URSINO & COMMISSIONER FOR SOCIAL HOUSING IN THE ACT (Residential Tenancies)

[2012] ACAT 16

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

URSINO & COMMISSIONER FOR SOCIAL HOUSING IN THE ACT (Residential Tenancies) [2012] ACAT 16

AA 11/47

Catchwords:             RESIDENTIAL TENANCIES – termination of tenancy – criminal convictions of the tenant – breach of the tribunal order

List of legislation:     83 of the Residential Tenancies Act 1997, ss.48 and  83

Tribunal:                  Mr W.G Stefaniak, Appeal President

Date of Orders:  13 February 2012

Date of Reasons for Decision:       9 March 2012

AUSTRALIAN CAPITAL TERRITORY              )

CIVIL & ADMINISTRATIVE TRIBUNAL )         AA 11/47

BETWEEN:

ROY ANTHONY URSINO

Appellant

AND:

COMMISSIONER FOR SOCIAL

HOUSING IN THE ACT

Respondent

TRIBUNAL:            Mr W.G Stefaniak, Appeal President

DATE:  13 February 2012

ORDER

TAKE NOTICE that on 13 February 2012, the ACT Civil & Administrative Tribunal, made the following ORDERS:

1. The appeal is dismissed.

1. That the Tenancy Agreement has been breached.

2. That the Residential Tenancies Agreement is terminated and possession of the premises is to be given to the lessor at 2.00pm on Monday 5 March 2012.

3. That the said tenant and any other person claiming right of possession through the tenant’s tenancy is to vacate the premises in accordance with this Order.

4. That the Deputy Registrar is to issue a warrant for eviction for the above premises if the tenant has not vacated the premises by 2.00pm on 5 March 2012.

5. That the tenant is to remove all goods and return the premises in a clean condition by  2.00pm on Monday 5 March 2012.

6. That any goods remaining on the premises after the date for vacant possession will be deemed uncollected goods and the Uncollected Goods Act 1996 applies to their storage and disposal.

7. That the tenant shall pay the lessor an occupancy fee at the rate of $8.31 per day from 13 February 2012 until the date that possession is given.

DATED 13 February 2012.

Mr W.G Stefaniak, Appeal President

ACT Civil & Administrative Tribunal

REASONS FOR DECISION

Brief facts

1. On 2 May 2011, the appellant, by consent was ordered by the ACAT to abide with the terms of his residential tenancies agreement with the respondent, pursuant to section 83 of the Residential Tenancies Act 1997. This was a result of various complaints made against him by various neighbours in the block of units he lived in.

2. On 31 May 2011, the appellant was charged with common assault on a neighbour and with malicious damage to a neighbour’s glass window. He subsequently pleaded guilty to both offences and was convicted by magistrate Campbell.

3. On 5 December and 12 December 2011, Senior Member Jennifer David heard the matter. She terminated the tenancy at the hearing of 12 December 2011.

   
   

   Mr Ursino appealed this decision to the Appeal tribunal.

1. On 13 February the matter was finalised by the Appeal Tribunal constituting the Appeal President W.G. Stefaniak

Held.

1. Ms David appears to have decided the matter primarily on the breach of the order dated 2 May 2011 by the tenant Mr Ursino by his actions 29 days later that led to his conviction for assault and malicious damage. She was entitled to do so on the evidence before her.

1. If Ms David had taken into account  an unsworn statement from another neighbour that gave details of another more recent incident in late 2011, she should not have done so (unless she referred to it and indicated what weight , if any , she was giving to it .which she did not do). However, even if she did take it into account it did not affect the correctness of her decision to terminate the tenancy as that could properly be terminated as a result of the breach of the order of the tribunal dated 2 May 2011 occasioned by the actions of the tenant on 31 May 2011.

2. As indicated at some length in the transcript of 13 February 2012, I did not feel that the appellant had satisfied the requirements of Section 48 (2) of the Residential Tenancies Act. Having heard the evidence of the 2 witnesses called during the appeal on behalf of the appellant , and having observed him absenting himself from the hearing briefly when he did not like my questioning of his witness Ms Fizzell, I was not satisfied that the tenancy was reasonably likely to be sustained. Further, as I found no fundamental error in the decision of Ms David, and as the breach of the Order of 2 May 2011 by the tenant on 31 May 2011 is a sufficient ground for termination of the residential tenancies agreement, the tenant’s appeal fails .

3. Whilst it is not the role of the ACAT to decide matters on the basis of policy and whilst it is a policy decision by the respondent as to whether it offers

   
   

   Mr Ursino another tenancy in a more appropriate setting given his significant issues, I do note that he has always paid his rent and has kept a tidy home and that his issues appear to be anger/mental health related and urged the respondent to see if a suitable alternate placement for Mr Ursino was at all possible. 

………………………………..

Mr W.G Stefaniak

Appeal President

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      

FILE NUMBER:	AA 11/47
PARTIES, APPELLANT:	Roy Anthony Ursino
PARTIES, RESPONDENT:	Commissioner for Social Housing in the ACT
COUNSEL APPEARING, APPELLANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPELLANT	Emerson-Elliott, Welfare Rights and Legal Centre
SOLICITORS FOR RESPONDENT
TRIBUNAL MEMBERS:	Mr W.G Stefaniak, Appeal
DATES OF HEARING:	13 February 2012
PLACE OF HEARING:	Canberra

PART B

RECOMMENDATION:

FULL REPORT ( )       CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: