Kenjad Pty Ltd as Trustee for the Kenjad Trust and Secretary, Department of Social Services

This matter concerned appeals by Kenjad Pty Ltd as Trustee for the Kenjad Trust (the Applicant) against decisions of the Secretary, Department of Social Services (the Respondent) affirming that the Applicant had breached the National Rental Affordability Scheme (NRAS) Regulations. The Applicant, an NRAS Approved Participant, managed properties for investors under NRAS agreements. The Respondent had determined that the Applicant had committed individual breaches of the NRAS Regulations in relation to several properties managed by the Applicant for different investors.

The Applicant raised three primary issues for determination. Firstly, whether the dwellings in matters 2021/1287, 2021/1288, and 2021/1289 were no longer part of the NRAS scheme due to the termination of agreements between the Applicant and the investors, thereby divesting the Respondent of jurisdiction. Secondly, whether conduct occurring before the commencement of the NRAS Regulations on 1 April 2020 could form the basis of a breach under those Regulations. Thirdly, whether the Respondent's argument was fatally flawed because NRAS incentives were paid to the Applicant rather than directly to the investors.

The Tribunal found that the dwellings in matters 2021/1287, 2021/1288, and 2021/1289 remained part of the NRAS scheme, and the Respondent retained jurisdiction. The Tribunal reasoned that an NRAS allocation remains with the approved participant unless transferred or revoked under the Regulations, or until the end of the incentive period. The termination of contractual arrangements between an approved participant and an investor does not automatically remove a dwelling from the scheme or prevent the determination of a breach, particularly as such determinations are relevant to the transfer of allocations and the protection of investors' rights. The Tribunal also determined that conduct occurring before the commencement of the Regulations could found a breach under them, and that the payment of incentives to the Applicant did not invalidate the Respondent's findings. The Tribunal affirmed the Respondent's decisions.