Lindenberg v Kalwun Development Corporation Ltd
[2011] QCAT 287
•19 May 2011
| CITATION: | Lindenberg v Kalwun Development Corporation Ltd [2011] QCAT 287 |
| PARTIES: | Ms Therese Lindenberg |
| v | |
| Kalwun Development Corporation Ltd |
| APPLICATION NUMBER: | MCDO3938-10 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 1 February 2011 |
| HEARD AT: | Southport |
| DECISION OF: | Christine Trueman, Adjudicator |
| DELIVERED ON: | 19 May 2011 |
| DELIVERED AT: | Southport |
ORDERS MADE: | 1. That the Form 12 Notice to Leave issued by the Respondent on 2 December 2010 be set aside. |
| CATCHWORDS: | RESIDENTIAL TENANCIES – TERMINATION – NOTICE TO LEAVE – RETALIATORY – Where Respondent issued the Applicant with a Notice to Leave without grounds – where the Applicant applied to have the Notice set aside as retaliatory – whether the Notice was retaliatory – Application of Aboriginal tradition – whether other considerations should be given to tenants living in assisted accommodation Queensland Civil and Administrative Tribunal Act 2009, s 12 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Therese Lindenberg |
| RESPONDENT: | Kalwun Development Corporation Ltd represented by Ms Billy Edwards |
REASONS FOR DECISION
Ms Lindenberg is a tenant of the property at 72 Rivergum Drive, Nerang in Queensland. Kalwun Development Corporation Ltd (“the Corporation”) is the owner of the property. Around 2 December 2010 Ms Lindenberg was served with a Notice to Leave without grounds requiring her to leave the property by 27 January 2011. She filed an Application for Minor Civil Dispute – residential tenancy dispute on 24 December 2010 seeking an order from the tribunal pursuant to s 292 to set aside the Notice to Leave without grounds. The Application by Ms Lindenberg asserts that the Respondent Notice to Leave was ‘retaliatory’ and, therefore, offended s 291(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (“the Act”). It is appropriate to set out s 291 and s 292:
291 Notice to leave without ground
(1)The lessor may give a notice to leave the premises to the tenant without stating a ground for the notice.
(2)However, the lessor must not give a notice to leave under this section because--
(a) the tenant has applied, or is proposing to apply, to a tribunal for an order under this Act; or
(b) the tenant--
(i) has complained to a government entity about an act or omission of the lessor adversely affecting the tenant; or
(ii) has taken some other action to enforce the tenant's rights; or
(c) an order of a tribunal is in force in relation to the lessor and tenant.
(3)Also, the lessor may not give a notice to leave under this section if the giving of the notice constitutes taking retaliatory action against the tenant.
(4)A notice to leave under this section is called a notice to leave without ground.
Editor's note--
See sections 329(2)(j) (Handover day for notice to leave for premises that are not moveable dwelling premises) and 330(2)(l) (Handover day for notice to leave for moveable dwelling premises) for requirements about the handover day for a notice to leave given without ground for a periodic agreement.
292 Application to tribunal about notice to leave without ground
(1)This section applies if--
(a) the tenant is given a notice to leave without ground; and
(b) the tenant reasonably believes the notice was given in contravention of section 291.
(2)The tenant may apply to a tribunal for an order to set aside the notice.
(3)The application must be made within 4 weeks after the notice was given.
(4)On an application under this section, the tribunal may make the order sought if it is satisfied the notice was given in contravention of section 291.
Section 291(3) requires careful consideration of the particular circumstances of each case in which it is raised. An allegation that the Respondent’s act of issuing the Notice to Leave without ground is ‘retaliatory’ must be considered in the context of all the circumstances. This section is designed to protect the tenant who has justifiably taken action of the kind set out in s 291(2) and has then been served with a Notice which is apparently responsive to the tenant’s actions. However, the issuing of the Notice must also be considered in the context of all of the prevailing circumstances, and consideration to whether it is unreasonable, excessive or vindictive.
This tribunal has jurisdiction to hear minor civil disputes pursuant to section 12 of the Queensland Civil and Administrative Tribunal Act 2009. The section states:
12 When jurisdiction for minor civil dispute exercised
(1)The tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under this Act, applied to the tribunal to deal with the dispute.
(2)A relevant person may, as provided for in subsection (3), agree to limit the person's claim to the prescribed amount in order to bring the claim within the tribunal's jurisdiction for a minor civil dispute.
(3)A relevant person limits the person's claim to the prescribed amount by applying to the tribunal to deal with the claim as a minor civil dispute.
(4)In this section--
relevant person means--
(a)for a claim to recover a debt or liquidated demand of money--a person to whom the debt is owed or money is payable; or
(b)subject to paragraphs (c) to (g), for a claim arising out of a contract between a consumer and a trader--the consumer; or
(c)for a claim arising out of a contract between 2 or more traders--any of the traders; or
(d)for a claim for payment of an amount for damage to property caused by, or arising out of the use of, a vehicle--a person incurring loss because of the damage; or
(e)for a claim for repair of a defect in a motor vehicle under the Property Agents and Motor Dealers Act 2000, section 248 or 324--the buyer of the vehicle; or
(f)for a tenancy matter--a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the tribunal for a decision in relation to the matter; or
(g)for a claim that is the subject of a dispute under the Dividing Fences Act 1953--a party to the dispute.
The tribunal has jurisdiction under s 12(4)(f) to hear and determine an application made by a tenant or lessor relating to a tenancy dispute under the Residential Tenancies and Rooming Accommodation Act 2008.
History
Ms Lindenberg alleges that the Respondent has engaged in a course of conduct whereby she was and continues to be subjected to bullying and harassment and that there is a history of attempts by the Respondent to evict her from the property. Ms Lindenberg stated that she moved into the property on or around 11 November 2005. She is currently subject to a General Tenancy Agreement on a Periodic basis that started on 28/6/2010. The lease provides that Ms Lindenberg pay rent of $250.00 per week and four (4) persons are allowed to reside at the premises. Ms Lindenberg states she resides at the property with her children. The lease does not include any special terms and conditions that warrant comment.
The Corporation operates on the Gold Coast and has been established to assist Aborigines and Torres Strait Islanders in need of accommodation and other housing services in the Gold Coast and surrounding areas. They rent accommodation to Aboriginal and/or Torres Strait Islander members only. They also co-operate with public and private housing services with a view to ensuring that Aborigines and Torres Strait Islanders derive full benefit from such services. They also assist Aborigines and Torres Strait Islanders to purchase their own home. While they undertake other work and provision of services, an important function they perform is they undertake and implement activities which further the economic development of Aborigines and Torres Strait Islanders and promote knowledge and understanding of the special issues of importance to Aborigines and Torres Strait Islanders generally and also in particular in the fields of housing, health, aged, enterprise development, welfare services delivery, education and training, culture, child care and protection, youth services, media services, sporting activities and related matters.
