South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders (Residential Tenancies) - [2022] ACAT 15

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SOUTH CANBERRA HOLDINGS PTY LTD ACN 606 747 602 v SAUNDERS (Residential Tenancies) [2022] ACAT 15

RT 319/2021
Catchwords: RESIDENTIAL TENANCIES – where the Tribunal ordered that the issue whether notice of termination is valid should be determined separately on the papers – where the Tribunal ordered that the question be answered in the affirmative – where respondent sought to set aside the order on the grounds of a Bhardwaj error – alleged failure to allow parties to lead evidence and make submissions whether dwelling is a ‘mobile home’ – where the respondent conducted her case on the factual premise that the dwelling is a ‘manufactured home’ – where the applicant conducted its case on the same premise – where it was common ground that the agreement giving the respondent the right to occupy the site was an occupancy agreement – respondent now wishes to argue her case on a different factual premise and dispute that the agreement is an occupancy agreement – respondent bound by her conduct of the case – application to set aside earlier order dismissed – where the respondent resides elsewhere and the premises are uninhabitable and unsaleable – where respondent resists a termination and possession order to avoid the cost of demolition and removal – order for termination and vacant possession made

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 55, 56
Planning and Development Act 2007 s 119
Residential Tenancies Act 1997 ss 73, 83
Uncollected Goods Act 1996

Cases cited:Commissioner for Social Housing v Cook [2020] ACAT 36
Duffy v ACT Planning and Land Authority [2021] ACAT 104
Metwally v University of Wollongong [1985] HCA 28
Minister for Immigration and Cultural Affairs v Bhardwaj 2002] HCA 11
South Canberra Holdings Pty Ltd v Saunders [2021] ACAT 109

Tribunal:Senior Member Orlov
Date of Orders:  13 January 2022
Date of Reasons for Decision:      22 February 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 319/2021

BETWEEN:
SOUTH CANBERRA HOLDINGS PTY LTD
ACN 606 747 602
Applicant

AND:
KAYE SAUNDERS
Respondent

TRIBUNAL:Senior Member M Orlov

DATE:13 January 2022

ORDER

The Tribunal orders that:

The respondent’s application for an order setting aside the orders of the Tribunal made on 11 November 2021 is dismissed.
The occupancy agreement dated 25 January 2013 is terminated with effect from 3.00 pm on 13 January 2022.
The respondent must give vacant possession of Site 195, 250 Canberra Avenue, Symonston ACT 2609 on or by 20 January 2022.
The applicant must give the respondent access to the premises, on reasonable notice, to enable the respondent to comply with order 3.
If the respondent does not comply with order 3:
(a)the applicant may change the locks on the premises;
(b)the applicant must give the respondent access to the premises, on reasonable prior notice, to remove such of the respondent’s furniture, goods or personal effects stored in the premises as the respondent may wish to keep.
Order 5(b) expires on 10 February 2022.
………………Signed…………..
Senior Member M Orlov

REASONS FOR DECISION

These proceedings concern a licence to occupy site no. 195 at Southside Village in Fyshwick granted on 25 January 2013 and arise out of a notice given by the respondent on 22 September 2020 purporting to terminate the applicant’s occupancy agreement with effect on 31 March 2021. The respondent did not give vacant possession of the site by that date. On 15 April 2021, the applicant filed an application under the Residential Tenancies Act 1997 (RT Act) seeking an order for termination and vacant possession. On 1 July 2021, I ordered that the question whether the notice of termination dated 22 September 2020 is valid should be decided on the papers as a separate question, in advance of the determination of the remaining issues, if any.
On 11 November 2021, after a hearing on the papers, I made an order that the separate question is answered in the affirmative and gave reasons for my decision.[1]
[1] South Canberra Holdings Pty Ltd v Saunders [2021] ACAT 109
The remaining issue, whether the Tribunal should make an order for termination and vacant possession under section 83(1) of the RT Act, was listed for hearing on 13 January 2022.
By prior arrangement with the parties, I attended a view of the premises at 8.30am on 13 January 2022.
At the start of the formal hearing, the respondent made an oral application that I should set aside the order I made on 11 November 2021 on the grounds of jurisdictional error, and reopen the issue whether the termination notice was a valid notice, giving the parties the opportunity to lead evidence and make submissions as to whether the structure erected on the site was a ‘mobile home’. The respondent says that I should find that the agreement is not an occupancy agreement because the structure is not a ‘mobile home’ within the meaning of the RT Act as in force on 25 January 2013 when the agreement was made, and accordingly that I should dismiss the application for a termination and possession order on the grounds that the Tribunal lacks jurisdiction. In effect, the respondent contends that the dispute is not an ‘occupancy dispute’ within the meaning of section 73 of the RT Act. I will refer to this as the ‘set-aside application’.
After considering the respondent’s written submissions and hearing oral argument, I dismissed the set-aside application. I gave oral reasons at the time but said that I would give more detailed reasons later.[2]
[2] Transcript of Proceedings 13 January 2022 pages 32, line 23 to page 34, line 10
The respondent gave oral evidence in relation to matters relating to the exercise of the Tribunal’s discretion to make a termination and possession order and was cross-examined. After considering the evidence and the parties’ submissions I made orders that the occupancy agreement is terminated with effect from 3.00pm on 13 January 2022 and requiring the respondent to give vacant possession of the site on or by 20 January 2022. I made ancillary orders relating to access to the premises both before and after 20 January 2022 and said that I would give reasons for my decision later.
The following are my reasons for both decisions. Insofar as they deal with the set-aside application, they should be treated as supplementary to the oral reasons I gave on 13 January 2022.

The set-aside application

My decision in relation to the separate question is an interlocutory decision. Once the decision becomes final – i.e. after I decide whether to make a termination and possession order – it will be reviewable on appeal in the usual way. However, the respondent’s position is that I should set aside the decision and decide the matter afresh on the grounds of jurisdictional error, involving a failure on my part to observe the requirements of procedural fairness.
The respondent filed written submissions (dated 11 January 2022 but date stamped as filed on 21 January 2022) canvasing the following issues (which I have paraphrased):
(a)Whether the structure in question is a ‘mobile home’ within the meaning of the RT Act (as in force on 25 January 2013 when the agreement was made).
(b)If not, whether the agreement is an ‘occupancy agreement’ within the meaning of the RT Act (as in force on 25 January 2013 when the agreement was made).
(c)If not, whether the Tribunal has jurisdiction to entertain the applicant’s “overarching application” (i.e. the application for a termination and possession order under section 83(1) of the RT Act).
(d)If not, how the Tribunal should proceed.
(e)Even if the Tribunal has jurisdiction to entertain the applicant’s “overarching application”, whether it should make the orders sought by the applicant.
Issue (d) – i.e. how should the Tribunal proceed – was addressed in paragraphs 28 to 35 of the submissions. The other issues do not arise unless the Tribunal is satisfied that the orders made on 11 November 2021 should be set aside.
The steps in the respondent’s written arguments in relation to issue (d) may be summarised as follows:
(a)In finding that the notice of termination of the occupancy agreement was valid, the Tribunal assumed that the parties were ad idem that the structure in question is a ‘mobile home’.
(b)The issue whether the structure is a ‘mobile home’ was critical to the Tribunal’s jurisdiction.
(c)Neither party was given the opportunity to be heard on the issue.
(d)Both parties made written submissions in relation to the separate question on the premise that the issues in dispute were governed by the current version of RT Act.
(e)The Tribunal concluded otherwise. This “fundamentally altered the playing field”, such that “having rejected this legislative premise, the Tribunal should have brought the matter back on for further submissions and evidence”.[3]
(f)By failing to give the parties an opportunity to be heard with respect to whether the structure in question is a ‘mobile home’ the Tribunal committed a jurisdictional error, which infected the decision.
(g)A decision involving jurisdictional error is no decision at all.[4]
(h)The Tribunal therefore remains under a duty to decide the matter giving the parties the opportunity to be heard on that issue.
(i)Upon reopening the issue the Tribunal should conclude, contrary to its earlier finding, that it does not have jurisdiction to entertain the application because the agreement is not an occupancy agreement.
[3] Respondent’s submissions (dated 11 January 2022 but date stamped as filed on 21 January 2022) at [31]
[4] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-616
The Tribunal’s power to vary or set aside an order of the tribunal, whether the order is interlocutory or final, is governed by section 56(c)(iii) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). It may do so only if “extraordinary circumstances” make it appropriate.
The operation of section 56(c)(iii) was considered recently in Duffy v ACT Planning and Land Authority.[5] The issue in that case was whether the tribunal had power under section 56(c)(iii) to set aside a consent order approving a development application on conditions pursuant to section 119(1)(a) of the Planning and Development Act 2007 where it emerged later that compliance with the conditions would result in a development that was not code compliant, which section 119(1)(a) did not permit. The tribunal held that it did not have power to make an order that was inconsistent with section 119 and that an order purporting to do so would amount to a failure to exercise the tribunal’s jurisdiction to conduct a merits review in accordance with the applicable legislation. The tribunal said that:
An order under section 55 of the ACAT Act deciding an application on terms agreed by the parties that conflict with section 119 of the PD Act “lacks legal foundation and is properly regarded, in law, as no decision at all”.
