Morris v Bray (Residential Tenancies)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MORRIS v BRAY (Residential Tenancies) [2009] ACAT 3

RT 20 of 2009

Catchwords:             RESIDENTIAL TENANCIES – distinction between tenancy agreement, occupancy agreement and licence to occupy – bare licence – revocation of licence

RESIDENTIAL TENANCIES – jurisdiction of tribunal – civil disputes – trespass application – issues dealt with different from issues contained in original application

Domestic Relationships Act 1994 (ACT)

Residential Tenancies Act 1997 (ACT)

ACT Civil and Administrative Tribunal Act 2008 (ACT)

Magistrates Court Act 1930 (ACT)

Zeus and Ra Pty Ltd v Nicolaou [2003] VSCA 11 (28 February 2003)
Latec Investments Ltd v Hotel Terrigal Pty Ltd (In liq) (1965) 113 CLR 265

Butt & Nygh (editors) Butterworths Australian Legal Dictionary, Butterworths LexisNexis, 1997

ACT Civil and Administrative Tribunal Bill 2008 (ACT) explanatory statement
Peter Butt, Land Law: 5th Edition (2006) Thomson Lawbook Co

Tribunal:Jann Lennard, Member

Date:  31 March 2009

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT  20 of 2009

BRIAN MORRIS

(Applicant/Landlord)

AND

SALLY BRAY

(Respondent/Tenant)

ORDER

1. That the respondent is to vacate the premises on or before 28 April 2009.

…………………………….
  Jann Lennard, Member
  31 March 2009

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT  20 of 2009

BRIAN MORRIS

(Applicant/Landlord)

AND

SALLY BRAY

(Respondent/Tenant)

REASONS FOR DECISION

BACKGROUND

1. The applicant is the registered owner of premises at 41 Blackall Street Barton, ACT. Mr Morris is the sole legal owner and he gave evidence, which was not challenged, that the premises were purchased as an investment property.

2. The respondent resides in the premises. The respondent has resided in the premises since April 2008.

3. The applicant and the respondent had been in a de facto relationship for 14 years, they have a 21 month old daughter.  The evidence of the applicant was that he offered the premises as a temporary residence for the respondent and their daughter after their de facto relationship ended in April 2008. This temporary arrangement was to continue until she found somewhere else to live permanently. The respondent has not paid any rent or occupation fee to the applicant.

4. The applicant has served a notice to vacate upon the respondent.  That notice gave 21 December 2008 as the vacation date. The notice to vacate was served in a form appropriate to a residential tenancy agreement, and the applicant asks the tribunal for a termination and possession order.

THE INITIAL HEARING – 3 FEBRUARY 2009

1. The respondent, who was, at both hearings, represented by Mr Paul Glass, solicitor, stated that there was no residential tenancy agreement and she resisted any attempt to ‘evict’ her on the grounds that she asserted a right to remain in the property based on the de facto relationship and an anticipated action under the Domestic Relationships Act 1994 (ACT).

2. A residential tenancy agreement is defined in s6 of the Residential Tenancies Act 1997 (ACT) to be an agreement under which:

   ·     a person gives someone else (the tenant) a right to occupy stated premises; and