the lessor a further power to issue a no-cause termination notice during the fixed term.
Both parties submitted to the Original Tribunal, and to the Appeal Tribunal, that the additional term was inconsistent, in the required sense, with standard term 94.
On the basis that the additional term merely adds an additional power to issue a no cause notice, it would be supplementary to the standard terms and not inconsistent. The prescribed terms do not ‘cover the field’ – additional terms are contemplated by the legislation.
However, when the power to issue a Notice to Vacate under the additional term is utilised, this detracts from the tenant’s right to be given 26 weeks’ notice as opposed to 30 days’ notice. In operation, then, we are satisfied that the additional term would conflict with the requirements of standard term 94 and is therefore inconsistent with it. This was also the conclusion reached by the Original Tribunal.
Section 10(4) – a additional term cannot be endorsed if it is inconsistent with the Act
Section 10(4) prevents the tribunal endorsing a term if it is inconsistent with the RT Act (other than the prescribed terms). We have concluded above that inconsistency of an additional term of the residential tenancy agreement with the standard terms does not include indirect inconsistency.
However, when considering inconsistency of an additional term with the RT Act (other than the standard terms) an argument can be made that the legislative intention is to prohibit all forms of inconsistency. This would be contrary to the usual principle of interpretation which requires that where a word is used several times in legislation it bears the same meaning for each use.
Does the RT Act cover the field?
The RT Act does not expressly deal with this question. It does not state that it is the sole source of rights and obligations for the parties to a residential tenancy agreement, nor does it exclude the operation of other legislation or law which may impose obligations on the parties.
There is no express acknowledgement in the legislation of the possibility of concurrent operation such as one finds in the Self-Government Act or the provisions relating to inconsistency with the prescribed terms, however the RT Act accommodates the existence of other legal obligations binding upon lessors and tenants.[34]
[34] E.g. prohibitions on occupancy of affected premises under Part 3A.3 of the Dangerous Substances Act 2004;
In considering the entirety of the scheme set out in the RT Act, we note its particularity in dealing with topics. This might be seen as an indication that the legislature did not intend the parties to be able to make contrary provision at least on those matters. Indeed, many of the matters dealt with in the RT Act are matters on which the parties could not privately contract, such as the extent of the ACAT’s powers, or obligations imposed on the Office of Rental Bonds.
Overall, we are satisfied that it is not the intended operation of the RT Act to ‘cover the field’, in the traditional sense, on everything to do with the lessor/tenant relationship. A lessor and tenant are free to include terms in their agreement which are outside the matters dealt with by the RT Act and standard terms. However, a lessor and tenant must exercise caution in attempting to contract on matters which the RT Act deals with. From its particularity, complex and elaborate provisions it is clear the RT Act is intended to be definitive on some of the matters it deals with, and it might be said to ‘cover the field’ on those topics to the exclusion of any additional terms of a residential tenancy agreement entered into by the lessor and tenant.[35] An additional term might be considered to be indirectly inconsistent with the RT Act where it attempts to regulate the parties’ rights or obligations on such topics.
[35] Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 at [33] per Kiefel CJ Bell J Keane J Nettle J Gordon J; citing Ex parte McLean (1930) 43 CLR 472 at 483; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 524 [40]; see also The Commonwealth of Australia v The Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55
Like the Original Tribunal, we think that termination of a tenancy agreement is one topic on which the RT Act evidences an intention to ‘cover the field’, as indicated by the elaborate and detailed provisions on this topic, and the wording of section 36 of the RT Act (despite the inadequacies of that section which we discuss below).
From the outset, the Original Tribunal was concerned that under section 36 of the RT Act, and the provisions listed therein, there was no route to termination for breach of the additional term, if endorsed.
Section 36(1) of the RT Act provides:
36Termination
(1) Despite anything to the contrary in any territory law, a residential tenancy agreement must not terminate or be terminated other than in the following circumstances:
(a)if a fixed term agreement ends and the tenant vacates the premises on or after the end of the agreement;
(b)if a tenant notifies the lessor in the form approved under section 133 (Approved forms—Minister) for a termination notice, and vacates the premises in accordance with the notice;
(c)if a tenant terminates an agreement under section 46A because the tenant has accepted aged care or social housing accommodation;
(d)if the ACAT terminates an agreement under division 4.3, division 4.4 or division 6.5A;
(e)if the ACAT makes a termination and possession order in relation to the premises that are the subject of the agreement under division 4.4 , division 4.5, division 6.5 or division 6.5A;
(f)if the tenant abandons the premises that are the subject of the agreement;
(g)if a person takes action in accordance with section 64;
(h)if the tenant and lessor agree in writing to terminate the agreement and the tenant vacates the premises in accordance with the agreement to terminate;
(i)if the tenant and the lessor are the same person;
(j)if—
(i)a party to the agreement repudiates the agreement; and
(ii)the other party accepts the repudiation; and
(iii)the tenant vacates the premises;
(k)for crisis accommodation—if the lessor—
(i)gives the tenant 4 weeks notice to terminate the agreement; and
(ii)has given the tenant information about alternative accommodation; and
(iii)needs the premises to use as crisis accommodation for someone other than the tenant;
(l)if a party to the agreement terminates the agreement under section 64AA because the premises are affected residential premises;
Note Affected residential premises—see the dictionary.
(m)if a party to the agreement terminates the agreement under section 64AB because the premises are an eligible impacted property;
Note Eligible impacted property—see the civil law (sale of Residential Property) Act 2003, s 9A(1)
(n)if the agreement contains a fair clause for posted people—a party to the agreement terminates the agreement in accordance with the clause.