Referring to a well know passage from the joint judgment of Gaudron and Gummow JJ in Minister for Immigration and Cultural Affairs v Bhardwaj (Bhardwaj).[6] Those circumstances were ‘extraordinary’ such as to make it appropriate for the tribunal to set aside the consent orders and to make fresh orders giving retrospective development approval on different conditions that would result in the development being code compliant.
[5] [2021] ACAT 104 at [73]
[6] [2002] HCA 11 at [51]
Section 7(b) of the ACAT Act provides that in exercising its functions the tribunal must observe natural justice and procedural fairness. Depending on the circumstances, a failure to do so may amount to an error within jurisdiction, which may be corrected only on appeal, or a failure to exercise jurisdiction where the tribunal remains bound to perform its statutory function (as was the case in Bhardwaj). The respondent’s position is that the error in this case involves failing to give the parties an opportunity to be heard on the question whether the structure erected on the site comes within the definition of a ‘mobile home’, which she submits is a Bhardwaj error that may be corrected only by reopening the issue whether the agreement made on 25 January 2013 is an occupancy agreement.
I accept that a Bhardwaj error would amount to ‘extraordinary circumstances’ for the purposes of section 56(c)(iii) of the ACAT Act. The issue I must decide is whether I made such an error.
There are two foundational propositions on which the respondent’s argument depends. The first is that the Tribunal incorrectly assumed that the parties agreed that the premises is a ‘mobile home’. The second, is that the agreed position advanced in the parties’ respective submissions that the agreement made on 25 January 2013 was an occupancy agreement was based on the legislative premise that the validity of the termination notice was governed by the RT Act as amended in March 2021.
Before considering the respondent’s argument, it is useful to refer to the history of the application to understand the basis upon which the respondent conducted her case.
The application was filed on 15 April 2021. It attached a copy of a ‘Notice of Termination of Occupation Agreement’ dated 22 September 2020 and a two-page document, the first page of which was an ‘Application for Licence to Occupy on a Weekly Basis’, signed and dated on 25 January 2013 and the second page of which was headed “Licence to Occupy”. The application sought an order for termination and vacant possession on the grounds that the respondent had not resided at the premises for more than three years and the applicant had given the respondent six months’ notice to vacate the site.
The application was listed in the usual way for an initial hearing on 17 May 2021. On 13 May 2021, the respondent’s solicitors filed a written outline of submissions (Outline) intended to “provide the Applicant with an overview of the contentions sought to be advanced” although no order had been made for the respondent to do so.[7] Thus the Outline was intended to put the applicant on notice of the respondent’s answer to the applicant’s claim for a termination and possession order.
[7] Respondent’s Outline dated 13 May 2021 at [1]
In paragraph 2(a) of the Outline, the respondent’s solicitors asserted that the following facts are “as we have been instructed and are not understood to be controversial, subject to any objection by the Applicant”:
The Respondent first moved to Canberra South Motor Park (Park) in the early 2000s, purchasing an already-standing manufactured home… Relevantly, although the Respondent owns the manufactured home, the Site has always belonged to the operator of the Park. [emphasis added]
In paragraph 3, the respondent submitted that it was important to identify which version of the RT Act applied “as significant amendments were made to the provisions governing occupancy agreements in March 2013”. (It is unclear whether this was intended as a reference to provisions governing occupancy agreements in 2013, when the agreement was made, or to the amendments that applied to existing and new occupancy agreements that commenced on 3 March 2021). The respondent said the possibilities were the RT Act as in force on 25 January 2013 (when the agreement was made), 22 September 2020 (when the termination notice was given) or the date when the Tribunal decides the application. The respondent submitted that the latter should be preferred. In paragraphs 5 to 8, the respondent developed the submission on the basis that the March 2021 amendments were intended to apply to all existing occupancy agreements. It is evident that the respondent’s case was founded on the proposition that the agreement made on 25 January 2013 was an existing occupancy agreement under the legislation as in force immediately before the commencement of the 3 March 2021 amendments. It could not be otherwise.
