Mohammadian v Samani & Anor (Residential Tenancies)
[2021] ACAT 125
•1 December 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MOHAMMADIAN v SAMANI & ANOR (Residential Tenancies) [2021] ACAT 125
RT 863/2021
Catchwords: RESIDENTIAL TENANCIES – statutory interpretation – application by lessor for termination and possession order –consideration of requirements for a valid termination notice under clauses 83 and 96 of standard residential tenancy terms – meaning of ‘genuine belief’ – consequences of omission and later service of statutory declaration in accordance with clause 96(1A) – consideration of statutory requirements for valid service of a termination notice – whether an email address provided as an address for service pursuant to clause 98 of the standard residential tenancy terms is a valid address for service of a termination notice – where service of a termination notice by email is not service prescribed by regulation, consideration of the ACAT’s jurisdiction to waive a defect in service under section 59 of the Residential Tenancies Act – necessity for the lessor to provide evidence of the date on which the email was received – consideration of the ACAT’s jurisdiction to waive a defect in a notice or its service under section 83(1)(k) – whether the ACAT has power to correct a defect in a termination notice or its service under section 83(1)(k) where the ACAT does not have power to waive the defect under section 59(1) – where the lessor’s notice was found to be invalid on various grounds – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 7
Evidence Act 2011 s 160
Legislation Act 2001 ss 246, 247, 250, 250
Residential Tenancies Act 1997 ss 8, 9, 47, 48, 49, 59, 59, 83, 83, 133 standard terms 6, 38, 42, 44, 46, 55, 57, 59, 60, 72A, 72B, 82, 83, 88, 91, 98Residential Tenancies Amendment Act 2020 (repealed) s 24
Subordinate
Legislation cited: Residential Tenancies Regulation 2008 s 5
Cases cited:Commissioner for Social Housing v Michalopoulos [2021] ACAT 107
List of
Texts/Papers cited: D. Pearce, Statutory Interpretation in Australia (9th ed, Lexis Nexis Butterworths, 2019)
Tribunal:Senior Member M Orlov
Date of Orders: 1 December 2021
Date of Reasons for Decision: 17 December 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 863/2021
BETWEEN:
MOSOUD MOHAMMADIAN
Applicant
AND:
SOHILA GHANBARI SAMANI
First Respondent
AND:
AMIN ZARGARI SAMANI
Second Respondent
TRIBUNAL:Senior Member M Orlov
DATE:1 December 2021
ORDER
The Tribunal orders that:
The application is dismissed.
……………Signed………..
Senior Member M Orlov
REASONS FOR DECISION
Introduction
By an application for resolution of a dispute under the Residential Tenancies Act 1997 (RT Act), Dr Masoud Mohammadian (the lessor) seeks a termination and possession order under section 47(1) of the RT Act in relation to a residential tenancy agreement with the respondents (the tenants) for premises in Phyllis Ashton Circuit, Gungahlin (the premises), made on 7 February 2019.
The application came before me for hearing on 1 December 2021. I dismissed the application and informed the parties that I would publish my reasons later. These are my reasons.
Background
The residential tenancy agreement on which the lessor relies was made on 7 February 2019 and was for a fixed term ending on 7 November 2019 (fixed term agreement). Since expiry of the fixed term the tenancy has continued as a periodic tenancy. A copy of the fixed term agreement is annexed to the lessor’s application. Page 3 is headed ‘Standard Residential Tenancy Terms’. Section 8(1)(a) of the RT Act, as in force when the parties entered into the fixed term agreement (i.e. Reprint No. 56), provided that a residential tenancy agreement must contain, and is taken to contain, terms to the effect of the standard residential tenancy terms mentioned in schedule 1. As will appear, the printed terms included at pages 3 to 13 of the fixed term agreement were not in all respects compliant with the standard residential tenancy terms in schedule 1 of the RT Act that were applicable at the time. The footer at the bottom of each page of the fixed term agreement suggests that the form of residential tenancy agreement used in this case was last updated on 14 August 2006, which may explain the discrepancy. I will explain the significance of this shortly.
On 20 September 2021, the lessor sent by prepaid registered post to the address of the premises a document titled ‘Termination Notice’ requiring the tenants to vacate the premises on or before 21 October 2021. The notice was described as “in relation to the residential tenancy of the premises situated at …Phyllis Ashton Circuit, Gungahlin 2912 ACT”. The street and suburb of the premises where the premises were situated were correctly described but the street number was incorrect.
The grounds on which the notice was issued were:
Your rental contract is expired. You are on periodic tenancy.
Hence according to tenancy agreement (refer to your rental contract) I give you 4 (four) weeks notice (see section 96b and section 96c) to vacate my property at…Phyllis Ashton Circuit 2912 Gungahlin ACT. You need to vacate my property at 21/10/2021.
The address of the premises was correctly identified in the grounds.
The lessor also emailed a copy of the notice to one of the two tenants.
I infer that “section 96b” and “section 96c” was intended to refer to subclause 96(1)(b) and (c) of the standard residential tenancy terms at pages 3 to 13 of the residential tenancy agreement.