The Corporation is governed by Articles and Memorandum of Association, a copy of which was provided to the Tribunal. Those Articles and Memorandum of Association set out the regulations and rules that the Corporation must abide by. It is clear that clause 3 of the articles states that the number of members of the company is declared to be unlimited and further that clause 4 of the Articles states that membership is limited to persons over the age of 18 years, who are Aborigines or Torres Strait Islander, or who satisfy the Council that they subscribe to the objects of the Corporation and who satisfy the Council that they have for a period of twenty-four months immediately proceeding the date of the application lived within the boundaries or areas of the district which it is intended the Corporation encompasses.
Further, clause 4(6) states that “only indigenous, financial members of the Corporation can vote at council meetings and propose or support motions or resolutions”. Clause 4(7) states that membership shall be limited to persons “who prove to, or otherwise satisfy, the Council of their involvement in the Gold Coast Aboriginal and Torres Strait Islander community”.
The section of the Articles regarding Membership appears to indicate that membership could be granted to a non Aborigine or Torres Strait Islander and by “someone who satisfies the Council that they subscribe to the objects of the Company; and who also satisfies clause 4(4) having lived in the boundaries of the Gold Coast district for 24 months prior to application”. The word “or” after clause 4(2) suggests that there may be an exception to membership by not being required to be an Aborigine or Torres Strait Islander.
[10] For the purpose of the Articles clause 2(g) states that an “Aborigine means a person of Australian Aboriginal descent who claim to be an Aborigine and is accepted as such by the community with which he is associated”. Clause 2(h) states that an “Islander means a person of Australian Torres Strait Islander heritage and descent who claims to be an Islander and is accepted as such by the community with which he is associated”.
Applicant’s Submissions
[11] Ms Lindenberg claims she is an Aborigine and of Aboriginal decent, is from the Maiawali Karuwali tribe and is accepted by that community with which she is associated. She claims to be of Aboriginal decent and to be culturally aware and involved with the indigenous community on the Gold Coast.
[12] Ms Lindenberg alleges that she was a member and employed by the Corporation in 2005. She stated she was dismissed in 2006 and has had concerns regarding the way the Corporation have treated her since her dismissal from the Corporation. Ms Lindenberg alleges she was employed by a previous Chief Executive Officer and General Manager, Elders Graham and Marilyn Dillon. Ms Lindenberg alleges that when Elders Graham and Marilyn Dillon were illegally dismissed on 20 February 2006 that she was later dismissed on 4 March 2006 due to her loyalty to them.
[13] Ms Lindenberg alleges that after her dismissal in 2006 that the Corporation shortly thereafter, issued her with a Form 12 Notice to Leave without Grounds. That first Notice was dated on or around 11 May 2006. Ms Lindenberg stated that she contested that Notice and claimed that it was retaliatory action when the matter was before the then Small Claims Division. Ms Lindenberg alleges that the Notice was set aside on retaliatory grounds. Ms Lindenberg stated that her action of commencing action in the Industrial Relations Commission for Unfair Dismissal incited the Corporation to issue the Form 12 Notice to Leave.
[14] In this case, the Notice to Leave issued on 2 December 2010 was issued by the Corporation Without Grounds, but Ms Lindenberg gave evidence that the Corporation had told her that the reasons that the Notice was issued was due to the fact that her membership was not financial. Ms Lindenberg alleges that she applied for, and her membership was accepted in 2005. Ms Lindenberg presented to the Tribunal a letter from the Corporation sent to her dated 22 June 2006 that states:
“..please be advised that your membership was accepted at a meeting of the Board of Directors on 8 February 2006. Regrettably you have failed to pay your subscription at the time of your application or at any time subsequent to that application within the required three month period.”
[15] Ms Lindenberg relies upon that correspondence as evidence that her application for membership was accepted. The Correspondence further states that:
“…you failed to pay your subscription, within the prescribed time allotment, being three months, which rendered your membership null and void. Therefore at the meeting of the Board of Directors held on 17 June 2006 your membership was terminated. You were granted a lease on the subject property on 11 November 2005, your membership application had been lodged 4 October 2005, however your membership application was not approved until 8 February 2006. .. Please find enclosed the return of your money order for ten dollars ($10.00) which we received in further correspondence from yourself.”
[16] Ms Lindenberg provided to the Tribunal a copy of the Minutes of the Meeting held by the Corporation on 17 June 2006 and Resolution 7 refers to the unanimous decision to terminate the membership of Ms Lindenberg.
[17] Ms Lindenberg alleges that from this time onwards she has never received any correspondence or demand to make payment of her membership subscription fees. Ms Lindenberg provided to the tribunal correspondence from the Corporation, while not addressed specifically to her, indicate that on 27 April 2006 Members were sent letters regarding Membership Fee Renewal Notices stating:
“..that time of year where your Membership is due for 2005-2006. Your annual membership fee of $5.00 can be made payable to the Kalwun Nerang Head Office located at 1/30 Lawrence Drive, Nerang. ..Your fees are due by 30th June 2006. If fee (sic) are not received by this date your membership can be terminated?”
[18] Ms Lindenberg alleges that for a four year period she has lived at her property without any issue being raised about her membership fees. Ms Lindenberg provided correspondence to the tribunal dated 1 December 2010 from Ms Edwards, Office Manager and the person who appeared at the hearing and gave evidence on behalf of the Corporation. That correspondence purports to be from Ms Edwards on behalf of the Kalwun Board of Directors. The correspondence refers to a tenant meeting on 30 November 2010 at 6pm that Ms Lindenberg had failed to attend. The correspondence does not raise any issues regarding membership fees or demands to pay them. The correspondence states:
“..there will be extensive changes in the New Year at Kalwun. Discussions & actions held with Tenants present at the meeting were the result of many new changes that will take place next year. These topics will affect you and your Tenancy, this included termination of memberships.”
[19] Ms Lindenberg states that her attempt to pay her Membership fees in the past had been refused to be accepted. Ms Lindenberg also provided evidence that when she was served with the Notice she immediately telephoned Ms Edwards, the Property Manager. She gave evidence that Ms Edwards informed her that the reason that the Notice was served on her was due to the fact that she was not a financial member, that she had no community involvement and that she did not attend Annual General Meetings or tenants’ meetings.