In paragraph 25, the respondent submitted:
The damages in this matter would not be insignificant in circumstances where the removal of the Respondent’s manufactured home from the site would inevitably cause a substantial decrease in the value of her investment. [emphasis added]
In paragraph 26, the respondent submitted:
For the purpose of these proceedings (and these proceedings only), a more practical solution is sought, which the Respondent contends ought to be less burdensome on all parties. In short, it is proposed that the Respondent will endeavour to sell her manufactured home to a third party and that the Applicant will then enter into a new occupancy agreement with that purchaser. [emphasis added]
In paragraph 27 the respondent sought orders including that:
[T]he Applicant be restrained for a period of 12 months, from the date of the order, from any action in breach of the occupancy agreement, including, but not limited to, the eviction of the Respondent.
The respondent continued:
28. The above-mentioned orders should…be accompanied by two notes:
a.the Respondent agrees to make reasonable efforts to ensure that the manufactured home located on the site is tidied, restored, and otherwise readied for sale, and to sell said manufactured home to a third party; and
b.the Applicant agrees not to unreasonably refuse to enter into a new occupancy agreement with the purchaser of the manufactured home or to otherwise interfere with, or hinder the sale of the manufactured home.
29. For the sake of completeness, the Respondent contends that no orders should be made at this time for the termination of the occupancy agreement and that the Applicant’s application to this Tribunal should otherwise be dismissed. [emphasis added]
The application came before Presidential Member Daniel on 17 May 2021, where it was adjourned to 1 July 2021. The tribunal noted that, during the adjournment, the occupant would undertake steps preparatory to the sale of the premises and that, in the meantime, the applicant undertook not to take any action to terminate the occupancy based on the termination notice.
The application came before me for directions on 1 July 2021. The respondent was legally represented. Having heard from the parties I made the following orders:
1.     The applicant is to file and serve by 16 July 2021, a written submission answering the issues raised by the respondent’s outline of submissions filed on 12 May 2021.
2.     The respondent is to file and serve by 21 July 2021 any brief submissions in reply.
3.     The question of whether the notice of termination dated 22 September 2020 is valid will be decided by the Tribunal as a separate question on the papers in advance of the determination of the remaining issues, if any.
Neither party disagreed with that approach.
The applicant filed written submissions on 16 July 2021 which included these propositions in relation to the characterisation of the agreement:
11.    Section 6A of the Act sets out the requirements for an agreement to be a ‘residential tenancy agreement’. Relevantly, it provides that an agreement that is an occupancy agreement under section 71C, is not a residential tenancy agreement.
12.    Section 71C(1)(b)(vi) provides that, unless section 6B applies, an agreement to occupy a site in a residential park for the purposes of the occupant placing a manufactured home or a mobile home on the site is an occupancy agreement.
13.    Section 6B does not apply in these circumstances because the Agreement does not expressly state that it is a residential tenancy agreement as required by section 6B(c).
14.    Therefore, the Agreement is an occupancy agreement within the meaning of section 71C.
The respondent filed submissions in reply on 21 July 2021. Paragraph 3 stated:
The Respondent respectfully agrees with, and adopts, the Applicant’s contention that the two-page document provided to the Tribunal as an attachment to the Applicant’s application, which was referred to in the Written Outline disjunctively as the “Application” and the “Terms” is to be taken together as an occupancy agreement for the purposes of the Residential Tenancies Act 1997.

