James Swannson – v.- Australian National University t/as Graduate House
[2006] ACTRTT 5
•18 January, 2006
James Swannson – v.- Australian National University t/as Graduate House ACTRTT5 [2006]
CATCHWORDS
Occupancy agreements
Termination without cause
Incorporating by reference terms into a lease
ISSUES
Whether the Residential Agreement at Graduate House is an occupancy agreement for the purposes of the Residential Tenancies Act 1997
Whether the terms of the Graduate House Handbook as amended from time to time form part of the lease or only the Handbook in force at the time of entering the lease
LEGISLATION
Residential Tenancies Act 1997 (ACT)
sections: 71C(1)(d)
prescribed terms:
CASES CITED
French v Trustee of the Roman Catholic Church [2005] ACTRTT 7
V.A. Allen v Flagship Leisure Parks [2005] ACTRTT;
Royal Botanical Gardens and Domain Trust -v- South Sydney C. C. 2002 HCA 5; Allianz Australia Workers Compensation NSW Ltd —v- PPG Industries P/L ACTCA 28;
Crate v Miller [1947] KB 946;
Commonwealth Life (Amalgamated) Assurance Ltd v Anderson [1945] 46 SR (NSW) 47
Case Reference Number: RT 1591 of 2005
Re: Room 222, Graduate House, Garran Road, ANU, ACT 0200
Decision
1. That the application is dismissed for want of jurisdiction on part of the Tribunal.
Member: A. Anforth
Date: 18 January, 2006
STATEMENT OF REASONS
Background:
1. This dispute concerns a resident at Graduate House at the Australian National University. Graduate House provides long term affordable accommodation to post graduate students at the ANU in the nature of self contained flats or apartments with some shared communal facilities.
2. The Applicant took up residence on 20 December 2001 at which time he was a full time PhD student. He entered a “Residential Agreement” which set out the terms of his right to occupy the premises. This agreement incorporated by reference the terms of the current Graduate House Handbook which contained various house rules and the like.
3. The Applicant experienced a range of personal and financial crises in later 2004 as a consequence of which he could not afford to continue his study full time. He took part time employment and continued to his studies on a part time basis from the beginning of 2005.
4. The Applicant was active as a student representative at Graduate House which brought him into some conflict with the management. In addition, throughout 2004 and 2005 the Applicant developed his own particular set of personal grievances with the management of Graduate House. In short these related to disputes over room inspections, pest control, dispute resolution processes, security concerns and maintenance issues.
5. Whether as a consequence of these particular grievances or not, the Master of Graduate House determined to issue a notice dated 5 September 2005 terminating the Applicant’s residency on the basis that he was no longer a full time student.
6. The Applicant takes issue before the Tribunal with the right of the Master to issue this notice on the basis that his residential agreement conferred on him a right of tenure which could only be terminated for misbehaviour, rent default or if he “completed, terminated or suspended” his course. The Applicant contended that merely reducing to a part time study load did not constitute “completing”, “terminating” or “suspending” his PhD course.
7. Before the Tribunal the Applicant also sought to take issue with the ANU concerning his various particular grievances.
8. It was common ground between the parties that the present residential agreement fell within the scope of section 6F(1)(d) Residential Tenancies Act 1997 (the Act) and was therefore not a “residential tenancy agreement” within the meaning of the Act.
9. The Applicant contended that his residential agreement was an “occupancy agreement” within the meaning of Part 5A Residential Tenancies Act 1997 and accordingly the Tribunal had jurisdiction to hear and determine the dispute. The ANU denied that the agreement constituted an “occupancy agreement” within the meaning of Part 5A and accordingly denied that the Tribunal had any jurisdiction to hear and determine the matter.
10. It seemed to the Tribunal that the residential agreement was, if nothing else, a tenancy at common law and that the Magistrate’s Court would have jurisdiction to entertain the dispute. This fact did not however necessarily deny that the residential agreement may also be an “occupancy agreement” within the meaning of Part 5A.
11. For reasons of economy of time and resources, the Tribunal determined to deal with the dispute over its jurisdiction prior to embarking on the merits of the Applicant’s particular grievances. Only if the Tribunal determines that the residential agreement is an “occupancy agreement” within the meaning of Part 5A will the Tribunal then turn its attention to the Applicant’s particular grievances.
The application:
12. The Applicant lodged an application with the Tribunal on 20 September 2005 seeking orders:
· To allow the occupancy of the Applicant to continue, and
· To continue with full entitlement to security and quiet enjoyment of the Applicant’s home.
· For personal damages of $4,334 for the distress caused by loss of security and quiet enjoyment of the Applicant’s home and for the distress and loss of earnings caused by the failure of the Respondent to resolve the dispute through reasonable process.
· For punitive damages of $5,665 for the failure of the two principal managers of residential accommodation at Australian National University, the Master of University House & Graduate House and the Director of Accommodation to engage adequately in negotiations initiated by the Student Association and residential representatives prior to the effect of the Residential Tenancies Amendment Act 2004 for the development of policies and procedures consistent with the Occupancy principles, including a satisfactory dispute resolution procedure.
13. The Application was accompanied by a statement of particulars which set out at length the Applicant’s various grievances with the management of Graduate House.
14. Annexed to the statement of particulars was a copy of the Graduate House Residential Agreement dated 20 December 2001, which applied to the Applicant at the commencement of his residency, together with various other documents of historical relevance to the disputes concerning the Applicant’s particular grievances:
GRADUATE HOUSE RESIDENTIAL AGREEMENT
I, James Swanson accept membership of the Graduate House for the period from 20/12/01 (or) until this Residential Agreement is terminated, whichever is the earlier. To accept membership I agree to pay a refundable deposit equal to four weeks rent, and to pay four weeks rent in advance as set out in the Graduate House Schedule of Fees, as amended from time to time. I agree thereafter to pay my rent two weeks in advance in a manner determined by the Management Committee of Graduate House ("the Management Committee"). If I fail to pay my rent two weeks in advance the Manager is authorized to terminate this Residential Agreement.
I have read the current Graduate House Handbook ("the Handbook") and agree to comply with the regulations in the Handbook, especially with regard to maintaining my residential room, guests, field work concession and absences from Graduate House. I also agree to comply with the statutes, orders, rules and policies of the Australian National University ("ANU") and regulations of the Management Committee, as approved or amended from time to time. I also agree to pay for the other fees and charges incurred as detailed in the Schedule of Fees and I also agree to abide by any directions given by the Manager.
I agree not to engage in unacceptable behaviour which includes, but is not limited to, intentionally causing injury to fellow members or causing damage to Graduate House or personal property contained therein, excessive noise, loud music, excessive drinking or any behaviour deemed unacceptable by the Management Committee. If my behaviour is deemed unacceptable, the Manager is authorised to terminate this Residential Agreement immediately.
I agree that if an unauthorised guest stays in my residential room at Graduate House, the Manager is authorised to terminate this Residential Agreement immediately.
I agree that I am required to notify the Manager of the completion, termination, or suspension of my course at ANU. I agree that if my course is completed, terminated or suspended, the Manager is authorised to terminate this Residential Agreement immediately or at a later date agreed to by the Manager.
This Residential Agreement may be terminated, other than as stated above, by me when giving 30 days notice to the Manager.
