WILLIAMS v Wreck Bay Aboriginal Community Council (Residential Tenancies)
[2015] ACAT 79
•2 December 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WILLIAMS v WRECK BAY ABORIGINAL COMMUNITY COUNCIL (Residential Tenancies) [2015] ACAT 79
RT 352 of 2015
Catchwords: RESIDENTIAL TENANCIES - whether a lease granted pursuant to Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) over a domestic property in Wreck Bay Village is a residential tenancy agreement - whether the Tribunal has jurisdiction
Legislation cited: Aboriginal Land Grant (Jervis Bay Territory) Act (Cth) 1986 ss 17, 38, 40
ACT Civil and Administrative Tribunal Act 2008 ss 16, 17, 32
Jervis Bay Territory Acceptance Act 1915 (Cth) ss 4A
Landlord and Tenant Ordinance 1949 (repealed) ss 6, 8
Landlord and Tenant Act 1949 (Repealed) ss 6, 8
Residential Tenancies Act 1997 ss 3, 4, 5, 6, 6A, 6B, 76, 110, 115
List of Cases: Brown & Commonwealth; Attorney General for the ACT [2012] ACAT 83
University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & Others (1984) 158 CLR 447
List of
Texts/Papers cited: Butterworth’s Concise Australian Legal Dictionary, 3rd Edition, 2004
Tribunal: Ms E Symons – Presidential Member
Date of Orders: 2 December 2015
Date of Reasons for Decision: 2 December 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL RT 15/352
BETWEEN:
GLEN RICHARD WILLIAMS
Applicant
AND:
WRECK BAY ABORIGINAL COMMUNITY COUNCIL
Respondent
TRIBUNAL: Ms E Symons – Presidential Member
DATE:2 December 2015
ORDER
Upon the Tribunal being satisfied that:
(a)The parties entered into a tenancy agreement in 1989; and
(b)Since 1989 there has been a residential tenancy agreement between the parties; and
(c)The Tribunal has jurisdiction under the Residential Tenancies Act 1997 to hear and determine the application.
The Tribunal orders that the substantive application be listed for a conference and directions on a date to be advised to the parties.
………………………………..
Ms E. Symons
Presidential Member
REASONS FOR DECISION
Background
The applicant filed an application for resolution of a tenancy dispute in the ACT Civil and Administrative Tribunal on 14 April 2015 seeking compensation under section 83(d) of the Residential Tenancies Act 1997 (RTA) and for repairs to be carried out at the property at 10 Dhugan Close, Wreck Bay Village (the property). Wreck Bay Village is a village in the Jervis Bay Territory.
On 12 May 2015 the respondent filed a statement contesting the application and, inter alia, stating:
1. The Tribunal does not have the legal authority/jurisdiction to order the Respondent/Council to pay compensation/damages as there is no duly signed and executed and dated tenancy agreement in force between the respective parties.
2. …
At a directions hearing held on 18 June 2015 the tribunal set a timetable for the filing of material each party intended relying on at the hearing, including an amended application, witness statements and set the matter down for hearing.
On 18 August 2015 the applicant’s solicitor filed an amended claim seeking the following orders:
a. That the Respondent undertake the necessary repairs at the property.
b. That the Respondent lessor pay $15,000 to the Applicant as compensation for failure to undertake the necessary repairs.
and a witness statement by Glen Williams dated 18 August 2015.
On 21 September 2015 the respondent’s solicitors filed an application for interim or other orders seeking that the applicant’s claim be dismissed pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and attaching an outline of submissions as to why the tribunal does not have jurisdiction to determine the claim.
On 2 October 2015 the matter was listed for a jurisdictional hearing on 13 November 2015 and directions were made for the parties to file submissions in relation to jurisdiction.
On 16 October 2015 the applicant’s solicitor filed submissions regarding jurisdiction.
On 2 November 2015 the respondent’s solicitor filed submissions in reply to the applicant’s submissions.
The Jurisdictional Hearing
The jurisdictional issue was heard on 13 November 2015. Mr S Tierney, solicitor with Ken Cush & Associates, appeared for the applicant in the interim application. Ms V Faulder, solicitor with the Tenants’ Union Act, appeared for the respondent to the interim application. The respondent, Mr Williams, gave evidence and was cross examined. His witness statement dated 18 August 2015 was Exhibit R. Mr Reuben Ardler, General Manager of the Council, gave evidence and was cross examined. His witness statement dated 21 September 2015 was Exhibit A. The solicitors for the parties each made oral submissions. At the conclusion of the hearing the Tribunal reserved the decision.