It appears that one of the tenants named on the residential tenancy agreement, Armin Samani, has not lived at the premises since 24 February 2020, although the lessor was either unaware of this, or had overlooked it. The remaining tenant, Sohelia Samani, who is Armin Samani’s mother, did not vacate the premises by 21 October 2021. For convenience I will refer to Ms Samani as the tenant.
The lessor filed the application for a termination and possession order on 5 October 2021. The tribunal listed the application for hearing by telephone on 4 November 2021.
The residential tenancy agreement
On 7 February 2019, when the fixed term agreement was entered, clause 96(1) of the standard residential tenancy terms in schedule 1 provided:
1) If there is a periodic tenancy, the lessor may serve on the tenant a notice to vacate for the following periods on the following grounds:
(a)…
(b)4 weeks notice if the lessor genuinely believes the lessor’s immediate relative intends to live in the premises;
(c)4 weeks notice if the lessor genuinely believes an interested person intends to live in the premises;
…
1A) If the lessor serves a notice to vacate on the ground of an intention or belief mentioned in subclause (1)(a), (b) or (c), the lessor must also give the tenant a statutory declaration about the intention or belief.
2) In this clause:
immediate relative means a son, daughter, son-in-law, daughter-in-law, mother, father, mother-in-law, father-in-law, brother, sister, brother-in-law or sister-in-law.
interested person for a lessor, who is not an immediate relative of the lessor but who has a close family or personal relationship with the lessor and who has a reasonable expectation arising from that relationship that the lessor would provide accommodation for that person.
Clause 96(1A) was not reproduced in the printed terms at pages 3 to 13 of the fixed term agreement. This does not mean that the fixed term agreement did not contain clause 96(1A). Section 8(1)(a), as in force at the relevant time, provided otherwise.
The RT Act was amended in important respects by the Residential Tenancies Amendment Act 2020 (repealed), which commenced on 6 April 2020 (RT Amendment Act).
Section 8(1)(a) of the RT Act was amended to provide that a residential tenancy agreement:
(a) is taken to contain the standard residential tenancy terms mentioned in schedule 1–
(i)for a fixed term agreement – as in force on the day the parties enter the agreement; or
(ii)for a periodic agreement – as in force from time to time
A new section 8(1B) was inserted as follows:
To remove any doubt, subsection 1 (a) (ii) applies to a periodic agreement that commences on expiry of a fixed term agreement, on the day the periodic agreement commences.
Section 8(1B) was later renumbered section 8(3).
On the lessor’s case, the fixed term agreement became a periodic agreement when the fixed term expired on 7 November 2019. Pursuant to sections 8(1)(a)(ii) and 8(3) the periodic agreement is taken to contain the standard residential tenancy terms mentioned in schedule 1 of the RT Act as in force on that date (i.e. Republication No. 58). I will refer to these as the Standard Terms.
Relevantly:
(a)clause 6 provided that a reference to a notice to vacate is taken to be a reference to a termination notice under the RT Act;
(b)clause 83 provided:
The notice to vacate must be in writing, in the form required by the Residential Tenancies Act, and must include the following information:
(a) the address of the premises;
(b)the ground(s) on which the notice is issued, together with sufficient particulars to identify the circumstances giving rise to the ground(s);
(c)that the lessor requires the tenant to vacate the premises by the expiry of the required notice period and that the tenancy ends on the day that the tenant vacates the premises.
(c)clause 96 was unchanged from the term reproduced earlier – i.e. it included clause 96(1A).
The tenant’s response to the application
On 23 October 2021, the tenant provided her response to the application in an email to the tribunal, headed ‘Statement of Sohelia Ghanbari Samani’ (the response). The response included numerous attachments.
There is no record on the tribunal file of the tenant serving a copy of the response on the lessor. The significance of this will appear later.
It appears from paragraph 4 of the response that the tenant wished to dispute the genuineness of the lessor’s reasons for serving the termination notice and that she wished to counterclaim for compensation for various alleged breaches of the Standard Terms by the lessor.
Paragraph 4 states:
The orders I seek are that:
a. ACAT direct that 26 week notice period is required in order to terminate the lease.
b. In relation to gas connection and expenses on the basis that these are not separately metered:
i.For historical gas expenses, the landlord pay $3,665.85 for gas expenses incurred by myself to date.
ii.Gas expenses be paid for by the landlord on the basis that the gas connection is not separately metered.
c. In relation to water services:
i.The landlord not be entitled to charge me for water connectivity and supply on the basis that water is not separately metered to my apartment.
ii.The landlord repay me $128.86 I paid for water on 2 August 2021.
d. In relation to water damage to 1 of the bedrooms, the landlord repair water damage to the bedroom in the property immediately.
e. The landlord not be entitled to recover from my bond any gas or water expenses.
f. Costs of the application plus time spent by myself preparing this application be borne by the landlord.
By paragraph 6 of the response, the tenant claimed that “the previous tenancy agreement expired on [28 January 2021]”. A copy of the ‘previous tenancy agreement’ was not included with the response. It is unclear whether this was a reference to a later fixed term agreement than the one referenced by the lessor. If in fact the parties entered into a subsequent fixed term agreement that expired on 28 January 2021, the periodic agreement that commenced the next day contained the standard residential tenancy terms in schedule 1 of the RT Act as in force on that day (i.e. Republication No. 68). The minimum notice that a lessor was required to give under subclause 96(1)(a), (b) and (c) was now eight weeks, instead of four weeks. Clearly, if the tenant’s claim was correct the lessor failed to give a valid notice.
By paragraphs 7 to 8 of the response, the tenant claimed that she was having ongoing discussions with the lessor about a new tenancy agreement, including a rent increase, repairing water damage to the premises, and adjusting utility charges that she claimed had been “inappropriately incurred”. The tenant claimed:
At no time during these discussions did the landlord ever mention the potential for one [of] his family members to occupy the premises. I do not believe the landlord is sincere about a family member moving into the premises. I believe his motivation for the termination is to avoid dealing with the issues relating to water damage and adjustment of utility expenses.
I understood this to mean that the tenant intended to challenge the genuineness of the lessor’s reasons for giving the notice to vacate and to argue that the lessor could end the periodic agreement only by giving her 26 weeks’ notice under clause 94 of the Standard Terms.
In paragraphs 9 to 13 of the response, the tenant explained the basis for her belief that the gas hot water system servicing the neighbouring rented premises, also owned by the lessor, was connected to her metered gas supply. If true, an issue would arise whether, contrary to clause 46 of the Standard Terms, which provides that the tenant is responsible for all charges associated with the consumption of services supplied to the premises, the lessor should be held liable to meet the cost of gas consumption under clause 42(c), on the grounds that the tenant’s gas service is not separately metered, so that the amount of gas consumed by the tenant during the period of the tenancy cannot be decided accurately.
In paragraphs 14 to 17 of the response, the tenant explained the basis for her belief that she should not be liable for water charges, including because the water supplied to her premises was not separately metered. The tenant claimed that she paid $128.89 to the lessor for water usage. A handwritten note on an invoice issued to the lessor by Icon Water apportioned the amount payable by the tenant as $10.95 for water supply and $117.93 for water usage. If the tenant’s claims are true, an issue would arise whether an additional term of the original fixed term agreement that “the tenant is required to pay 50% of the water usage fee based on meter reading”, was a term of the periodic agreement and, if so, whether it was inconsistent with clause 42(c) of the Standard Terms and therefore void under section 9(1)(a) of the RT Act. A further issue would arise whether the lessor has breached clause 44 of the Standard Terms, which requires the lessor to pay the annual supply charge associated with the supply of water.
In paragraphs 18 to 20 of the response, the tenant explained the basis for her belief that the electricity supply to some of the common areas, including the laundry, garage, and stairwell, was connected to her metered electricity supply. If true, similar issues would arise as mentioned earlier in relation to the gas supply.
In paragraphs 20 and 21 of the response, the tenant claimed that the lessor failed to remedy a leak in the ceiling of one of the bedrooms, which she first notified to the lessor in December 2020. The issue therefore is whether the lessor is in breach of his repair obligations under clauses 55, 57, 59 and 60(c) of the Standard Terms.
The evident purpose of the tenant’s response was to raise issues partly by way of answer (or defence) to the lessor’s claim for a termination and possession order, and partly by way of a counterclaim for compensation for alleged breaches of the residential tenancy agreement.
The hearing on 4 November 2021
The application came before a differently constituted tribunal for hearing on 4 November 2021. The hearing was conducted by telephone. It appears from the tribunal file that the tenant was represented by a legal case officer from the YWCA. A Farsi interpreter was made available to assist the tenant, who speaks and understands English, but not sufficiently well to participate in a hearing without being disadvantaged.
The tribunal adjourned the hearing to 1 December 2021, noting that the purpose of the adjournment was to allow:
a) the lessor to provide to the Tribunal and the tenants a statutory declaration in accordance with clause 96(1A) of the standard terms;
b) the lessor, if he wishes, to submit an amended application;
c) the tenants, if they wish, to apply to the Tribunal in respect of how utilities have been paid for during the tenancy; and
d) any other matters between the parties to come forward to the Tribunal.[1]
[1] Tribunal orders made on 4 November 2021
I presume from subparagraphs (a) and (b) that the lessor’s omission to give a statutory declaration in accordance with clause 96(1A) of the Standard Terms was discussed with the parties and that the tribunal gave leave for the lessor to file a statutory declaration and, if he wished, to amend his application to seek any consequential orders he considered necessary in the circumstances.
I presume from subparagraphs (c) and (d) that the tenant’s response was discussed and the tenant was granted leave to file a separate application if she wished to pursue her claims for compensation.
The tribunal made an order that “the defect in the Notice of Termination, namely an incorrect address of the premises, is rectified under section 59 of the Residential Tenancies Act 1997”. I discuss the scope of the tribunal’s power to waive or rectify a defect in a termination notice or its service under section 59 and section 83(1)(k) of the RT Act later in these reasons. For present purposes, it is sufficient to say that where the address of the premises was correctly identified in the body of the notice and there was no possibility that the tenant may be confused or mislead as to which premises were the subject of the notice, the misdescription of the street address of the premises was not a defect that would invalidate the notice.
The lessor’s clause 96(1A) statutory declaration
On 5 November 2021, pursuant to the leave granted the previous day, the lessor emailed a statutory declaration to the tribunal and to the tenant, purporting to be a statutory declaration in accordance with clause 96(1A) of the Standard Terms. Relevantly, the lessor declared:
3. I have provided the required 4 weeks’ notice to vacate my property to the tenants… for the property at…Phyllis Ashton Crt Gungahlin 2912 ACT Canberra based on Section 96 (1) (b) and Section 96 (1) (c) of residential tenancy agreement signed between me and the above mentioned tenants.
4. The property at …Phyllis Ashton Crt Gungahlin ACT 2912 ACT Canberra will be used for my immediate relative and/or interested person as allowed by Section 96 (1) (b) and Section 96 (1) (c) of the residential tenancy agreement signed between me and the above mentioned tenants.
The hearing on 1 December 2021
The lessor did not file an amended application and the tenant did not file an application for compensation in accordance with the leave granted on 4 November 2021.
When the matter came before me on 1 December 2021, there was some initial confusion on my part about the status of the tenant’s response because I assumed at the start of the hearing that the response had been served on the lessor. However, the lessor objected to me dealing with the tenant’s claims on the grounds that the tenant had not filed an application for compensation. The lessor submitted that the only matter before me for decision was his original claim for a termination and possession order. As section 7 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) requires the tribunal to seek to ensure its procedures are as simple, quick, inexpensive, and informal as is consistent with achieving justice, I would have been prepared to treat the tenant’s compensation claims as properly before the tribunal, despite the absence of a formal application, provided the response had been served on the lessor. However, as my inspection of the tribunal file revealed no evidence that the tenant had served the response on the lessor, I confined the hearing and my decision to the lessor’s application for a termination and possession order.
It is a matter for the tenant whether she wishes to pursue her claims for compensation by filing a fresh application for resolution of a residential tenancy dispute in the ACAT, whether now or when the lessor makes a further application for a termination and possession order, as he indicated was his intention at the end of the hearing.
Consideration
Section 47 of the RT Act provides:
(1) On application by a lessor, the ACAT may make a termination and possession order if satisfied that—
(a)a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); and
(b)the lessor has served a termination notice on the tenant based on that ground; and
(c)the tenant has not vacated the premises as required by the termination notice.
In this case, the lessor relies on the grounds for termination in subclause 96(1)(b), or alternatively subclause 96(1)(c) of the Standard Terms.
The essential factual preconditions that must be present before a right to serve a termination notice under subclause 96(1)(b) can arise are:
(a)the lessor must genuinely believe that a person intends to live in the premises (i.e. the lessor must have a specific person in mind and have a genuine belief that the person has a present intention to live in the premises when the premises become vacant); and
(b)the person whom the lessor has in mind must be an ‘immediate relative’ of the lessor within the meaning of clause 96(2) of the Standard Terms.
The essential factual preconditions that must be present before a right to serve a termination notice under subclause 96(1)(c) can arise are:
(a)the lessor must genuinely believe that a person intends to live in the premises (i.e. the lessor must have a specific person in mind and have a genuine belief that the person has a present intention to live in the premises when the premises become vacant); and
(b)the person whom the lessor has in mind must have:
(i) a close family or personal relationship with the lessor; and
(ii) a reasonable expectation, arising from that relationship, that the lessor would provide accommodation to the person.
A genuine belief requires, as a minimum, that the lessor’s belief should be honestly held. While the phrase ‘genuinely believes’ in subclause 96(1)(b) and (c) does not mean the same as “believes on reasonable grounds”, whether in a particular case the lessor has the requisite genuine belief is a question of fact and degree. Where the lessor’s belief is shown to be irrational or lacking any real factual basis, I doubt whether the lessor could establish the requisite genuine belief.
Where a ground to give a notice to vacate under subclause 96(1)(b) or (c) exists in fact, the lessor must comply with the following procedural requirements.
The first requirement – valid service
The prescribed methods of service of a termination notice in section 5 of the Residential Tenancies Regulation 1998 (RT Regulation) are overlooked routinely. Section 5(a) of the RT Regulation states that for the purpose of sections 58(1)(b) and 59(1)(b) of the RT Act[2] a termination notice must be served on an individual:
i) by delivering it to the person personally; or
ii) by leaving it at, or sending it by prepaid post to, the address of the place of residence or business of the person last known to the person serving the document; or
iii) by leaving it at, or sending it by prepaid post to, the address for service provided by the person under the Residential Tenancies Act 1997, schedule 1 (Standard residential tenancy terms), clause 98…
[2] Sections 58 and 59 of the RT Act refer to circumstances where the lessor purports to serve a termination notice on a person and the notice is not served as prescribed by regulation.
Clause 98(1) of the Standard Terms provides that, at the commencement of the tenancy, the lessor and the tenant must each give an address for service of notices.