If this Residential Agreement is terminated, the Manager is authorised to deduct an appropriate amount from my refundable deposit if I owe rent to Graduate House and/or if I am liable for any costs associated with repair of damage, cleaning, or the replacement of items in Graduate- House.
I authorise the Manager to access my enrolment details and academic results and understand that they are made available to Graduate House for the purpose of determining my status as a postgraduate student of ANU.
This Residential Agreement immediately supersedes all previous residential or tenancy agreements with Graduate House that I may have previously signed.
(emphasis added)
15. Also annexed to the statement of particulars was the letter of 5 September 2005 from the Master of Graduate House to the Applicant purporting to notify the Applicant of the termination of his right of residency as at the end of November 2005. This letter is later referred to as the Notice of Eviction. The Notice was based only on the change in status of the Applicant from a full time to part time student. It read:
On several occasions in the past months you have mentioned to me that you are now in employment at the University of Canberra. If I am correct, that employment is full-time and you have varied your PhD enrolment to part-time.
I draw your attention to the Section entitled "Criteria for Admission" on page 9 of the current handbook for Graduate House at which it says that students at Graduate House should be full-time postgraduate candidates and that I may approve those studying part-time to remain as residents of Graduate House. You will note the reason for this is due to the fact that Graduate House was established to provide lower cost accommodation to full-time postgraduate students who are not supported by a salary and may be unable to pay the market rate for equivalent accommodation elsewhere. I understand you have indicated to the Administrative Manager that you are currently studying part-time whilst undertaking full-time employment at the University of Canberra.
If this is the case and you have changed your enrolment to part-time, I am prepared, on compassionate grounds, to allow you to remain as resident in Graduate House to the end of November. Should your status be varied back to full-time during that period you would need to advise me immediately so that I can revisit this decision.
I now refer to your recent email correspondence in respect of painting and room maintenance. Even though you acknowledge yourself in your email of 19 August that the room needs painting, you have not been prepared to cooperate with the schedule set by Graduate House. I find that regrettable. Also, in your emails of 19 and 22 August you appear to be choosing not to cooperate with Graduate House in respect of assisting regular room inspections for maintenance and cleaning purposes. I find that unacceptable.
Therefore I hereby request, consistent with the provisions under "Cleaning" on page 18 of the Handbook, that you make arrangements with the Administration Manager, not less than one week from the date of this letter, to agree a schedule, not more than 3 weeks hence, during which a room inspection can be carried out. I also require you to facilitate that inspection by moving your belongings and carpets as directed by the Administration Manager.
I look for your cooperation. Should you wish to discuss these matters with me I would be happy to meet with you.
16. The matter was listed before the Tribunal on 13 October 2005. On that day the Applicant appeared in person and Ms Brown, solicitor appeared on behalf of the ANU.
17. The ANU tendered to the Tribunal a lengthy submission on the Tribunal’s jurisdiction in which it appears:
· to accept that the agreement is a Occupancy Agreement within the meaning of Part 5A of the Act:
· therefore the Tribunal has jurisdiction
· to submit that the terms of the new 2005 Graduate House Handbook are applicable to the Applicant.
18. That submission read:
I refer to the hearing of this matter, which is set down for 13 October 2005.
The University intends to defend the complaint made Mr James Swansson ('the Applicant') on 14 September 2005 and received by the University on 23 September 2005.
For the purposes of that defence, the University makes the following submissions.
Jurisdiction of the Tribunal
The Tribunal has jurisdiction to hear complaints only to the extent that they involve occupancy agreements on the University's campus (see section 6F(l)(d) of the Residential Tenancies Act 1997 (ACT) ('the Act')).
To the extent that the Applicant's complaint rests on his occupancy being regarded as a 'residential tenancy' it is outside the jurisdiction of the Tribunal.
On this issue the University submits that the Applicant's reference to concepts such as the payment of bonds and the restoration of his occupancy agreement are not within the jurisdiction of the Tribunal.
In relation to the restoration of the Applicant's occupancy, the University refers to the orders the Tribunal may make in relation to either a residential tenancy dispute or an occupancy agreement. Section 104(f) of the Act gives the Tribunal the power to restore a residential tenancy agreement and grant the former tenant possession of the premises from which they were evicted. As this section specifically refers to an order the Tribunal may make in relation to a residential tenancy agreement, the University submits that that the power to make such an order does not extend to occupancy disputes, to which the Applicant's complaint relates.
Terms of the Occupancy Agreement
All residents of Graduate House are required to enter into an occupancy agreement. The Applicant entered into an occupancy agreement on 7 December 2001 ('the Occupancy Agreement ). The Occupancy Agreement is attached as Attachment 2 to the Applicant's application.
Period of Notice
Given the short term nature of university on-campus accommodation, University occupancy agreements operate on a periodic basis. Under the Occupancy Agreement signed by the Applicant, the Applicant agreed to pay rent fortnightly, in advance. The Applicant also agreed that the Manager of Graduate House would have the ability to terminate the Occupancy Agreement if the Applicant failed to pay his rent two weeks in advance.
As a result of this arrangement, the University is obliged to give residents of Graduate House (including the Applicant) a minimum of two weeks notice before an occupancy agreement is terminated.
The University draws the Tribunal's attention to subsection 71C(d) which states that under an occupancy agreement, the grantor may terminate the agreement, without cause, by giving less than 6 months notice, provided the period of notice is reasonable (s 71E(h). The University submits that the period of notice given to the Applicant (almost three months) is more than the Applicant is entitled to under the Occupancy Agreement and is reasonable' under section 71E(h) of the Act.
Refundable Deposit
As agreements signed by residents are occupancy agreements, the University does not
require residents to pay a bond at the commencement of their residency. Residents are
requested to pay a refundable deposit at the commencement of their residency.As a result, Part 3 of the Act, which deals with the payment of bonds, does not apply to this complaint, as asserted by the Applicant in his Application to the Tribunal.
Graduate House Rules and Regulations:
Enrolment Status
Under paragraph 2 of the Occupancy Agreement the Applicant agreed to comply with the regulations in the Graduate House Handbook.
Attached as Attachment 2 (page 2 of 3) to the Applicant's application is an excerpt from the previous Graduate House Handbook. On page 3 of the handbook, it states that residents of Graduate House agree to comply with the rules and regulations contained in the residential agreement and the Graduate House handbook, as amended from time to time.
This handbook was replaced in 2005 by the 'Graduate House 2005 Handbook for Resident Postgraduates', which is attached as Attachment B to this submission.
Page 9 of the 2005 Handbook refers to the 'criteria for admission' to Graduate House. One of the criteria for admission is that the resident must be enrolled in a full-time postgraduate degree at the Australian National University. The 2005 Handbook states the reason for this is because Graduate House is designed to accommodate those graduate students who are being supported by scholarship income (rather than full-time wages or salary) and may be unable to pay the accommodation rates charged in the private sector residential market.
Page 9 of the 2005 Handbook states that, "On occasions, and with the approval of the Master, part time postgraduate students may be granted residency".
Page 10 of the 2005 Handbook, under the heading 'Period of Stay' , states that residents may be permitted to stay at Graduate House while they are enrolled in a postgraduate degree program and up to 3 or 4 weeks after they have completed their studies.
