Hussain and Bilkis v Barletta (Appeal)
[2021] ACAT 25
•31 March 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HUSSAIN & BILKIS v BARLETTA (Appeal) [2021] ACAT 25
AA 20/2021 (RT 44/2021)
Catchwords: APPEAL – residential tenancies – application to stay, and application for appeal against, a decision not to stay termination and possession order – lack of jurisdiction to stay termination and possession order – applications dismissed
Legislation cited: Residential Tenancies Act 1997 s 47, standard terms s 96
Tribunal: Presidential Member G McCarthy
Date of Orders: 31 March 2021
Date of Reasons for Decision: 31 March 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 20/2021
BETWEEN:
BALZUN BILKIS
First Appellant/Tenant
MOHAMMAD HUSSAIN
Second Appellant/Tenant
AND:
ANGELO BARLETTA
Respondent/Lessor
APPEAL TRIBUNAL: Presidential Member G McCarthy
DATE:31 March 2021
ORDER
The Tribunal orders that:
1.The application for interim or other orders is dismissed.
2.The application for appeal is dismissed.
………………………………..
Presidential Member G McCarthy
REASONS FOR DECISION
1.By application for appeal filed on 29 March 2021, the appellants, Mohammad Munir Hussain and Bazlun Bilkis, appealed against an order of the Tribunal (per Senior Member Orlov) made on 19 March 2021 to dismiss their application for interim or other orders filed on 15 March 2021. In their application filed on 15 March 2021, the appellants applied for an order that paragraphs 1, 2 and 3 of a termination and possession order (T and P order) made by the Tribunal (per Senior Member Katavic) on 18 February 2021 be stayed until 1 April 2021.
2.In their application for appeal, the appellants sought an order that the Tribunal’s order made on 19 March 2021 be “set aside/dismissed” and that a warrant for their eviction be stayed until 13 April 2021.
3.By application for interim or other orders filed on 29 March 2021, the appellants repeated their application for an order that the warrant for their eviction be stayed until 13 April 2021.
4.By notice dated 18 March 2021, the appellants were advised that a warrant for their eviction had been issued and would be executed between 23 March 2021 and 13 April 2021.
5.I first set out the recent history of this matter so that the appellants’ many applications can be better understood.
6.The respondent, Angelo Barletta, owns a property at 11 Hollingsworth Street, Gunghalin, ACT. He let it to the appellants under a residential tenancy agreement for a fixed term of five years commencing on 27 August 2015 and ending on 27 August 2020. After expiry of the fixed term, the appellants continued to occupy the property under a periodic tenancy.
7.On 19 November 2020, the respondent (through his agent) served a notice to vacate (NTV) upon the appellants in accordance with clause 96(1)(a) of the Standard Residential Tenancy Terms contained in Schedule 1 to the Residential Tenancies Act 1997 (the RT Act). In accordance with clause 96(1)(a), the respondent gave the appellants eight weeks’ notice to vacate on the grounds that he “genuinely intends to live in the premises”. Under the NTV, the appellants were required to vacate the premises by 15 January 2021.
8.The appellants did not vacate the premises in accordance with the NTV.
9.Consequent upon the appellants’ non-compliance with the NTV, by application dated 15 January 2021, the respondent applied to the Tribunal for a termination and possession order (T and P order) under section 47 of the RT Act.
10.On 18 February 2021, the Tribunal (per Senior Member Katavic) heard the respondent’s application and made a T and P order comprised of five separate paragraphs as follows:
1. The residential tenancy agreement is terminated at 5:00pm on Thursday 18 February 2021.
2. The tenants must vacate the premises on or before 5:00pm on Thursday 18 February 2021.
3. If the tenants fail to vacate the premises as required by paragraph 2 of the Order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
4. The operation of paragraphs 1, 2 and 3 of this Order is suspended until 11 March 2021.
5. The tenants are to give the Tribunal and the lessor a Notice of New Contact Details with an address for service of future notices and orders in these proceedings by 11 March 2021.
6. The lessor’s [application] for compensation is listed for preliminary conference on 1 April 2021 at 11:30am. The lessor is to give to ACAT and the lessor (sic) a document itemising the amounts claimed by one week prior to the conference.
11.The Tribunal suspended paragraphs 1, 2 and 3 of the Order, per paragraph 4 of the Order, pursuant to section 47(2) of the RT Act which states:
(2)If—
(a) the ACAT makes an order under subsection (1) [1] and
(b) the ACAT is satisfied that—
(i)were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and
(ii)that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period;
the ACAT may suspend the operation of the termination and possession order for a specified period of no more than 3 weeks.
[1] Section 47(1) empowers the Tribunal to make a termination in possession order if satisfied of the criteria set out in section 47(1)(a) – (d)
12.It is apparent from the reasons for appeal, as stated in the appellants’ application for appeal, that the appellants put evidence before Senior Member Katavic regarding Mohammad Hussain’s heart condition as evidence for why the appellants would suffer hardship if the T and P order were to be made with immediate effect. In his application for appeal, Mr Hussain refers to surgery that he underwent in August 2017 and an angiogram performed on 6 January 2021 which, he says, shows that “his heart blocked for 80%”.
13.Relevant for present purposes, Senior Member Katavic suspended the T and P order for the maximum period permissible under section 47(2) of the RT Act, namely three weeks.