There are many circumstances in which a notice may need to be served on the lessor or on the tenant under a residential tenancy agreement. Without attempting to be exhaustive, examples include where:
(a)the lessor intends to increase the rent;[3]
(b)the tenant requires the lessor to undertake repairs;[4]
(c)a co-tenant intends to stop being a party to a tenancy agreement;[5]
(d)a person wishes to become a co-tenant;[6]
(e)the lessor intends to enter the premises for the purpose of making or inspecting repairs;[7]
(f)the tenant intends to terminate a periodic tenancy;[8]
(g)the tenant requires the lessor to remedy a breach.[9]
[3] Clause 38 of the Standard Terms
[4] Clauses 55(2) and 57 of the Standard Terms
[5] Clause 72A(2) of the Standard Terms
[6] Clause 72B(2) of the Standard Terms
[7] Clause 82(1) of the Standard Terms
[8] Clause 88(1) of the Standard Terms
[9] Clause 91(a) of the Standard Terms
A practice has developed for letting agents to require tenants to provide an email address as the tenant’s address for service for the purposes of clause 98 of the Standard Terms. Even where this is not done, the experience in the tribunal is that lessors and letting agents routinely communicate with tenants by email and use the tenant’s email address for the service of all kinds of notices. There appear to be prevailing assumptions in the industry that service by email is a valid method of service for all purposes and that a notice sent by email is taken to be served on the day the email is sent. Neither assumption is correct.
While service of a notice by email to an email address provided by the lessor or tenant in accordance with clause 98 of the Standard Terms may result in valid service for most purposes, service of a termination notice by email is not a valid method of service under section 5 of the RT Regulation.
Section 5(a)(iii) of the RT Regulation provides for service at the address for service provided under clause 98 of the Standard Terms. The requirement that service of a termination notice must be by “leaving it at, or sending it by prepaid post to” the address provided under clause 98, means that the address for service of a termination notice must be the address of premises (or a place, such as a post office box) where a notice may be left, or to which a notice may be sent by prepaid post.
Even where parties to a residential tenancy agreement agree for service of notices to be by email by providing an email address under clause 98 of the Standard Terms, the agreement does not authorise service of a termination notice by email. Parties cannot contract out of section 5 of the RT Regulation. This may come as a surprise to many.
For some official or public purposes, service on an individual by email is authorised by statute. Section 247(1)(d) of the Legislation Act 2001, which is in part 19.5 of the Act, provides for circumstances in which a document may be served on an individual by emailing it to the ‘email address’ of the individual. The ‘email address’ of an individual “in relation to anything done or to be done under a law”, includes the latest email address of the individual, if any, recorded in a register or other records kept by the ‘administrator’ of the law.[10] The ‘administrator’ of a law means the entity administering or responsible for the law,[11] which may be an administrative unit, statutory office-holder or any other entity established for a public purpose under a law (collectively defined as an ‘agency’).[12] Section 250(3) of the Legislation Act 2001 creates a presumption that if the sender has no reason to suspect that a document served by email under part 19.5 was not received by the recipient when sent, the document is presumed to be served when sent unless evidence, sufficient to raise doubt about the presumption, is given. Section 250(3) provides that a sender has reason to suspect that a document sent by email was not received when sent if, on the day the document was sent, or on the next working day, the equipment used to send the email indicates by way of signal or other message that the address to which the email was sent was not the email address of the recipient – which is known colloquially as the email ‘bouncing’.
[10] Legislation Act 2001, section 246
[11] Legislation Act 2001, section 246
[12] Legislation Act 2001, section 246
For example, the Australian Tax Office, which is the entity responsible for administering Commonwealth taxation laws, may serve a notice on an individual in relation to anything done or to be done under the taxation laws by emailing the notice to the latest email address of the individual recorded in a register or records kept by the ATO.
However, section 247(1)(d) of the Legislation Act 2001 does not authorise service on an individual by email for all purposes.
The inherent limitations in electronic communications are well known. Most people will have experienced a server diverting an important email to a spam or junk folder, where it may sit unnoticed unless searched for specifically. The most obvious drawback of electronic communications is the difficulty for the sender to establish, with any reasonable degree of certainty, that an email has been received and, if received, that it has been read by the intended recipient. A sender may request a delivery or read receipt notification. However, even where this is done many people habitually choose not to respond to requests of that kind.
Wherever the RT Act or the Standard Terms prescribes the notice that must be given before something can be done by the tenant or lessor, the notice period commences to run from the date when the notice is served, or is deemed to be served. Where parties have agreed that service of notices (other than a termination notice) may be by email to a nominated email address, it remains an open question when a notice is taken to be served when sent by email. There is no generally applicable statutory or common law presumption that an email is received on the day it is sent. Although clause 98 permits the parties to nominate an email address as an address for service for all purposes except for service of a termination notice, the clause says nothing about the time at which a document or notice sent by email is taken to be served.
The experience in the tribunal is that some letting agents have adopted systems where all communications with a tenant are conducted by email sent via an electronic portal accessed from the agent’s webpage. Such systems may be programmed to create a digital record of the date and time when an email is created, when it is sent, and when it is opened, which can be printed out and relied upon as evidence of service.
Such evidence is essential where a termination notice is served by email. The tribunal’s jurisdiction to make a termination and possession order depends, among other things, on the tribunal being satisfied that the lessor has served a termination notice on the tenant.[13] As service by email is not a method of service prescribed by regulation, a lessor seeking a termination and possession order must apply to the ACAT at the same time for an order under section 59(1) of the RT Act waiving the defect in service. Where the termination notice was served by email, the minimum requirement for an application under section 59(1) is that the application must be supported by evidence of the date and time when the email was sent and the date when it was opened.
[13] See sections 47(1)(b), 48(1)(a)(ii), 49(1)(b) of the RT Act
An application for waiver of a defect in service under section 59(1) is not, and should not be treated as, a routine matter. Section 59(2) provides that the ACAT must not waive such a defect unless satisfied that the defect did not, and is not likely to, place the tenant in a significantly worse position than the tenant would have been in had the notice been served in accordance with the Standard Terms. The lessor bears the onus of proof on this issue. There must be sufficient evidence for the tribunal to be able to make findings in relation to the jurisdictional facts mentioned in section 59(2). Where jurisdiction is established, it then becomes a matter for the tribunal to decide whether, in all the circumstances, the discretion should be exercised in favour of the lessor.
The practical difficulties that may arise where notices are served by email may be illustrated by a recent application that came before the tribunal, where the lessor served a termination notice by email on the grounds of the tenant’s failure to pay rent. The notice included all the necessary details and gave the required 14 days’ notice, which was expressed to expire on a date that was 14 days after the date of the notice. The notice was emailed to the tenant’s email address the same day. A printout of the email and the associated electronic record of the date when it was created, sent, and opened, given to the tribunal as proof of service for the purposes of section 49(1)(b) of the Act, included a record showing that the email had been opened but not the date when it was opened. There was no suggestion that the omission was deliberate. A check of the electronic records at the tribunal’s request, revealed that the email was opened nine days after the day it was sent. Effectively, this meant that the tenant was given only five days’ notice of termination, instead of 14 days, which rendered the termination notice invalid.
In contrast, where a document is served by sending it by prepaid post, section 250(1) of the Legislation Act 2001 provides that the document is taken to be served when the document would have been delivered in the ordinary course of post. Section 250(2) clarifies that subsection (1) does not affect the operation of section 160 of the Evidence Act 2011.
Section 160(1) of the Evidence Act 2011, creates a rebuttable presumption that a postal article sent by prepaid post was received on the seventh ‘working day’ after it was posted. The Dictionary in the Legislation Act 2001 defines ‘working day’ to mean a day that is not a Saturday, or Sunday, or a public holiday in the ACT.
The presumption may be rebutted by evidence of actual receipt of the postal article. For example, where an article is sent by registered prepaid post, the sender may choose, at extra cost, to require the recipient to sign for the article and for the sender to receive confirmation of delivery. If that option is not selected, the presumption created by section 160(1) of the Evidence Act 2001 will operate.
Considering the facts of this case, the lessor sent the termination notice by registered prepaid post to the address of the premises. The registered post receipt show that the letter was posted on 20 September 2021 and that the lessor elected not to receive confirmation of delivery. Pursuant to section 160(1) of the Evidence Act 2001, the notice is deemed to have been served on the tenant on 29 September 2021, being seven working days after it was posted. As the notice required the tenant to vacate the premises by 21 October 2021, the lessor failed to give four weeks’ notice as clause 96(1)(b) and (c) required.
The lessor also emailed a copy of the termination notice to the tenant at 2:38pm on 20 September 2021. Although I did not understand the tenant to claim that she did not ever see the email, there was no evidence of the date when she opened the email.
Whichever way one approaches the matter, service of the termination notice in this case was defective. I discuss later whether the defect in service can, or should, be waived under section 59(1) or section 83(1)(k) of the RT Act.
The second requirement – a statutory declaration containing sufficient information to show that the necessary factual preconditions for the lessor to give notice of termination exist must be served with the notice in accordance with clause 96(1A)
Clause 83 of the Standard Terms has been reproduced earlier. For present purposes it is necessary to notice clause 83(b), which requires that at termination notice must include “the ground(s) on which the notice is issued, together with sufficient particulars to identify the circumstances giving rise to the ground(s)”.
The provision of adequate particulars is essential for a tenant to know whether the circumstances on which the lessor relies give rise to a ground for termination, and, if necessary, to enable the tenant to obtain advice as to the tenant’s rights and remedies under the RT Act.