The 2005 Handbook also states that it is the responsibility of the resident to notify the Administration Manager of any change in their enrolment. On this issue the University refers to paragraphs 76 to 89 of Ms Gina Denman's affidavit of 5 October 2005.
The University submits the Applicant's statement in his email to John Richards of 20 April 2005 that he would have completed his PhD by September/early October 2005, was accepted by Ms Denman (as demonstrated by her reply of 23 May 2005) and Professor John Richards (in his statements in paragraphs 26 to 34 of his affidavit of 10 October 2005). As a result, the terms of the Occupancy Agreement were varied to take into account the Applicant's completion of his PhD in September/early October 2005 and the letter from Professor Richards to the Applicant of 5 September 2005 extended the period notice for a further three months, to the end of November 2005.
Room Inspections
The University refers the Tribunal to paragraphs 49 to 75 of Ms Gina Denman's affidavit of 10 October 2005; paragraphs 13 to 25 of Professor John Richard' affidavit of 10 October 2005; and paragraphs 24 to 36 of Mr Scan Moroney's affidavit of 10 October 2005.
Page 18 of the 2005 Handbook also details the room inspection process and refers to the bi-annual room inspection process. The University submits that the under section 71 E(e) the University is permitted to enter the Applicant's room for the purposes of carrying out inspections. The University rejects the Applicant's assertion that the bi-annual room inspection process, which had been in place when the Applicant became a resident of Graduate House, infringes upon the Applicant's entitlement to quiet enjoyment of his room.
Maintenance Projects
The University refers the Tribunal to paragraphs 3 to 48 of Ms Gina Denman's affidavit of 10 October 2005; paragraphs 3 to 25 of Professor John Richards' affidavit of 10 October 2005: and paragraphs 5 to 23 of Mr Scan Moroney's affidavit of 10 October 2005.
The University submits that the under section 71E(e) the University is permitted to enter the Applicant's room for the purposes of carrying out repairs or other reasonable purposes, which includes maintenance that forms part of the cyclical maintenance of Graduate House or is at the request of the Applicant. The University rejects the applicant's assertion that this maintenance, some of which was instituted at the specific request of the Graduate House Common Room Committee and the Applicant, infringes upon the Applicant's entitlement to quiet enjoyment of his room.
Dispute Resolution
As Graduate House is part of the University it is subject to the internal dispute resolution processes of the University. The dispute resolution process is described in paragraphs 35 to 41 of Professor John Richards' affidavit of 10 October 2005.
The University submits that the Applicant was invited on a number of occasions to use this process in correspondence from both Mr Sean Moroney and Professor John Richards, but did not choose to accept this invitation.
Order/Compensation
The University submits that there has been no breach committed by the University in relation to the Occupancy Agreement and therefore the Applicant is not entitled to compensation.
However, if the Tribunal were to find the University had committed a breach the University submits that:
• In so far as the Applicant is seeking damages for the costs involved in preparing and conducting his complaint, the University submits that, as a self-represented litigant, the Applicant is not entitled to such costs.
• the Applicant has not provided evidence of lost wages to support his claim for compensation.
The University also submits that the Applicant does not have standing to make an application for compensation in relation to a third party, being the ANU Students' Association and the Postgraduate and Research Students' Association. The University also submits that the application for compensation for these third parties is irrelevant to the Occupancy Agreement. On this issue the University submits that the tribunal does not have jurisdiction to deal with that part of the Applicant’s complaint which relates to the alleged failure of the University to engage in representative initiated negotiation, resulting in the alleged absence of a reasonable dispute resolution process and is irrelevant to the Occupancy Agreement.
19. Annexed to the ANU’s submission were the following documents:
(a)An affidavit with various annex ures from John Richards, Master of Graduate House, dated 10 October 2005. In addition to dealing with Applicants particular grievances, the affidavit relevantly read:
Enrolment Status
26.We operate Graduate House as a residence for full-time graduate students. One of the criteria for admission and residency at Graduate Houser is that students maintain their full-time enrolment status. This is reflected in the rates charged for rooms at Graduate House, which are lower than in the rental industry.
27.The 2005 Graduate House Handbook provides that it is the responsibility of the resident to notify the Administration Manager (Ms Denman) when their enrolment status has changed. Where a resident has notified Ms Denman and requested to stay on at Graduate House, Ms Denman will refer the matter to me for decision and I will normally consider such factors as health problems, family difficulties or impending completion of degree, when making my decision.
28.I understand the Applicant changed his status of enrolment to part-time after he commenced full-time employment at the University of Canberra at the beginning of 2005. I recall he advised me of that sometime early in 2005 during a conversation in the Hall at University House dinner in which he indicated that he was 'doing well' and had found some full-time employment at the University of Canberra. At the time I recall I was concerned by the fact that the Applicant had indicated he was working full-time and wondered how this would impact on his studies, but I choose not to explore this issue further with the Applicant, as I did not consider it to be the appropriate time.
29.It was not until 20 April 2005 that 1 recall receiving any form of notification from the Applicant. I recall the Applicant's email was also addressed to the Director of the Research School of Physical Science and Engineering. In the email the Applicant stated "Most of you will now be aware that I have commenced working at the University of Canberra, where 1 am project manager of the University Governance Professional Development program. The position is fulltime, fixed term until the end of 2005".
30.The Applicant continued by saying that whilst he "may have been categorised as an "at risk" PhD candidate" he hoped to complete his PhD by the end of 2005.
31.I recall at the time I decided on compassionate grounds, not to take immediate
action in response to the Applicant's email, as his partner, who was also a resident of Graduate House, had died in August 2004.
32.I recall I was also alerted to the Applicant's change in status by Ms Denman, following her semestral check of resident's enrolment status in May 2005. As I had decided in April 2005 not to pursue the matter at that time, I did not instruct Ms Denman to take any further action in relation to the matter.
33.However, after discussing the Applicant's above-mentioned complaints with Ms Denman and Mr Moroney in August 2005 and my exchange of emails with the Applicant during that time, I decided to formally raise the subject with the Applicant in my letter to him of 5 September 2005.
34.In my letter I referred the applicant to the relevant sections of the Handbook
dealing with 'Criteria for Admission' and the fact that Graduate House provides lower cost accommodation for full-time students. I also stated that if the Applicant had changed his enrolment to part-time to undertake full-time employment, I was prepared on compassionate grounds for him to remain a resident until the end of November 2005, which was almost 3 months from the date of my letter. 1 also indicated that should the Applicant's enrolment status revert to full-time study I was prepared to revisit the decision. Annexed to this affidavit and marked "E" is a copy of my letter to the Applicant of 5 September 2005.
(b)An affidavit from Sean Moroney, General Manager of Graduate House, dated 10 October 2005 which dealt only with the Applicant’s particular grievances.
(c)An affidavit of Gena Denman, Administration Manager of Graduate House dated 10 October 2005, which dealt with the Applicant’s particular grievances and also relevantly read:
Enrolment Status Checks
76.One of the criteria for admission to Graduate House is that residents are enrolled as full-time postgraduate student of the Australian National University. This requirement is expressed on page 9 of the 2005 Graduate House handbook, which is attached as "EE" to this affidavit.
77.The Handbook states that the reason behind this requirement is because the accommodation rates charged at Graduate House are significantly lower than in the private rental sector.