[our emphasis]
Section 83(1), which is contained in Division 6.5, relevantly outlines the powers of the tribunal as follows:
83Orders by ACAT
(1) Without limiting the orders the ACAT may make, the ACAT may make the following orders in relation to an application about a tenancy dispute or occupancy dispute:
(a)…
(i)an order terminating a residential tenancy agreement or occupancy agreement and granting vacant possession of the relevant premises to the applicant for the order;
(j)…
(l)any other order the ACAT considers appropriate including declaratory orders in relation to a matter in this Act.
The Original Tribunal was satisfied that the additional term was inconsistent with these provisions, and the scheme of the RT Act for termination and possession orders.
While much of the submissions before the Original Tribunal, and on appeal, focussed on the ability of the tribunal to terminate the tenancy by order after non-compliance with a notice to vacate given under the additional term, we think there is an earlier sticking point.
The additional term does not itself provide that the tenancy agreement will terminate on the ‘termination date’ specified if the tenant vacates the premises as required. Term 83 of Attachment A to each agreement (identical to term 83 of the standard terms) prescribes that this is part of the content of the lessors’ notice to vacate, as follows:
Notice to vacate by lessor
83 The notice to vacate must be in writing, in the form required by the Residential Tenancies Act, and must include the following information:
(a)the address of the premises;
(b)the ground(s) on which the notice is issued, together with sufficient particulars to identify the circumstances giving rise to the ground(s);
(c)that the lessor requires the tenant to vacate the premises by the expiry of the required notice period and that the tenancy ends on the day that the tenant vacates the premises.[36] [our highlighting]
[36] There is currently no prescribed form for the notice to vacate
Thus, in concert with the standard terms in Attachment A, the additional term enables the tenancy agreement to terminate on the date specified in the notice. However, section 36 does not recognise termination of a residential tenancy agreement occurring by way of the lessor issuing a termination notice and the tenant moving out on the required date.
While on a straightforward textual analysis the additional term is not inconsistent with the section 36 of the RT Act, in operation it will be. On this basis it might be concluded that the additional term is inconsistent with the RT Act.
Before reaching this as a final conclusion, we need to acknowledge the limitations of section 36. While it boldly asserts it will set out every circumstance in which termination of a residential tenancy agreement will occur, it does not do so. For example, section 36 does not list a termination and possession order made by the Supreme Court in the exercise of original jurisdiction. Yet the original jurisdiction of the Supreme Court is clearly preserved by section 76, and its exercise acknowledged in section 37. Section 36 does not include a termination and possession order made by the Magistrates Court, yet that jurisdiction is clearly conferred by section 77. These may be considered drafting oversights which have not caused any inconvenience or confusion in the 20-plus years since the passage of the legislation, and so have not come to the attention of the legislature and been rectified. Nonetheless their absence from section 36 leaves the RT Act internally inconsistent.
It may be that the omission from section 36 of termination occurring when a tenant moves out pursuant to a notice given by a lessor is also an oversight. It is a startling omission, given that termination by way of a tenant giving a termination notice is acknowledged in section 36(1)(b). Again, this omission leaves the RT Act internally inconsistent, because the mechanism provided by term 83 is relied upon for all notices to vacate given by the lessor under the standard terms in Schedule 1.[37]
[37] Which form part of the RT Act pursuant to section 126(5) of the Legislation Act 2001
We have considered whether we should approach the interpretation of section 36 by reading into it a reference to the lessor’s notice to vacate. We have concluded that it is outside the interpretative task to simply read section 36 as though it contained an entire subparagraph that is not there.
We have given some thought to whether the other provisions of section 36(1) could apply to the facts of a tenant moving out pursuant to a lessor’s notice to vacate. We do not think they can be interpreted in this way. It would be straining the meaning of ‘repudiates’, ‘abandoned’ or ‘agrees in writing’ to attempt to draw the situation under one of those concepts. The clear presence of section 36(1)(b) for notices to vacate given by a tenant also argues against that interpretation.
Finally, we have contemplated reading the opening words of section 36 as though they don’t really mean what they say. This ‘displacing of the apparent meaning’ of section 36 is a permissible form of statutory interpretation under section 138 (b) of the Legislation Act 2001. It is not an approach that one would take lightly. However, it was clearly intended by the RT Act that the Supreme Court and Magistrates Court would be able to exercise jurisdiction to terminate a tenancy agreement and that being the case, the bold introductory words of section 36 cannot be given their usual meaning and full force if the RT Act is to be internally consistent.
Attractive as it is to adopt an interpretation of section 36 which makes the RT Act internally consistent and coherent, we are unable to take the ‘displacing the apparent meaning’ of section 36 approach. This is because we are unable to determine what section 36 means, if the apparent meaning of the initial words is displaced. What alternative interpretation is available? We have concluded therefore that the plain and ordinary meaning of section 36 must be adopted, notwithstanding that it leaves the RT Act internally conflicted.
The result of adopting this interpretation of section 36 is that the additional term, in providing for termination to occur by way of a tenant moving out upon being given the lessor’s notice to vacate, is inconsistent with section 36 of the RT Act and cannot be endorsed.
We turn next to the inconsistency with the RT Act identified by the Original Tribunal, which was one of the grounds of appeal. The Original Tribunal noted that certain powers of termination and possession available to the tribunal under the RT Act could be exercised only in relation to the standard terms or specified circumstances, and concluded that the tribunal’s power to make a termination and possession order in relation to a tenancy under section 83(1)(i) was available only in relation to termination of the tenancy agreement as contemplated by the RT Act.
The CSH submitted that the Original Tribunal was wrong in its interpretation of the RT Act provisions. CSH submitted that if a tenant failed to vacate premises in accordance with a notice issued under the additional term, then the tenancy could be terminated as contemplated by section 36(1)(e) by the tribunal making an order under section 83(1)(i). On this basis it was submitted the additional term was enforceable, and not inconsistent with the scheme of the RT Act. CSH argued that section 83(1)(i) was clearly a head of power used for termination of occupancy agreements, and for termination of tenancy agreements as contemplated by other provisions of the RT Act and that this interpretation was consistent with that approach.
