Weston v Havelock Housing Assocation Inc. (Residential Tenancies)
[2009] ACAT 50
•14 December 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WESTON v HAVELOCK HOUSING ASSOCATION INC. (Residential Tenancies) [2009] ACAT 50
AA 13 of 2009
Catchwords: RESIDENTIAL TENANCIES – terms of agreement fixed by Tribunal – whether weekly or fortnightly – release of unpaid rent by landlord – whether subsequent landlord can claim for released debt
Legislation: Residential Tenancies Act 1997 (ACT)
ACT Civil and Administrative Tribunal Act 2008 (ACT)
Cases:
Tribunal: Mr C.G. Chenoweth Acting Presidential Member
Date of Orders: 14 December 2009
Date of Reasons for Decision: 14 December 2009
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 13 of 2009
BETWEEN:
JAMES WESTON
Appellant
AND:
HAVELOCK HOUSING ASSOCIATION INC.
Respondent
TRIBUNAL:Mr C.G. Chenoweth
DATE: 14 December 2009
ORDER
That the decision of Senior Member Lennard be affirmed.
That any claim by the Applicant for repayment of money alleged to have been overpaid to the Respondent should not be dealt with as part of this appeal, but should be the subject of separate proceedings.
…………………………….
Mr C.G. Chenoweth
Acting Presidential Member
REASONS FOR DECISION
This is an appeal from a decision of Senior Member Lennard made on 24 April 2009 in matter RT/164 of 2009. In that matter, the Senior Member made an order (“the Order”), as follows:
“1. …that Mr Weston owes no arrears of rent in relation to current or previous tendencies.
2. That the parties are in a residential tenancy agreement commencing the 24th of April, 2009 for a fixed term ending 30th June, 2009. The terms of the agreement are contained in the attached document as completed and initialled by ACT Civil and Administrative Tribunal, Senior Member Lennard. Standard ACT residential tenancies terms apply.”
One of the terms of the agreement referred to above related to rent. It provided:
“The market rent at the date of this agreement is $220 for each week. Mr Weston is required to pay a rebated rent of $135.70 for the fixed term of this agreement.”
While this clause of the agreement did not include the phrase “per week” or “per fortnight” after the expression “$135.70”, it followed a reference to the “market rent” at the date of the agreement as being “$220 per week.”
The respondent sought to clarify with the Senior Member through the registry whether the rebated rent of $135.70 was a weekly or fortnightly rental. The advice to the respondent from the registry of the Tribunal was that the rebated figure determined in the agreement was a weekly rent. As a result of this, the respondent charged the appellant this amount per week.
The appellant did not pay all of these amounts. He claimed that at the hearing at which the rental and other terms of the agreement were explained and determined by the Senior Member, he understood that the rent determined was a fortnightly payment. He objected to the clarification by the Senior Member, on the basis that he had not been given the opportunity to present his views.
The respondent is a community housing association. It manages residential property of the ACT Government, under which the respondent may lease the properties to appropriate people. The agreement the subject of the Order was between the respondent as lessor and the appellant as lessee. The ACT Government was not a party to it.
The appellant did not pay all of the rent that the respondent considered was payable under the Order. As at 30 June 2009, the date on which the tenancy expired, a debt of $751.18 was showing in the ledgers of the respondent as owing by the appellant. At 30 June 2009 the respondent relinquished control of the property and it reverted to the ACT Government. The tenancy agreement referred to in the Order had come to an end. Administration of the property was then in the hands of ACT Housing.
The appellant stayed in the premises after 30 June 2009, and has now entered into a new tenancy agreement with ACT Housing. This decision is not concerned with that agreement, or any amount payable under it.
The appellant told the Tribunal that when he entered into the agreement with ACT Housing for the period after 1 July 2009, the debt shown in the ledger of the respondent was included in the ledger of ACT Housing as an amount due to it. The basis on which this was done is not clear, however the appellant advised the Tribunal that ACT Housing was treating this amount as money owing which would justify action against him under his current lease from ACT Housing. The respondent was not able to comment on this claim.
There was no appearance from ACT Housing at the hearing. The basis on which this authority could seek to enforce a debt owed to another landlord was not clear. The appellant regarded the threat of legal action against him as a real one. He told the Tribunal that ACT Housing were waiting on the decision of this Tribunal before taking action to enforce this debt for arrears arising before ACT Housing became the landlord.
