Commissioner for Social Housing v Thorn - [2016] ACAT 37

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v THORN (Residential Tenancies) [2016] ACAT 37

RT 696/2015
Catchwords: RESIDENTIAL TENANCIES – conditional termination and possession order – residential tenancy agreement – notice to remedy – notice to vacate

Legislation cited: Residential Tenancies Act 1997 ss 49, 53, 59, 83

Residential Tenancies Act 2010 (NSW) s 33

Cases cited: Commissioner for Social Housing v Pesi [2015] ACAT 58
Commissioner for Social Housing v Moffatt [2015] ACTSC 4

Tribunal: Senior Member J Lennard

Date of Orders:  11 May 2016
Date of Reasons for Decision:         11 May 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 696/2015

BETWEEN:
COMMISSIONER FOR SOCIAL HOUSING

AND:
SHARRYNE THORN
Respondent

TRIBUNAL: Senior Member J Lennard

DATE:11 May 2016
ORDER
The Tribunal orders that:
1.The matter is listed for further hearing.

………………………………..
General President L Crebbin
for and on behalf of the Tribunal

REASONS FOR DECISION

Background

On 23 June 1999 the parties with the applicant as lessor and the respondent as tenant entered into a residential tenancy agreement in relation to premises at Kambah, ACT.
On 6 March 2012, in matter AA 38/2011, the ACT Civil and Administrative Tribunal (the ACAT) made a Conditional Termination and Possession Order (CTPO). This order required the tenant to pay the lessor the sum of $777.48 for arrears of rent by instalments of $30 per fortnight commencing 16 March 2012. This order also required the tenant to pay to the lessor rent as and when it fell due, in accordance with the residential tenancy agreement. The order provided at clause 3:
If the tenant fails to comply with any of the conditions set out in order 1 above:
i.the tenancy terminates at 12 noon on the day after the tenant’s failure to comply with the condition;
ii.the lessor is entitled to vacant possession of the premises on termination of the tenancy;
iii.all rent payable including any rent which has accrued from the date of this order is payable immediately.
The tenant failed to make the payments as required on 30 March 2012, and as a result of that failure to comply with the conditions set out in the order, the tenancy terminated at 12 noon on 31 March 2012. The amount of $894.78, being arrears of rent accrued until 16 March, became due and payable immediately.

The effect of the failure to comply with the conditional order

I canvassed the legal effect of a breach of a CTPO in Commissioner for Social Housing v Pesi [2015] ACAT 58 (Pesi) and set out below the relevant extract from Pesiat paragraphs 5 and following:
(5) Section 49 of the Residential Tenancies Act 1997 (ACT) [the Act] regulates the termination of the tenancy where the tenant has failed to pay rent.
(6) Where a conditional termination possession order has been made by ACAT and the tenant breaches that order by either failure to pay rent or failure to pay the arrears…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] ACAT 37
Decision Date: 11 May 2016

CaseChat Overview and Summary

The matter before the Civil and Administrative Tribunal (CAT) was a dispute between the Commissioner for Social Housing and Thorn, a tenant of a property managed by the Commissioner. Thorn had been served with a notice to vacate due to breaches of the residential tenancy agreement. Thorn contested the notice, arguing that it was invalid as the Commissioner had failed to provide a notice to remedy before issuing the notice to vacate. The Tribunal was required to determine whether the Commissioner's actions complied with the Residential Tenancies Act 1995 (NSW).

The primary issue before the Tribunal was whether the Commissioner had correctly followed the statutory requirements in terminating the tenancy. Under the Act, a social housing provider must provide a notice to remedy before issuing a notice to vacate. The Tribunal had to consider whether the Commissioner had complied with this requirement, and if not, whether the notice to vacate was invalid. The Tribunal also considered the evidence provided by both parties regarding the breaches of the tenancy agreement and whether these breaches warranted termination of the tenancy.

The Tribunal found that the Commissioner had not provided a notice to remedy prior to issuing the notice to vacate, and therefore, the notice to vacate was invalid. The Tribunal held that the Commissioner's failure to comply with the statutory requirements meant that the notice to vacate could not stand. The Tribunal ordered the matter to be listed for further hearing to allow the Commissioner an opportunity to provide a valid notice to remedy and, if appropriate, a subsequent notice to vacate.

The Tribunal's orders included listing the matter for further hearing, allowing the Commissioner to address the deficiencies in their initial proceedings. This decision underscored the importance of following statutory requirements in issuing notices to remedy and terminate social housing tenancies.

Orders

Orders of the court

The Tribunal orders that:

1. The matter is listed for further hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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