THE COMMISSIONER FOR SOCIAL HOUSING IN THE ACT ?v KENNETH VINCENT JEOFFERY FALCONER - [2008] ACTRTT 5

AUSTRALIAN CAPITAL TERRITORY

RESIDENTIAL TENANCIES TRIBUNAL

CITATION:THE COMMISSIONER FOR SOCIAL HOUSING IN THE ACT –V- KENNETH VINCENT JEOFFERY FALCONER ACTRTT 5 (2008)
RT 272 of 2008
Tribunal:A. Anforth, Member

Date: 14 May 2008

IN THE RESIDENTIAL      )
TENANCIES TRIBUNAL    )  RT 272 of 2008
OF THE AUSTRALIAN      )
CAPITAL TERRITORY     )

APPLICANT: COMMISSIONER FOR SOCIAL HOUSING FOR THE ACT
(Lessor)

RESPONDENT: KENNETH VINCENT JEOFFERY FALCONER
(Tenant)

DECISION

Tribunal: A. Anforth, Member

Date: 28 April 2008

Decision:

That the tenant is to pay rent as it falls due

That the tenant is to pay $20.00 per week, in addition to his rent until his arrears of $3013.97 are paid.

That the rent is due on 1 May 2008.

…………………………….
Member
14^th May 2008

IN THE RESIDENTIAL      )
TENANCIES TRIBUNAL    )  RT 272 of 2008
OF THE AUSTRALIAN      )
CAPITAL TERRITORY     )

APPLICANT: COMMISSIONER FOR SOCIAL HOUSING IN THE ACT.
(Lessor)

RESPONDENT: KENNETH VINCENT JEOFFERY FALCONER
(Tenant)

REASONS FOR DECISION

Background:

The Respondent is a tenant of premises owned by the Commissioner and located in the ACT. The Respondent fell into rent arrears and on 30 November 2007 the Commissioner issued and served on the Respondent a Notice to Vacate the premises. The Respondent did not vacate in accordance with the notice and so on 1 April 2008 the Commissioner applied to the Tribunal for an order to terminate the tenancy and for possession of the premises pursuant to section 49(1) Residential Tenancies Act 1997.

The matter came before the Tribunal on 28 April 2008. Ms Skye-Campbell appeared for the Commissioner and the Respondent did not appear. The Tribunal was satisfied that the tenant was in rent arrears to the extent of $3013.97.

Unfortunately for the Commissioner the Tribunal found that the Notice to Vacate served by the Commissioner was invalid and accordingly the Tribunal declined to make the order for possession of the premises sought by the Commissioner (s49(1)). For the same reason the Tribunal further declined to made a “conditional termination order” pursuant to section 49(3) Residential Tenancies Act 1997.

In lieu of the orders sought by the Commissioner the Tribunal made the orders set out above for the Respondent to perform his obligations under the residential tenancy agreement, that the Respondent pay his rent as it falls due and that he pay the arrears in the manner set out in the order.

The Commissioner has sought reasons for the above decision.

Details of the case:

The history of the tenancy is conveniently set out in the Commissioner’s Statement of Particulars filed with the Tribunal which reads:

