Commissioner for Social Housing v Wallace

[2017] ACAT 99

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v WALLACE (Residential Tenancies) [2017] ACAT 99

RT 339/2017

Catchwords:             RESIDENTIAL TENANCIES – application for declaratory orders or an advisory opinion – applicant seeking a declaration as to the status of the legal relationship between the parties – applicant seeking a declaration as to the amount of debt or arrears owed by the tenant to the lessor – meaning of dispute

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 s 56

Residential Tenancies Act 1997 ss 42A, 72, 76, 83, 102 (repealed), 104 (repealed)

Cases cited:Commissioner for Social Housing v Lysle [2016] ACAT 26

Commissioner for Social Housing v Moffatt [2015] ACTSC 4
Commissioner for Social Housingv Pesi [2015] ACAT 58
Commissioner for Social Housing v Woodward [2016] ACAT 85
TheCommissioner for Housing for the Australian Capital Territory v Anthony Raymond Snape [1999] ACTRTT 3

Tribunal:                  Senior Member J Lennard

Date of Orders:  24 November 2017

Date of Reasons for Decision:         24 November 2017

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 339/2017

BETWEEN:

COMMISSIONER FOR SOCIAL HOUSING

Applicant

AND:

ANNETTE MARIE WALLACE

Respondent

TRIBUNAL:  Senior Member J Lennard

DATE:24 November 2017

ORDER

The Tribunal orders that:

1.The application is dismissed.

………………………………..

Senior Member J Lennard

REASONS FOR DECISION

Application

1.The Commissioner for Social Housing (lessor or Commissioner) made an application on 18 April 2017, for declaratory orders. The lessor sought orders in the following terms:

(a)A new residential tenancy agreement is declared to exist between the lessor and the tenant in the same terms as the first tenancy agreement, commencing 14 December 2013.

(b)For the avoidance of doubt the Tribunal confirms the tenant owes the lessor the sum of $4,181.35 for rental arrears in relation to the new tenancy.

2.The matter came before the tribunal for a hearing on 15 June 2017. At that hearing, the lessor clarified the application and stated that it was seeking a declaration as to the status of the legal relationship between the parties and a declaration as to the amount of debt or arrears owed by the respondent tenant to the lessor.

3.The tenant made submissions that the Tribunal had no jurisdiction to make merely declaratory orders.

4.The tribunal adjourned the question of jurisdiction for a written decision and made directions for the parties to file written submissions on the issues of jurisdiction, and in relation to the nature of the orders sought.

Material facts

5.On 9 December 2010, the Commissioner for Social Housing and Annette Wallace entered into a residential tenancy agreement in relation to premises in Braddon, ACT.

6.On 5 December 2013, the Tribunal made a conditional termination and possession order (CT&P Order). That order required the tenant to pay to the lessor the sum of $6,777.90 for arrears of rent by instalments of $30 a fortnight beginning 13 December 2013; and to pay future rent as it became payable under the tenancy agreement at the next payment due on 13 December 2013. At the time of this order. The total fortnightly payment required was $189.90.

7.On 13 December 2013 the tenant made a payment of $134.55. The failure by the tenant to make payment in the required amount was a breach of the order, and in accordance with the order, the tenancy terminated at 5pm on 14 December 2013; and the instalments remaining under the order became immediately due and payable. The rental schedule provided by the lessor shows that a total of $6,693.25 was owed by the tenant to the lessor at that date.

8.The rental account statement tendered by the lessor indicates that from 27 December 2013 to 27 June 2014 the tenant paid an amount of $189.90 fortnightly. It appears from that rental account statement that there was an adjustment in the amount of the rebate of rent and from 25 July 2014 to 10 July  2015, the tenant made fortnightly payments in the amount of $258.50. That payment reduced the debit balance of the account by $30 per fortnight. It appears from the rental statement that there was a second adjustment in the amount of rebate of rent and from 24 July 2015 to 8 July 2016. The tenant made fortnightly payments in the amount of $261.40. That payment reduced the debit balance of the account by $30 per fortnight. It appears from the rental statement that there was a third adjustment of the amount of the rebate of rent and from 19 August 2016 to 23 June 2017, the tenant made fortnightly payments in the amount of $264.80. That payment reduced the debit balance of the account by $30 per fortnight. The rental statement provided by the lessor indicates that from 13 December 2013 until 23 July 2017, the debit balance, or arrears, had reduced from $6,693.25 to $3,914.70.

