(Residential Tenancies) - [2015] ACAT 1

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING IN THE ACT v COTSELL
(Residential Tenancies) [2015] ACAT 1
RT 14/182
Catchwords: RESIDENTIAL TENANCIES – termination and possession order – rent arrears – occupancy agreement – whether conditional order can be made in respect of occupancy agreements

Legislation:Residential Tenancies Act 1997 (ACT), Part 5A, ss 49, 72, 76, 79, 83
Landlord and Tenant Act1949 (ACT)
Housing Assistance Act2007, Part 4

Regulations: Housing Assistance Public Rental Housing Assistance Program 2013 (ACT)

Cases: NSW Land and Housing Corporation v Mann [2014] NCAT

Commissioner for Social Housing in the ACT and Canham [2012] ACAT 41
Commissioner for Social Housing in the ACT and Radovanov [2011] ACAT 12

Other texts: Anforth, Christensen and Bentwood ‘Residential Tenancies Law and Practice in NSW’, (6^th ed Fed Press).
Pearce and Geddes, Statutory Interpretation in Australia (7^th ed, 2011)

Tribunal: Mr A. Anforth – Senior Member

Date of Orders: 3 November 2014
Date of Reasons: 8 January 2015

IN THE ACT CIVIL & )
ADMINISTRATIVE TRIBUNAL) FILE NUMBER
RT 14/182

COMMISSIONER FOR SOCIAL HOUSING IN THE ACT Applicant/Lessor
JOSEPHINE COTSELL
Respondent/Tenant

Tribunal: Mr A. Anforth, Senior Member
Date : Monday 3^rd November 2014
ORDER

The application for termination is dismissed.

The tenant is to pay rent plus $60.00 per week towards arrears in each and every fortnight.
The tenant is to arrange a direct deduction with Centrelink for the whole of the rent plus arrears payment or to the maximum extent that Centrelink will permit with the deficit to be paid fortnightly.
If the tenant fails to set up the direct deduction by Friday 7^th November 2014 or cancels the direct deduction the Commissioner for Social Housing in the ACT may relist for termination.

Mr A. Anforth
Senior Member

ACT Civil & Administrative Tribunal

REASONS FOR DECISION

Overview

The Respondent has been a resident of a site in a long stay caravan park in the ACT since 1987. She lives in a caravan with an aluminium annex.
The Respondent’s status in the Park has probably changed over time from that of a true tenant to that of an occupant under an Occupancy Agreement within the meaning of Part 5A of the Residential Tenancies Act 1997 (the RTA). This issue is discussed below.
For convenience of expression, in these Reasons for Decisions and in the formal decision above, the Respondent is referred to as a ‘tenant’ notwithstanding that formally she is now an ‘occupant’ within the meaning of Part 5A of the RTA; similarly the ‘occupation fee’ is referred to as ‘rent’.
The Tenant is a mature aged lady who lives alone. She was employed on a casual basis as a shop assistant until recently and now relies entirely upon Centrelink. Before her employment ended she had variable hours of work including periods of no employment during which Centrelink was not payable.
Throughout the periods considered in this decision, the Tenant has suffered significant and sustained depression, social isolation and gambling addiction.
A combination of insecurity in employment, lack of support from Centrelink, mental health issues and gambling, caused the Tenant to repeatedly default on her rent (occupancy fee).
In February 2014, the Commissioner commenced proceedings in the Tribunal to terminate the occupancy agreement. The Tenant resisted the application on the basis that she had nowhere to go and no money for alternative accommodation.
The presently constituted Tribunal has engaged in a case management approach to the matter spread over 5 listings in the Tribunal. After a number of disappointing responses from the Tenant, the situation was eventually reached whereby the Tenant was able to stabilise her personal and financial position. She was able to pay the rent as it fell due and commence the reduction of the rent arrears.
On this basis the Tribunal made the final order on 3 November 2014 in the above terms. Brief oral reasons were given on the day.
The Commissioner has now lodged an appeal in respect of the decision of 3 November 2014 and has sought formal written reasons which are set out below.
The Tribunal acknowledges the patience and non-adversarial spirit in which the Commissioner’s representatives conducted themselves in this lengthy and sometimes trying matter.