78.This requirement also applies throughout a resident's residency at Graduate House. On page 10 of the 2005 Graduate House Handbook a resident is required to notify me if they have completed their studies, submitted their thesis or if their enrolment status changes.
79.Graduate House also monitors each resident's enrolment via an enrolment status check, which is conducted each semester shortly after the Higher Education Contribution Scheme ('HECS') census dates.
80.As part of this process, Graduate House supplies a list of all currently enrolled residents to University Accommodation Services (UAS) who run a check of the enrolment status of each resident using the University's student database system. UAS then supply a spreadsheet of those students whose enrolment status has changed to part-time.
81. I then contact the residents listed in the spreadsheet to discuss their enrolment status.
82.On some occasions, students who have spread their enrolment out across the non-standard sessions (i.e. Summer, Winter, Spring, Autumn), may be reported on the system as having a part-time load for a particular semester.
83.However, usually the students listed in the spreadsheet will be those who are approaching the completion of their degrees and will only have a few units left to complete, which results in a part-time load. On these occasions, I am willing to work out an arrangement with the resident to enable them to stay on at Graduate House until they complete their degree.
84.Arrangements are also made and approved by Professor Richards in relation to student who are suffering health problems or family difficulties, which require them to study on a part-time load for a semester.
85.However, these arrangements do not extend to enabling residents to remain at Graduate House who have converted their full-time enrolment to a part-time enrolment, without special circumstances or for the purposes of full-time employment (such as in the Applicant's case).
86.As a result of the last enrolment status check I conducted in April 2005, I was alerted to the fact that the Applicant's enrolment was no longer full-time. Annexed to this affidavit and marked "FF" is the section of the spreadsheet supplied by University Accommodation Services which lists the Applicant's enrolment status as part-time.
87.I drew this to the attention of the Applicant [via a short notice in his mailbox (as I did with other residents)] requesting to meet with him regarding his enrolment.
88.Shortly after this correspondence I received an email from the Applicant on 22 May 2005. In his email the Applicant stated "I can't remember what I have said already or forwarded via JR [Professor Richards] but, at the risk of duplication, with the current work and study schedule I should submit sometime between September and November, so I'd expect to leave at the end of the year". Annexed to this affidavit and marked "GG" is a copy of the Applicant's email to me of 22 May 2005.
89.I responded by return email on 23 May 2005 indicating that the information sounded fine to me but that Professor Richards would follow the matter up with the Applicant if he has any queries or concerns, as I was conscious that the decision to allow the Applicant to stay on was Professor Richard's to make. Annexed to this affidavit and marked "HH" is a copy of my email to the Applicant of 23 May 2005.
(d)A copy of the 2005 edition of the Graduate House Handbook formed annexure T to the affidavit of Ms Denman. The relevant parts read:
Criteria for Admission
Students seeking long-term accommodation at Graduate House should be full time postgraduate candidates of The Australian National University or postgraduate students visiting from other universities. On occasions, and with the approval of the Master, part time postgraduate students may be granted residency. Because the accommodation rates at the House are significantly lower than the private sector residential market, the student rooms are for those postgraduates generally being supported financially by scholarship income rather than by full time wages or salaries.
Waiting List
Students seeking accommodation at the House need to complete an Application for Residence form. This is available on the Student Accommodation page of the University Accommodation Services (UAS) website at a room is available an applicant may be admitted immediately. If no room is available, applications are filed in the date order received with appropriate allowance for the dates actually required. Once a room becomes available, it is offered to the next student on the waiting list. If a room is not required any longer, their name is removed from the list.
Period of Stay
Students may stay at Graduate House as resident postgraduates while soever they are enrolled for their program of studies/research, up to the time they complete studies or submit their thesis. Generally, residents are allowed to stay 3 or 4 weeks beyond completion of studies or thesis submission to give them time to finalise their affairs with the University. In exceptional circumstances, students may apply to the Master to stay in residence longer.
A contract between the student and Graduate House will be signed for the time ranging from the date of arrival to the end of the calendar year. A new contract will be signed prior to the expiration of the previous one in force and will cover the period from 1 January of the following year for the period of stay required (in such case where a PhD resident has submitted their thesis) or to the end of the year, whichever is applicable, and so forth.
The minimum period of stay is 28 days. In some circumstances a shorter period will be approved and is a decision made by the Administration Manager, depending on room availability and the of the existing waitlist.
It is the responsibility of the student to advise the Administration Manager that they have completed their studies, submitted their thesis or if their enrolment status has changed.
…
LEAVING THE HOUSE
Departures
Residents may only be relieved of their obligations as stated in their Room Agreement with the permission of the Administration Manager.
Residents may leave at the end of their studies if the duration of their course is less than the room agreement, provided they have given four weeks written notice to the Administration Manager. A Termination of Room Agreement form obtainable from reception needs to be submitted outside the four-week period. If less than four weeks written notice is given, the student will be charged rent for each day in lieu of adequate notice. One to two days prior to departure, the room will be inspected and the deposit returned, subject to any charges for damage or unpaid accounts. All keys handed out upon arrival must be handed back to reception. Charges applied for lost keys as noted earlier. All bedding supplied by Graduate House must be freshly laundered and ready for use by the next student.
You must see the Administration Manager who will arrange for the refund of your room deposit. Please make sure that the furniture in your room complies with the room inventory. You will be charged for any missing furniture.
Residents who suspend (or defer) their studies during the year will need to give written notice to the Administration Manager four weeks prior to the cessation of their studies. Depending at which point of the year notice is given, the resident may receive a partial refund of their deposit.
Please note that residents who break their Room Agreement will forfeit their deposit.
Expulsion from the House
Any resident whose Room Agreement is terminated because of a finding of a breach of a House will forfeit their room deposit.
(Emphasis added).
20. At the hearing the ANU tendered a copy of the Handbook which was in force at the time the Applicant entered the residential agreement. The handbook relevantly read:
[RESIDENTIAL] Agreement
Each new and returning resident of Graduate House is required to sign a Residential Agreement: Under this Agreement, the resident becomes a member of Graduate House and agrees to be bound by the rules and regulations contained in the Residential Agreement and the Graduate House Handbook, and the Schedule of Fees, as amended from time to time. Members are also required to comply with legislation and policies of ANU and regulations of the Management Committee of Graduate House, as approved or amended from time to time. The rental fees and other charges are outlined in the Schedule of Fees. Members have an obligation to read these documents carefully. A member must notify the Manager of any special requirements or disabilities that may affect their use of Graduate House, its facilities, or that may affect the lives of others in the House. An ANU disability officer is available if a member requires assistance.
Completion, Termination or Suspension of Course
A member is required to notify the Manager of the completion, termination, or suspension of their course at ANU. Completion, termination or suspension of a course usually requires the member to vacate their room in Graduate House unless prior arrangements have been made with the Manager. In circumstances where a member's course is completed, the member must give a minimum of four (4) weeks written notice of permanent departure from Graduate House by completing a Termination of Residential Agreement Form (which can be obtained from the Manager) and indicating on it a tentative departure date. Receipt of the Form will be acknowledged in writing by the Manager and the member will be advised of the procedure for departure. If less than four (4) weeks written notice is given, the member will be charged rent for each day in lieu of adequate notice. Members may apply through the Manager to the Chairperson of the Management Committee for up to three (3) months from the date of submission of their thesis in which to vacate their room. Members whose courses are suspended, for whatever reason or for whatever period, must apply through the Manager to the Chairperson of the Management Committee for permission to retain their membership during the period of suspension.