In these reasons, a reference to the ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally or a previous tribunal and ‘Tribunal’ refers to the current member who heard the matter.
Agreed Facts
The following facts are agreed:
(a)The respondent to the interim application has been living at the property since 1989.
(b)The property is managed by the Wreck Bay Aboriginal Community Council (the Council).
(c)Neither party has a copy of any written tenancy agreement made in 1989 between the parties.
(d)The respondent has not paid rent to the Council since 1989/1990.
(e)In or about 2009 the Council prepared a draft residential tenancy agreement[1] for the property. Neither party signed this agreement.
Issue
[1] Attachment H to the application for resolution of tenancy dispute
The issue is whether a residential tenancy agreement exists such that the Tribunal has jurisdiction under the RTA to grant the relief sought.
Relevant law, the Tribunal’s jurisdiction and powers
Section 4A(1) of the Jervis Bay Territory Acceptance Act 1915 (Cth) provides that the laws of the Australian Capital Territory apply to the Jervis Bay Territory and states:
(1)Subject to this Act, the laws (including the principles and rules of common law and equity) in force from time to time in the Australian Capital Territory are, so far as they are applicable to the Territory and are not inconsistent with an Ordinance, in force in the Territory as if the Territory formed part of the Australian Capital Territory.
Sections 38 and 40 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) (ALG (JBT) Act) allowed the Council to offer leases of Aboriginal Land to registered members of the community. These sections provide:
38Dealings in Aboriginal Land by Council
(1)Except as provided by this Part, the Council shall not deal with or dispose of, or agree to deal with or dispose of, any estate or interest in Aboriginal Land.
(2)Subject to this section, the Council may grant a lease of Aboriginal Land (other than land within the Booderee National Park or the Booderee Botanic Gardens):
(a) to a registered member or registered members for use for domestic purposes;
(b) to a registered member or registered members for use for business purposes;
(c) to a registered member or registered members for use for the benefit of the members, or of a significant number of the members, of the Community;
(d) with the consent in writing of the Minister—to a person other than a registered member, or to persons at least one of whom is not a registered member, for use for domestic purposes;
(e) with the consent in writing of the Minister—to a person other than a registered member, or to persons at least one of whom is not a registered member, for use for business purposes; or
(f) to the Commonwealth or an Authority.
(3)Except with the consent of the Minister, the term of a lease shall not exceed:
(a) in the case of a lease to which paragraph (2)(a) applies—99 years;
(b) in the case of a lease to which paragraph (2)(b) or (c) applies—25 years; or
(c) in any other case—15 years.
(4)The Council may grant a person a licence to use Aboriginal Land (other than land within the Booderee National Park or the Booderee Botanic Gardens).
(5)Where the Council grants a lease of, or a licence to use, Aboriginal Land to the Commonwealth or to an Authority under this section, the rent and other amounts payable under the lease or licence shall be determined by the Minister.
(6)The Lands Acquisition Act 1989 does not apply to the grant of a lease under this section.
40Rights of existing occupiers
Where, immediately before land became Aboriginal Land, a registered member was in occupation of the land with the consent, express or implied, of the Commonwealth or of an Authority, the Council shall, in accordance with section 38, grant that person a lease of that land, being a lease:
(a) the term of which:
(i)commences at the time at which the land became Aboriginal Land; and
(ii)is for the maximum period permitted for the lease by subsection 38(3);
(b) the terms and conditions of which do not provide for any payment by the person in respect of a building or improvements erected on the land solely at the expense of the person; and
(c) the terms and conditions of which may include terms and conditions approved by the Minister in writing under which the person is to pay to the Council in respect of buildings and improvements on the land (other than buildings or improvements to which paragraph (b) applies) amounts amounting in the aggregate to the value of those buildings and improvements at the time at which the land became Aboriginal Land.
Section 17 of the ALG (JBT) Act refers to the Register of Members and states:
17Register
(1)There shall be prepared and kept in accordance with this Part a register to be known as the Register of Members of the Wreck Bay Aboriginal Community Council.
(2)As soon as practicable after the commencement of this Act, the Department shall prepare and give to the Registrar a list of the persons who the Department is satisfied are Aboriginals who:
(a) resided in the Territory on 24 May 1986; and
(b) have attained the age of 18 years.