CCL submitted that the RT Act approached the issue of termination of a tenancy agreement with great specificity and consequently the power available under section 83(1)(i) should not be exercised except as otherwise provided in the RT Act. On that basis, it was submitted, the additional term in permitting a termination and possession order to be made outside the specific provisions was inconsistent with the RT Act. CCL argued that section 83 provides a list of powers, some of which must be exercised in accordance with the specific provisions located elsewhere, and only in accordance with those provisions. CCL submitted that section 83(1)(i) was one such provision and was only available to the Tribunal to be exercised in relation to grounds for termination specified in the RT Act.
We agree with the interpretation of section 83(1)(i) urged by CCL.
There is an important limitation on the apparently broad powers provided to the tribunal by section 83. In the matter of Devenport[38], the Supreme Court considered a ‘conditional termination and possession order’ made by the tribunal in an application under section 48(1) and concluded that it was not open to the tribunal to make such an order pursuant to section 83(1). The Supreme Court held that the legislature had specifically provided for conditional termination and possession orders only in relation to unpaid rent (section 49), and the general power could not be used to subvert this legislative intention.
[38] Devenport v Commissioner for Housing in the ACT and Residential Tenancies Tribunal [2007] ACTSC 30
While the provisions discussed in Davenport have been amended since that decision, the reasoning seems to continue to be applicable and it remains good authority on interpreting the extent of the apparently generous powers provided to the ACAT by section 83.
The RT Act treats the tribunal’s ability to make termination and possession order as a matter of great significance, outlined with specificity both in relation to the preconditions for exercise of the power and the limitations on the exercise of ancillary powers[39]. If it had been intended by the legislature that the power to make a termination and possession order could be available to the tribunal either at large, for a ground provided by an endorsed term, or for breach of an endorsed term, in our view the legislature would have provided specifically for the tribunal to have that power and detailed any limitations on the exercise of that power and ancillary powers.[40]
[39] such as the power to suspend an order for a specified period.
[40] As has occurred with termination in relation to personal protection orders, premises affected by asbestos, leaving co-tenants.
Adopting this interpretation may prove inconvenient for the tribunal and parties in some matters[41], nonetheless we consider that the better interpretation of section 83(1)(i) of the RT Act is that it provides a power to the tribunal, to be exercised in accordance with the specific provisions of the RT Act.
[41] For example, under this interpretation the tribunal cannot make a termination and possession order simply by consent of the parties, unless the preconditions for that order as required by other provisions of the RT Act are established.
While we agree with the Original Tribunal’s conclusion that it would not be open to the tribunal to make a termination and possession order as a consequence of breach of the additional term, were it endorsed, we do not agree that on this basis the additional term is either unenforceable or inconsistent with the RT Act.
First, if the notice to vacate was issued and not complied with, it would be open to the CSH to apply to the Supreme Court for a termination order in its original jurisdiction. The Supreme Court’s jurisdiction is retained by section 76 of the RT Act, and its exercise of power is not constrained by the limitations the RT Act imposes on the ACAT. Additionally, the lessor might also seek compensation for loss caused by the tenant’s breach. The additional term if endorsed would not be unenforceable.
Second, the additional term and surrounding provisions of the residential tenancy agreement do not expressly, or implicitly, provide that breach of the additional term will be enforceable by way of a termination and possession order made by the tribunal. The additional term and agreement are silent on this point. There is no legal requirement that every clause of a contract must be enforceable by way of orders in the nature of specific performance. It seems to us that the inconsistency identified by the Original Tribunal is not an inconsistency between the additional term and the RT Act, but an inconsistency between how the CSH says that it works and the RT Act.[42]
[42] This segues into the issue of what an additional term means – as pointed out below it is the objective rather than the subjective interpretation of the term which must be adopted.
It follows that while we consider that the additional term is inconsistent with section 36 the RT Act, it is an inconsistency which arises because of the operation of the notice to vacate given under the additional term, not because of the inability of the tribunal to make a termination and possession order for non-compliance.
Exercise of the discretion to endorse – sections 10(2) and 10(3)
The Original Tribunal concluded that even if it was open to endorse the prescribed term, she would not.
Ultimately the exercise of discretion does not arise, because we are not satisfied that the term can be endorsed. However for completeness we will address the remaining grounds of appeal that refer to findings of fact and the exercise of discretion, and set our conclusions on and what may be relevant factors to consider in the exercise of discretion.
Subsection 10(2) of the RT Act states:
If the parties apply for endorsement of the inconsistent term, the ACAT must do 1 of the following:
(a) endorse the inconsistent term;
(b) substitute the equivalent standard residential tenancy term for the inconsistent term.
The bifurcate approach taken by subsection 10(2) provides certainty to lessor and tenant as to the terms of their agreement that are binding upon them.
In practice subsection 10(2) can be awkward. The wording of subsection 10(2) suggests that the parties have removed the standard term with which the additional term is inconsistent from their tenancy agreement. As we have seen in this and other cases, that is rarely the approach taken. Usually, the inconsistent term has been added to the standard terms, as is contemplated by the wording of section 9.
The Tribunal must exercise the discretionary power conferred by section 10(2) in accordance with section 10(3):
In making a decision under subsection (2), the ACAT must consider—
(a) the criteria determined under subsection (6); and
(b) whether the inclusion of the inconsistent term in the residential tenancy agreement was obtained by fraud or undue influence.
Additionally, as with any discretionary power, there is a presumption of the law that the legislature intends the power to be exercised reasonably: Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at 362 [63]; [2013] HCA 18.
Section 10(3)(a) the determined criteria
We turn first to the requirement to consider the determined criteria. There are currently no determined criteria.