[20] Ms Lindenberg gave evidence she informed Ms Edwards that she had never received any notice or request to pay her membership fees for the last 4 years and when she was accepted in 2006 and tried to pay to become a financial member her cheque for $10.00 was returned to her.
[21] Ms Lindenberg claimed that during the telephone discussion, she informed Ms Edwards that she would come immediately to the Corporation’s office and pay her fees straight away and become financial. Ms Lindenberg gave evidence that Ms Edwards informed her that she could not pay her membership now “as the Board had made their decision.”
[22] Ms Lindenberg conceded she is not a financial member as her payment had been refused and she had not been requested to make payment during the last 4 years she has lived in the property. She conceded she had not attended some of the social events run by the Corporation and gave explanation that she “felt uneasy” about attending after her termination in 2006 from the Corporation.
[23] At the conclusion of the hearing on 1 February 2011 an order was made granting leave to the parties to file further material. Ms Lindenberg filed an affidavit of Ms Newport-Roche and a further affidavit sworn by her attaching evidence regarding her involvement in the Aboriginal community. This was permitted as the Respondent contended that Ms Lindenberg was not involved in the community and partly a reason for issuing the Notice to Leave.
[24] Ms Lindenberg claims that the further evidence that she had filed supports her oral evidence at the hearing that she is heavily involved in “closing the gap” and working for the Aboriginal community, and that she has actively been involved in:
“an Indigenous Teacher Aide for Merrimac State High School, attends community meetings with PACE towards closing the gap, coached the Merrimac basketball team that won the Oceanic Championships, arranged for students to perform the traditional dance at the Merrimac Multicultural night, invited special guests to Merrimac School events including Kierann Chilcott, (CEO Corporation Health and Uncle Graham Dillon, attended league for life with students from the school, assisted students to obtain First Aid Certificates, and attended many community events and workshops with Crossing Cultures, Hidden history, ESL Workshop, Linking Families, FOGS, Scisco Professional Development Day for Indigenous Support Staff and Aboriginal Community Controlled Child Protection Service.”
[25] Ms Lindenberg alleges to have assisted students at the Merrimac School in improving results and attendance, and claims that since her work with the school there has been an overall change in that, “indigenous student results have improved and absence numbers have dropped.” She claimed to have “assisted a student to enrol at Griffith University, another (was) accepted into the Navy and three Indigenous students (to be) accepted into a Certificate 3 in Indigenous Health.” She provided a copy of a newspaper article depicting her and the work she was doing within the Aboriginal community to “close the gap”, as evidence to support her contentions.
[26] Ms Lindenberg stated that she is working towards a University Degree herself and once finished intends to assist the Indigenous students in the community achieve their goals.
[27] Ms Lindenberg provided to the tribunal references from neighbours and Real Estate Agents, claiming that:
“…..neighbours for approx 4 years…they are friendly people, garden and house always appears clean and tidy… do not have noisy parties.”
“although a single parent… always fulfilled her financial obligations and keeps her property in immaculate condition…during her tenancy with Remax…Theresa was an excellent tenant honouring her rental payments on time and maintaining the property as though she was the owner”.
[28] Ms Lindenberg contends that she is being persecuted for her actions in 2006, and the Board are retaliating against her for her support of Elder Dillon and his wife in 2006. She claims that from 2006 when she was dismissed the same Board members, Executive Director, Property Manager, Secretary and President, and persons who held those positions at the time are current Board members and are the persons making decisions regarding refusal of her membership.
Witnesses evidence
[29] Elder Graham Dillon gave evidence in support of Ms Lindenberg at the hearing. He claims he is a Kombumerri Elder, who are traditional Owners of the Gold Coast region and that he founded the Gold Coast Aboriginal Islander Housing Co-Op which is now known as the Kalwun Development Corporation.
[30] He stated that Ms Lindenberg worked for the Aboriginal people and was employed by the Corporation in 2006 as a Field Worker in the area of Child Protection. He said he approved her application for housing with Mrs Dillon, (his wife) as Treasurer and Board members at the time. He said that Ms Lindenberg was approved to rent the property where she currently lives with her three children. He stated that “during the tenancy she was an exemplary tenant and respected her neighbours and did not cause any trouble”.
[31] Elder Graham Dillon stated that Ms Lindenberg was a good mother and put her children first, often going without herself to provide for her children. He stated that he got to know her quite well. He stated that he believed that Ms Lindenberg had integrity and that she was honest.
[32] Elder Graham Dillon claimed that when he was working at the Corporation, priority was given to women who were single parents especially if the children were young. He said he would particularly assist women who were faced with domestic violence issues. He said he told Ms Lindenberg, that after 3 years if she could afford to, she could apply to purchase the house she was living in. He said the process was that a tenant must approach the Board and that involved writing a letter. He said the tenant would have to put a case to be considered and approved. He said that to date he knew of only one case that had been approved and assessed to purchase their home from the Corporation. He was adamant that this was what he told Ms Lindenberg and that it was an important part of the philosophy of the Corporation.
[33] Elder Graham Dillon stated that he was General Manager of the Gold Coast Aboriginal Islander Housing Co-operative Society Ltd in 1981 and saw the Co-Op incorporate to the Kalwun Corporation that it is now. He claims that it is a non profit community development and that the role of the Corporation was to ensure and provide affordable accommodation to Aboriginal and Torres Strait Islander people who lived on or below the poverty line.
[34] Elder Graham Dillon stated that after he was illegally removed from his position at the Corporation he was aware that Ms Lindenberg was dismissed. He alleges he took action against the Corporation in the Industrial Relations Commission and the Supreme Court of Queensland. He said that the IRC found that he and his wife had been treated unfairly and dismissed illegally.
[35] The tribunal was provided with a copy of the Order made by Justice Moynihan in the Supreme Court of Queensland on 15 June 2006 naming the Corporation as the Respondent and the orders state that the Corporation admitted that both Graham Hamilton Dillon and Marilyn Emma Dillon’s Directorship and Membership of the Corporation had not been validly terminated.
[36] Elder Graham Dillon stated that Ms Lindenberg was a supporter of him and his wife and that she had approached him in 2006, sometime shortly after her dismissal, and told him that the Corporation were trying to “get her out of the house.”
[37] Elder Dillon stated that when he worked for the Co-Op they would rarely force a tenant from a property and would not do so for “reasons of membership.”
[38] Elder Graham Dillon gave evidence that as Ms Lindenberg was doing a University degree she was entitled to safe and manageable rental accommodation while she was studying and that this was an important factor for her to succeed. He stated that he believed that she would use her degree for the benefit of the Aboriginal and Torres Strait Islander community.
