Re: Peter New ? v ? Havelock Housing Association Inc
[2008] ACTRTT 7
•25 May 2008
Re: Peter New – v – Havelock Housing Association Inc ACTRTT 7 [2008]
RT 142 of 2008
CATCHWORDS
Warrant of Eviction – Stay of Warrant –Events Subsequent to Order to Vacate
LEGISLATION
Residential Tenancies Act 1997 (ACT)
TRIBUNAL: J.David, Member
THE RESIDENTIAL )
TENANCIES TRIBUNAL ) RT 142 of 2008
OF THE AUSTRALIAN )
CAPITAL TERRITORY )
APPLICANT: Peter New
(Occupant)
RESPONDENTS: Havelock Housing Association inc
(Grantor)
DECISION
Tribunal: J.David, Member
Date: 10 April 2008
Re: Premises at Unit B4, Ainslie Village, Quick Street, Campbel and Unit 6, 68 Anthony Rolfe Avenue, Gungahlin. ACT
Decision:
1.That the Deputy Registrar is to issue a warrant of eviction for these premises.
2.That Order 1 is to be stayed for 14 days.
Member: J. A. David
Date: 25 May 2008
IN THE RESIDENTIAL ) RT 142 of 2008
TENANCIES TRIBUNAL )
OF THE AUSTRALIAN )
CAPITAL TERRITORY )APPLICANT: Peter New
(Occupant)
RESPONDENT: Havelock Housing Association Inc
(Grantor)
STATEMENT OF REASONS
BACKGROUND
1 On 26 March 2008 the Tribunal ordered as follows:
1.That the Occupancy Agreement for Unit B4 of Ainslie Village, [was] rescinded on the 16th of November 2007.
2.That the Residential Tenancy Agreement with respect to 68 Anthony Rolfe Avenue, Gungahlin was terminated by repudiation by the tenant on the 27th day of November 2007.
3.That the tenant is to vacate the premises within 7 days of date of this Order
4.That the respondent has leave to apply for Warrant of Eviction if default of
Order 3.
2 In her bench notes, the RTT Member noted her finding in relation to Order 2 above as follows: “RTA terminated by repudiation as seen in email 27/11 and return of keys”. In relation to Order 1 above, the Member noted that “the tenant had signed a tenancy agreement re the Gungahlin premises in November 2007” and that the “occupancy agreement in respect of the Ainslie Village unit was rescinded”.
3 By Application to Restore to the List dated 7 April 2008 Havelock Housing association Limited (‘Havelock Housing’) advised the Tribunal that Mr New had not vacated the premises in accordance with Order 3 above and requested a Warrant of Eviction be issued.
4 The matter was heard by the Tribunal on 10 April 2008. At the hearing Mr New was represented by Ms Yuille, Welfare Rights and Legal Centre Limited. After hearing submissions from both parties the Tribunal ordered that a Warrant of Eviction be issued.
5 Mr New then lodged an Appeal to the Supreme Court of the ACT against both determinations of the Tribunal and by letter dated 14 April 2008 requested this Statement of Reasons. The Tribunal apologises for the delay in providing the Reasons.
Documentary Evidence
6 The documentary evidence before the Tribunal was that contained in the Application dated 25 February 2008 together with:
(a)Copy of letter in response from Havelock Housing dated 20 March 2008
(b)Copy of letter from Havelock Housing to Mr New dated 19 March 2008
(c)Letter from Havelock Housing to the Tribunal dated 4 April 2008
(d)Six pages of Transcript of Proceedings in the Tribunal on 26 March 2008
FINDINGS AND REASONING
7 Havelock Housing requested a Warrant of Eviction issue on the grounds that Mr New had not vacated the premises in accordance with Order 3 of the Tribunal dated 26 March 2008 (above).
8 Ms Yuille, on behalf of Mr New, submitted that Mr New originally brought these proceedings to clarify his position, seeking security of occupancy as there was confusion whether he was an occupant of Ainslie Village or was a tenant of premises at Gungahlin. The confusion arose because Mr New had signed an occupancy agreement on 16 March 2005 for Unit 4B Ainslie Village, then on 16 November 2007 he signed a tenancy agreement with Havelock Housing for the premises in Gungahlin. Then Mr New decided not to move to the premises in Gungahlin and gave written notice to Havelock Housing to terminate that tenancy agreement on 28 November 2007. He intended to continue to reside at Ainslie Village. He has attempted to pay rent for Ainslie Village unit every two weeks since November 2007 but it has been refused on the basis he had “booked out”.