(3)As soon as practicable after the Department has given the Registrar the list referred to in subsection (2), the Registrar shall prepare the Register and enter on it the names on the list.
(4)After the first annual general meeting, the Register shall be kept by the Secretary.
The predecessor to the RTA was the Landlord and Tenant Ordinance 1949 (LTO). The LTO became an ACT Act on 11 May 1989.[2]
[2] see Australian Capital Territory (Self-Government) Act 1988 (Cth) s 34(4)
Subsection 6(1) of the LTO stated:
(1) The Minister may, by order published in the Gazette, declare that the application of this Ordinance shall extend to the premises, or premises included in the class of premises, specified in the order, and thereupon the application of this Ordinance shall, not withstanding anything contained in paragraph (b) of subsection (1.) of section 12, section 16 or section 79 of this Ordinance, extend to those premises (including goods leased with those premises) or to the premises included in that class of premises (including goods leased with those premises).
The LTO was notified in the Commonwealth Gazette on 25 August 1949.
Subsection 8(1) of the LTO had the following definitions:
‘dwelling house’ means any prescribed premises (including shared accommodation) leased for the purposes of residence, and includes –
(a) the premises of any lodging-house or boarding house; and
(b) any part of premises which is leased separately for the purposes of residence,
…
‘lease’ includes every contract for the letting of any prescribed premises, whether the contract is express or implied or is made orally, in writing or by deed, and includes a contract for the letting of prescribed premises together with goods, but does not include any lease arising under an attornment clause in a mortgage or in agreement for the sale and purchase of land;
‘lessor’ and ‘lessee’ means the parties to a lease, or their respective successors in title….
‘prescribed premises’ means any premises, other than -
(a) premises which are for the time being used as a grazing area, farm, orchard, market garden, dairy farm, poultry farm, pig farm or bee farm …
(b) holiday premises; and
(c) Premises licensed for the sale of spirituous or fermented liquors,
and includes any part of any premises and any land or appurtenances leased with any premises;
‘rent’ means the actual rent payable under a lease and includes –
(a) The value to the lessor any covenant, conditions or other provisions of, or relating tom the lease to be performed by the lessee other than covenants, conditions and provisions usually entered into by a lessee; and
(b) Any rates or taxes payable by a lessee in respect of any prescribed premises, other than excess water rates
…
Subsections 8(1) and (2) of the LTO stated:
(1)For the purpose of this Ordinance, ‘lessee’ includes a person who remains in possession of premises after termination of his lease of the premises, and ‘lessor’ has a corresponding meaning.
(2)Where the lessor of prescribed premises supplies or provides any services in connexion with the premises and a separate charge is made for those services, the amount charged shall, for the purposes of the Ordinance, be deemed to form part of the rent payable under the lease.
The Residential Tenancies Act 1997 (the old RTA) commenced on 26 May 1998. The transitional provisions in section 4 of the old RTA provided:
Application of Act
(1)Subject to sections 5 and 6, this Act (other than Division 1 of Part II), sections 43, 47 and 48 and subparagraph 71 (1) (a) (ii) applies in relation to any residential tenancy agreement, whether commencing before, on or after the commencement day.
(2)Subject to sections 5 and 6, Division 1 of Part II, sections 43, 47 and 48 and subparagraph 71 (1) (a) (ii) apply in relation to—
(a) any residential tenancy agreement commencing on or after the commencement day; or
(b) on and from 1 July 2000—all residential tenancy agreements; whichever is earlier.
(3)Nothing in subsection (2) prevents Division 1 of Part II,
sections 43, 47 and 48 and subparagraph 71 (1) (a) (ii) from applying to a
residential tenancy agreement before 1 July 2000 where the agreement specifies that the Division, sections and subparagraph apply.
(4)For the purposes of subsection (2), a fixed term agreement that was in effect immediately before, and continues in effect on or after, the commencement day shall be taken to commence on the day on which—
(a)the term of the residential tenancy agreement is renewed or extended;
(b)the rights and obligations of a party to the agreement are assigned or otherwise transferred; or
(c)a subtenancy of the premises commences.
(5)For the purposes of subsection (2), a periodic agreement that was in effect immediately before, and continues in effect on or after, the commencement day shall be taken to commence on the day on which—
(a)the rental rate under the agreement increases or decreases; the rights and obligations of a party to the agreement are assigned or otherwise transferred; or
(b)a subtenancy of the premises commences.
(6)In this section—
“commencement day” means the day on which this section commences.