(emphasis added)
21. The parties agreed that the Applicant’s accommodation was in the nature of a self contained apartment with the Applicant enjoying an exclusive right of occupancy of his unit and a non-exclusive right to use common areas of Graduate House.
22. Before the Tribunal the Applicant outlined the nature of the dispute which had arisen between himself and Graduate House concerning room inspections, dispute resolution processes, pest control, security concerns and the painting of his apartment. The Applicant contended that these disputes in part led to the Notice of Eviction of 5 September 2005 being issued by the Master of Graduate House, notwithstanding that on its face the Notice of Eviction purported only to be issued on the basis that the Applicant was no longer a full time student.
23. The Applicant sought orders that:
(a)The Notice of Eviction be set aside by the Tribunal
(b)The dispute resolution mechanisms in the Residency Agreement and Handbook be implemented
(c)Graduate House pay him monetary compensation for breach of quiet enjoyment.
24. Ms Brown for the ANU contended that the residential agreement between the ANU and the Applicant was breached when the Applicant ceased to be a full time PhD student at the beginning of 2005 such that the Master then had the right to evict the Applicant. The Applicant’s continued right of residence beyond this point was only by reason of the Masters decision to invoke the “special” or “exceptional” circumstances clause to be found in the 2005 Handbook.
25. The Applicant contended that the residency agreement with the ANU was an “occupancy agreement” within the meaning of Part 5A Residential Tenancies Act 1997 and the Tribunal therefore had jurisdiction to hear and determine the dispute.
26. The Applicant contended that his residential agreement incorporated by reference only the terms of the Handbook applicable at the time of entering the residency agreement in December 2001 and not amended version of the 2005 Handbook.
27. The Applicant contended that there was nothing in his residential agreement, or the Handbook in force at that time, which caused his right to residency to end if he ceased to be a full time PhD student. To the contrary the residential agreement and the Handbook provided a right to continued residence subject only to exclusion for misbehaviour, rent default or “the completion, termination or suspension” of his course. He further contended that there was nothing in these documents about part time students being allowed to remain in residence only in “special” or “exceptional” circumstances.
28. The Tribunal raised concerns that it may lack jurisdiction by reason of the fact that the residential agreement may not be an “occupancy agreement” within the meaning of Part 5A of the Act. In particular the Tribunal was concerned that the agreement may not satisfy section 71C(1)(d) in that the agreement may not provide for the ANU to terminate the agreement, without cause, by giving less than 6 months notice.
29. The Tribunal expressed the preliminary view that:
(a)The residential agreement incorporated by reference only the Handbook as it existed at the time the agreement was made and not subsequent variations of that Handbook:
(b)But irrespective of whether the residency agreement incorporated the latest version of the Handbook, the agreement could only be terminated for cause, namely misbehaviour, rent default or that the Applicant had ceased to be a PhD student, whether full time or part time.
30. Initially, the parties consented to the Tribunal hearing and determining the matter, whether the agreement was an “occupancy agreement” or not, and therefore irrespective of whether the Tribunal possessed formal jurisdiction or not.
31. The Tribunal was mindful of the limitations on its right to take jurisdiction by consent in such circumstances (Allen v Flagship Leisure Parks P/L T/as Sundown Village RTT 1269/05) and accordingly adjourned the matter for submissions on the jurisdictional issue.
32. The ANU filed the following submissions:
RT 1591 of 2005: James Swansson v ANU
I refer you to the call over for this matter, which is set down for further hearing on 24 October 2005.
The hearing is principally concerned with the jurisdiction of the Residential Tenancy Tribunal to hear the complaint in light of the terms of the residency agreement entered into by the Applicant and the University ('the Residency Agreement').
The University submits that by virtue of the terms of the Residency Agreement, the Residential Tenancy Tribunal does not have jurisdiction to hear the Applicant's complaint.
Residency Agreement not a Residential Tenancy Agreement
The Residency Agreement is not a Residential Tenancy Agreement within the meaning of section 6A of the Residential Tenancies Act 1997 (ACT) ('the Act'). This is a result of subsection 6F(d) of the Act which expressly excludes from the definition of’ Residential Tenancy Agreement' those agreements which provide for the occupancy of premises on the campus of an educational institution. As Graduate House is located on the University campus, the University submits the Residency Agreement cannot be a 'Residential Tenancy Agreement' under the Act.
Residency Agreement not an Occupancy Agreement
The University also submits that Residency Agreement does not fall within the definition of an Occupancy Agreement under section 71C of the Act.
Under section 71C an occupancy agreement is defined by reference to five criteria:
(a) a person (the grantor) gives someone else (the occupant) a right to occupy stated premises; and
(b) the premises are for the occupant to use as a home (whether or not with other people); and
(c) the right is given for value; and
(d) the grantor may lawfully terminate the agreement, without cause, by giving less than 6 months notice; and
(e) the agreement is not a residential tenancy agreement.
With reference to subparagraph (d) above, the University submits that there is no provision within the Residency Agreement (or any relevant version of the Graduate House Handbook which forms part or may form part of that agreement) which permits the University to terminate the agreement without cause. As a result, the Residency Agreement cannot be defined as an 'Occupancy Agreement' under the Act.
The Residential Tenancy Tribunal was established with the specific purpose of hearing disputes related to 'Residential Tenancy Agreements' and 'Occupancy Agreements' and has no inherent jurisdiction to determine causes that are outside that scope. The University therefore submits that in so far as the Residency Agreement does not fall within the definition of either of these types of agreements, the Residential Tenancy Tribunal does not have jurisdiction to hear the Applicant's complaint.
33. The matter was next before the Tribunal on 24 October 2005. Mr Dalton of Welfare Rights and Legal Centre appeared for the Applicant and Ms Brown, solicitor appeared for the ANU. By consent the matter was further adjourned to 29 November 2005.
34. On 23 November 2005 Welfare Rights and Legal Centre filed the following submission on behalf of the Applicant:
SUBMISSIONS FOR THE APPLICANT
1. At the mention on 24th October 2005 the applicant sought clarification of the jurisdictional issue raised by the respondent and it was agreed that the only point remaining, to be addressed re the Tribunal's jurisdiction was whether or not the agreement between the parties satisfies one of the criteria for an occupancy agreement contained section 71C( l)(d) of the Residential Tenancies Act 1997
(1) An agreement is an occupancy agreement if-
…
(d) the grantor may lawfully terminate the agreement, without cause by giving less than 6 months notice, ….
In making these submissions the applicant is responding to the submission of the respondent in their letter to the Registrar of the Tribunal dated 19tn October 2005. Our understanding is that those submissions resile from the submissions made in a letter dated 10 October 2005 which appeared to accept the Tribunal’s jurisdiction in relation to the proposed termination of the agreement and concede the existence of an occupancy agreement under Part 5A of the Act.
2.Notwithstanding the jurisdictional issue raised above, there is no dispute that the applicant and respondent would satisfy the definitions of occupant (section 7IB) and grantor (section 71 A) respectively.
