Jonathon and Jennifer House v James Lukabyo
[2006] ACTRTT 7
•21 March, 2006
Jonathon and Jennifer House v James Lukabyo ACTRTT 7 [2006]
CATCHWORDS
Embassy
High Commissioner
Diplomatic Immunity
Residential Tenancy
LEGISLATION
Residential Tenancies Act 1997 (ACT)-section 62
Diplomatic Privileges and Immunity Act 1967-section 7
Foreign States Immunity Act 1985- sections 11 and 14
CASELAW:
Batinic v Government of Ireland [2004] ACTRTT 17
Case Reference Number: RTT 05/1708
Re: 256 La Perouse Street, Red Hill ACT 2603
Decision
1The Tribunal has jurisdiction to hear and determine this matter.
2This matter is to be listed for hearing the merits of the case on a date to be fixed by the Registrar
Member: Allan Anforth
Date: 21 March, 2006
REASONS FOR DECISION
The tenant is the Ugandan High Commissioner to Australia. On 21 December 2004 the parties entered a standard residential tenancy agreement for the lease or premises at 256 La Perouse St, Red Hill in the ACT. The rent was $800 per week, a bond of $3200 was paid and lodged with the Office of Rental Bonds and the term of the lease was for 2 years from 4 January 2005. The lease was in the personal name of the High Commissioner.
The premises were leased as a residence for the High Commissioner although it was common ground between the parties that the tenant had office facilities on the premises and would also use the premises for entertaining diplomatic guests.
On 25 October 2005 the tenant wrote to the landlord’s agent, Richard Luton Real Estate, giving notice of his intention to vacate the premise on 21 November 2005. He gave 6 reasons for his decision, each relating to the adequacy of the premises for his purposes. These reasons are not of immediately present relevance.
The landlords agent responded by letter of 3 November 2005 taking issue with the tenants right to terminate the fixed term lease in the manner proposed by the tenant. The landlord’s agent was clear that no surrender of the lease would be agreed to and that the tenant would be held liable for rent for the balance of the fixed term subject to a new tenant being found to the extent permitted by section 62(1) Residential Tenancies Act 1997.
The tenant responded by letter of 8 November 2005 affirming his intention to vacate on 21 November 2005 and asking for the landlord to commence the search for a new tenant. The landlord’s agent wrote to the tenant on 10 November 2005 notifying that a final inspection would occur on 21 November 2005 and that the search for a new tenant had began.
On 21 November 2005 the landlord applied to the Tribunal for an order that the tenant pay compensation for the abandonment of the premises beyond 30 November 2005 being the date to which the rent had been paid.
The matter was listed before the Tribunal on 14 December 2005. The tenant did not appear. The tenant had notified the Tribunal by letter of 5 December 2005 that he would be out of Australia until early January 2006. A differently constituted Tribunal ordered the tenant to pay $800 pursuant to section 62(1)(b) for rent outstanding to that point in time and adjourned the balance of the matter to 25 January 2006.
On 25 January 2006 the matter was listed before the presently constituted Tribunal. Mr Coombes, solicitor, appeared for the tenant and Ms Hargraves, real estate agent appeared for the landlord. Mr Coombes advised the Tribunal that the tenant challenged the Tribunal’s jurisdiction by reason of the tenant’s diplomatic status. The Tribunal made orders for the parties to file and serve submissions on the issue with a view to the Tribunal first resolving the jurisdictional challenge before dealing with the merits of the application.
The parties each filed and served submissions.
The submission on behalf of the tenant referred to section 7 of the Diplomatic Privileges and Immunity Act 1967 and to Article 31(1)(a) of the Vienna Convention which is annexed to that Act and given force of law in Australia.
7. Subject to this section, the provisions of Articles 1, 22 to 24 (inclusive) and 27 to 40 (inclusive) of the Convention have the force of law in Australia and in every external Territory.
Article 31(1)(a) reads:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;.
The tenant submitted, notwithstanding that the lease was in the High Commissioner’s personal name, in fact it was the common intention of the parties that the tenant was to be the Ugandan government. The tenant’s submission did not explain how Article 31(1) (a) promoted the tenant’s contention of diplomatic immunity, although it may be supposed that the tenant was contending that present transaction did not fall within the scope of paragraph (a) of that Article thus leaving the opening words of immunity to their unfettered application.
The landlord submitted that the lease was personal to the High Commissioner and sought to rely on the reasons set out in the decision of Batinic v Government of Ireland [2004] ACTRTT 17.
The decision of this Tribunal in Batinic concerned a lease in which the tenant was explicitly the government of Ireland. Otherwise it is not materially different to the present case. In Batinic the Tribunal considered the application of sections 11 and 14 of the Foreign States Immunity Act 1985 and concluded that the Tribunal had jurisdiction to hear and determine the landlord’s claim. The Tribunal further determined that the Tribunal’s originating process could be lawfully served on the Irish Embassy by ordinary post. Sections 11 and 14 respectively read:
11(1) A foreign State is not immune in a proceeding in so far as the proceeding concerns a commercial transaction.
(2) Subsection (1) does not apply:
(a) if all the parties to the proceeding:
(i) are foreign States or are the Commonwealth and one or more foreign States; or
(ii) have otherwise agreed in writing; or
(b) in so far as the proceeding concerns a payment in respect of a grant, a scholarship, a pension or a payment of a like kind.
(3) In this section, commercial transaction means a commercial, trading, business, professional or industrial or like transaction into which the foreign State has entered or a like activity in which the State has engaged and, without limiting the generality of the foregoing, includes:
(a) a contract for the supply of goods or services;
(b) an agreement for a loan or some other transaction for or in respect of the provision of finance; and
(c) a guarantee or indemnity in respect of a financial obligation; but does not include a contract of employment or a bill of exchange
14.(1) A foreign State is not immune in a proceeding in so far as the proceeding concerns:
(a) an interest of the State in, or the possession or use by the State of, immovable property in Australia; or
(b) an obligation of the State that arises out of its interest in, or its possession or use of, property of that kind.
Before the Tribunal the landlord conceded that they were aware of the intended use of the premises as both a residence and for diplomatic purposes. The landlord drew up the residential tenancies agreement and inserted the High Commissioners personal name in the agreement. The Tribunal finds as a fact that the insertion of the tenant’s personal name was a mutual mistake and that the parties had each intended that the tenant would be the Ugandan government and the lease is so rectified.
On the basis of the tenant being the Ugandan government, the Foreign States Immunity Act 1985 applies and the present Tribunal respectfully adopts the reasons given in Batinic in finding that it has jurisdiction to hear and determine the present application.
In the event that the tenant was in fact intended to be the High Commissioner personally, then the Diplomatic Privileges and Immunities Act 1967 applies. The Tribunal then finds that a dispute over a residential tenancy agreement is “a real action” within the meaning of paragraph (a) of Article 31(1) Vienna Convention; and the leased property is “immoveable property situated in (ACT)”. Accordingly the immunity conferred by Article 31(1) has no application in the present case and the Tribunal is therefore not dispossessed of jurisdiction.
The Tribunal therefore determines that on either scenario it has jurisdiction.
The hearing of the merits of the case is adjourned to a date to be fixed by the Registrar.
A. Anforth
Part Time Member
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