Section 110 of the old RTA established the Residential Tenancy Tribunal (RRT). The jurisdiction of the RRT was found in section 115:
(1)Subject to this section, the Tribunal has exclusive jurisdiction to hear and determine any matter that may be the subject of an application to it under this Act or the prescribed terms.
(2)The Tribunal does not have jurisdiction to make an order for the payment of an amount, or for work of a value, exceeding $10,000.
(3)A claim for payment of an amount, or for work of a value, exceeding $10,000 may be made in a court competent to hear and determine claims based on contract for the amount claimed.
(4)Where a claim referred to in subsection (3) may be made—
(a) the claimant may also make any other claim related to the relevant tenancy dispute; and
(b)the court in which proceedings are brought may exercise the powers of the Tribunal under this Act.
Subsection 3(1) of the old RTA provided that :
“residential tenancy agreement” means an agreement under which a
person grants to another person (called the “tenant”) for value a
right of occupation of premises for use as a residence by the
tenant (whether with or without other persons)—
(a) whether the agreement is express or implied;
(b) whether the agreement is in writing, is oral, or is partly in writing and partly oral; or
(c) whether the right of occupation is exclusive or not; and includes such an agreement where the right of occupation is granted together with the right to use facilities, furniture or goods;
Part 1A of the current RTA[3], provides the following definitions:
[3] The current version of the RTA is effective from 13 November 2015, however section 1A as set out above was inserted into the RTA on 8 March 2005
5Who is a lessor?
(1)A person is a lessor if the person grants a right of occupation under a residential tenancy agreement.
(2)Lessor includes a prospective lessor.
6Who is a tenant?
(1)A person is a tenant if the person has a right of occupation under a residential tenancy agreement.
(2)Tenant includes a prospective tenant.
6AWhat is a residential tenancy agreement?
(1)An agreement is a residential tenancy agreement if, under the agreement—
(a)a person gives someone else (the tenant) a right to occupy stated premises; and
(b)the premises are for the tenant to use as a home (whether or not together with other people); and
(c)the right is given for value.
(2)The agreement may be—
(a)express or implied; or
(b)in writing, oral, or partly in writing and partly oral.
(3)The right to occupy may be—
(a)exclusive or not exclusive; and
(b)given with a right to use facilities, furniture or goods.
(4)This section is subject to the following sections:
· section 6D (Certain kinds of agreements not residential tenancy agreements)
· section 6E (Certain people given right of occupation not tenants)
· section 6F (Certain kinds of premises mean no residential tenancy agreement).
Section 6B[4] of the current RTA provides that an agreement is a residential tenancy agreement if it complies with section 6A (1) - (3) of the RTA, is written and expressly states that it is a residential tenancy agreement.
[4] Section 6B commenced on 8 March 2005
The jurisdiction of the Tribunal under the current RTA is set out in section 76[5], which states:
[5] Section 76 commenced on 2 February 2009
76Jurisdiction of ACAT under this Act etc
(1)The ACAT has exclusive jurisdiction to hear and decide any matter that may be the subject of an application to the ACAT under—
(a)this Act; or
(b)the standard residential tenancy terms; or
(c)the standard occupancy terms.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
(2)However, the ACAT does not have jurisdiction to make an order for—
(a)the payment of an amount that is more than $25 000; or
(b)work of a value that is more than $25 000.
(3)This section is subject to—
(a)section 78 (Extended jurisdiction of ACAT with agreement of parties); and
(b)the Self-Government Act, section 48A (Jurisdiction and powers of the Supreme Court).
The Council has contended that, if the Tribunal finds that there is no residential tenancy agreement between the parties then the Tribunal does not have jurisdiction pursuant to part 4 and specifically sections 16 and 17 of the ACAT Act. Sections 16 and 17 state:
16Meaning of civil dispute and civil dispute application—Act
In this Act:
civil dispute means a dispute in relation to which a civil dispute application may be made.
civil dispute application means an application that consists of 1 or more of the following applications:
(a) a contract application;
(b) a damages application;
(c) a debt application;
(d) a goods application;
(e) a nuisance application;
(f) a trespass application;
(g) an application for a debt declaration;
(h) an application for a common boundaries determination;
(i) an application for an order under the Australian Consumer Law (ACT);
(j) an application stated to be a civil dispute application in an authorising law.
17Civil dispute applications
A person may make a civil dispute application to the tribunal.