In paragraph 14, the respondent gave a more fulsome description of the structure in question:
…As set out in the Written Outline, the Applicant’s occupancy has been on foot for many years and relates to a plot of land upon which is constructed a substantial, permanent structure, which is her manufactured home. This home is plumbed into utilities operated by the Applicant and is, at parts, concreted into the ground. The submission that this structure could reasonably be expected to be dismounted and removed within 1 week is one which is wholly divorced from reality. [emphasis added]
In paragraph 16, the respondent said:
One week’s notice was plainly not reasonable, having regard to the nature and duration of the occupancy.
In paragraph 18, the respondent said:
…the Respondent’s submission is simply that the occupancy agreement does not “allow” the Applicant to terminate (within the meaning of s 71EK(3)(b)) as the term upon which the Applicant relies is void.
In paragraph 21.2, the respondent said:
The scheme of the RTA, particularly having regard to the recent amendments which introduced s 71EK, is intended to offer greater security of tenure to occupants than a mere an [sic] ordinary contractual relationship would otherwise provide. Thus, a finding that there is no valid “no cause” termination power in the occupancy agreement in this case would be a mere manifestation of the legislative intention, as given force by the express terms of the legislation.
In paragraph 21.3, the respondent said:
By virtue of the purchase, the Applicant has accepted the risks associated with any documents in place in relation to the park, including the occupancy agreement now subject to these proceedings.
Finally, in paragraph 21.7, the respondent submitted:
It is not that the Respondent’s occupancy agreement cannot be terminated under any circumstances. It is merely that the Applicant lacks the power to unilaterally terminate for no cause. That might be inconvenient for the applicant but, as set out above, that is the risk it ran when it bought the park in 2015.
Mr Morris, who appeared for the respondent, accepted that the respondent had conducted her case on the factual premise that the structure erected on the site was a manufactured home and that the agreement in relation to the respondent’s occupation of the site was an occupancy agreement within the meaning of the RT Act as amended on 3 March 2021.[8] He also accepted that the applicant had conducted its case on the same factual premise.[9] However, he submitted that although the description of the structure given in paragraph 14 of the Outline (reproduced earlier) is factually correct, the characterisation of it as a ‘manufactured home’ is not.[10]
[8] Transcript of proceedings 13 January 2022 page 9, lines 19-45
[9] Transcript of proceedings 13 January2022 pages 12, lines 24 to 13, line 17
[10] Transcript of proceedings 13 January 2022 pages 13, line 19, to page 15, line 26
On 25 January 2013, when the agreement was made, the term ‘manufactured home’ did not appear in the RT Act. Instead the Act referred to ‘mobile home’, which was defined in the Dictionary for the Act as a dwelling, whether on wheels or not, that can be transferred from place to place and re-erected. As a result of amendments to the Act that commenced on 3 March 2021, ‘mobile home’ was defined to mean a motor vehicle, caravan or other trailer, or other registerable vehicle under the Road Transport (Vehicle Registration) Act 1999 that is used as a home. The term ‘manufactured home’ was introduced which was defined to mean a structure, other than a caravan or tent, that (a) has the character of residential premises; (b) is designed, built, or manufactured to be transported from one place to another for use as a home; and (c) is not permanently attached the land.
The following passage from the transcript of oral argument encapsulates the respondent’s position:
SENIOR MEMBER: And to put it in representational terms, at the outset, the respondent represented that the structure there was a manufactured home within the meaning of the legislation as it stands, as it stood in March 2021.
MR MORRIS: Yes.
SENIOR MEMBER: And you’ve accepted, appropriately in my view, that a manufactured home would have been in 2013 treated as a mobile home.
MR MORRIS: Yes.
SENIOR MEMBER: You conducted – the respondent conducted its [sic] case consistently with the applicant’s case on the basis that this was an occupancy agreement, which could be true only if the structure was a manufactured home on the basis of the legislation as it stood in March or a mobile home as the legislation stood at earlier times.
MR MORRIS: Yes. Yes.
SENIOR MEMBER: Now, the controversy which has given rise to this issue arose for the first time after I had given my decision and made the orders in this case and in perhaps an unwise remark, Ms Hutcheson suggested that the structure might not in fact be a mobile home that quite obviously contributed to that. That set this particular rabbit running.
MR MORRIS: That’s right.
SENIOR MEMBER: But at the heart of your case, your application, Mr Morris, is the proposition that your client should now be allowed to depart from a representation that she made and on the basis of which the case was conducted, including that the applicant accepted that proposition. That is, that the structure, call it a substantial permanent structure, was a manufactured home---
MR MORRIS: Yes.
SENIOR MEMBER:--- and therefore, by definition something capable of being moved to another place, whether in one piece or not is immaterial.
MR MORRIS: I accept all of that, senior member.[11]
[11] Transcript of proceedings 13 January 2022 pages 16, lines 25 to 17, line 18
The obvious question in those circumstances is why should the respondent now be allowed to conduct her case on an entirely different factual basis?
The respondent’s answer was that the submission in paragraph 14 of the Outline referring to a ‘manufactured home’ was “preliminary and interlocutory in nature” and was not “an overarching submission with respect to the case”.[12]
[12] Transcript of proceedings 13 January 2022 page 17, lines 35-43