14.On 15 March 2021, four days after the date by which the appellants were ordered to vacate the respondent’s premises per paragraph 4 of the Order made on 18 February 2021, the appellants filed an application for interim or other orders dated 12 March 2021 by which they applied for an order that paragraphs 1, 2 and 3 of the Order made on 18 February 2021 be stayed until 1 April 2021.
15.In support of their application, the appellants stated that their son “has secured a tenancy and will permit [the appellants] to reside in that property.” The appellants attached the cover page of a lease to Hasin Hussain commencing on 30 March 2021.
16.On 19 March 2021, the Tribunal, per Senior Member Orlov, heard the appellants’ application filed on 15 March 2021. Mr Christiansen, solicitor, appeared for the appellants. On that day, Senior Member Orlov dismissed the application. Senior Member Orlov’s bench sheet states:
1. Dismissed the application for interim or other orders filed on 15/3/21.
Reasons for decision given orally. In short
a.T[ribunal] does not have jurisdiction to stay the orders (1, 2 3) made on 18/2/21 or to stay execution of the warrant for eviction issued on 18/3/21
b.if I am wrong I would refuse the application on discretionary grounds.
17.The appellants still have not vacated the property.
18.On 29 March 2021, the appellants filed their application for appeal against the decision of the Tribunal, per Senior Member Orlov, made on 19 March 2021 and their application for interim or other orders seeking a stay of the warrant for eviction until 13 April 2021. At hearing, the appellants made clear that they also sought a stay of the orders made on 19 March 2021.
19.I heard both applications on 31 March 2021. Mr Hussain and Ms Bilkis participated by telephone, as did the respondent’s real estate agent, Ms Vaneyk, and the respondent’s sister, Ms Young.
20.Mr Hussain and Ms Bilkis relied on Mr Hussain’s medical condition and Ms Bilkis’ inability to lift heavy items as reasons for why I should stay Senior Member Orlov’s orders. They spoke about taking active steps to vacate the property and the practical difficulties they faced in doing so prior to the Easter break. They sought another week by which, they said, they could vacate the property. They spoke about getting help to move, but it would not be possible until after Easter Sunday.
21.At hearing, I explained to Mr Hussain and Ms Bilkis that before considering the merits of whether they should be given further time to vacate, I needed first to know the legal basis upon which the Tribunal could give that time. Mr Hussain and Ms Bilkis said that they did not know of a legal basis upon which I could make the orders they sought. They said they were “not lawyers”, and repeated (several times) their submissions about Mr Hussain’s medical condition and the hardship they would face if not given more time to vacate.
22.I expressed my view to Mr Hussain and Ms Bilkis that the Tribunal does not have power or authority to give them more time to vacate. I referred to section 47(2) of the RT Act, which permitted the T and P order to be suspended, but for “no more than 3 weeks”. I noted that, under the orders made on 18 February 2021, the Tribunal had already suspended the T and P order for the maximum permissible period.
23.I explained to Mr Hussain and Ms Bilkis that I could not see any error in Senior Member Orlov dismissing their application filed on 15 March 2021 for lack of jurisdiction because section 47(2) of the RT Act prohibits the suspension of a T and P order for more than three weeks.
24.In my view, consistent with Senior Member Orlov’s order, to “stay” paragraphs 1, 2 and 3 of the Order made on 18 February 2021 would be (or would have been) to suspend them contrary to section 47(2) of the RT Act.
25.Where I could not see any error in the decision of Senior Member Orlov, and where the appellants did not refer to any power held by the Tribunal to stay paragraphs 1, 2 and 3 of the Order, I determined that the application for interim or other orders and the application for appeal should be dismissed. To delay making final orders in response to both applications, in circumstances where no arguable basis was put forward in support of either application, would be to enable the appellants to continue living in the property without any legal right to do so. The Tribunal’s process should not be used to cause such an outcome.
26.It followed that I saw no basis to stay the warrant for eviction, even if the Tribunal has power to do so.
27.Ms Vaneyk said that officers of the Australian Federal Police would soon be taking appropriate action under the warrant to evict the appellants. It is regrettable that the respondent has been forced to go to such lengths in order to regain lawful possession of his own property, in addition to their many attendances at the Tribunal in response to the appellants’ many applications.
28.It is also regrettable that the appellants now face action to evict. However, it is a circumstance of their own making. They have known since 19 November 2020 that they needed to vacate the property by 15 January 2021 under the notice to vacate. They exercised their legal right to challenge the notice to vacate with partial success and that they obtained a right to remain in the property until 11 March 2021. They have known since 18 February 2021 that they were under order to vacate the property by 11 March 2021. Difficulties in obtaining alternative accommodation or undertaking the practical work necessary to vacate are not sufficient reasons to disregard the Tribunal’s order.
29.Notwithstanding my discussion with Mr Hussain and Ms Bilkis about the Tribunal’s need for legal authority to stay paragraphs 1, 2 and 3 of the orders made on 18 February 2021, and my explanation for why, in my view, no such authority existed and so there is no error by Senior Member Orlov in dismissing their application for lack of jurisdiction, Mr Hussain insisted that he would be taking the matter to the Supreme Court of the ACT. In these circumstances, to enable the Court to understand the background to any application Mr Hussain and/or Ms Bilkis might make to the Court, I am publishing these reasons for decision on an urgent basis.
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Presidential Member G McCarthy
Date(s) of hearing 31 March 2021 First Appellant: In person Second Appellant: In person Respondent: Ms K Vaneyk, authorised representative
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