[39] Elder Graham Dillon claimed that in the 25 years he was head of the Co-Op and Kalwun there were only ever “a handful of tenants who were evicted” and they were for “reasons of failing to pay rent or for damaging the property.”
[40] Ms Lindenberg filed an Affidavit of Carolyn Anne Roche sworn on 7 February 2011 at Kowanyama in Queensland pursuant to an order granting leave.
[41] Ms Roche deposes that she had known Ms Lindenberg for some years and had assisted her in 2006 with the previous application to set aside the Notice to Leave. She deposes that Ms Lindenberg is a:
“significant aboriginal person who is active culturally in the Gold Coast and plays a supportive role in a personal and professional capacity to the Kombumerri people in particular the family of Elder Graham Dillon OAM, the Noonuccal people of Stradbroke Island in particular the family of deceased Elder Marilyn Dillon. Her professional roles have included managing an Aboriginal organisation which assisted in Foster placement of Indigenous children based in Beenleigh as an Indigenous teacher’s aid at Merrimac High school and formerly working at Kalwun.”
Respondent’s Submissions
[42] Ms Edwards appeared on behalf of the respondent Corporation. She is the Property Manager and stated she had been working with the Corporation for some time.
[43] Ms Edwards stated that the Notice to Leave was issued after a Board decision was made that because Ms Lindenberg was not a financial member of the Corporation she would have to leave.
[44] She stated that the Corporation had a “waiting list of 50 other people who want to enter the property and who were all financial members.” She stated that the Notice was issued to Ms Lindenberg as a result of her failure to attend the AGM and that she did not do any work for Kalwun.
[45] Ms Edwards did concede that Ms Lindenberg had sent a cheque for payment of her membership and that is was returned to her. She stated that the cheque was returned as there “was a process” and that you “must pay annually”. She alleged that Ms Lindenberg had a lack of involvement with the Corporation.
[46] Ms Edwards stated that Ms Lindenberg was never a financial member as she did not pay her fees at the time she was approved. She alleged that Notices were sent to her requesting her to pay her fees but that she failed to do so. She disputes that Ms Lindenberg would never be able to purchase the property from the Corporation, that did not occur and if it did it would be sold at market rate and not a discounted price as alleged by Ms Lindenberg and Elder Graham Dillon.
[47] Ms Edwards stated that there were other minor issues with the tenant including a complaint from a neighbour about a large dog but that Form 11 Notices to Remedy Breach were never prepared or served.
[48] At the conclusion of the hearing leave was granted to the Respondent to file further affidavit material including evidence of Minutes of Board Meetings, correspondence and any other evidence relevant to the Board decision to issue the Notice to Leave to Ms Lindenberg.
[49] The Respondent filed further material which included a response to the affidavit of Ms Lindenberg, correspondences relating to community events and meetings that have been held by the Corporation that Ms Lindenberg did not attend, Membership renewal forms, termination of membership Minutes of 17 June 2006, termination letter sent to Ms Lindenberg dated 22/6/2011 and a copy of the Articles and Memorandum of Association.
The Evidence
[50] In this case it is alleged by the Applicant that there was a long history of harassment from the Corporation to the Tenant arising from events in 2006 when Elder Dillon was removed from the Corporation and the tenant was sacked from her position with the Corporation. The tenant alleges that the current Board are the same members in 2006 that dismissed her and also removed Elder Dillon and his wife from their positions. I accept that is the case.
[51] Ms Lindenberg occupies the property under an affordable housing scheme. She gave evidence that when she entered the property Elder Dillon told her that it would be possible in the future for her to purchase her home. Ms Edwards gave evidence that the sale of a Corporation home to Ms Lindenberg, or any tenant, would and did not occur. Her evidence was contradictory though as she then gave evidence that if it was sold to a tenant it would be at market value and not a reduced or cheap cost. On this point I accept the evidence of Ms Lindenberg and Elder Graham Dillon over the evidence of Ms Edwards as their evidence is also in keeping with the ethos and nature of the Corporations Articles and Memorandum where specifically one of the objects of the Corporation is to “assist Aborigines and Torres Strait islanders to purchase their own home”.
[52] The evidence before me is that the events of 2006 continue to provide angst between the parties and that Ms Lindenberg believes that the Board want to terminate her tenancy and for her to have to leave her home as retaliatory action from those events. The circumstances of this case appear to suggest that the Board have made a decision to refuse membership of Ms Lindenberg despite her attempts to pay the requisite membership fees.
[53] Evidence of this, which I accept, is that Ms Lindenberg has tried on at least two occasions, which is not disputed by Ms Edwards, to pay her membership fees. On the first attempt the cheque she used to pay for her fees was returned to her. On the second attempt when she telephoned the Corporation to arrange payment, she was informed it was “too late”.
[54] I find the reasons postulated by the Corporation as to why they issued the Notice to Leave as trivial and without merit. The excuse that Ms Lindenberg was not involved in community events is unfounded and in fact I find to the contrary. From the evidence provided to this tribunal I am satisfied that Ms Lindenberg is an aboriginal woman proud of her heritage and committed to work within her community and at “closing the gap.”
[55] I find Ms Lindenberg appeared committed to encouraging and educating other parents within her community as to the importance of educating their children and she is leading by example. I found her to be an impressive witness and a significant role model for her family, children and her community. Her desire and motivation to obtain a University Degree with which to assist her community is to be commended. Her work with children in the schools, as an Indigenous teacher’s aid and with the community raising awareness of the importance of education should be applauded. The evidence of Ms Edwards that Ms Lindenberg was not working for the benefit of the community is without merit and I reject that proposition.
[56] Ms Edwards gave evidence that the Board had made a decision to terminate Ms Lindenberg's tenancy for her failure to pay her membership fees. They claimed to have sent many letters and made demands for the fees to be paid. No evidence was provided to the tribunal to support such a contention or evidence that I could take into account with any evidence that would change my view on this matter. I am satisfied that the tenant, Ms Lindenberg attempted on at least two occasions to pay her membership fees and payment was either rejected or refused. For the Respondent to then use the non payment of membership fees as an excurse to terminate the tenancy of Ms Lindenberg is deplorable. From the evidence of the Corporation itself and evidence given by Ms Edwards, the Corporation’s representative, payment would have been impossible for the tenant to make if they refused to accept it.