Reasons for decision

The Tenant has lived in the Park since 1987. Her initial status in the Park is not clear, but is also not relevant to the present matter. She was probably a tenant under the former Landlord and Tenant Act1949 (ACT) and became a tenant under the Residential Tenancies Act 1997 upon its enactment and repeal of the Landlord and Tenant Act1949.
In 2004 the Occupancy Provisions of Part 5A were inserted into the RTA to permit the differentiation between tenants proper and occupants. At some point in time after 2004, but before 2009, the Tenant entered an Occupancy Agreement with the Commissioner at which time she ceased to be a tenant and became an occupant. The precise timing of this transition is not important to this decision.
The 2009 version of the Occupancy Agreement between the parties was in writing and was before the Tribunal. It contained provisions regulating the payment of rent (occupation fee) and the termination of the agreement. The termination provisions based on rent default were framed in terms largely adopted from the standard residential tenancy agreement. The precise terms of the Occupancy Agreement are not germane to this decision.
On 26 July 2012 the Tribunal, composed of three members including the General President and the present Senior Member, terminated the Tenant’s occupancy agreement and granted the Commissioner possession of the premises based on the Tenant’s rent default, then standing at $744.00. Although reasons were not published for this decision, the presently constituted Tribunal did enter an oral dissent from the majority in that matter. The Commissioner did not seek to enforce the order and entered a repayment arrangement with the Tenant.
After 26 July 2012 the Tenant remained in occupation either under the original occupancy agreement or under a new occupancy agreement in the same terms at a rent of $100pw. It is not material for the present Tribunal to determine which of these alternatives applied.
On 31 July 2013 and 29 October 2013 the Commissioner served the Tenant with Notices to Remedy her rent default which had risen to $1050.57.
On 25 November 2013 the Commissioner served the Tenant with a Notice to Vacate asserting rent arrears of $1250.57.
The Commissioner lodged an application with the Tribunal on 26 February 2014 seeking possession. By this time the rent arrears had risen to $2850.57 accruing at $100pw with the last payment having been made on 31 October 2013.
There was no issue concerning the validity of any of the above notices.
The matter came before a differently constituted Tribunal on 20 March 2014. The Tenant appeared unrepresented. The Commissioner’s rent ledger was tendered which relevantly showed a series of dishonoured electronic payments from the Tenant. The dishonoured payments arose when there were insufficient funds in the Tenant’s personal bank account for the standing direct deduction she had in place.
The Commissioner’s rent ledger showed that all payments by the Tenant from 23 July 2013 had been dishonoured. The rent arrears as at 17 March 2014 stood at $3130.57. The matter was adjourned to 1 May 2014.
On 1 May 2014 the matter came before the same previous Tribunal member. The Tenant appeared unrepresented. The Commissioner’s rent ledger tendered on showed that the Tenant had made a series of manual rent payments through the Post Office on 9, 16, 30 April and on 1 May 2014. Notwithstanding these payments, the arrears had risen to $3330.57. The matter was adjourned to 10 July 2014.
On 17 June 2014 the Commissioner sought an urgent listing on the basis that no rent payments had been received since 2 May 2014. The Registrar listed the matter for 26 June 2014. On 26 June 2014 the matter came before the same previous member of the Tribunal. The Tenant appeared unrepresented. On 26 June 2014 the Commissioner’s rent ledger showed the arrears to be $3830.57. The matter was adjourned to the 30 June 2014 to enable the Tenant to be represented.
On 30 June 2014 Welfare Rights and Legal Centre (WRLC) filed a notice of appearance on behalf of the Tenant.
On 30 June 2014 the matter was again before the same previous Tribunal member. Ms Russell of WRLC appeared with the Tenant and Mr Sweeney appeared for the Commissioner. The Commissioner’s rent ledger showed that the Tenant had reduced her arrears to $3130.57. The matter was adjourned to 10 July 2014.
On 10 July 2014 the matter came before the presently constituted Tribunal for the first time. Ms Russell of WRLC appeared with the Tenant and Mr Sweeney appeared for the Commissioner.
Ms Russell tendered various documents including:
(a)a Medical Discharge Summary from Calvary Hospital relating to the Tenant’s admission between 19 May 2014-24 May 2014. The discharge diagnosis was ‘acute cholecystitis’. It referred to a history of hypertension, depression and epigastric pain;
(b)a letter from Canberra Hospital dated 30 May 2014 advising the Tenant had been placed on the elective surgery list, but did not specify the relevant condition to which the surgery was directed. The Tenant’s evidence is that the surgery is for gall stones;
(c)an Income and Expenditure Statement prepared by the Credit and Debit Counselling Service (CARE) showing a weekly income of $458 and a total expenditure of $432. The expenditures included $100pw for rent, $30pw for rent arrears and $55pw for repayment of credit loans. There was nothing in the expenditures that appeared discretionary or excessive.
Mr Sweeney tendered the Commissioner’s rent ledger. The ledger showed that payments had been made by the Tenant on 2 May ($300), 28 June ($800) and 10 July ($230). The arrears then stood at $3000.57.
The Tenant gave evidence and was questioned by Mr Sweeney and by the Tribunal. The Tenant described the vicissitudes of her employment. She expected to have a minimum of 20-21 hrs a week of casual work which excluded her from Centrelink. In the weeks where no work was offered to her, or when she was unfit for work, she received no sick pay from her employer and no Centrelink payments. She had no other source of income. This made it impossible for her to pay rent in those weeks.
The Tenant has no savings and no assets. She has no family members upon whom she can rely for financial support. The Tenant has a daughter in Canberra but the daughter is unemployed and looks to the Tenant for assistance with food and other expenditures.
The Tenant said that she was due to receive a tax refund in the near future and she would apply this towards the rent arrears. The tax return necessary to obtain the refund had not yet been lodged.
The Tenant said that she was depressed and isolated. She took some solace in playing poker machines which she knew was not a wise thing to do.
At the end of the hearing the matter was adjourned for a decision. A timetable was fixed for the parties to file and serve any further submissions or evidence. The Commissioner was to file and serve by 24 July 2014 and the Tenant by 7 August 2014.
On 28 July 2014 the Commissioner filed her Submissions. Those Submissions argued that the Tribunal had no power to make what is known as a ‘conditional order’ in relation to an occupancy agreement. The Submissions did not address the merits of making such an order.
A ‘conditional order’ is provided for in section 49(3) and (4) of the RTA in relation to tenancies. It permits the making of an order that conditionally suspends termination of a tenancy agreement and the taking of possession of premises by a lessor on condition that the tenants pay rent on time and progressive pays off the rent arrears. It provides:
49Failure to pay rent
(1)On application by a lessor, the ACAT may make a termination and possession order if—
(a)the tenant has failed to pay rent that has become payable under the residential tenancy agreement; and
(b)the lessor has served a termination notice on the tenant on the basis of the failure to pay rent; and
(c)the tenant has not vacated the premises in accordance with the notice.
(2)If a lessor has made an application under subsection (1), the ACAT may refuse to make a termination and possession order if—
(a)the tenant has paid any rent that has become payable and is, in the ACAT’s opinion, reasonably likely to pay future rent as it becomes payable; and
(b)the ACAT considers it just and appropriate to do so.
(3)Subsection (4) applies if—
(a)the tenant is, in the ACAT’s opinion, reasonably likely to pay the rent that has become payable as well as pay future rent as it becomes payable; and
(b)the tenant agrees to pay the rent that has become payable, and undertakes to pay future rent as it becomes payable, as required by the ACAT.
(4)Instead of making a termination and possession order under subsection (1), the ACAT may order (conditional termination and possession order) that if the tenant fails to pay the rent that has become payable, or future rent as it becomes payable, as required by the ACAT—
(a)the tenancy terminates at a stated hour on the day after the day when any rent becomes payable and is not paid; and
(b)the lessor becomes entitled to possession of the premises and all rent payable is payable immediately.
(5)If—
(a)the ACAT makes an order under subsection (1); and
(b)the ACAT is satisfied that—
(i)were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and
(ii)that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period;