For example, subclause 96(1)(e) of the Standard Terms permits a lessor to serve a notice to vacate giving 12 weeks’ notice “if the lessor genuinely intends to reconstruct, renovate, or make major repairs to the premises and the reconstruction, renovation or repairs cannot reasonably be carried out with the tenant living in the premises”. It is not sufficient for the lessor simply to assert that the lessor “intends to reconstruct, renovate, or make major repairs to the premises and the reconstruction, renovation or repairs cannot reasonably be carried out with the tenant living in the premises”. For particulars included in a notice of termination under subclause 96(1)(e) to be sufficient to identify the circumstances giving rise to the grounds, the particulars must identify the nature of the reconstruction, renovation or repairs the lessor intends to carry out, and the reasons why the work cannot reasonably be carried out while the tenant continues to live in the premises.
Similar requirements apply where a notice of termination is given under subclause 96(1)(a) – i.e. if the lessor genuinely intends to live in the premises – or, as in this case, subclause 96(1)(b) or (c), the only material difference being that the necessary particulars must be given in a statutory declaration by the lessor in accordance with clause 96(1A), which states:
If the lessor serves a notice to vacate on the grounds of an intention or belief mentioned in subclause (1)(a), (b) or (c), the lessor must also give the tenant a statutory declaration about the intention or belief.
The particulars that the statutory declaration must contain will depend on the grounds for the notice.
Where notice is given under subclause 96(1)(b), the statutory declaration must give particulars of the basis of the lessor’s belief that a person who is an ‘immediate relative’ has a present intention to live in the premises. Where notice is given under subclause 96(1)(c), the statutory declaration must give particulars of the basis of the lessor’s belief that a person who is an ‘interested person’ has a present intention to live in the premises.[14]
[14] Refer to the factual preconditions that must be present before a lessor can give a notice under subclause 96(1)(b) or (c), discussed in paragraphs 42 and 43 above.
As a sufficient statement of the facts to establish the grounds on which the lessor may give a notice to vacate under clause 96(1) is essential to the validity of such a notice, the words “must also” in clause 96(1A) must be taken to impose a requirement that the statutory declaration must be given at the same time as a notice to vacate under subclause 96(1)(a), (b) or (c) is served on the tenant.
Considering the facts of this case, the lessor served a statutory declaration on the tenant for the purposes of clause 96(1A) on 5 November 2021, presumably after having his attention drawn to the omission at the hearing on 4 November 2021. This was 46 days after the date on which the lessor posted and emailed the notice to the tenant, and 15 days after the date by which the notice required the tenant to vacate the premises.
The contents of the lessor’s statutory declaration are reproduced earlier. The lessor simply asserts that the premises “will be used for my immediate relative and/or interested person”. For this statement to be true, the lessor would have to show that he had two persons in mind on 20 September 2021, one of whom was an ‘immediate relative’ and the other was an ‘interested person’, and that the lessor genuinely believed that each of those persons had a present intention to live in the premises when they became vacant. The statutory declaration contains no evidence of those facts and provides no basis upon which I could be satisfied that the lessor had a genuine belief at the relevant time about any of the matters on which his entitlement to serve a notice to vacate under subclause 96(1)(b) or (c) depended.
The fourth requirement – the notice period, calculated from the date of (valid) service, must not be less than the statutory minimum
Clause 96 of the Standard Terms specifies the minimum notice period that a tenant must receive, depending on the lessor’s grounds for giving notice.
On the lessor’s case, the periodic tenancy commenced on 8 November 2019, in which case the minimum notice under subclause 96(1)(b) or (c) was four weeks. The notice period commenced to run on the date of service determined in accordance with section 5 of the RT Regulation.
I have found earlier that the date of service by prepaid post was 29 September 2021. As the notice required the tenant to give vacant possession by 21 October 2021, the tenant was given less than the minimum four weeks’ notice.
Whether the tribunal can, or should, exercise its discretion to waive or rectify a defect in the termination notice or its service and make a termination and possession order
Section 83(1) includes a non-exclusive list of orders the ACAT may make in relation to a tenancy dispute, including an order under subsection 83(1)(k) correcting a defect in a notice or in the service of a notice.
Section 83(2) states:
The ACAT may make an order under subsection (1) (k) only if satisfied that the defect did not, and is not likely to, place the person receiving the notice in a significantly worse position than the person would have been in had the notice, or service of the notice, not been defective.
Section 83(1)(k) applies generally to notices given under the RT Act and the Standard Terms. The tribunal’s discretion to correct a defect in a notice or its service is limited only by the considerations in section 83(2) and, is informed more generally by the evident statutory purpose of requiring that notice should include certain information, or be in a particular form, or be served in a particular way. The discretion may be exercised on the tribunal’s own initiative.
Section 59 of the RT Act applies specifically to termination notices and requires an application by the lessor to enliven the tribunal’s jurisdiction. Section 59 provides for only two circumstances in which a lessor may apply to the ACAT for a waiver of a defect in a termination notice or its service and for the making of a termination and possession order despite the defect. The first is that the notice is not in the form approved under section 133 by the Minister for a termination notice (there is, in fact, no such approved form.[15]) The second is that the notice is not served as prescribed by regulation.
[15] Section 133(1) provides that the Minister may approve forms for the RT Act. Subsection (3) provides that an approved form is a notifiable instrument. According to my research, there is no approved form for a termination notice.