Because consideration of the determined criteria is expressed in mandatory terms, it could be argued that the lack of determined criteria makes it impossible for the tribunal to complete its task under section 10. This was not an argument before the Original Tribunal, but an issue we raised for CSH and CCL to consider in advance of the hearing of the appeal.
Both CSH and CCL did not support this interpretation. They pointed out that it is not mandatory that the Minister determine criteria due to the use of the word ‘may’ in section 10(6). They submitted that the correct interpretation of the legislation is that if criteria are determined the tribunal must consider them, but if no criteria are determined then the tribunal may proceed to exercise its discretion with consideration of the remaining aspects of section 10(3).
CCL provided an outline of the legislation history in this space.
While there were initially criteria determined in 1998[43], these were repealed as of 8 March 2005 as a consequence of the omission of the authorising provision (section 136 of the RT Act) under the Residential Tenancies Amendment Act 2004. The criteria continued in operation, however, by force of section 94 of the Legislation Act 2001, because the authorising provision had relocated to section 10.
[43] Residential Tenancies (Criteria) Determination 1998 DI1998-82
The demise of the determined criteria was finally achieved in 2008, upon the creation of the ACAT. At that time many pieces of subordinate legislation related to the specialist tribunals being replaced by the ACAT were repealed.[44] The determination was listed for repeal among other instruments which largely related to appointments to specialist tribunals.[45] The explanatory statement to the amendment of section 119 of the ACAT Act which listed these instruments for repeal said that the instruments were ‘overtaken by the new Act’.
[44] ACT Civil and Administrative Tribunal Act 2008, as amended by ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (No 2).
[45] Also included in the instruments repealed was the determination of the prescribed form for a termination notice AF2002-87
The consequence is that there are currently no determined criteria to which the tribunal may have regard in deciding how to exercise its discretion.
It seems to us that guidance on this point may be taken from the approach applied when a similar issue arises due to an absence of delegated legislation. The seminal case on that conundrum is Downey v Pryor[46] in which a right of inspection of council records was to be exercised ‘as prescribed’. No subordinate legislation prescribing the manner of inspection had been made. The majority found that after consideration of the words of the section, its context and the nature of the provision, the right to inspect the records was not predicated on the prescription having occurred. Relevantly, at 361-362 Kitto J observed:
No doubt the introduction, into a provision conferring a right, power or authority (it will suffice to speak of an authority), of words requiring that in exercising the authority a prescribed method (to use the word in a comprehensive sense) shall be observed, may have either of two results. Upon consideration of the words themselves, the context, and the nature of the provision, the intention may appear that a prescribed method is of the essence of the authority, so that there is no authority capable of exercise at any given time unless at that time a valid prescription of a method is in force: see, for example, Cameron v. Deputy Federal Commissioner of Taxation (Tas.); Gramophone Co. Ltd. v. Leo Feist Incorporated; Browne v. Commissioner for Railways; and Ex parte Greenfield; Re McCulloch. But on the other hand the meaning may be that the authority is to be subject to a power in the Executive to regulate its exercise and that in the reference to the prescribed method the words" if any" are to be implied: see Commissioners of Inland Revenue v. Joicey [No.1]. In the latter class of cases, a person exercising the authority must observe any method which is prescribed for the time being; but if none is prescribed the authority is exercisable by any appropriate method. Illustrations of this kind of provision may be found in Commissioners of Inland Revenue v. Joicey [No.1] and Moate v. Dartnell.
[46] Downey v Pryor [1960] HCA 49
Windeyer J observed:
This is not, it seems to me, a case where a prescription of something pursuant to a statute is necessary to complete a statutory right. It is rather a case of the statute recognizing that a right given by it may be further defined, or its exercise regulated, by ordinance. The distinction between the two classes of cases is clear. But sometimes, as here, a question can arise as to which result the language of a particular enactment produces. Where it is said that something is to be done in a prescribed manner, and there are several ways in which that very thing can be done, then, prima facie, the enactment is ineffectual until one of those ways be prescribed (Browne v. Commissioner for Railways; Cameron v. Deputy Federal Commissioner of Taxation (Tas.)). In such cases life and vigour is only given to the statute when what is to be prescribed has been prescribed – for example, a prohibition against travelling at a speed greater than the prescribed maximum could not be contravened until a maximum had been prescribed. There are several provisions of the Local Government Act in which the words “as prescribed” have that result – for example s. 90 (1), which requires a council to appoint an engineer, “who shall hold a certificate as prescribed”. But that does not mean that wherever the words “as prescribed” appear in the Act in connexion with a right or duty, no right is created or duty imposed until something be prescribed. For example, s. 425 (3) provides that when an animal is impounded “the poundkeeper shall give such notices by post, exhibition, or advertisement as shall be prescribed, and shall feed and care for such animal as prescribed”. If, in fact, nothing were done to prescribe what notices should be given, then the poundkeeper might have no obligation under the statute to give any notice; but, in my view, he would be under a statutory obligation to care for and feed the animal even if nothing about this were prescribed: cf. Graham v. Fennell.
In other words, where legislation anticipates prescription and there is none, the question is whether the prescription was intended to be necessary to confer the power. Adopting this approach, we accept the submissions of CSH and CCL that section 10(3)(a) should be interpreted by requiring the tribunal to have regard to the determined criteria if any. The absence or criteria does not prevent the exercise of the power.
We reach this conclusion because:
(a)While it is mandatory that the tribunal have regard to any determined criteria, it is not mandatory that criteria be determined.
(b)The extrinsic material related to the passage of the RT Act and the 1998 determination contains no suggestion that the determination of criteria was an essential prerequisite for exercise of the endorsement power.
(c)The intentional repeal of the previous determination supports a conclusion that the legislature did not consider the determination of criteria necessary for exercise of the endorsement power.
In relation to submission (a), we consider that the original Tribunal did not have the evidence to necessarily conclude that the term was agreed to by the tenants. The Original Tribunal’s questions in this regard were not addressed by further evidence. It was within the Original Tribunal’s discretion to reach the conclusion that it did.