the ACAT may suspend the operation of the termination and possession order for a specified period of no more than 3 weeks.
No Submissions were lodged on behalf of the Tenant.
The matter was listed before the presently constituted Tribunal on 18 August 2014. Mr Adkins appeared for the Commissioner and Ms Russell appeared for the Tenant.
The Commissioner’s rent ledger showed that the Tenant had been making regular payments and the rent arrears had not increased since June 2014.
Ms Russell tendered payslips for the Tenant for the weeks since the beginning of April 2014 showing wages received. The payslips showed net weekly sums of:
For the week ending 6 April 2014  $367.31
For the week ending 13 April 2014  $422.37
For the week ending 20 April 2014  $662.95
For the week ending 27 April 2014  $398.28
For the week ending 4 May 2014  $271.56
For the week ending 1 June 2014:  $461.19
For the week ending 8 June 2014  $148.12
For the week ending 15 June 2014  $320.93
For the week ending 22 June 2014  $461.19
The Tenant gave evidence that she was hospitalised from 19 May to 26 May 2014 and received no income. She also did not receive Centrelink payments in those weeks.
Records of the bank account into which the Tenant’s pay was deposited, showed entries for a small ($20) per week deduction to another bank account. The Tenant was asked to provide copies of statements for the other account.
Ms Russell submitted that the above income levels are so low that it is genuinely difficult for the Tenant to pay her other essential outgoings shown in the CARE report and not struggle with rent. Not the least of these costs are those associated with getting to work for which purpose the Tenant had to run and maintain an old vehicle.
The Tribunal raised the issue of the expected tax returned and whether the Tenant had been to Centrelink.
At the hearing, the Tribunal discussed with the Commissioner’s representatives the issue of the Tribunal’s power to make orders of a conditional nature in the case of occupancy agreements. The Tribunal expressed the view that it had power under sections 72, 76, 79 of the RTA Act and particularly, section 83 to make orders of the kind set out in section 49(3) and (4), in relation to occupancy agreements.
This is not to say that section 49(3) and (4) apply to occupancy disputes. It is simply that the power in section 83 in relation to an occupancy agreement is of such breadth that the Tribunal can mould orders made under section 83 to have the same character and effect as an order made under section 49(3) and (4) in relation to a tenancy agreement. The mere fact that the RTA expressly confers power of the kind set out in sections 49(3) and (4) in relation to tenancies, is no reason to infer that the breadth of the power in section 83 in relation to occupancy agreements should be read down to exclude orders of this kind.
Section 83 reads:
83Orders by ACAT
Without limiting the orders the ACAT may make, the ACAT may make the following orders in relation to an application about a tenancy dispute or occupancy dispute:
(a)an order restraining any action in breach of a residential tenancy agreement or occupancy agreement;
(b)an order requiring performance of a residential tenancy agreement or occupancy agreement;
(c)an order requiring the payment of an amount to the Territory or a person;
(d)an order requiring the payment of compensation for loss of rent or any other loss caused by the breach of a residential tenancy agreement or occupancy agreement;
(e)an order stating that an amount (not more than the amount of bond paid into the trust account in relation to the relevant residential tenancy agreement) be paid to the lessor from the trust account;
(f)an order restoring a residential tenancy agreement or occupancy agreement and granting the former tenant or occupant possession of premises—
(i)from which the person was evicted in contravention of this Act; or
(ii)that the person vacated in accordance with a termination notice that was not in the form (if any) approved under section 133 (Approved forms—Minister) for the notice;
(g)an order requiring payment of all or part of the rent payable under the standard residential tenancy terms or standard occupancy terms into the ACAT until the ACAT orders otherwise;
(h)an order directing payment out of any amount paid into the ACAT as appropriate;
(i)an order terminating a residential tenancy agreement or occupancy agreement and granting vacant possession of the relevant premises to the applicant for the order;
(j)an order declaring the premises were abandoned on a particular day;
(k)an order correcting a defect in a notice or in the service of a notice.