Interpreting Section 71C(l)(d)
3.This section was part of a suite of amendments to the Residential Tenancies Act 1997 passed by the Legislative Assembly in the Residential Tenancies Amendment Act 2004 which legislated for the concept of occupancy agreements, by inserting a new Part 5 A, to cover rights of occupation for living purposes where the existing provisions relating to residential tenancy agreements did not apply.
4.In the applicant's respectful submission section 71C(l)(d) should not be read as requiring a specific term, actually discussed and agreed upon by the parties, that the agreement may be terminated in less than six months without cause. To require a specific term would unduly narrow the operation of Part 5 A of the Act because every agreement that was absent the term would be precluded from becoming an occupancy agreement. A fortiori section 71C(1)(d) should not be read as requiring a specific written term in an agreement that allows for termination without cause with less than six months notice.
5.Narrowing the operation of Part 5A endangers the policy behind the legislature's 2004 amendments, as expressed in the Explanatory Statement tabled by the Attorney General on 24th June 2004:
"The existing Act does not deal with a number of agreements for the occupation of living premises. ...The Act is amended to apply to a -wide range of these agreements (not including those specifically excluded under proposed section 4 above) principally agreements of a short term nature (including licenses, boarders contracts and lodger contracts - these extend over a wide range of premises presently excluded from the Act, including caravan parks and student accommodation) [page 8: our emphasis].
6.The applicant respectfully submits that Graduate House is a form of student accommodation, that is excluded from the definition of a residential tenancy agreement of the Act by the now section 6F which states:
6F(1) A residential tenancy agreement does not include an agreement for the right to occupy premises if the premises are –
…(d) on a campus of an educational institution; ....
A similar provision existed prior to the 2004 amendments.
7.The exclusion of premises on the campus of an educational institution from the definition of a residential tenancy agreement means that the agreement between the applicant and respondent satisfies section 71C(l)(e) of the Act.
8.The applicant respectfully submits that it is the clear and stated intention of the legislature for Part 5A to apply to student accommodation.
9.The written agreement (Attachment 2 of the Application) is silent on whether or not the agreement may be terminated without cause. In situations of textual silence there should be a presumption that section 71C(l)(d) is satisfied. To decide otherwise would unduly narrow the operation of Part 5 A and defeat the legislature's purpose in passing this law.
10.The agreement between the applicant and respondent does not contain an express guarantee from the respondent that the contract will not be terminated without cause. A term of that kind would prevent the agreement from satisfying the criteria for an occupancy agreement, and without mat guarantee an agreement should be held to not offend section 71 C(l)(d). This would be in keeping the policy that the new Part 5A is to have wide application and include student accommodation. A guarantee of that type would change the nature of the agreement by indicating a different type of living purpose that part 5 A is not intended to cover.
11.The applicant accepts that in certain circumstances it may be necessary to look beyond the question of a guarantee of no termination without cause to the overall nature of the agreement., and consider particular aspects of the agreement as evidenced by the behaviour of the parties.
Actions of the Respondent -
Termination Without Cause With Less Than Six Months Notice
12. In a letter dated 5th September 2005 (Attachment 4 of the Application, pages 1 and 2) the respondent stated that:
" / draw your attention to the Section entitled "Criteria for Admission" on page 9 of the current handbook for Graduate House at which it says that students at Graduate House should be full-time postgraduate candidates and that I may approve those studying part-time to remain as residents of Graduate House....I understand that you have indicated to the Administrative Manager that you are currently studying part-time 'whilst undertaking full-time employment at the University of Canberra.
If this is the case and you have changed your enrolment to part-time, I am prepared, on compassionate grounds, to allow you to remain as resident (sic) in Graduate House to the end of November. ...
The clear inference to be drawn from the actions of the respondent contained in this document is that the letter is an attempt to terminate the agreement without cause with less than six months notice, in fact about two months notice is proposed. "Without cause" should be taken to mean without a breach of the agreement by the occupant that would justify termination by the grantor. The letter refers to admission criteria in relation to a student who was already an occupant.
13. A further clear inference that can be drawn is that the respondent's understanding of the nature of the agreement is that at least to some extent the applicant may remain a resident provided that the permission of the respondent is not withdrawn at some stage. The letter seeks to withdraw that permission. Withdrawing permission in this sense is terminating without cause. The behaviour of the respondent is consistent with a grantor who is trying to terminate an occupancy agreement without cause with less than six months notice.
14.The applicant does not concede that the respondent has served a valid notice of termination without cause with less than six months notice.
15.The respondent's decision to terminate the agreement is based on an internal policy that prefers residents to be full-time students, but provides a wide discretion to the respondent to approve part-time students. The respondent has chosen not to exercise that discretion in favour of the applicant. The applicant respectfully submits that the decision is consequently an attempt to terminate "without cause" and with less than six months notice. The respondent has attempted to withdraw their permission for the applicant to remain a resident.
16. The actions of the respondent indicate that the nature of the agreement is such that section 71C(l)(d) of the Act is not offended.
17.In the respondent's letter referred to above there should have been an opportunity given to the applicant to respond to the decision to terminate, and seek an exercise of the discretion to allow part-time students to reside in Graduate House in his favour. The failure to afford the applicant this opportunity adversely impacts on the reasonableness of the notice [per section 71E(l)(h)] and offends the rules of procedural fairness.
18.The respondent has raised this jurisdictional issue and through no fault on the part of the applicant this matter cannot be argued until 29th November 2005, one day before the end of November which was proposed as the termination date by the respondent.
19.Given the potential unfairness that would be caused to the applicant if the agreement terminated tomorrow the applicant respectfully requests that the Tribunal order that the termination be deferred until such time as lawful processes have been completed.
35. On 24 November 2005 the ANU filed the following further submission:
RT 1591 of 2005: James Swansson v ANU
I refer you to the further hearing of this matter, which is set down for 29 November 2005.
The hearing is principally concerned with the jurisdiction of the Residential Tenancy Tribunal to hear the complaint in light of the terms of the residency agreement entered into by the Applicant and the University ('the Residency Agreement').
The University has already made submissions regarding the jurisdiction of the Tribunal, by way of my letter of 19 October 2005. In response, the Applicant made submissions on 16 November 2005.
In reply to the Applicant's submissions, the University further submits the following:
1.The University submits that the Tribunal is a creature of statute and its jurisdiction is as provided by the legislation. The Tribunal has no 'inherent' jurisdiction and the parties are not able to confer jurisdiction by consent.
2. The components of an Occupancy Agreement, as set out in section 71C make it clear that in order for an agreement to be deemed an 'Occupancy Agreement' under the Residential Tenancies Act 1997 (ACT) ('the Act') the agreement must allow the grantor to terminate the Agreement, without cause and by giving less than six months notice. The University is unable to identify any case law which permits a contract, such as the Residency Agreement, to be terminated without demonstrating cause unless the concept of termination without cause is expressly provided for within the terms of the contract. The University further submits that to allow the interpretation advocated by the Applicant in paragraph 4 of his submission would not be in the interests of certainty in contractual relationships or the interests of the Applicant or occupants generally.
Implying a right to terminate in all occupancy agreements is a substantial alteration of the 'bargain' negotiated by the parties and it is the University's submission that clear legislative intent would be required to imply such a right where none exists. That intent is not evident in the provisions of the Act.