In relation to submission (b) we have already found that the Original Tribunal did not err in drawing upon its experience and knowledge of community housing in drawing general conclusions about disadvantage. No error is established.
In relation to submissions (c) and (d) we have already found that the Original Tribunal was in error in hearing the matters jointly without having made an order pursuant to section 56 of the ACAT Act to enable it to do so. We have outlined the tribunal’s freedom in informing itself as it considers appropriate, but the requirement that it must use that information properly. The information relating to tenant B’s presentation could have been utilised by the Original Tribunal, had an order for a joint hearing been made. There is no requirement for such information to be ‘admitted into evidence’. On review we do not think that, when the applications are considered separately, and without reference to tenant B’s presentation, the outcome is any different. Tenant B’s presentation at the directions hearing was consistent with the conduct of such matters generally and did no more than demonstrate an undesirable norm.
In relation to submissions (e) and (f) the Original Tribunal clearly considered both of these factors, and took them into account in its decision. Again, they are not legally determinative of the outcome and we have noted above the constraints on challenging a discretionary decision. These grounds are not made out.
In relation to ground (g), the CLRC report was an important part of the extrinsic material for the RT Act, and it was appropriate for the Original Tribunal to have regard to it in seeking to exercise the discretion in a way which achieved the objects of the legislation.
In relation to (h), asserting failure to consider the information in the applications, we note that the Original Tribunal did not in its decision outline all of the information contained in each application. That does not mean it was not taken into account, however the use of generalised statements in the reasons for decision might create the impression that individual circumstances were not considered. When we have reviewed that information (as set out in Annexure A) it reinforces our view that, even if it were possible to endorse the term, it should not be endorsed for any of the six tenancies.
CSH also submitted that the Original Tribunal was in error in proceeding to determine the question of undue influence, without affording the CSH further hearing as it had requested in its submissions. This ‘fair hearing’ argument was also raised in relation to the Original Tribunal’s concern that the applications were not intentionally made by the tenants. At the risk of repetition, we do not think the CSH was denied a fair hearing or the ability to provide relevant evidence.
After the first set of submissions had been filed, directions were made by the Original Tribunal seeking details of the matters set out in what was then Part F of the application for endorsement: the circumstances of the consent of the parties to the additional term, the details of the parties’ negotiations, and whether inclusion of the additional term would result in any financial or other disadvantage to either party. Those directions required evidence relevant to the questions of fraud and undue influence. The CSH response to those directions was to double down on the existing submissions and evidence, and to state “in the case of applications that do not provide enough information to satisfy the Tribunal, the [CSH] asks that the Tribunal sets a hearing date for both parties to attend.”
The submissions of the CSH on appeal were similarly unsatisfactory. While directions were made on the appeal for any application for further evidence to be filed and served by a certain date, the CSH did not take up this opportunity. Nonetheless, one of the grounds of appeal advanced by the CSH was that the Original Tribunal erred in the procedure it adopted, in not allowing the opportunity for further face to face hearing. It should not be necessary to observe that, if a party wishes to demonstrate on appeal that the Original Tribunal erred in not allowing a hearing at which further evidence was to be called, an outline of the proposed further evidence must be provided. At the hearing of this appeal, it became apparent that the CSH did not intend to put forward any further evidence, in relation to any tenant. If the CSH wishes to maintain that stance, then it cannot assert that the Original Tribunal erred in not giving it a hearing at which, it seems, no further evidence would have been adduced.
We do not consider that the Original Tribunal erred in finding that it should not endorse the additional term, even if it were possible to do so. Indeed, we would reach the same conclusion if we were required to re-exercise the discretion.
A final word on the procedural issues
An application for endorsement is a joint application, which seeks orders by consent of all parties. Ordinarily the ACAT must hear and decide every application[59], but there are some exceptions to this requirement. One exception is section 55 of the ACAT Act which provides for the making of orders by consent, without a hearing, in certain circumstances. In the matters under appeal, the Original Tribunal did not deal with the applications for endorsement under section 55, but instead conducted a hearing on the papers.
[59] Section 36 of the ACAT Act
Where parties are in agreement as to the outcome, consent orders can be an efficient means of finalising the matter and avoiding additional costs, while also ensuring the parties have the certainty of a tribunal order. Section 7(a)(i) of the ACAT Act, which requires that the processes of the tribunal be “as simple, quick, inexpensive and informal as is consistent with achieving justice” means it is incumbent upon the tribunal to facilitate consent orders.
However, the tribunal cannot simply make any order that parties are agreed upon. Section 55 places limitations on acceding to such a request. The tribunal must be satisfied that it is both within the tribunal’s power to make the order and it is “appropriate to make” the order.[60]
[60] Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68; Nursing and Midwifery Board of Australia v Oakleigh [2015] ACAT 83
CCL submitted that the nature and complexity of the questions involved in an application for endorsement would always necessitate the tribunal conducting a hearing. We do not agree. In cases of simply worded terms of minor effect, with an established mode of operation clearly set out in the text of the term, then it is usually appropriate to proceed under section 55 to make orders by consent without a hearing. Others exceptions may include, for example, tenancies where the parties are legally advised and there is no cause for concern about undue influence or other externalities. In such cases, the parties’ signature on the residential tenancy agreement containing the additional term and the signing of the fully completed application form attaching the executed agreement may, in simple and straightforward cases, be sufficient for the tribunal to satisfy itself that the orders are within power, and appropriate to make, without a hearing.