[57] In applications involving the more usual type of tenancy matter where a Lessor, Owner or Real Estate Agent has issued and served a Notice to Leave without Grounds it is usually not required to have to tease out reasons why a Notice may have been issued. However, in this case, while the Corporation are not strictly required to give reasons for issuing a Notice to Leave without Grounds, I find that the particular circumstances of this case, in that it involves assisted Housing accommodation, where premises are offered to tenant at a reduced cost due to affordability, these housing options are usually as a last resort, and for tenants who would find it very difficult or impossible to obtain private rental accommodation. In these cases, enquiry should be made as to why such a Notice has been served.
[58] In my view there exists a higher threshold test to warrant issuing a Notice to Leave to tenants Without Grounds who live in Assisted Housing accommodation and such Notices should not be issued lightly.
[59] On any view it suggests that the Corporation and the tenant have had a tumultuous relationship since 2006 when the tenant was dismissed from her employment with the Corporation. It appears that the Corporation do not wish the tenant to remain in occupation of the property. The fact alone that the tenant was dismissed from the employ of the Corporation does not of itself support the contention that the Notice to Leave was issued in retaliation under s 291(3). The fact that the tenant commenced action in 2006 in the IRC for unfair dismissal does not directly correlate to this Notice being issued in relation to an event that occurred in 2006.
[60] However, the other mitigating facts and circumstances that the Corporation have raised regarding their reasons for making a Board decision to issue the Notice in my view raises serious concerns. I find that s 291(3) does not require that the retaliatory act must be only that conduct mentioned in s 291(2). Sub section (2) states:
However, the Lessor must not give a notice to leave under this section because—
(a)the tenant has applied, or is proposing to apply, to a tribunal for an order under this Act; or
(b)the tenant—
(i)has complained to a government entity about an act or omission of the Lessor adversely affecting the tenant; or
(ii)has taken some other action to enforce the tenant’s rights; or
(c)an order of a tribunal is in force in relation to the Lessor and tenant.
[61] While s 291(2) is prescriptive in that it lists those acts or intended acts or things that a tenant may or has done resulting from their tenancy, the Act is not bound to find that only the matters in section 291(2) would result in retaliatory conduct of the Lessor if a Notice to Leave was issued in response to any conduct of the tenant.
[62] I find that s 291(3) which states:
(3)Also, the lessor may not give a notice to leave under this section if the giving of the notice constitutes taking retaliatory action against the tenant.
In my view, this subsection expands the scope and nature of what could constitute retaliatory action. The word “also” in this section implies that it is “in addition to” the acts or conduct referred to in the previous subsection (sub-s (2)) and that contemplation is given to consider other reasons or behaviour of a Lessor, when issuing a Notice to Leave, that might be found to be taking retaliatory action against a tenant.
[63] I am not of the view that the Act contemplated that section 291 be construed strictly to that conduct referred to in subsection 2. I find that section 291 does not only apply when findings of retaliatory acts occur when the tenant would be required necessarily to have asserted rights, to make a complaint, obtain a court order, enforce their rights or if an order of a tribunal was in place.
[64] Most applications to set aside Notice to Leave usually involve conduct on the part of the tenant to assert rights, to which a subsequent Notice to leave has some obvious connection. In this instance, this is not the case.
Application of Aboriginal Tradition
[65] This case involves a tenant who is an Aborigine. The Corporation receives funding from the Government to provide their housing services. The Corporation are not financially independent and are government funding reliant. The Corporation are a recognised entity and approved to receive government funding to support their services. As the Lessor Corporation is an entity prescribed under a regulation and the tenant is an aborigine, section 422 of the Act must be considered. That section states:
s 422 Application of Aboriginal tradition
(1)This section applies if—
(a) the lessor is—
(i)a community government under the Local Government (Community Government Areas) Act 2004; or
(ii)a local government under the Local Government (Aboriginal Lands) Act 1978; or
(iii)an entity prescribed under a regulation; and
(b) the tenant is an Aborigine.
(2)In deciding an application for a termination order, a tribunal must have regard to the lessor’s practice (the lessor’s Aboriginal tradition practice) in observing Aboriginal tradition in dealing with similar breaches of other residential tenancy agreements by other tenants of the lessor.
(3)In considering Aboriginal tradition, the tribunal may hear Evidence from, and the opinions of—
(a) persons recognised under Aboriginal tradition as respected persons; or
(b) other persons with special knowledge of, or expertise in, Aboriginal tradition.
(4)The opinion of persons mentioned in subsection (3)are not inadmissible as evidence merely because they are hearsay.
(5)The tribunal may decide not to make the termination order if it would be inconsistent with the lessor’s Aboriginal tradition practice.
[66] Section 422 of the Act provides the Tribunal with power to hear evidence from, and opinion of persons recognised under Aboriginal tradition as respected persons. Elder Graham Dillon is a respected Elder and with special knowledge of Aboriginal tradition. He gave evidence at the Hearing as to the aboriginal tradition and practice in observing Aboriginal traditions when dealing with residential tenancy agreements when a tenant is aboriginal. Elder Graham Dillon gave evidence that he had worked for many years assisting Aborigines and Torres Strait Islanders to secure permanent and safe housing. He gave evidence that he and the Corporation gave preference for housing to women with young children who were left homeless and escaping domestic violence and abuse. He stated that since 1981, and for the last 25 years, he had been working on the Gold Coast in the provision of arranging and offering affordable accommodation for Aborigines and Torres Strait Islanders. He stated that in the time he had worked with the Co-Op and Corporation, he had never evicted a tenant pursuant to a Notice to Leave without Grounds. He stated that the only tenants who had been evicted during his 25 years of work, had resulted from Notices with Grounds listing the reason as rental arrears and damage to property. Elder Graham Dillon stated that in his opinion, the tenant Ms Lindenberg, “should be and is entitled to remain in the property and purchase her home from the Corporation if she could afford to do so”.
[67] Elder Graham Dillon stated that Ms Lindenberg’s lease should not be terminated as to do so would be inconsistent with dealing with similar breaches by other tenants of the lessor whereby action had not been taken. He stated that if Ms Lindenberg's lease was terminated by the Corporation that it would be inconsistent with the Corporation’s own goals and objectives and inconsistent with the Lessor’s Aboriginal tradition practice.
Findings
[68] I accept that Ms Lindenberg claims she is an Aborigine and of Aboriginal decent, and to be from the Maiawali Karuwali tribe and is accepted by that community with which she is associated. I accept that she is of Aboriginal decent. I accept that she is proud to be of Aboriginal decent and is culturally aware and involved with the indigenous community on the Gold Coast.
[69] I find the further evidence, that was filed by leave, of Ms Lindenberg supports her oral evidence at the hearing in that she is heavily involved in “trying to close the gap” and works tirelessly with and for the Aboriginal community.