Section 59(2) limits the circumstances in which the tribunal may make such an order. Although not identical to section 83(2), the similarities are obvious:
The ACAT must not waive a defect in a termination notice or its service and make a termination and possession order unless satisfied that the defect did not, and is not likely to, place the tenant in a significantly worse position than the tenant would have been in had the notice been in, and served in, accordance with the standard residential tenancy terms.
Clearly, the ACAT has a more limited discretion under section 59(2) than it has under section 83(1)(k). Where section 83(1)(k) does not limit the kinds of defects in a notice that may enliven the ACAT’s discretion under that section, the ACAT’s discretion under section 59(1)(b) is enlivened only if the termination notice is not in the form approved under section 133. As no such form has been approved, this aspect of the tribunal’s discretion is irrelevant for all practical purposes.
The tribunal does not have jurisdiction under section 59(1)(b) to correct a defect in the information contained in a termination notice. To be clear, a termination notice that is defective because it fails to include the grounds on which the notice is issued, or sufficient particulars to identify the circumstances giving rise to the grounds, is defective in substance rather than form. The tribunal does not have jurisdiction under section 59 to waive the defect.
Similarly, where section 83(1)(k) does not limit the kinds of defects in service of a notice that may enliven the ACAT’s discretion under that section, the ACAT’s discretion under section 59(1)(c) is enlivened only where a termination notice is not served as prescribed by regulation – in other words, by a method of service prescribed by section 5 of the RT Regulation. Where failure to do so results in the tenant being given less than the minimum notice, which is an essential precondition to the lessor’s right to seek a termination and possession order, the tribunal does not have jurisdiction under section 59 to waive the defect in service.[16]
[16] Commissioner for Social Housing v Michalopoulos [2021] ACAT 107 at [14]
The question then is whether, subject to section 83(2), the ACAT has power under section 83(1)(k) to correct a defect in a termination notice or its service, which is otherwise beyond the Tribunal’s power under section 59(2). In my opinion, the question must be answered in the negative.
It is an established principle of statutory interpretation that a provision of general application must give way to a specific provision where the provisions conflict. The principle is known to lawyers as generalia specialibus non derogant. D. Pearce states in the ninth edition of his seminal legal text, Statutory Interpretation in Australia:
What is said to be a particular application of the principle underlying the generalia specialibus approach is to be found in cases concerned with the grant of power both in general terms and in specific terms. If the general power is conferred without limitations or qualifications but the special power is expressed to be subject to some limitations or qualifications, the general power cannot be exercised to do that which is the subject of the special power.[17]
[17] D. Pearce, Statutory Interpretation in Australia (9th ed., Lexis Nexis Butterworths, 2019) [4.52] at page 182
This is precisely on point. Section 83(1)(k) is a general provision giving the ACAT power to correct a defect in a notice or its service. Section 59 is a specific provision that gives the ACAT power to waive, rather than rectify, a defect in a termination notice or its service. Section 83(1)(k) does not give the ACAT power to do something in relation to a termination notice that the ACAT cannot do under section 59.
Recapping the facts of this case, I have found that:
(a)The lessor served the termination notice as prescribed by regulation (i.e. by sending it by prepaid post to the premises) but, because it was deemed to be served on 29 September 2021, and because the notice required the tenant to vacate by 21 October 2021, the lessor gave less than four weeks’ notice of termination of the tenancy.
(b)The lessor also served the termination of notice by email, which was not a valid method of service. In the absence of evidence as to the date on which the email was opened, I am not satisfied that the tenant received the email on the day it was sent.
(c)In any event, even if the lessor had given four weeks’ notice (commencing on the day when the notice was served or was deemed to be served, whether by prepaid post or by email) the notice was defective because the lessor failed to give the tenant a statutory declaration in accordance with clause 96(1A) of the Standard Terms at the same time as the termination notice.
(d)Finally, the statutory declaration the lessor served on the tenant subsequently, after the date by which the tenant was required to give vacant possession of the premises, did not meet the requirements of clause 83(b) and 96(1A) of the Standard Terms.
I find therefore that lessor’s notice dated 20 September 2021 was not a valid termination notice given under clause 96(1)(b) or (c) of the Standard Terms.
If the only defect had been that an otherwise valid termination notice was served on the tenant by email and there was evidence that the email was received by the tenant on the day it was sent, it would have been necessary to decide whether the defect in service should be waived under section 59(2) of the RT Act.
However, there is no power to waive substantive defects, the effect of which is to invalidate the lessor’s termination notice.
This makes it unnecessary to consider the issue the tenant proposed to raise by way of defence to the lessor’s application – namely, that the lessor’s stated reason for wishing to terminate the tenancy was not genuine. It is unnecessary also to explore whether the periodic tenancy commenced later than the lessor claimed and whether, in those circumstances, the minimum notice period was eight weeks, instead of four weeks. These issues may arise when and if the lessor issues a fresh termination notice, as he said he intends.
The only appropriate order in the circumstances is that the lessor’s application is dismissed.
………………………………..
Senior Member M Orlov
| Date(s) of hearing: | 1 December 2021 |
| Applicant: | In person |
| Respondent: | In person |
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