3.The University submits that there is no reason for the Tribunal to have reference to the Explanatory Memorandum for the Act given there is no ambiguity in the terms of the Act. On the contrary, the University submits that section 71C of the Act is quite clear as to what elements are required for an agreement to be considered an 'Occupancy Agreement'.
However, notwithstanding the above, the University makes the following submissions in relation to the terms of the Explanatory Memorandum.
With reference to the terms of the Explanatory Statement for the Residential Tenancies Amendment Bill 2004 that are excerpted in paragraph 5 of the Applicant's submissions, the University draws your attention to the words "principally agreements of a short term nature (including .... student accommodation)". The University also refers you to page 2 of the Explanatory Statement which provides an outline of the legislation and states:
"The Bill introduces the concept of an occupancy agreement and occupancy principles. Occupancy agreements are not residential tenancy agreements, but a range of arrangements that are granted for short periods of time (such as boarder or lodger agreements)" [our emphasis added].
Page 9 of the Explanatory Statement refers to the jurisdiction of the Tribunal in relation to these agreements and states:
"Firstly, the jurisdiction for determining disputes between occupants and lessors under short term occupancies are vested in the Residential Tenancy Tribunal".
The University submits that, by virtue of the Residency Agreement having no express term, the agreement is properly categorised as an indefinite tenure, which is not within the short-term category of student accommodation referred to in the Explanatory Statement and to which the Tribunal was designed to have jurisdiction over.
4.With regards to paragraph 10 of the Applicant's submission, the University respectfully disagrees with the Applicant's submission that the lack of an express guarantee that the Residency Agreement would not be terminated without cause implies that in practice the Agreement would or could be terminated without cause. There is no evidence of any practice on the part of the University to terminate these agreements without cause that may give rise to a submission that practice dictates the necessity to imply such a term into these agreements. The University again submits that the notion of terminating without cause must be expressed in the terms of the Agreement.
5.In relation to paragraphs 12 to 17 of the Applicant’s submission, the University submits that the actions of the parties, however construed by the Applicant, are irrelevant to the presence of an option in the Residency Agreement to terminate without cause. Notwithstanding the irrelevancy, the University respectfully disagrees with the Applicant’s submission in paragraph 15 that the University’s behaviour constituted an attempt to terminate Residency Agreement without cause.
36. On 29 November 2005, Mr Dalton appeared for the Applicant and Ms Brown for the ANU. The parties were invited to expand on the submissions filed, after which the issue of the Tribunal’s jurisdiction was reserved for decision.
The legislation:
37. Section 6F(1) of the Act provides:
(1) A residential tenancy agreement does not include an agreement for the right to occupy premises if the premises are—
(a) a caravan or mobile home in a mobile home park; or
(b) a hotel or motel; or
(c) used for a club; or
(d) on the campus of an educational institution; or
(e) prescribed under the regulations.
38. Section 71C(1) of the Act provides:
(1) An agreement is an occupancy agreement if—
(a) a person (the grantor) gives someone else (the occupant) a right to occupy stated premises; and
(b) the premises are for the occupant to use as a home (whether or not with other people); and
(c) the right is given for value; and
(d) the grantor may lawfully terminate the agreement, without cause, by giving less than 6 months notice; and
(e) the agreement is not a residential tenancy agreement.
(2) The agreement may be—
(a) express or implied; or
(b) in writing, oral, or partly in writing and partly oral.
(3) The right to occupy may be—
(a) exclusive or not;
(b) given with a right to use facilities, furniture or goods.
(4) The person given the right to occupy the premises may be—
(a) a boarder or lodger; or
(b) someone prescribed under the regulations for this section.
Reasons:
39. Part 5A of the Act was inserted by the Residential Tenancies Amendment Bill 2004. The Explanatory Statement presented to the Legislative Assembly with the Bill relevantly read:
Clause 23 – New part 5A – provides for the insertion of a new part 5A, dealing with occupancy agreements.
The existing Act does not deal with a number of agreements for the occupation of premises for living purposes. In particular, it excludes boarder and lodger agreements from the operation of the Act. The Act is amended to apply to a wide range of these agreements (not including those specifically excluded under proposed section 4 (above), principally agreements of a short term nature (including licenses, boarder contracts and lodger contracts – these extend over a wide range of premises presently excluded from the Act, including caravan parks and student accommodation).
This proposal involves two distinct elements, which are designed to commence at different times.
Firstly, the jurisdiction for determining disputes between occupants and lessors under short term occupancies are vested in the Residential Tenancies Tribunal (presently these disputes are heard in other courts). Initially, disputes in relation to this extended jurisdiction would be determined under the existing contracts and the common law having regard to certain specified principles. (Amendments having this effect are found both in new Part 5A and amended Part 6).
Secondly, the legislation is amended to permit the development of new sets of core agreements (by regulations, in consultation with stakeholders) which would apply to different short term occupancies together with a set of general principles, reaffirming the rights of occupants in such agreements to maintain a reasonable standard of living conditions.
New section 71A defines who is a grantor under an occupancy agreement.
New section 71B defines who is an occupant under an occupancy agreement.
New section 71C defines an occupancy agreement to mean an agreement where a person (the grantor) grants to another person (the occupant) for value a right of occupation of premises for use as a residence by the occupant (whether with or without other persons) where the agreement may be terminated at law without cause for any period less than six months. This formulation does not apply to any agreement, which is a residential tenancy (which, in general, may only be terminated without cause with six months notice.)
40. Two motivations for the definition of “occupancy agreements” emerge from the Explanatory Statement:
(a)occupancy agreements were intended to confer a measure of security of tenure on “short term” residencies:
(b)the six months notice criteria of section 71C(1)(d) was intended to distinguish occupancy agreements from residential tenancy agreements which cannot be terminated without cause except on 6 months notice (section 47(1)(a) and prescribed term 94).
41. The Applicant submitted that because the residential agreement between the ANU and himself was excluded from the definition of a residential tenancy agreement pursuant to section 6F of the Act, it must be an agreement for a “short term” and therefore within the intended scope of Part 5A of the Act.
42. Clearly this is a non-secquitor. There may be many contracts for the occupation of residential premises which confer long term security of tenure, or even life tenure, and which are excluded from the scope of the Act. There is no necessary logical link between the term/duration of a lease and whether it is within the scope of a “residential tenancy agreement” as defined in the Act. Thus it cannot follow as a matter of logic that simply because a contract for the occupation of a premise is excluded from the definition of a “residential tenancy agreement” under the Act, that it must be an “occupancy agreement” within the meaning of Part 5A. French v Trustee of the Roman Catholic Church [2005] ACTRTT 7 and V.A. Allen v Flagship Leisure Parks [2005] ACTRTT) are two cases in point on the same legislative provision presently under consideration.
43. A contract for the occupation of a residential premises which is neither a “residential tenancy agreement” nor an “occupancy agreement” within the meaning of the Act, may still be a tenancy at common law which, for example, may attract the operation of Part 6 Conveyancing Act 1919 and Division 10.2 and Part 11 (section 119-121) Land Titles Act 1925 in addition to the relevant part of the common law. In passing the Tribunal notes that the present lease may require registration under the Land Titles Act 1925, being a lease for more than 3 years, in order certain of the terms of that Act to apply (sections 47A,51,57 and 85). However this is not a matter which is relevant to the present application.