The CSH submitted that the Original Tribunal erred in not being satisfied on the basis of the evidence available (being the signed residential tenancy agreement and the signed application form) that consent was freely given, and the additional term could be endorsed. To the extent that this submission is directed at the Original Tribunal’s decision not to make orders by consent, and to instead proceed down the path of a hearing, we do not think the Original Tribunal was in error. Given the significant impact of the additional term, the lack of clarity and differing accounts as to its proposed operation, and the complex task of statutory interpretation involved in the jurisdictional questions of ‘inconsistency’, it was in our view entirely correct for the endorsement applications to be listed for hearing and, further, for them to be heard jointly.
Conclusion
In summary, the Appeal Tribunal has concluded that the decision of the Original Tribunal that it could not, and should not, endorse the additional term in each application should be upheld, albeit for slightly different reasons.
We do not think that there was any error in the process adopted by the Original Tribunal, save for the error in failing to formally make an order for the matters to be heard jointly. While we have heard the appeals jointly, we have considered each application for endorsement individually, as should have occurred in the absence of an order under section 56 of the ACAT Act.
We are not satisfied that the findings of fact by the Original Tribunal, or its exercise of discretion, were affected by error in any material way.
On the legal and procedural issues raised in the appeals we have concluded that:
(a)The ‘inconsistency’ with the standard terms contemplated by sections 8(d)(ii), 9(1) and 10 of the RT Act is limited to direct inconsistency. The standard terms do not ‘cover the field’.
(b)The additional term is inconsistent with standard term 94, because it detracts from the tenant’s right to be given 26 weeks’ notice of a ‘no cause’ termination.
(c)The ‘inconsistency’ with the RT Act contemplated by sections 9(2) and 10(4) includes direct inconsistency and, in some respects, indirect inconsistency.
(d)The additional term is inconsistent with section 36 of the RT Act, insofar as it enables a tenancy to be terminated by the tenant moving out in accordance with a notice to vacate given under the additional term.
(e)The matters in section 10(1) of the RT Act must be established before the discretion under section 10(2) to endorse, or not endorse, is available to be exercised.
(f)The decision under section 10(2) to endorse an additional term or to substitute the prescribed term is a discretionary decision.
(g)The discretion under section 10(2) is not unfettered. It must be exercised rationally, and by reference to:
(i) the determined criteria (if any);
(ii) whether ‘the agreement to the additional term was obtained by undue influence or fraud’; and
(iii) any other relevant factor.
(h)The terms ‘undue influence’ and ‘fraud’ should be given their ordinary English meaning, which may be informed by jurisprudence in relation to those concepts. Satisfying (or not satisfying) these definitions is not determinative of the outcome of an endorsement application.
(i)There is no closed list of other ‘relevant factors’ for the exercise of discretion, some factors that may be relevant include:
(i) whether the term is sensibly drafted so as to be clear and unambiguous, specific in the obligations it imposes, able to be complied with and capable of enforcement;
(ii) the meaning and operation of the term, objectively;
(iii) whether the parties subjectively understand the objective meaning and operation of the term;
(iv) the extent to which the additional term departs from the balance of rights contained in the standard terms and the reasons of the parties for seeking to depart from that balance;
(v) the importance of freedom of contract;
(vi) the market reality within which the negotiation occurs;
(vii) the extent to which endorsement of the additional term may conflict with the statutory intentions of the RT Act, one such being that the standard terms would be the default and there would not be a separate set of terms for social or public housing.
(j)Procedurally, it is open to the tribunal to deal with an endorsement application as an application for orders by consent, to be decided without a hearing as contemplated by section 55 of the ACAT Act. It is incumbent upon the tribunal to take this approach where appropriate, as this meets the tribunal’s imperatives of quickness and efficiency (section 6 and 7 ACAT Act).
(k)If the apparent circumstances of an endorsement application raise questions about the jurisdictional facts in section 10(1), or the matters in sections 10(3) or 10(4), it is not appropriate to determine the endorsement application without a hearing. The Tribunal must inquire further to satisfy itself that it has jurisdiction or that the proposed clause can and should be endorsed. That inquiry must be undertaken by a hearing in which the parties are afforded procedural fairness, whether that hearing is conducted in person, by telephone or video-link, or on the papers.
(l)In determining an application for endorsement, the tribunal may inform itself as it considers appropriate. The tribunal is bound to use the information so acquired in accordance with natural justice, principles of rational decision-making and any other legal requirements.
Each application for appeal is for these reasons dismissed, and the decisions of the Original Tribunal are confirmed.
………………………………..
Presidential Member MT Daniel
For and on behalf of the Tribunal
| Date(s) of hearing: | 2 March 2022 |
| Counsel for the Applicant: | Ms A Costin |
| Solicitors for the Applicant: | Ms J Payne, ACT Government Solicitor |
| Respondents: | No appearance |
| Amicus curiae: | Ms N Gould, Canberra Community Law |
ANNEXURE A
TENANT 202154
RE 40 of 2021 and AA 54 of 2021
Residential tenancy agreement provided to the Tribunal consisted of the following pages:
- Schedule of Tenancy Details
- Initial Rent Table
- Attachment A Standard Residential tenancy terms
- Attachment B – Housing Commissioners Additional Terms
- Attachment C – Rules of the complex Flat/Townhouse/Aged Persons Unit
Attachment D – Special Conditions
Each provided page of the agreement bore one set of initials, which might be inferred to be the tenant’s initials. The copy of the agreement provided to ACAT had a blank page at page 2 of the Schedule instead of a signature and date page. Page 1 of the Schedule indicated Attachment C did not apply, but it was included in the initialled bundle. The Schedule indicated that the tenancy commenced 5 February 2021 and was for a fixed term until 5 August 2021.
The Application for Endorsement was signed 5 February 2021, and indicated the agreement was entered into on 5 February 2021.
Part F(b) stated: The tenant is residing at [address] (‘the premises’) as a transit property, following a fire at her home (‘the tenant’s home’), also a property managed by the Commissioner for Social Housing, which caused her home to be uninhabitable. This fixed term tenancy, with the 30 day no cause termination clause, allows the lessor and the tenant to terminate this tenancy on 30 days once a suitable replacement property is sourced.