Pressed to clarify the answer, the respondent submitted:
…the tribunal it is quite right to say that the outcome for which the respondent was contending was that the matter be dismissed, but the alternative was not to find that the termination notices were valid. The alternative was to find, as the tribunal did find, that the applicable legislation does not bar the proceedings. Section 73EK of the new legislation does not bar the proceedings in the manner that we contended it would. But the tribunal did not need to go further and find conclusively that the termination notice was valid. The tribunal was entitled to stop once it had rejected the respondent’s contention. It did not need to make a positive finding to the contrary, if I can put it that way.[13]
[13] Transcript of proceedings 13 January 2022 page 18, lines 45-19, 7
However, the separate question makes it clear that the issue the Tribunal had to determine was whether the notice of termination dated 22 September 2020 is valid.
The respondent then sought to argue that the respondent’s case on the separate question was conducted “on the basis that only some but not all issues that may go to the validity of the notice of termination were in play”.[14] As I understood the respondent’s submissions, the respondent claims she was constrained by circumstances – namely, the fact that the separate question was formulated after the respondent had submitted her Outline and the respondent subsequently was limited to filing submissions in reply to the applicant’s answering submissions – from raising all matters that were relevant to the issue of the validity of the notice of termination. Pressed to identify the other matters the respondent may have wished to raise at the time, the respondent was unable to do so. It is clear there were none because no consideration had been given to the issue.[15]
[14] Transcript of proceedings 13 January 2022 page 23, lines 36-41
[15] Transcript of proceedings 13 January 2022 page 25, lines 11-32
The following passage from the transcript of oral argument encapsulates the respondent’s position:
SENIOR MEMBER: Right. Is your submission that, having conducted the case on that basis – and you accept without any reservation on your part – or on the respondent’s part that now, having seen the result, which was unfavourable to your client, your client should now be given the opportunity to advance other reasons why the notice of termination is invalid?
MR MORRIS: That’s correct.
SENIOR MEMBER: And primarily to do so on the basis that the factual premise which the respondent advanced, and which was accepted by the applicant, and on the basis of which the tribunal decided the case, that you should now be given the opportunity to depart from that?
MR MORRIS: Yes.[16]
[16] Transcript of proceedings 13 January 2022 page 25, lines 34-47
The respondent then sought to develop an alternative argument:
MR MORRIS:…[I]n the event that the tribunal were of the view that it is – regardless of what was accepted by the parties, in the event that the tribunal was of the view that the structure is not a manufactured home or a mobile home – well, really only a mobile home because it’s only the old legislation in play here, then regardless of the history of the matter, including whether we had made mistakes…but regardless of that fact, if the tribunal is not satisfied of that jurisdictional fact, then the conclusions drawn in that decision, the interlocutory decision would nonetheless suffer from jurisdictional error, notwithstanding that the error relates to fact because it is a fact which is a fundamental jurisdictional fact, and notwithstanding that it was not the tribunal’s fault that it was led into that error. It was not the tribunal’s fault that it was led into that error, but it is an error nevertheless, and it is an error that undermines the jurisdiction which gives effect and power to that decision.
SENIOR MEMBER: Mr Morris, let’s be absolutely clear. The error that you now contend exists is an error of the respondent.
MR MORRIS: I think that’s a fair conclusion, yes.
SENIOR MEMBER: In essence, the respondent seeks to be excused from the consequences of what you now say is a mischaracterisation of the structure.
MR MORRIS: Yes.
SENIOR MEMBER: And on that basis, the respondent now wishes to be permitted to conduct an entirely different case, one in which the first proposition is that the structure that is there is neither a manufactured home nor a mobile home within the meaning of the legislation as it existed at the time of the agreement; that as a consequence the agreement in question is not an occupancy agreement.
MR MORRIS: Yes.[17]
[17] Transcript of proceedings 13 January 2022 page 26, lines 10-45
I am satisfied that there has been no failure to observe the requirements of procedural fairness. The respondent conducted her case on a factual premise that the applicant and the Tribunal accepted as uncontroversial. The respondent’s Outline makes it clear that her case was that the agreement made on 25 January 2013 was an existing occupancy agreement to which the amendments to the RT Act that came into force on 3 March 2021 applied. The agreement could be an existing occupancy agreement only if the structure described in paragraph 14 of the respondent’s Outline is a ‘mobile home’ within the meaning of the RT Act as in force when the agreement was made, which term comprehends a structure that, after 3 March 2021, would be termed a ‘manufactured home’.
In Metwally v University of Wollongong,[18] the High Court said:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.[19]
[18] [1985] HCA 28
[19] Metwally v University of Wollongong [1985] HCA 28 at [7]
I am satisfied that the present circumstances fall within that principle. In my view, there are no exceptional circumstances which would justify setting aside the orders made on 11 November 2021 to allow the respondent to conduct her case on an entirely different factual premise to the one she advanced initially, which the applicant did not dispute and which was the factual basis upon which the Tribunal determined the separate question.
The set-aside application should be dismissed for these reasons.