The applicant lessor is a Government Authority responsible for the leasing of the premises located at 12 16-18 George Street Oaks Estate in the Australian Capital Territory also known as Flat 012 Block 0008 Section Oil Division 801 ("the premises").
The applicant lessor is the registered proprietor of the premises by lease, pursuant to the Land Titles Act 1925.
On 23 June 2003 the respondent tenant signed a Residential Tenancies Agreement in respect of the premises. A copy of the said Residential Tenancy Agreement is annexed hereto and marked with the letter "A".
The respondent tenant has failed to pay rent due and payable under that tenancy agreement.
On 22 October 2003 a Notice to Remedy for arrears of $279.59 was served to the respondent tenant. A copy of the said Notice to Remedy and Statement of Service is annexed hereto and marked with the letter "B". The respondent tenant remedied the account and brought it back into credit on 24 October 2003 but not to two weeks in advance in accordance with the requirements of the Tenancy Agreement.
On 8 March 2004 a Notice to Remedy for arrears of $242.79 was served to the respondent tenant. The respondent tenant was advised that this was at least the second Notice to Remedy that was served and under clause 92(f) of the Residential Tenancies Act 1997 Housing ACT is only required to serve a maximum of two such notices. Copies of the said Notice to Remedy, applicant lessor's letter to the respondent tenant and Statement of Service are annexed hereto and marked with the letter "C". The respondent tenant remedied the account and brought it back into credit on 31 March 2004 but not to two weeks in advance in accordance with the requirements of the Tenancy Agreement.
On 11 October 2004 a Notice to Remedy for arrears of $842.79 was served to the respondent tenant. The respondent tenant was advised that this was at least the second Notice to Remedy that was served and under clause 92(f) of the Residential Tenancies Act 1997 Housing ACT is only required to serve a maximum of two such notices. Copies of the said Notice to Remedy, applicant lessor's letter to the respondent tenant and Statement of Service are annexed hereto and marked with the letter "D".
On 22 October 2004 the respondent tenant entered into an agreement for arrears of $455.39 to pay rent plus $25.00 per fortnight in reduction of arrears. A copy of the said Agreement is annexed hereto and marked with the letter "E".
On 16 March 2005 a Notice to Remedy for arrears of $619.09 was served to the respondent tenant. A copy of the said Notice to Remedy and Statement of Service is annexed hereto and marked with the letter "F".
On 22 June 2005 a Notice to Remedy for arrears of $325.99 was served to the respondent tenant. The respondent tenant was advised that this was at least the second Notice to Remedy that was served and under clause 92(f) of the Residential Tenancies Act 1997 Housing ACT is only required to serve a maximum of two such notices. Copies of the said Notice to Remedy, letter to the respondent tenant and Statement of Service are annexed hereto and marked with the letter "G".
On 23 November 2005 a Notice to Remedy for arrears of $546.34 was served to the respondent tenant. A copy of the said Notice to Remedy and Statement of Service is annexed hereto and marked with the letter "H".
On 25 January 2006 an officer of the applicant served a Notice to Vacate on the respondent tenant. Attached to the Notice to Vacate was a letter to the respondent tenant advising of the applicant lessor's intention to terminate the tenancy and outlining the options open to him in relation to an appeal. A copy of the said Notice to Vacate, the letter from the applicant lessor to the respondent tenant and the Statement of Service of the Notice to Vacate is annexed hereto and marked with the letter "I ".
On 25 January 2006 the rent for the premises was in arrears to the extent of $491.44. A copy of the statement of account in respect of the respondent tenant is annexed hereto and marked with the letter "J".
On 30 January 2006 the respondent tenant lodged an application for review of the applicant lessor's decision to terminate his tenancy. A copy of the said application is annexed hereto and marked with the letter "K".
On 2 February 2006 an officer of the applicant lessor upheld the appeal conditional on the respondent tenant contacting the applicant lessor and entering a final repayment agreement with seven days. The respondent tenant was also informed that he had no further appeal rights. A copy of the said letter is annexed hereto and marked with the letter "L". The respondent tenant failed to adhere to the agreement.
On 13 February 2006 the respondent tenant entered into an agreement for arrears of $487.94 to pay rent plus $25.00 per fortnight in reduction of arrears. A copy of the said letter is annexed hereto and marked with the letter "M".
On 8 January 2007 a Notice to Remedy for arrears of $702.02 was served to the respondent tenant. A copy of the said Notice to Remedy and Statement of Service is annexed hereto and marked with the letter "N".
On 15 January 2007 a Notice to Remedy for arrears of $822.02 was served to the respondent tenant. The respondent tenant was advised that this was at least the second Notice to Remedy that was served and under clause 92(f) of the Residential Tenancies Act 1997 Housing ACT is only required to serve a maximum of two such notices. A copy of the said Notice to Remedy and Statement of Service is annexed hereto and marked with the letter "O".
On 30 November 2007 an officer of the applicant served a Notice to Vacate on the respondent tenant. Attached to the Notice to Vacate was a letter to the respondent tenant advising of the applicant lessor's intention to terminate the tenancy and outlining the options open to him in relation to an appeal. Copes of the said Notice to Vacate, the letter from the applicant lessor to the respondent tenant and the Statement of Service of the Notice to Vacate are annexed hereto and marked with the letter "P".
On 30 November 2007 the rent for the premises was in arrears to the extent of $1,018.82. A copy of the statement of account in respect of the respondent tenant is annexed hereto and marked with the letter "J".
On 12 December 2007 the respondent tenant lodged an application for review of the applicant lessor's decision to terminate his tenancy. A copy of the said application is annexed hereto and marked with the letter "Q".
On 20 December 2007 an officer of the applicant lessor denied the appeal on the grounds that the respondent tenant had not maintained the rental account two weeks in advance as required under the terms of his Tenancy Agreement. A copy of the said letter is annexed hereto and marked with the letter "R".
On 15 February 2008 the applicant lessor wrote to the respondent tenant and advised that the matter would be referred to the Housing Assistance and Review Panel (HATRP) for consideration. A Statement of Review was enclosed and the respondent tenant was invited to provide their own independently prepared statement for consideration. A copy of the said letter is annexed hereto and marked with the letter "S".
On 7 March 2008 HATRP considered the matter. The panel recommended that the matter be referred to the Residential Tenancies Tribunal for a Termination and Possession order to take effect as a Warrant of Eviction.
On 26 March 2008 a letter was sent to the tenant advising that HATRP recommended that the matter be referred to the Residential Tenancies Tribunal for an Unconditional Termination and Possession Order to have effect as a Warrant of Eviction. The letter included an extract of the HATRP's report. A copy of the said letter and extract is annexed hereto and marked with the letter "T".
On 31 March 2008 the rent for the premises was in arrears to the extent of $2,553.97. A copy of the statement of account in respect of the respondent tenant is annexed hereto and marked with the letter "J".
The respondent tenant has not vacated the premises in accordance with the Notice to Vacate.
The applicant lessor requires that the termination and possession order is to have effect as a warrant of eviction.