[70] The order made by Justice Moynihan in 2006, while not directly relevant to the matter before this tribunal, was of assistance to highlight the history of the dispute between the Corporation and Elder Dillon, and his wife Elder Marilyn Dillon who has since passed away, and this tenant Ms Lindenberg.
[71] I accept Ms Lindenberg and Elder Dillon’s evidence that Ms Lindenberg was very close to him and his wife, that she was a supporter of them after they were removed from their positions within the Corporation, and that this was partly a reason for Ms Lindenberg having her employment terminated from the Corporation in 2006.
[72] I accept the evidence of Elder Dillon that Ms Lindenberg was a good tenant. The evidence of Ms Edwards did not contradict that Ms Lindenberg is a good tenant.
[73] I find and accept that Elder Graham Dillon is a respected Elder with special knowledge of Aboriginal tradition. I place significant weight on his evidence and in particular his opinions and views expressed at the hearing. I find that there is aboriginal tradition and practice that must be observed relating to Aboriginal traditions when dealing with residential tenancy agreements when a tenant is an aborigine.
[74] I accept that Ms Lindenberg works tirelessly for the community to “close the gap”. I find that she does involve herself with activities and projects that target improving the life of the Aborigine and Torres Strait Islander community, particularly in areas involving children, their families and education.
[75] The Corporations’ own Memorandum, and in particular those relevant to this case, state that the objects of the corporation are to:
(a) Assist aborigines and Torres Strait Islanders in need of accommodation and other housing services in the Gold Coast and surrounding areas, to rent accommodation from Kalwun Aboriginal &/or Islander Aboriginal & Torres Strait Islander members only (section 2(a));
(b) To assist aborigines and Torres Strait Islander to purchase their own home (section 2(c));
(c) To own and operate, control and manage hostels, homes, aged care facilities, houses and other residential establishments for Aborigines and Torres Strait Islanders (section 2(k));
and such objects of the Corporation clearly bind the Corporation to provide support to Aborigines and Torres Strait Islanders regarding housing and assisted accommodation.
[76] I find that the Corporation are now refusing membership to Ms Lindenberg. I find that Ms Lindenberg has not appeared before the Board for a review for refusal of membership. While the Articles clearly state that if a member allows his membership subscription to be more than one month in arrears he will cease to be a member. However I find that the Corporation also has the power, within its Articles (Membership – section 2) to suspend or waive the subscription by special resolution of the Council.
[77] I find that as the Corporation can waive the requirement for payment of membership by way of special resolution I cannot understand why they failed to do so nor why they did not provide to the Tribunal any evidence to explain why they would of should not waive the membership fees for Ms Lindenberg. I find that Ms Lindenberg’s membership had been accepted in 2005 and due to her failure to pay on time her membership was terminated in 2006. I find she attempted to rectify the arrears but her payment was refused. I find that since 2006 Ms Lindenberg has continued to remain living in the Corporation owned residence without any demand for payment of her subscription fees or threats that if she refused to pay her fees she would be required to vacate her home.
[78] I accept the evidence of Ms Lindenberg that if the Corporation had demanded payment for her membership fees she would have paid them. I accept the evidence as stated by Ms Lindenberg that she believed that as no demand was made of her, the issue of payment of membership fees was no longer an issue or in dispute. That contention is a reasonable position in the circumstances.
[79] I accept that Ms Lindenberg had her application for membership approved by the Board on 8/2/2006. I accept that the Respondent Corporation forwarded correspondence to Ms Lindenberg terminating her membership on 27/4/2006. I accept that a letter also dated 27/4/2006 was sent from the Board of Kalwun to Ms Lindenberg, and all tenants, that stated membership payments were due by 30 June 2006 which was pursuant to resolution 7 from a meeting held on 5/6/2006. Ms Lindenberg’s membership was terminated at a meeting on 5/6/2006, which was 6 days before time for the payment of membership fees were due and therefore lapse. The correspondence states that:
“Your fees are due by 30th June 2006. If fee [sic] are not received by this date your membership can be terminated?”
[80] I find that the correspondence to Ms Lindenberg advised her to pay her fees by the 30/6/2006 or her membership could be terminated. I find that the correspondence did not advise Ms Lindenberg that her membership would be terminated, just that it could be.
[81] The Submission dated 7/2/2011 filed by the Corporation and prepared by Billie Edwards, who is a Property Manager employed by the Corporation, states that a letter was sent to Ms Lindenberg advising her that she had to attend meetings and community events. That letter is dated 8/11/2010. The correspondences states:
“(1) We would like to advise you that we have scheduled a tenant meeting on Tuesday 30/11/2020…. It is in the tenant’s best interest to attend this meeting as without the information provided on this evening, you will be unaware of the new tenancy structure which may result in a form 12, notice to leave.“
with such correspondence sent from the Executive Director, Denise Lewis.
[82] I find that correspondence not a mandatory demand for Ms Lindenberg, or any tenant, to attend the meeting but merely an invitation to do so should they chose to. I find that letter an invitation and not a notice requiring compulsory attendance by any tenant and that the evidence that Ms Edwards claims that Ms Lindenberg should somehow be criticised for her membership being refused due to her failure to attend tenant meetings unfounded and without merit. I find the tenant was invited to attend and refused such invitation and is entitled to do so.
[83] I find that the submissions dated 7/2/2011 filed by Ms Edwards on behalf of the Corporation states various other reasons for the issuing of the Form 12 Notice to leave, they now include:
“Ms Lindenberg has involved herself in Indigenous Politics, … became involved in litigation pertaining to matters that were confidential…it is for this reasons that if any future membership applications were made by Ms Lindenberg they would be declined…..further…. It is our belief that Ms Lindenberg is no longer in need of affordable accommodation… there are three adults, perhaps four living there, each earning or having the capacity to earn an income.”
[84] I find that a letter sent to all the tenants from Kalwun, a copy which was provided to the tribunal, was dated 1/2/2007. I find that this letter makes no reference what so ever that request tenants to pay their membership fees prior to renewal of their lease.
[85] I find that a letter sent to Ms Lindenberg on 26 June 2009 does not refer to membership fees or payment required at all. I find also that the letter does not raise the issue relating to lack of community involvement. I find that if the fees were of such an issue as now raised by Kalwun, that I am of the view that the issue would have been included and raised in that correspondence.