9.There is no evidence before the tribunal to indicate that the lessor took any action immediately after the termination of the tenancy: either by seeking a remedy under section 42A of the Residential Tenancies Act 1997 (RTA) or enforcement action to collect the crystallised debt. The tenant and her grandchild continued to live in the premises and are living in the premises at the current time. The lessor continued to grant the tenant rental rebates, and has continued to carry out routine inspections of the property.

Jurisdiction of the Tribunal

10.Each party made written submissions in relation to the jurisdiction of the tribunal to make declarations or give advisory opinions. Those submissions are referred to as necessary below.

11.Section 83 of the RTA provides that the Tribunal may make orders in relation to an application about a tenancy dispute. Section 76 of the RTA relevantly provides that the Tribunal has exclusive jurisdiction to hear any matter that may be the subject of an application to the tribunal under the RTA, or the standard residential tenancy terms.

Meaning of tenancy dispute

12.Section 72 of the RTA provides a definition of tenancy dispute:

(1)For this Act, a dispute is a tenancy dispute if it—

(a)     is between the parties to a residential tenancy agreement; and

(b)     is about, arises from, or relates to, the agreement.

(2)A “tenancy dispute” includes—

(c)     a dispute if an application relating to the dispute may be made under part 4 (Termination of residential tenancy agreements) or part 5 (Rental rate increases); and

(d)     an application for compensation under this Act.

13.The respondent tenant made submissions that the application by the Commissioner is for a declaration as to the legal relationship between the parties, but does not involve a tenancy dispute and therefore does not enliven the jurisdiction of the Tribunal under the RTA. In particular, the respondent tenant notes that the dispute may arise in relation to the state of affairs brought about in the ordinary course of administration, but that ‘dispute’ cannot be defined as, and should not be used as a way of compensating for, deficiencies or inadequacy in the routine administration by the parties in relation to their agreement.

14.The applicant Commissioner makes submissions that the Commissioner applied to the tribunal for a declaration as to the current status of the tenancy in order to give certainty to the Commissioner’s administrative processes and protections to the tenant. The Commissioner’s submissions do not explain what protection would be available to the tenant should the uncertainty or ‘loose ends’ be addressed by the Tribunal. The submissions state that it is the view of the Commissioner that there is an implied tenancy in place, although the date upon which this tenancy commenced is not certain.

15.Whilst the tribunal agrees with the Commissioner’s submissions that the determination of the legal status of the relationship between the parties is often a preliminary step in determining whether the tribunal has jurisdiction, and which provisions of the RTA are applicable to the dispute, that preliminary step is taken to determine what remedy the tribunal may grant in order to resolve a dispute between the parties.

16.The tribunal does not accept the Commissioner’s submissions that the determination of the question of whether an implied tenancy has arisen from the conduct of the parties is analogous to the determination of whether a constructive trust exists. A constructive trust is a creature of equity and as such is also a matter for the application of the rules of equity and always at the discretion of the Court or Tribunal. The existence of an implied the tenancy of the type referred to in decisions of the tribunal such as Pesi[1] is a question of fact to be determined upon the evidence. In any matter where the existence of a residential tenancy agreement in fact exists was a preliminary issue to be determined, the onus would rest upon the applicant for a remedy pursuant to the provisions of the RTA to establish the existence of the residential tenancy agreement.

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

17.The declaration is not sought in the context of a dispute that has arisen between the parties, and the application by the Commissioner does not articulate the nature of any alleged dispute. The evidence before the Tribunal established that there was no dispute between the parties at the time the Commissioner made the application. There was no evidence before the Tribunal that the Commissioner had made any contact or had any correspondence with the tenant in regards to the legal status of the relationship between them, the state of the rent account, or the amount of money owing by the tenant to the Commissioner.

18.In TheCommissioner for Housing for the Australian Capital Territory v Anthony Raymond Snape[2] (Snape) the then Residential Tenancies Tribunal (RTT) considered the nature of declaratory relief and the approach adopted by courts generally to grant such relief in circumstances similar to those in the current matter. The RTT noted that the Tribunal was a creature of statute and, as such, had no inherent jurisdiction and that consequently the tribunal does not have any powers beyond those conferred expressly or impliedly by the RTA.[3]

[2] [1999] ACTRTT 3

[3] [1999] ACTRTT 3 at [26]

19.Section 83 of the RTA sets out the orders which the ACT Civil and Administrative Tribunal (ACAT) may make in relation to residential tenancies or occupancy agreements. That section sets out specific types of orders which ACAT may make. Section 83 does not limit the orders which ACAT may make to those specified within sub paragraphs.