The Commissioner’s submission is a purported application of the expressio unius est exclusio alterius principle of statutory interpretation. The problem with this approach is that it conflates the statutory provision relating to tenancies with those relating to occupancy agreements. Expressio unius only applies, inter alia, to the construction of powers in relation to the same subject matter. There are separate and distinct provisions conferring power on the Tribunal in relation to tenancy and occupancy agreements.
Pearce and Geddes[1] set out a range of authorities that provide a counsel of caution in the use of the expressio unius principle.
[1] Statutory Interpretation in Australia 7^th ed. 2011
At the end of the hearing the matter was adjourned to 5 September 2014 with orders for the Tenant to provide her other bank account statements and evidence of the lodgement of her tax return. The Tenant was to pay her rent of $100 plus an additional $30 pw towards arrears during the adjournment period.
On 5 September 2014 Mr Adkins appeared for the Commissioner and Ms Russell appeared for the Tenant. The Commissioner’s rent ledger showed regular payments and a reduction in rent arrears to $2850.57. The Tenant produced her bank account records which showed a small balance of $6.49. The Tenant produced evidence of the lodgement of her tax return.

The matter was further adjourned to 14 October 2014 to await the tax return and to see whether the regular payments continued.
On 14 October 2014 Mr Sweeney appeared for the Commissioner and the Tenant appeared in person. The Tenant’s employment had been terminated on 26 August 2014. The Tenant had been to Centrelink and received her first payment of $585pf on the preceding Friday. The absence of income in the intervening period had made the payment of rent difficult. The Tenant expressed her confidence that now she had a regular income, she would be able to ensure the rent was paid on time. The Commissioner asked for a Certificate of Separation from the employer and evidence of the Centrelink payments.
The Tenant received a tax return of $1495, but had applied it to her other debts and to her daughter’s debts. The Tribunal expressed its considerable disappointment and annoyance at what it saw as a failure by the Tenant to honour a promise to apply the tax return to her rent arrears.
The Tenant provided a report from Dr Moulding, her GP, dated 13 October 2014 which said that the Tenant was suffering long term depression.
The matter was adjourned to 3 November 2014 for the Tenant to provide the Certificate of Separation, the Centrelink evidence and to set up a direct deduction from Centrelink to the Commissioner for rent and arrears. The Tribunal explained carefully to the Tenant the need to ensure that this deduction was set up. Given the Tenant’s past history of default with direct deductions from her own bank account, it was important that the direct deduction now come from Centrelink before the Tenant received the money.
On 3 November 2014 Mr Sweeney appeared for the Commissioner and the Tenant appeared in person. The two certificates had been provided to the Commissioner.
It transpired that the Tenant had not set up the direct deduction with Centrelink and had fallen behind in the rent which had only been remedied by a payment on the morning of the hearing.
The Tenant said that she had not understood the nature of a direct deduction from Centrelink. The Tribunal expressed disbelief at this statement. The Tenant gave a further undertaking that she would go to Centrelink that afternoon and set up the deduction.
Mr Sweeney for the Commissioner made oral submissions to the effect that the Tenant’s undertaking could not be trusted and that the Tribunal had extended more leniency to her that was justified in the circumstances. He sought an order for possession.
The Tribunal determined that the matter would not be further adjourned and that a final decision was required. The Tenant was told that the application for possession would be dismissed but on condition that she set up a direct deduction from Centrelink and did not cancel that deduction. The Tenant was told if she failed to set it up, or later cancelled the deduction, that the Commissioner could restore the matter and a termination order would most likely be made. These were the orders set out above.
In coming to this decision, the Tribunal was motivated by the reasons given in the cases of NSW Land and Housing Corporation v Mann [2014] NCAT, Commissioner for Social Housing in the ACT and Canham [2012] ACAT 41 and Commissioner for Social Housing in the ACT and Radovanov [2011] ACAT 12 concerning the factors relevant when considering the termination of social housing agreements.
The views of the presently constituted Tribunal, together with authorities from other jurisdictions on the issue of terminating social housing agreements, are set out at [2.97.2] of Anforth, Christensen and Bentwood ‘Residential Tenancies Law and Practice in NSW’ (6^th ed Fed Press).
The Tribunal is aware that the occupancy agreements at the Park are not made under the Public Rental Housing Assistance Program of the Commissioner or any other formal social housing program under Part 4 of the Housing Assistance Act2007. The Commissioner contended that this fact deprived the occupancy agreement of the status of a social housing agreement.
It is matter of common general knowledge, that there is a dearth of low income housing in the ACT. The long stay parks are targeted to people on low income. Hence, the rent for the Tenant is only $100pw. They provide long term accommodation for people who may be in residence for decades, during which time they develop their own communities. The terms of the occupancy agreements in place for park residents are very similar to residential tenancies agreements under the Public Rental Housing Assistance Program.
These occupancy agreements have all the indicia of social housing, and it is essentially irrelevant to the views expressed above, whether the Park occupancies are formally part of the Public Rental Housing Assistance Program or not.
………………………………..
Mr A. Anforth – Senior Member
HEARING DETAILS

FILE NUMBER:	RT 14/182
PARTIES, APPLICANT:	Commissioner for Social Housing
PARTIES, RESPONDENT:	Josephine Cotsell
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
REPRESENTATIVES FOR APPLICANT	Mr Sweeny and Mr Adkins
SOLICITORS FOR RESPONDENT	Welfare Rights and Legal Centre
TRIBUNAL MEMBERS:	Mr A. Anforth
DATES OF HEARING:	20/03/2014 1/05/2014, 26/06/2014, 30/06/2014, 10/07/2014, 18/08/2014, 5/09/2014, 14/10/2014, 3/11/2014,