The Notice to Vacate upon which the Commissioner relies is dated 30 November 2007 and requires that possession be given on or before 16 December 2007.

The Statement of Service upon which the Commissioner relies states that the Notice was posted to the Respondent at 11am on 30 November 2007.

Relevant legislative provisions:

Section 49(1) sets out the statutory prerequisites to the issue of a termination and possession order, which requires, among other things, that “the lessor has served a termination notice on the tenant…”. The same prerequisites exist in relation to the making of a conditional termination and possession order under section 49(3).

10. The requirements for the service of the Notice to Vacate are contained in prescribed term 92(c) of Schedule 1 of the Act, which reads:

(c) if all rent is not paid within 1 week of the date of service of the notice to remedy-the lessor may then serve a notice to vacate on the tenant requiring the tenant to vacate the premises within 2 weeks of service of the notice to vacate.

11. Prescribed term 92(c) requires that the date of “service of the notice” be determined, from which the period of 2 weeks commences to run.

12. Regulation 5 Residential Tenancies Regulations 1998 prescribes the modes of service of a Notice to Vacate and permits service by pre-paid post to the tenant’s address, as occurred in the present case:

5. For the Act, section 58 (1) (b) and section 59 (1) (b) a termination notice must be served—
(a) 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 Act, schedule 1 (Prescribed terms), clause 98; or
(b) on a corporation—by leaving it at, or sending it by prepaid post to, the head office, a registered office or a principal office of the corporation.

13. Neither the Residential Tenancies Act 1997 nor the Residential Tenancies Regulations 1998 deal with the issue of when a Notice served by post is deemed to have been served on the tenant. The two possible sources of law that may regulate this issue are:

(a) The Legislation Act 2001, and in particular section 250; or
(b) in default therefore, the common law.