9 Ms Yuille said that after the Tribunal hearing on 26 March 2008 Mr New had made an application for a new occupancy agreement at Ainslie Village but his application was refused.
10 Ms Yuille submitted that the Tribunal Member made Order 3 of 26 March 2008 on the assumption that Mr New was to seek and be granted a new occupancy agreement with Havelock Housing for a unit in Ainslie Village and that the Order should be read “You are to vacate the premises within 7 days of the date of this order or enter into an occupancy agreement”. Ms Yuille submitted that at the hearing on 26 March 2008 Havelock Housing stated 11 times that it wanted Mr New to enter into a new occupancy agreement but Mr New told the Member that he wanted to see the new occupancy agreement prior to signing it. The Member acted on the basis that a new occupancy agreement would be entered into, and that Mr New would not be left homeless as a result of these proceedings.
11 Ms Yuille said Mr New applied for an occupancy agreement with Havelock Housing the day after the hearing,. He was told to return on 29 March 2008. On 29 March 2008 he was told he needed to fill out an Application Form. This he did. He provided the information sought in the Application Form. He returned to Havelock Housing on 31 March 2008 to be told to come back on 1 April. He did so and finally was orally advised on 2 April 2008 that he was to be offered a tenancy at Oakes Estate. He was also given a copy of an email from the CEO of Havelock Housing setting out the proposal. He was advised that, if he wanted to remain at Ainslie Village, he had to make a further application.
12 Ms Yuille submitted that the possibility of a move to Oakes estate was not raised at the hearing on 26 March 2008, that, as Oakes Estate has no public transport and Mr New is a 53 year old epileptic who does not drive, Oakes Estate is not at all a suitable location for Mr New. Finally, Ms Yuille said that Havelock Housing has not offered Mr New an occupancy agreement for Ainslie Village. As a result, he is not entitled to reside either at the Gungahlin premises or at Ainslie Village. Mr New is still residing at Ainslie Village where he is a long term resident. In fact, he never moved out of Ainslie Village.
13 Havelock Housing submitted that since these proceedings had commenced an offer had been made to Mr New to “sort out” his problems and he had been offered an occupancy agreement at Ainslie Village on 20 March 2008 (prior to the hearing on 25 March) but he had declined it. After the hearing on 26 March 2008 Mr New had made an application for an occupancy agreement for a unit in Ainslie Village. The application was assessed by an Intake Panel made up of representatives from Mental Health ACT, Centacare and Havelock Housing. The Panel considered the application based on the priority of housing need, the basis it uses to consider all applications. Mr New’s application was “treated exactly the same as all applications on the list” of which there are approximately 260. The Oakes Estate property was the only other property available and Havelock Housing stated at the hearing that it was still being held for Mr New.
14 The Tribunal ordered that Warrant of Eviction should issue as it was not satisfied by the evidence presented that the Member based her Order 3 on the assumption or hope that Mr New would be given a new occupancy agreement to reside in Ainslie Village. Her order was based on the legal position that Mr New had rescinded his occupancy agreement for Ainslie Village on 16 November 2007 and had then terminated by repudiation his tenancy agreement for the premises in Gungahlin on the 27 November 2007. At this hearing the Tribunal rejected the submission that the Member had only so determined on the assumption that Mr New would be granted a new occupancy agreement with Havelock Housing. In fact, the member had stated explicitly that she did not have power to “order someone to “sign an occupancy agreement. …The courts will never order a specific performance in that way, simply because we’re not in the business of ordering people around in that fashion.” Neither did the Member have the power to order Havelock Housing to offer an occupancy agreement to Mr New. The Member would not have made Order 3 unless she had found that the legal requirements on which the order was based had been satisfied.
15 In the circumstances that Mr New had been offered an occupancy agreement on 20 March 2008 which he had not signed and that, at the hearing, Havelock Housing had asked the Member for “a warrant for an eviction and during that time Mr New can reapply to stay at Ainslie Village. We just want him to sign an agreement, that’s it.” (page 2 of the Transcript tendered at the hearing on 10 April 2008) Mr New and the Member were aware that Mr New had to reapply to stay at Ainslie Village, the Tribunal determined that a warrant for eviction should issue. Mr New is not to be homeless, a place at Oakes Estate has been offered to him and Havelock Housing said at the hearing on 10 April 2008 that place was still being held for Mr New.
ORDERS
3.That the Deputy Registrar is to issue a warrant of eviction for these premises.
4.That Order 1 is to be stayed for 14 days.
Jennifer David
Member
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