10.The appellant appealed against the decision of the Senior Member on the issue of whether the dollar figure of $137.50 for rebated rent payable under the Order was a weekly or fortnightly rent. While the first part of the Order determined that there was no money owing by the appellant to the respondent as at the date of the hearing, this could not apply to any debt arising from short payment of rent under the Order at a later date.
11.The appellant claimed in the application for appeal that in agreeing to the terms of the Order, he understood that the dollar figure determined for rebated rent was a fortnightly, not weekly figure. Had he understood the figure to be weekly rent he would not have agreed to it.
The question of fact for determination set out in the application for appeal was as follows:
“Did the tribunal member intend to double my rent by changing the payment from fortnightly to weekly?”
Should the rent have remained fortnightly?”
The appellant sought to have the Order reflect the tenancy agreement to which he said he had agreed: That is, $137.50 rebated rent per fortnight and the standard prescribed terms under the Residential Tenancies Act 1997 (ACT).
At the hearing of the appeal, the representatives of the respondent confirmed that prior to 30 June 2009, the respondent had decided not to seek payment of the amount shown in its ledgers as outstanding. This amount had been calculated on the basis of the $135.70 being payable weekly and not fortnightly. On the respondent's calculations using this figure, the appellant had short paid his rent under the agreement.
On 17 June the respondent issued to the appellant a notice to vacate under the Residential Tenancies Act 1997 (ACT). This was Exhibit 2. This required the appellant to vacate the premises by 6 July 2009, and claimed a debt owing as at 20 June 2009 of $567.03. The date of this notice is one day later than the date of the signing and filing of the appellant's application for appeal, but there is no evidence that the respondent was aware of the application to appeal when the notice was lodged.
A landlord (or anyone else owed a debt) has the right to waive and release a debt if it sees fit. If this happens neither the landlord nor anyone claiming on its behalf (except in the special circumstances of bankrupts) can recover the debt. The representatives of the respondent told the Tribunal that prior to 30th June 2009 the respondent had decided to waive any money they considered the appellant owed the respondent. This decision had been made on pragmatic grounds, to bring to an end a dispute over whether the rental was weekly or fortnightly.
That decision by the respondent must also mean that ACT Housing cannot claim for or recover any amount from the appellant for those alleged arrears. They would be arrears for the period before ACT Housing became the landlord, and which had been waived or released by the landlord.
In the light of the evidence from the representatives of the respondent the appellant agreed that the question raised in the appeal did not require a decision as a waiver resulted in no money owing by him to the respondent. Accordingly, I dismissed the appeal and affirmed the decision set out in the Order.
At the hearing, the appellant raised a further matter concerning the payment by him of the sum of $1,310.40 to the respondent. The appellant said that this payment had been claimed by the respondent as rental arrears when it was correctly classified as a members’ rebate or other charges not properly payable under the Order. The members’ rebate was not properly a component of the rent that the respondent could charge, and should therefore be repaid by the respondent to the appellant. The appellant also claimed that the other charges were wrongfully claimed from him.
The statement of facts and contentions dated 21 July 2009 and filed by the appellant in this matter referred to these matters and raised a number of “issues in contention” that were said to be based on these. The representatives of the respondent indicated that these claims were strongly disputed, that the appellant misunderstood the way in which the members’ rebate paid by the Australian Government operated, and that they had been canvassed and considered in previous hearings.
I determined under section 82 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) that it was not appropriate for these matters to be decided in this appeal. The matters referred to in paragraph 17 did not form part of the application for appeal. They were not relevant to and did not affect the Order. They raise matters of complexity which would require the respondent to provide a detailed response from its records.
The appellant is free to take separate proceedings in debt if he considers it appropriate, when the claim for these amounts can be properly set out and the applicant can produce whatever evidence supports his claim. The respondent will then know what case, if any, it has to meet. To have allowed the appellant to canvass these matters in this appeal would have been unjust to the respondent.
…………………………….
Mr C.G. Chenoweth
Acting Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AA 09/13
APPLICANT: JAMES WESTON
RESPONDENT: HAVELOCK HOUSING ASSOCIATION INC.
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT: IN PERSON
RESPONDENT: SPENCE & LEFKADITIS
TRIBUNAL MEMBER/S: MR C.G. CHENOWETH
DATE/S OF HEARING: 17 NOVEMBER 2009 PLACE: CANBERRA
DATE/S OF DECISION: 14 DECEMBER 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
0
0