14. But for the existence of regulation 5, section 245 Legislation Act 2001 would apply to the service of Notices to Vacate and postal service would be authorised by section 247 Legislation Act 2001 in the same manner as in regulation 5.

15. Section 250 Legislation Act 2001 then determines when a Notice sent by post is deemed served:

250(1) A document served by post under this part is taken to be served when the document would have been delivered in the ordinary course of post.
(2) However, subsection (1) does not affect the operation of the Evidence Act 1995 (Cwlth), section 160.
Note The Evidence Act 1995 (Cwlth), s 160 provides a rebuttable presumption that a postal article sent by prepaid post addressed to a person at an address in Australia or an external territory was received on the 4th working day after posting.

16. Section 250 only applies if the document in question is served by post under Part 19.5 Legislation Act 2001. The question is whether the present Notice to Vacate can be said to have been served by post under Part 19.5 Legislation Act 2001 when the Residential Tenancies Regulations 1998 has it own specific provisions authorising postal service.

17. If section 250 Legislation Act 2001 does apply then the Notice would be deemed served in “ordinary course of post”.

18. If section 250 does not apply then there is simply no relevant statutory provision dealing with the date of deemed service of the Notice. In this event the rules for service would revert to the historical common law rules. At common law, personal service on a party was only required for originating process issued out of a court (Laurie v Carroll (1958) 98 CLR 310). Personal service was not required for other documents and it was sufficient that the court in question be satisfied that the document had been received by the intended recipient (Hope v Hope (1854) 4 De GM & G 328). Thus service by post could be valid service at common law for other than originating process, and a court would presumably accept that service occurred in the ordinary course of the post.

19. In so far as both the application of the Legislation Act 2001 and the common law produce the same result, then it is strictly not necessary to determine which applies. But the Tribunal is of the view that it is most unlikely that the Legislature of the ACT intended to enact postal services rules of general application and at the same time to leave the common law rules unaffected. More likely the person who drafted the Residential Tenancies Regulations 1998 simply overlooked the issue and should have either specifically dealt with the issue of the deemed date of postal service, or should have said that relevant provisions of the Legislation Act 2001 applied.

Applying the legislative provisions to the facts of this case:

20. In the present case the Notice was posted on Friday 30 November 2007. The mail is not delivered in Canberra on Saturdays or Sundays and so at its very earliest the Notice could not been received in the ordinary course of the post until Monday 3 December 2007. More likely, allowing 2 days for the ordinary course of post, the Notice would not have been received in the ordinary course of post until Tuesday 4 December 2007.

21. Prescribed term 92(c) requires that the tenant be given time to carrying out his vacation of the premises. The notice period is described as being “within 2 weeks of service of the notice to vacate”. This phrase appears to intend that the 2 weeks runs from the date of service of the notice. Section 151(3) Legislation Act 2001 deals with the computation of a time period which commences from a given day and provides that the notice period is calculated exclusive of that day. In the present context this means that the 2 weeks notice period is calculated exclusive of the day of deemed service:

151(3) A period of time described as beginning from or after a stated day, act or event does not include the stated day or the day of the stated act or event.

22. For this reason the notice period required by prescribed term 92(c) is to be calculated exclusive of the date of deemed service, being either the 3 December or 4 December depending on the ordinary course of the post; and so the notice period is to be calculated inclusive of either 4 December or 5 December (depending on the ordinary course of post).

23. The notice period required by prescribed term 92(c) is not a full 14days. The tenant is required to vacate “within 2 weeks” which would appear to exclude the 14^th day. Calculating 13 full days from either the 4 December or the 5 December (depending on the ordinary course of post) gives the tenant a right to a last date to vacate of 17 December or 18 December, respectively. Insofar as the Commissioner’s Notice gave the final date for vacation as the 16 December 2007 it did not accord with prescribed term 92(c) and is therefore not valid.

24. Absent a valid Notice to Vacate the statutory prerequisites to the issue of a order for termination and possession (section 49(1)) and a conditional termination and possession order (section 49(3)), were not satisfied and so no such orders could be made.

A. Anforth
14^th May 2008