Should an order be made for termination and vacant possession?

In written submissions filed shortly before the hearing, the applicant sought an order for termination with vacant possession to be given by 28 February 2022 and a further order that the respondent should continue to pay the daily occupation fee of $23.08 until the date the site is vacated. In the alternative, the applicant proposed that the Tribunal should make a termination order with an ancillary order requiring the respondent to reimburse the applicant for the cost of demolition and disposal of the structure – estimated to be in the order of $15,000 – which the respondent should reimburse to the applicant by weekly instalments of $300. The applicant was prepared to consider smaller instalments subject to the respondent providing a statutory declaration giving details of her financial position with corroborating documentation.[20]
[20] Applicant’s submissions dated 22 December 2021
The respondent referred to the following statement of principle in the decision of the appeal tribunal in Commissioner for Social Housing v Cook:[21]
A tribunal, applying a general power to evict has a discretion to refuse relief, having regard to all the circumstances and the conduct of the parties. Even where, as in this case the formal requirements have been met, the Tribunal is not required to grant an order terminating the tenancy. Residential tenancies law is intended to balance the rights of the lessors and tenants, and in determining whether to make a termination and possession order, the Tribunal may have regard to issues of substance rather than issues of form. It must be noted that the discretion is not unfettered. The Tribunal must exercise the discretion judicially and upon grounds which do not go beyond the scope and objects of the RT Act.[22]
[21] [2020] ACAT 36
[22] Commissioner for Social Housing v Cook [2020] ACAT 36 at [18]
The respondent submitted that making a termination order would be “unjust and inappropriate” in the following circumstances:
(a)The respondent is 78 years old and has extremely limited mobility and physical capacity.
(b)She is in significantly poor health, having suffered a stroke and having recently undergone cataract surgery.
(c)The respondent has owned the structure for almost 20 years without issue and has paid her fees as required by the applicant.
(d)Due to the permanency of the structure and the significant construction work required to remove the structure from the land, the cost of removal would be an “undue and inappropriate burden to level at the respondent”.
(e)Where the applicant purchased the park with the structure already standing on it, it would be “fundamentally unjust and inequitable for the respondent to be put to the cost of $15,000 for the purpose of improving the applicant’s land for them”.
(f)As the applicant purchased the park ‘as is’ in 2015, the costs of any demolition of the structure should be the borne by the applicant.[23]
[23] Respondent’s submissions dated 11 January 2022 (filed on 21 January 2022) at [39]
Before I discuss the respondent’s evidence, I should describe what I observed about the condition of the premises on 13 January 2022. The premises are in a state of significant disrepair, both externally and internally. The interior appears to have become a dumping ground for items of clothing, furniture, personal effects, and other household items. There is barely room to move. An overwhelming smell of urine pervades the premises, which is likely caused by rats or possums taking up residence. Parts of the structure appear to have been constructed with sheets of fibro and may contain asbestos. The premises constitute a health hazard and potentially also a fire hazard.
The premises are neither habitable nor saleable in their present condition. I am satisfied that demolition and disposal is the only practicable option. The respondent does not contend otherwise. The real issue is who should bear the cost demolition and disposal.
The following facts are based on the respondent’s oral evidence, which I accept.
The respondent purchased the existing dwelling in January 2003 for $23,500. The only change she has made since then was in about 2010 or 2011, when she had a roof installed over the caravan and the two annexe rooms, which were leaking.
The respondent has not resided in the premises since about 2017 but has continued to pay the weekly occupation fee for the site of $161.55. She lives elsewhere in premises she rents from ACT Housing and for which she pays rebated rent of approximately $230 per fortnight. Her only source of income is a fortnightly pension of $950. The occupation fee accounts for about a third of her fortnightly income. After meeting expenses, including paying the occupation fee, she is left with virtually no disposable income. She has about $1000 in the bank for emergencies. She has no other assets except a few pieces of timber furniture and incidental personal effects stored in the premises.
If the respondent is required to vacate the site, she said she would give most of the contents to charity. Having seen the inside of the premises I doubt this is realistic. There were a few items she would wish to keep, such as paperwork relating to her family tree, some crockery, a stamp collection, a coin collection, a computer and laptop. She would donate the tools to a men’s shed. She would not keep the furniture. If she could not sell it, she said she may possibly try to trade it for assistance in clearing out the contents.
On the one hand, the respondent clearly does not have the financial capacity to pay for the demolition and removal of the dwelling to give vacant possession of the site, assuming the applicant’s estimate of about $15,000 is reasonably accurate. On the other hand, the respondent has been paying approximately a third of her limited pension income for some years to keep the site for no discernible purpose that I can see, so it would be incorrect to say that she has no capacity to contribute to the cost of removal if that work is done by the applicant. Perhaps at one time the respondent may have thought to sell the dwelling, but I am satisfied that even if putting the premises up for sale was ever a realistic option, that is no longer the case. As I said earlier, the respondent does not dispute this. The tribunal made orders on 17 May 2021 intended to give the respondent the opportunity to effect a sale subject to the applicant granting the purchaser a new occupancy agreement, but the respondent did not take up the opportunity. Having seen the premises, I understand why she did not. The work required to remove and dispose of the contents and to bring the dwelling up to a habitable condition, assuming that is even possible, would be substantial and well beyond the respondent’s physical capacity or financial means.
An important consideration is that the respondent has not resided at the premises since about 2017 and does not intend to do so in future. Although the respondent owns the premises, her right to use the land on which the premises are erected is constrained by the purpose for which she was granted a right of occupation. The right granted to the respondent by the applicant’s predecessor in title is a right to exclusive possession of the site for the purpose of placing a mobile home on the site and using it as her permanent place of residence.[24] She does not have any lawful entitlement to occupy the site for the purpose of using the premises as a storage facility, or perhaps more accurately given what I observed, as a dumping place for rubbish and other apparently discarded goods, whilst she lives permanently elsewhere, notwithstanding she has continued to pay the weekly occupation fee.
[24] South Canberra Holdings Pty Ltd v Saunders [2021] ACAT 109 at [58]