44. If, in the present case, the residential agreement, properly construed, provides a security of tenure to occupants for the terms of their PhD studies, subject only to termination for misconduct or rent default, then the term/duration of the secure right of residency may be for three years or more. Leases with terms of this length are longer than those commonly encountered in the context of residential tenancy agreements under the Act. Typically, residential tenancy agreements under the Act are for a fixed term of 6 months to a year. Occasionally lease may have a fixed term of two years. Rarely are residential tenancy agreements encountered for longer periods.
45. In the light of this fact, there is little cogency in the submission that the present residential agreement is for a “short term” and therefore within the intended scope of “occupancy agreements” within the Part 5A of the Act.
46. The residential agreement between the parties entered in December 2001 explicitly:
(a)incorporates by reference the terms of the Handbook in existence at that time
(b)provides for termination of the agreement in the case of various forms of misbehaviour and for rent default
(c)provides for termination “if (the) course is completed, terminated or suspended”
47. The residential agreement does not explicitly provide any other ground for termination of the agreement. In particular it does not provide for termination because the resident converts from a full time to part time student.
48. The Handbook in existence in December 2001 was consistent with the above, and did not provide for any other ground of termination, including termination by reason of part time status.
49. The contract as formed by the parties in December 2001 was drafted by the ANU. In these circumstances the Tribunal repeats the analysis of the law in Allen v Flagship (supra):
(a) the agreement has gone to the detail of setting out the various grounds of termination without referring to any 'no cause" grounds ("expressio unius est exclusio alterius" Statutory Interpretation in Australia 5th ed Pearce and Geddes at [4.26])
….
(e) the common law relating to the circumstances in which a condition can be implied into an agreement was recently reviewed by the High Court in Royal Botanical Gardens and Domain Trust -v- South Sydney C. C. 2002 (HCA 5). It is not open to a court or tribunal to imply a term into an agreement which is inconsistent with an actual term of the agreement. This puts in issue the effect of clause 18. It is also not open to the Tribunal to imply a term into an agreement unless it is necessary to do so to give efficacy to the agreement or to reflect an agreed but inadvertently omitted term. Neither of these tests appears to be satisfied in the present case.(f) the potential application of the "contra proferentem" rule which would see the terms of the agreement construed against the interest of the Respondent (Allianz Australia Workers Compensation NSW Ltd —v- PPG Industries P/L ACTCA 28; Residential Tenancies Law and Practice in NSW Anforth, Thawley and Christensen 2003 ed at [3.28.2].
50. The Tribunal is satisfied that the contract entered in December 2001 provided only for termination of the right of residency for misbehaviour, rent default and the “completion, termination or suspension” of the Applicant’s course of study. Each of these grounds of termination requires specific facts be proven, i.e. specific “cause”. None of these grounds constitute termination “without cause”.
51. The Tribunal has considered whether at common law the present residential agreement could be construed as a periodic tenancy, from fortnight to fortnight, that being the rent payment period. In such circumstances the common law would permit termination of the period lease, without cause, upon giving of two weeks notice to expire at the end of a tenancy period (Crate v Miller [1947] KB 946; Commonwealth Life (Amalgamated) Assurance Ltd v Anderson [1945] 46 SR (NSW) 47).
52. The difficulty with this approach resides in its failure to take any account of the express contractual limitations on the right to terminate the lease. With such express limitations as part of the contract, it is no longer true to say that the lease has the character of a simple periodic lease at common law.
53. The ANU contends that the terms of the Handbook existing as at December 2001 was explicitly incorporated by reference into the agreement. So much is clear from the residency agreement itself. The ANU further contended that the terms of the Handbook, as amended from time to time, form part of the contract between the parties. It is true that the Handbook in force in December 2001 does speak of the residents being bound by the terms of the Handbook “as amended from time to time”.
54. The ANU then contends that the 2005 Handbook explicitly limits the right to residency to full time students. This is a term which was not present in the 2001 Handbook. The ANU then rely upon this new term in the 2005 Handbook as a basis for the Notice of Eviction issued.
55. The Tribunal accepts that the terms of the 2001 Handbook formed part of the contract, albeit that it contains no restrictions to full time students. The Tribunal accepts as a general proposition that a contract can incorporate another document by reference into a contract. The Tribunal further accepts that another document can be incorporated by reference “as amended by time to time” but subject to one important limitation.
56. This limitation arises from the fact that the resident has no input into the amended form of the Handbook from time to time. Thus the ANU could, if it so choose, included anything in the amended form of the Handbook, including terms which completely and unilaterally, rewrite the original agreement. In a sense this is what happened in the present case in so far as the amended form of the 2005 Handbook introduced a significant limitation on the Applicant’s right of residency which did not form part of the original contract.
57. The learned authors of Cheshire and Fifoot “Law of Contracts in Australia” 7th ed at [10.31] address this issue and cite various authorities for the proposition that documents incorporated by reference cannot be inconsistent with the original contract. With respect, this appears to the Tribunal to be entirely consistent with the basic principles of contract law and common sense. The situation may be otherwise if the Applicant had been consulted and agreed to the amendments to the 2005 Handbook, or if the later amendments to the Handbook introduced nothing inconsistent with the original contract.
58. For the above reason the Tribunal finds that the contract of December 2001 is constituted only by the express terms of the residential agreement between the parties and the terms of the Handbook as it then stood.
59. It follows that the ANU has no right to evict the Applicant simply because he has converted to a part time student.
60. As the only grounds for termination are misbehaviour, rent default or the completion, termination or suspension of the course of study, there is no right in the ANU to terminate without cause, and ipso facto, cannot terminate without cause with less than 6 months notice.
61. On this finding the terms of section 71(1)(d) are not satisfied. The agreement is therefore not an occupancy agreement within the meaning of the Act and the Tribunal therefore has no jurisdiction.
62. The Tribunal observes by way of comment the peculiar situation in this case which saw, on the one hand a tenant arguing that he did not have a right of security of tenure and could be evicted without cause by his landlord; and on the other hand, a landlord arguing that it did not have the right to evict its tenants without cause.
63. This situation is the reverse of what would normally be expected. The Tribunal suspects that the parties were forced into these peculiar positions because of the patently unsatisfactory terms of section 71C(1)(d) of the definition of an “occupancy agreement”.
64. Furthermore, it seems to the Tribunal that there may have been an unintended consequence arising from the repeal of the former Landlord and Tenant (Amendment) Act 1948 by the Residential Tenancies Act 1997. The former Act applied generally to residential tenancy agreements in the ACT and would have applied to the current residential agreement between the parties. When the Residential Tenancies Act 1997 was enacted it expressly excluded various classes of residential tenancies from its operation, but by the repeal of the former Act it left these excluded classes of residential tenancies unregulated except to the extent that the common law and the generic land statutes of the ACT applied to them.
65. The Tribunal doubts that this was intended. Some of the residents involved in the classes of presently unregulated residential agreements are among the most powerless, and therefore vulnerable, in the ACT e.g. residents of age care facilities, retirement villages, students, caravan park residents, Ainslie Village residents and students. It seems to the Tribunal that the interests of the community would be served by either express legislation to regulate these classes of tenancies, or to remove the exclusions of such classes from the Residential Tenancies Act 1997 until such time as suitable specific regulatory legislation for these classes of tenancies is enacted.
Orders:
The application is dismissed for want of jurisdiction.
A. Anforth
Member
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