Part F(c) stated: It is expected that this residential tenancy agreement will only be terminated on 30 days notice once a suitable replacement property is sourced.
The application was considered in chambers on 20 April 2021 and listed for further consideration in chambers by the Original Tribunal on 27 May 2021. The tenant was not notified of these listings. The orders of 27 May 2021 were sent to CSH and CCL, but not to the tenant. The decision of 6 October 2021 was that day sent to CSH but was not provided to the tenant until 23 March 2022.
The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.
Tenant 202154 in response emailed to ACAT “Hi there, I’m sorry but I haven’t been told exactly what any of this is about? Can someone please explain this to me?”. The registry provided a short email summary of the situation. The tenant responded “Thank you for getting back to me. So this is in terms of my temporary house. I was in this as my other property in [suburb] burned down, I was placed here on a 6 month lease until a) a property became available in the area I needed or b) if I agreed to stay here long term. This is all so confusing and I’ve had no contact from housing in regards to this. Anytime I have called my housing manager I have been told they will get back to me but they never do. If someone could call me to explain exactly what is going on, I would really appreciate that.” The tenant was referred to CCL. She responded “I don’t want legal advice. I just want to know why this is going through court? For what reason?”. The registry repeated the referral to CCL.
Tenant 202154 did not attend the Webex directions hearing on 25 February 2022 as she advised she was at work, and she did not attend the hearing of the appeal on 2 March 2022.
TENANT 202155
RE 37 of 2021 and AA 55 of 2021
Residential tenancy agreement signed 18 February 2021, consisted of the following initialled pages:
- Schedule of Tenancy Details including Initial Rent Table
- Attachment A Standard Residential tenancy terms
- Attachment B – Housing Commissioners Additional Terms
- Attachment C – Rules of the complex Flat/Townhouse/Aged Persons Unit
Attachment D – Special Conditions
The Schedule indicated that the agreement was for a fixed term 18 February 2021 – 21 August 2021. It also included Attachment E – Energy Efficient Rating Statement, however this was not included in the documents provided to the Tribunal.
The Application for Endorsement was signed 18 February 2021.
Part F(b) stated: The tenant moved into his mother’s home at [address] (‘the premises’) after his previous home, also a property managed by the Commissioner for Social Housing, was subject to a home invasion. The tenants’ mother terminated her tenancy and moved out of the premises in order to rent privately, so the lessor entered into this fixed-term tenancy with the tenant, allowing him to remain in the premises short-term while he and the lessor identify a suitable long-term replacement for his former home.
Part F(c) stated: It is expected that this residential tenancy agreement will only be terminated on 30 days notice in order for the tenant and the lessor to enter into a periodic tenancy for the premises or another suitable property
The application was considered in chambers on 20 April 2021, and listed for further consideration in chambers by the Original Tribunal on 27 May 2021. The tenant was not notified of these listings. The orders of 27 May 2021 were sent to CSH and CCL, and not to the tenant. The decision of 6 October 2021 was that day sent to CSH and the tenant.
The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.
Tenant 202155 did not contact the Tribunal in the course of the appeal, nor did he participate in the directions hearings or hearing of the appeal.
TENANT 202156
RE 27 of 2021 and AA 56 of 2021
Residential tenancy agreement was signed on 8 February 2021 and consisted of the following initialled pages:
- Schedule of Tenancy Details
- Initial Rent Table
- Attachment A Standard Residential tenancy terms
- Attachment B – Housing Commissioners Additional Terms
- Attachment C – Rules of the complex Flat/Townhouse/Aged Persons Unit
- Attachment D – Special Conditions
Schedule 1 indicated the tenancy was for a fixed term 8 February 2021 to 8 May 2021. Schedule 1 also indicated that Attachment D was not a part of the agreement, although Attachment D was included in the bundle and the pages initialled.
The Application for Endorsement was signed 16 March 2021.
Part F(b) stated: [name] (the tenant) became a resident of the Housing ACT property [address] (the premises) with two children on 7 July 2020. [The tenant’s] partner, [name] has been the tenant since 2 July 1999 and is the mother of the oldest child. Due to [the partner’s] death in January 2021, the lessor and the tenant have entered into a short-term fixed Term Tenancy Agreement, to allow the tenant and his family to remain in the premises while the tenant is being assessed for eligibility for housing assistance in his own right.
Part F(c) stated: It is expected that the lessor will only invoke the 30 day termination clause proposed if the tenant is assessed as eligible for housing assistance (in which case the tenant and the lessor will enter into a periodic tenancy for the premises) or if the tenant is assessed as not eligible because he does not meet the income thresholds, and can instead afford to rent on the private rental market.
The application was considered in chambers on 1 April 2021, and orders made that a signed tenancy agreement showing Attachment D formed part of the agreement should be provided. This order was sent to both CSH (by email) and tenant (by express post) on 8 April 2021. On 9 April 2021 CSH advised the tribunal by email “The tenant has signed an amended version of the tenancy agreement which is attached”. The attached document did not indicate a new date of signing but appeared to be the agreement originally lodged, executed on 8 February 2021, but with a different Schedule page 1.
On 22 April 2021 the matter was considered in chambers by the Original Tribunal and listed for further consideration in chambers on 27 May 2021. CSH was directed to provide a copy of the pro forma termination notice that would be issued under the additional term.
The tenant was served with these orders and advised by covering letter that his presence was not required on 27 May 2021. The orders of 27 May 2021 were sent to CSH and CCL, and not to the tenant. The decision of 6 October 2021 was that day sent to CSH and to the tenant.
The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.
The Tribunal received an email reply to initial service of the appeal proceedings from tenant 202156 stating “I don’t understand why I am getting this email.” The registry provided by email a short summary of the situation. There was no further contact from that tenant.