Other actions by tribunal

20.Section 56 of the ACT Civil and Administrative Tribunal Act 2008 provides:

The tribunal may, by order—

(a)hear an application jointly with another application that arises from the same or similar facts; or

(b)make other orders with the consent of the parties to the application or as the tribunal considers necessary or convenient; or

(c)amend or set aside a tribunal order if—

(i)      the order was made after hearing an application in the absence of a party; or

(ii)    the order is in error in relation to an amount or the name or address of a party, and the tribunal proposes to amend or set aside the order only to correct the error; or

(iii)   extraordinary circumstances make it appropriate to amend or set aside the order; or

(d)take any other action in relation to an application—

(i)      that the tribunal considers appropriate; and

(ii)    that is consistent with this Act or an authorising law.

21.The Commissioner submits that ACAT should exercise its power pursuant to section 56(d) to provide certainty to the Commissioner that a residential tenancy exists between the parties. Those submissions state:

Not only does this certainty allow the Commissioner to confidently administer his obligations that arise out of a residential tenancy agreement, it protects the tenant. A finding that a residential tenancy agreement exists provides an irrefutable protection to the tenant that she is able to assert her rights under the Act. An argument to the contrary, in essence, is an argument to strip away the protection and the rights that a tenant enjoys under the Act

The submissions do not elaborate as to what protections would be available to the tenant should the Tribunal make the declaration sought, nor do the submissions address the issue of why the protections arising under the Act or the residential tenancy agreement are not currently able to be enforced by the tenant. Section 56 contemplates a valid application for the resolution of a dispute being before the tribunal, and it is for the tribunal to consider and determine whether any other action is appropriate. I have determined that administrative convenience of an applicant, the tying up of ‘loose ends’ which have arisen from the applicant’s own administrative procedures or providing unspecified protections to a respondent tenant do not make it appropriate for this tribunal to enter into the realm of declaratory orders or advisory opinions.

22.Further, the submissions of the Commissioner seemed to confuse the situation where the Tribunal would make a determination that the arrangement or contract or agreement between the parties was by its nature a residential tenancy agreement, in order to determine the rights, obligations and remedies available to the parties as a preliminary issue in an application for a remedy to resolve a dispute, and the circumstances where there is no dispute between the parties but the Commissioner, for administrative reasons of its own, seeks a declaration from the Tribunal.

23.In Snape, the RTT considered section 104(m) of the Residential Tenancies Act 1997 which empowered the tribunal to make “any other order the Tribunal considers appropriate.” This section has since been repealed. In that decision the RTT did not accept that an order pursuant to section 104(m) would encompass declaratory relief. Member Anforth, as he then was, stated:

The meaning of “Order” in section 104 (m) of the 1997 Act

I do not accept that the term “order” in section 104 (m) of the 1997 Act (which I regard as synonymous with a ‘command or direction” - see the definition of “order” in Osborn’s Concise Law Dictionary, 6th Edition, by John Burke (1976) page 242) encompasses the grant of declaratory relief. In this respect, I am conscious of the fact that a declaration does no more that declare the rights of a party or parties to the particular action (e.g. whether a residential tenancy agreement exists or existed at a particular time, whether a term of such an agreement is valid, whether a tenancy dispute exists or what the terms and conditions of any such agreement are or were).

I have also had regard to the discussion of the meaning of “order” in Regina  v  Recorder of Oxford, Ex parte Brasenose College to the following effect:

“The word “order” in relation to legal proceedings in itself is ambiguous: clearly it may mean - perhaps a linguistic purist would say that its most accurate connotation was to indicate - an order requiring an affirmative course of action to be taken in pursuance of the order, but it is equally clear that the word may have a much wider meaning covering in effect all decisions of court ..... Which of the two meanings is appropriate must of course always depend on the context, and I entirely agree with Lord Parker C. J., that the use of the word “order “in other legislation and observations upon its meaning in decided cases upon other statutes are not in the last analysis of assistance to the court.....”