[86] I find the evidence of Ms Edwards when she stated that the Constitution had recently been revised, and changes made, confusing and question the relevance. Ms Edwards did not indicate what changes had been made to the Constitution, when the changes were made and for what reason. This evidence was unclear and I find that from perusing the Articles and Memorandum of Association it is evidenced that many changes were made pursuant to “an approved change passed at the 2008 AGM”.
[87] From changes made to the Articles in 2008 from decisions made at an AGM I find that the change to the section headed “Cessation of membership” at paragraph 10(5) that states:
“If the council decides to reject an application, no further consideration of a re-application shall be made for a period of two years.”
[88] I was not informed what the previous section stated and why the change was necessary. The obvious impact on this case is that should Ms Lindenberg (or any other tenant) have their membership terminated, or are removed from the Register of members, resigns or is charged with any conduct where the Council passes resolution to resign a member due to conduct injurious to the character of interests or activities of the Corporation, an appeal process is available for a person to seek to review that Council decision. I find that the appeal must be submitted within 14 days from the date of advice from Council and if council rejects the application a further application to reconsider a re-application “shall not be made for a period of two years.” This change would effectively require any person, if a tenant, to be evicted from their property due to lack of membership, and they would not be able to reapply for membership for a period of 2 years.
[89] I am of the view that the amended time frame is onerous and would effectively prevent Ms Lindenberg from challenging her membership termination for a period of two years. I am of the view the change to the Articles may have arisen due to the circumstances of this case and due to the issues Ms Lindenberg is facing. In light of the fact I cannot with certainty draw that conclusion I raise it as inconsistent and incomplete evidence that I was required to make assumptions and draw my own conclusions about.
[90] I find from all of the evidence provided to the tribunal, which I add was voluminous, that there exists no evidence that supports the Corporation’s excuses to require the tenant to leave, in that the tenant is no longer in need of affordable accommodation, that there are three or four adults living in the property earning an income or that Ms Lindenberg involved herself in Indigenous politics and litigation involving confidential matters. I find the evidence of Ms Edwards disturbing in that she is prepared to evict a tenant and the occupants based on an assumption that the tenants are all earning incomes and that even if they don’t, they have the capacity to do so. This evidence is contradictory and without foundation. I find that either Ms Edwards must allege the tenants are all earning an income or they are not. I find that I cannot make any findings that Ms Lindenberg and the other occupants are all earning an income or have the capacity to do so. To assume such a baseless position would be unfair, unjust in the circumstances, without requisite evidence and therefore without merit.
[91] I find the evidence of the Respondent Corporation highlighting an entrenched position whereby Kalwun appear to be prepared to use whatever excuse they can find to evict Ms Lindenberg and her family from the property. The evidence and submissions from the Corporation, in my view, confirms that in my opinion there is a past history of animosity by the Corporation toward the tenant and that there appears to be residual personal conflict between Board Members of Kalwun and Ms Lindenberg. I find the long standing conflict, past history and involvement of Elder Dillon and his wife, Ms Lindenberg’s termination from the employ of the Corporation and the current reasons for attempts to reasonably justify terminating Ms Lindenberg’s lease as a series of ongoing issues, events and conflicts between the parties. The fact the Corporation has submitted that “any future application for membership would be declined” satisfies me that the Form 12 Notice to Leave issued on the 2 December 2010 is a retaliatory act.
Conclusion
[92] If I accept that the Corporation’s Constitution requires a tenant to be a financial member I have not been given sufficient explanation as to why it has taken until now, after the first Notice To Leave was issued in 2006 for the same reasons, for the second Notice to Leave without Grounds being issued for the alleged same reason. Since 2006 there has not been any Form 11 Notices served on the tenant to remedy a Breach by failing to pay membership fees. If it is inferred that the requirement to pay membership fees is a condition of the lease, and if the tenant is not financial the lease will be terminated and the tenant required to Leave, I would expect the Corporation would have issued Form 11 Notices regarding this matter.
[93] I find it untenable that an Indigenous Housing Community, that has as its main focus and goal to find and assist Aborigines and Torres Strait Islanders secure housing, would demand that an Indigenous family vacate their home based on a Form 12 Notice to Leave without grounds. To then raise issues and reasons for issuing the Notice as a failure by the tenant to pay a $5.00 membership fee is outrageous and not in the spirit of the Residential Tenancies and Rooming Accommodation Act 2008 or in the spirit of the Corporation’s own Memorandum and Articles.
[94] I find that the Ms Lindenberg was promised by Elder Dillon that it would be a possibility for her to purchase the home she has lived in with her children since 2005. I find that the Articles and Memorandum support such a finding despite Ms Edwards disputing this fact.
[95] I find that the evidence provided to the tribunal from the indigenous Business Australia organisation supports Ms Lindenberg’s evidence that finance options are available to her for the purchase of a property owned by an Indigenous organisation.
[96] I find that the evidence of Billie Edwards accusing Ms Lindenberg as involving herself in Indigenous politics, while irrelevant, clearly a matter that she has placed great weight upon to substantiate issuing a Form 12 Notice to Leave.
[97] I am of the view that a higher threshold test should apply to Community Housing organisations when evicting or requiring tenants to leave their home in situations where the housing assistance is government funded and provided to house those in the community that find it impossible or difficult to obtain private rental accommodation, and in particular, Notices to Leave without Grounds.
[98] I find that housing is a basic human need and assisted housing is provided to tenants with low incomes or otherwise in need so that they can afford to meet other day to day living expenses of food, clothing, transport medical care and education. I find that tenants living in assisted housing often are faced with considering these types of rental options as accommodation of “last resort”. In circumstances such as these I find that security of tenure in assisted housing should be afforded to the tenant unless there are serious breaches of their tenancy agreement to warrant termination and eviction. I consider those to include matters like failing to pay rent, disturbing the peace and interfering with other tenants’ use and enjoyment of their property and/or causing damage to the property. I find it unpalatable that any public housing or assisted housing organisation would issue a Notice to Leave to tenant without grounds.
[99] In this case I find the action of the Corporation attempting to force Ms Lindenberg to vacate her home due to a $5.00 membership fee unfair and unjust in the circumstances. The Corporation’s core function, objective and goal is to provide affordable long term accommodation for Aborigines and Torres Strait Islanders on the Gold Coast. It is a company that has as some of its objects, a commitment to the following:
To assist Aborigines and Torres Strait Islanders in need of accommodation and other housing services in the Gold Coast and surrounding areas to rent accommodation from Kalwun Aboriginal &/or Islander Aboriginal & Torres Strait Islander members only.
To co-operate with public and private housing services with a view to ensuring that Aborigines and Torres Strait Islanders derive full benefit from such services.
To assist aborigines and Torres Strait Islanders to purchase their own home.