TENANT 202157
RE 26 of 2021 and AA 57 of 2021
Residential tenancy agreement was signed 23 December 2020, consisted of the following initialled pages:
- Schedule of Tenancy Details
- Initial Rent Table
- Attachment A Standard Residential tenancy terms
- Attachment B – Housing Commissioners Additional Terms
- Attachment C – Rules of the complex Flat/Townhouse/Aged Persons Unit
Attachment D – Special Conditions
The agreement indicated it was for a fixed term 23 December 2020 to 23 June 2021. It included Attachment D twice, once signed and dated and once initialled.
The Application for Endorsement was also signed 23 December 2020.
Part F(b) stated: The [address] (‘the premises’) is an aged persons unit, and the previous tenant was [tenant’s name’s] father. [tenants name] (‘the tenant’) was residing in the premises from April 2020 to assist in providing care to her father until he passed away in November 2020. The tenant currently has an application lodged with the Commissioner for Social Housing to be assessed for social housing in her own right. The fixed term tenancy, with the 30 day no cause termination clause, allows the tenant to remain in the premises short term while the application is being assessed and more suitable Annexure Accommodation is located.
Part F(c) stated: It is expected that the lessor will only invoke the 30 day termination clause proposed if the tenant is assessed as eligible for housing assistance (in which case the tenant and the lessor will enter into a periodic tenancy for another premises) or if the tenant is assessed as not eligible because she does not meet the income thresholds, and can instead afford to rent on the private rental market.
The application was considered in chambers on 8 April 2021 and listed for short telephone hearing on 22 April to discuss enforceability of the proposed clause. Parties were directed to provide their telephone numbers for the hearing. A copy of those orders was posted to the tenant and emailed to CSH.
On 22 April 2021 the Original Tribunal had a telephone number for the tenant, and so telephoned the tenant and left a voice message that “an application for endorsement of a term in your residential tenancy agreement has been adjourned. There’s no need for you to do anything, but we will send you a notice, and if you have any questions, you should contact your housing manager”. The Original Tribunal adjourned the matter to 27 May 2021 for in chambers consideration, the tenant and CSH were sent copies of those orders and advised by covering letter that their participation was not required. The tenants copy of those orders was returned to sender on 7 May 2021. The orders of 27 May 2021 were sent to CSH and CCL, and not to the tenant. The decision of 6 October 2021 was that day sent to CSH and to the tenant.
The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.
Tenant 202157 did not contact the Tribunal in the course of the appeal, nor did she participate in the directions hearings or hearing of the appeal.
TENANT 202158
RE 306 of 2020 and AA 58 of 2021
Residential tenancy agreement was signed on 28 October 2020 and consisted of the following initialled pages:
- Schedule of Tenancy Details
- Initial Rent Table
- Attachment A Standard Residential tenancy terms
- Attachment B – Housing Commissioners Additional Terms
- Attachment C – Rules of the Complex Flat/Townhouse/Aged Persons Unit
Attachment D – Special Conditions
The agreement indicated it was for a fixed term of just over one month from 28 October 2020 to 30 November 2020.
The Application for Endorsement was also signed on 28 October 2021. Part F was entirely blank.
The application was considered in chambers on 16 April 2021 and listed for further consideration in chambers by the Original Tribunal on 27 May 2021. The tenant was not notified of these listings. The orders of 27 May 2021 were sent to CSH and CCL, and not to the tenant. The decision of 6 October 2021 was that day sent to CSH.
The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.
Tenant 202158 contacted the registry by telephone after receiving notice of the appeal application. She provided her email address and was sent the short email summary of the situation and the contact details for CCL. She did not contact the registry again.
TENANT 202159
RE 158 of 2020 and AA 59 of 2021
Residential tenancy agreement was signed on 12 August 2020 and consisted of the following initialled pages:
- Schedule of Tenancy Details
- Initial Rent Table
- Attachment A Standard Residential tenancy terms
- Attachment B – Housing Commissioners Additional Terms
- Attachment C – Rules of the complex Flat/Townhouse/Aged Persons Unit
Attachment D – Special Conditions
The Schedule to the agreement indicated it was for a fixed term from 12 August 2020 to 13 February 2021.
The Application for Endorsement was also signed 12 August 2021. Part F(b) stated: Unsafe for tenant to return home due to ex-partner purposefully driving his vehicle into her carport and fencing. Tenant and her children would be at significant risk staying in this property.
Parts F(a) and (c) both stated: N/A
The application was considered in chambers on 16 April 2021 and listed for further consideration in chambers by the Original Tribunal on 27 May 2021. The tenant was not notified of these listings. The orders of 27 May 2021 were sent to CSH and CCL, and not to the tenant. The decision of 6 October 2021 was that day sent to CSH and the tenant.
The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.
Tenant 202159 responded to email service of the appeal application by email as follows: “hello, I am very confused by this entire matter. I have no idea what this is in relation to? On the 11th of October I received a letter in the mail with tribunal outcome details on it stating community law have presented on my behalf. There were two hearing dates in early/mid 2021 about this matter also. I have literally never heard about this before receiving the documents in the mail on October 11th with the outcome. Today I have been emailed about this matter in which I’m responding to that email? I have contacted my housing manager [name] about this matter and she has responded saying that she has no idea what this is about. I have also contact community law about this matter and have had no response from them. Please if someone can provide some clarification around what exactly this is and what it will mean for myself that will be great.”
Registry provided the tenant with the short email summary of the situation, attaching a copy of the application for endorsement, and received the following emailed response: “Hello, I did not sign that form? Why is my signature on there? I still have no idea what any of this is about and do not understand it at all. What is this in regards to? Please explain further in everyday language I can understand.”
The tenant was referred to CCL and had no further correspondence with the tribunal registry. The tenant did not participate in the directions hearings or hearing of the appeal.
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