The respondent is resisting the making of a termination and possession order, not because she wishes to protect a right to occupy the premises for the purpose of using the premises as her permanent place of residence, but because she wishes to avoid having to pay for the cost of demolishing and disposing of the premises, which is necessary to give vacant possession of the site. She appears to be willing to continue paying an occupation fee amounting to a third of her fortnightly income to avoid that result. I can see no other purpose.
I am not persuaded that the circumstances the respondent seeks to invoke as grounds upon which the Tribunal should refuse to make an order for termination and vacant possession, justify the outcome she seeks to achieve. In essence the respondent seeks to invoke the Tribunal’s discretion to maintain the status quo by protecting her continued occupation of the site for an unlawful purpose. To do so would be inconsistent with the purpose and objects of the RT Act.
I doubt that the ACAT has power to make an order under section 83(1)(i) terminating an occupancy agreement without granting vacant possession of the relevant premises. The section refers to the making of an order “terminating a…occupancy agreement and granting vacant possession”. Even if I am wrong, I am not persuaded that the circumstances would justify making such an order. Removing the premises to give vacant possession of the site is not, as the respondent submitted, an exercise in improving the value of the applicant’s land. There is nothing fundamentally unjust or inequitable in requiring the respondent to give vacant possession of the site where her right to occupy the site is lawfully terminated after being given reasonable notice.
I am satisfied that it is appropriate in the circumstances to make an order for termination and vacant possession. As the respondent has made it clear that she has neither the financial capacity to pay for the removal and disposal of the premises to give vacant possession of the site, nor that she intends to do so, I see no purpose in deferring the date on which the termination should take effect, nor the date by which the respondent must give vacant possession, save to allow her some time to arrange for the collection and removal of such items as she may wish to keep.
I am not satisfied that the Tribunal has power at this stage to make orders for the demolition and disposal of the premises and for who should pay for that to happen. Nor does the Tribunal have power at this stage to make orders for the disposal of any goods the respondent may leave behind. The respondent owns the premises and their contents. Although she has declared her intention not to vacate the site and she has not lived there for some years, she cannot be said, at this time, to have abandoned the premises or their contents. Although the ACAT has power under section 83(1)(j) of the RT Act to declare premises abandoned and, if the premises are a manufactured home or mobile home in a residential park and the ACAT is satisfied that the premises are not habitable, to direct the operator of the park how the premises may be disposed of, the circumstances do not permit such an order to be made at this time. A complicating factor is that the Uncollected Goods Act 1996 applies to the disposal of an abandoned manufactured home or mobile home and other uncollected goods. Neither party has turned their mind to how that legislation may affect their rights in the present circumstances.
Accordingly, I consider that the following orders are appropriate:
1.The respondent’s application for an order setting aside the orders of the Tribunal made on 11 November 2021 is dismissed.
2.The occupancy agreement dated 25 January 2013 is terminated with effect from 3.00 pm on 13 January 2022.
3.The respondent must give vacant possession of Site 195, 250 Canberra Avenue, Symonston ACT 2609 on or by 20 January 2022.
4.The applicant must give the respondent access to the premises, on reasonable notice, to enable the respondent to comply with order 3.
5.If the respondent does not comply with order 3:
(a) the applicant may change the locks on the premises;
(b) the applicant must give the respondent access to the premises, on reasonable prior notice, to remove such of the respondent’s furniture, goods or personal effects stored in the premises as the respondent may wish to keep.
6.Order 5(b) expires on 10 February 2022.
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Senior Member M Orlov

Date of hearing:	13 January 2022
Applicant:	Ms K Hutcheson
Solicitors for the Respondent:	Mr O Morris, Clayton Utz