24.The Court there held that ‘order’, in circumstances where the word was used in the context of a provision empowering the Magistrates Court to “make such order as it thinks fit” regarding a complaint made in respect of a decision of a fire authority to issue a certificate in respect of certain premises, encompassed the dismissal of the complaint. This was held to be so despite the fact that the section made no provision for dismissal. In effect the Court concluded that the legislation implied a power of dismissal where, not to do so, would defeat the legislative intent. In that case the section made no detailed provision (as did section 104 of the Act at that time) for any other orders aside from that the complaint was justified.

25.Arguably, such an interpretation might be applied to section 104(m) given that the only express power of dismissal contained in the Act at that point in time was found in section 102(a), namely where the Tribunal considers the application to be frivolous or vexatious. To this extent, I would be disposed to follow that decision to the extent to which the tribunal concluded that it was appropriate to dismiss an application which otherwise did not meet the criterion of section 102(a). There may well, however, be other provisions in that version of the Act in respect of which similar powers might reasonably be implied by means of section 104(m). This it seems to me is that provision’s function.

26.I respectfully adopted the reasoning is set out in Snape and have determined that a similar construction should be placed upon section 56 of the ACAT Act.

Conclusions

27.The tribunal is aware of the difficulties encountered by the Commissioner in the administration of its tenancies as a result of the operation of a conditional termination and possession orders where the tenant fails to comply with the order, the tenancy terminates as a result of that failure to comply with the order and the Commissioner takes no action. The difficulties appeared to be compounded by the administrative failures of the Commissioner to recognise at the appropriate time that the tenancy, which was the subject of the conditional termination possession order, has terminated and to take steps to create appropriate tenant rental accounts.

28.There have been a number of cases which have determined, following the ACT Supreme Court’s decision in Commissioner for Social Housing v Moffatt[4], in which the principles from that decision have been applied by the Tribunal. The reasoning in those cases provide sufficient guidelines for the Commissioner in relation to the existence of implied tenancies in such circumstances.

[4] [2015] ACTSC 4; Commissioner for Social Housing v Pesi [2015] ACAT 58; Commissioner for Social Housing v Woodward [2016] ACAT 85; Commissioner for Social Housing v Lysle [2016] ACAT 26

29.The RTA at section 72 contemplates that applications will be made for the resolution of disputes between the parties to residential tenancy agreements and occupancy agreements which are subject to that Act. Dispute is an argument or disagreement. The Australian Pocket Oxford Dictionary defines dispute as ‘a debated state or conflict of opinion; a controversy or difference of opinion or altercation or quarrel’. The RTA contemplates that the parties will not be in agreement and that there is a matter to be resolved by an order of the Tribunal. This application does not involve a tenancy dispute. There may be a tenancy matter in relation to which the applicant Commissioner seeks clarification. This could properly be addressed by the Commissioner’s own administrative processes.

30.Generally speaking, courts and tribunals do not, in the absence of specific legislative provisions, give advisory opinions or make declaratory orders in the absence of a dispute between the parties. ACAT is a creation of statute and there is no express power in either the ACAT Act or the RTA allowing the Tribunal to make merely declaratory orders.

31.In this matter there is no evidence that there is a dispute between the parties. Each party in their written submission asserts that there is an implied tenancy in existence; and that that implied tenancy has arisen as a matter of fact from the conduct of the parties. In these circumstances they can be no dispute as to the tenant’s rights and obligations.

32.It is evident from the information before the Tribunal that the parties agree that an amount of money is owed by the respondent tenant to the applicant. The characterisation of the amount as either an amount owing under the money order made in the original conditional termination possession order or arrears arising under the current tenancy is dealt with in submissions by each party. It is apparent that the areas of disagreement between the parties as to such characterisation. It is not the Tribunal’s role to reach a conclusion as to the proper characterisation of the amount owed, in the absence of any tenancy dispute or any application for a remedy or resolution of such a tenancy dispute. It is not appropriate that the Tribunal should bear the burden of determining these matters in circumstances where the legal principles are clear, the proper administrative steps have not been undertaken by the Commissioner and there is no remedy being sought.

33.The Tribunal does not have jurisdiction to make declaratory orders in relation to residential tenancy agreements. The application is dismissed.

………………………………..

Senior Member J Lennard

HEARING DETAILS

FILE NUMBER:	RT 339/2017
PARTIES, APPLICANT:	Commissioner for Social Housing
PARTIES, RESPONDENT:	Annette Maree Wallace
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	Canberra Community Law
TRIBUNAL MEMBERS:	Senior Member J Lennard
DATES OF HEARING:	15 June 2017