To own, operate, control and manage hostels, homes, aged care facilities, houses and other residential establishments for Aborigines and Torres Strait islanders.
To do all such things as may appear to be incidental or conducive to the attainment of the above objects.
I find the action by the Corporation of issuing the Notice to Leave to Ms Lindenberg in direct contravention of the objects of Memorandum and Articles of Association of Kalwun Development Corporation Limited.
I find that there may be instances where the Respondent Corporation may reconsider eligibility for tenants to remain in occupation of their properties if for example their income exceeds the limits that would be determined as low income, and they could afford to access private rental accommodation. However, I do not find that there is any provision in the Articles and Memorandum of Association that would render issues with eligibility other than tenants who allow their membership to lapse.
I also find that the requirements of the Corporation’s Memorandum and Articles state that if:
“a member shall cease to be a member if his membership subscription is more than one month in arrears, unless such subscription is suspended or waived by special resolution of the Council.
I find that Ms Lindenberg has been a non financial member since 2006 and yet has been permitted to continue to reside in her property. I find, that to now demand, some 4 years later, that she vacate the property because of her membership status due to non payment and financial as unreasonable, unfair and unjust.
The Articles state, that in relation to annual subscriptions:
“persons admitted to membership pursuant to paragraph 4 shall pay annual subscription as the Company may from time to time determine. All subscriptions payable shall be paid in advance unless the Council otherwise determines. The words ‘the membership year” shall be from 1 July to 30 June the following year”.
I find that as the articles contemplate that the council may change the payment of annual subscription by requiring payments in advance, subject to the Council determining otherwise. I find that the Council could make a departure from requiring membership payments being paid in advance. I find the fact that the Council can change payments from advance, it is reasonable to conclude that could be construed that a tenant could pay membership in arrears and still be considered to be a paid up member, subject to the Council determining so.
I find that the Corporation did not make demand of payment for membership fees during the period of 2006 until the Notice to Leave was issued. I find that Ms Lindenberg attempted to pay her membership fees and the cheque was returned to her.
I find that cases like this usually relate to more usual situations where the Lessor is the owner of a property, and a Notice to Leave without Grounds may be issued and served for a variety of valid reasons that would warrant providing possession of the property back to the owner. They could include reasons that the property has been sold, the owner wishes to move back into their property due to financial constraints or to attend to major repairs and maintenance issues. However, in cases like this, those same issues and reasons can not be the case. When considering a Notice to Leave which involves tenants and leases in assisted housing I am of the view that eviction should be an act of last resort. It is unfair that a tenant in such circumstances is issued with a Notice to Leave without Grounds when there is no plausible reason why they should do so.
I find that a tenant should be given, in my view, a Notice to Leave with reasons as in the interests of justice a tenant should be on notice about the allegations and reasons they are being required to hand back possession of the property. In this matter it has proved difficult to determine why this tenant should vacate the property and hand possession back to the Corporation.
The Corporation have raised varying issues and reasons why they require the tenant to leave, including non financial membership, failure to be involved in community events, failure to work with the Corporation for the betterment of the Aboriginal community, failure to attend Tenant meetings, failure to attend Annual General Meetings, that her ‘situation’ does not meet the guidelines of the company constitution, that she no longer is in “need of affordable accommodation”, that the house should be provided to “someone who is in greater need” and that she has involved herself in “indigenous politics”.
I find that the reasons highlighted by the Corporation are without merit and unsubstantiated. I am satisfied that Ms Lindenberg has tried to pay for her membership fees and I accept her cheque was returned to her. I am satisfied that she works tirelessly to “bridge the gap” in the community and attends many seminars, workshops, meetings and events and is working in the community to raise awareness of issues facing her community.
I accept the reason Ms Lindenberg stated as to why she does not attend Corporation arranged events like the Christmas party and meetings as she feels that since her dismissal in 2006 she has been made to feel “uncomfortable” and being in the presence of some members of the Board and some staff of the Corporation who still work at the Corporation and were involved in her 2006 sacking.
I find that in all the circumstances, taking into account all of the evidence provided to the tribunal by the parties and witnesses, both oral evidence and exhibits, I am satisfied that the Corporation has proven that animosity exists between the parties. The allegation by the tenant that she has been bullied and harassed by the Corporation appears to have some merit. Ms Lindenberg claims that the Corporation has embarked on a course of conduct to have her removed from the property without cause and that she has been victimised. This application to set aside a Notice to Leave without Grounds, and the previous Notice in 2006, appears to support such an allegation.
I find that if I do not set aside the Form 12 Notice to Leave that the end result for the tenant would be that she would be evicted from her home, and such an act would be inconsistent with the Corporation’s Aboriginal traditional practice. I find that the lack of access to stable accommodation or housing could render this tenant homeless and literally having ‘nowhere to go’.
I find that Indigenous homelessness can be caused by considerable difficulties in them being able to access housing in the private rental market due to poverty and high levels of unemployment, discrimination, and in some areas, a lack of private rental housing stock. I am of the view that Corporations like Kalwun were established to overcome the housing issues and problems facing Aborigines and Torres Strait islanders. I find therefore, that in these circumstances, Notices to Leave should not be issued without Grounds, at the whim of a Board without rhyme or reason.
I find that the Form 12 Notice to Leave issued on the 2 December 2010 was retaliatory in nature and issued by the Respondent Corporation as a result of a long term dispute. I also find there is evidence of animosity between the tenant and some Board Members, and that the Corporation has raised unfounded allegations that the tenant has engaged in alleged conduct without evidence to support the contentions. This Board may be making decisions that are against the tenure of their Articles and Memorandum of Association and against the very ethos of their community, that is “unity and reconciliation starts with the Corporation.”
I find no evidence to justify the giving of such a Notice to Leave without Grounds to this tenant. I find the issuing of the Notice, considered in the context of all of the prevailing circumstances, unreasonable.
I find that the termination order should not be made as it would be inconsistent with the Lessor's Aboriginal tradition practice.
I consider that the issuing of the Notice to Leave, when considered in the context of all of the prevailing circumstances in this case, was unreasonable and excessive. I find it was also to some extent, vindictive.
I have considered, on the basis of extensive and voluminous material filed by the parties, that there is sufficient evidence for me to determine that the issuing of the Notice to Leave Without Grounds on 2 December 2010 by the Corporation was a retaliatory act, unreasonable in all the circumstances and in contravention of the Lessor's Aboriginal tradition practice. I find that the Notice should therefore be set aside.
ORDERS
That the Notice to Leave issued on 2 December 2010 be set aside.
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