Applicant’s Contentions
The Council contends that:
(a)the applicant was granted a lease to the property pursuant to section 38 of the ALG (JBT) Act which is a Commonwealth Act;
(b)the Tribunal does not have jurisdiction to grant the relief sought by the respondent in the substantive application as there is no residential tenancy agreement between the parties;
(c)there is no written agreement;
(d)the written agreement produced by and signed by the respondent and Jacqueline Mundy and annexed to the application has 2013 in various places and appears to be of recent origin. It is not signed by the Council. It does not make reference to any amount of rent payable. The applicant has never paid a bond for the property;
(e)the applicant has not paid rent to the Council for the property;
(f)the applicant has not produced any evidence by him or anyone on his behalf of any rent payment, or payment in kind such as the provision of work or services for the Council or benefit to the Council which is referable to the occupation of the property;
(g)the applicant’s claim of an oral promise amounts to a separate contract which has no prospects of success and should be dismissed pursuant to section 32 of the ACAT Act;
(h)the unenforceability of the residential tenancy agreement asserted by the applicant means that the Tribunal does not have jurisdiction pursuant to part 4 and specifically sections 16 and 17 of the ACAT Act;
(i)if the Tribunal is satisfied that a residential tenancy agreement existed between the parties it would require acceptance that a term of that agreement was a requirement for the applicant to pay rent of $35.00 a week;
(j)there is no evidence of those payments being made; and
(k)the respondent would have a viable counterclaim for rent which would subsume the applicant’s claim in entirety.
The respondent contends[6]:
[6] Applicant’s (Mr Williams) submissions regarding jurisdiction
(a)that there was a tenancy agreement between the Council and Mr Williams from 1989;
(b)that it is not surprising that there is now no copy of any written agreement from 1989 some 26 years after the event; this does not mean that there wasn’t an agreement;
(c)the requirements of section 6A of the RTA can be met by a written or oral tenancy agreement;
(d)Mr Williams’ evidence is that he recalled paying rent of $35.00 per week at the time the agreement commenced in 1989, which he paid for about 12 weeks, until the property flooded. A failure by a tenant to pay rent would mean that the tenant falls into rent arrears, not that there was no residential tenancy agreement; and
(e)if the Tribunal finds that there was no tenancy agreement in 1989, the 2009 draft agreement prepared by the Council and the 2013 agreement, in all likelihood also prepared by the Council, should be taken as evidence of the parties intention to enter into a tenancy agreement and the Tribunal should find that a residential tenancy agreement commenced in 2013.
The Evidence
Mr Glen Williams’ evidence
Mr Williams told the Tribunal that he came to be residing in the property at 10 Dhugan Close, Wreck Bay Village because he signed a lease in the Council’s Community Hall in 1989. He agreed that this evidence was different to what he had stated in his witness statement at [6], namely – “I cannot recall if an agreement was signed when we first moved into the property.” He said that the Council’s chairperson, Philip McLeod, was present when he signed the lease and gave him the key to the property. Mr McLeod’s name was on the lease as the chairperson of the Council. Mr McLeod is still alive and living in the community. Mr Williams said that Mr McLeod was ‘pretty crook’. Mr Barry Moore was also present when he signed the lease however he has since passed away.
Mr Williams did not believe he received a copy of the lease he signed. He believed the weekly rent was $35.00 when he moved in and he paid the rent in that amount in cash at the Council for about six fortnights. He received receipts which he no longer has. He now had no idea what else was in the lease as it happened so long ago.
He stopped paying the rent when the property flooded in 1989 or 1990 and he hasn’t paid any rent since.
Mr Reuben Ardler’s evidence
Mr Ardler told the Tribunal that he had lived at Wreck Bay between 1960 and 1981 and since 1986. He is currently employed as the General Manager of the Council and has been employed in that role since 2006. In this role he has responsibility for day to day care, control and custody of Council documents.
He was employed in various other roles by the Council between approximately 1997 and 2006.
He told the Tribunal that he was not aware of any agreement Mr Williams had signed between 1989 and the present. He had searched Council records and not been able to locate any signed agreement between Mr Williams and the Council in respect of the property.
In 1989 thirteen families moved into thirteen brand new houses in Wreck Bay. He presumed they were issued keys. Mr McLeod was elected as the first chairperson of the Council in 1987.
He thought that the draft tenancy agreement annexed to Mr Williams’ application as Attachment H would have been prepared in 2009, if not earlier in 2008. At that time Council prepared or had their solicitors prepare a draft agreement (the 2009 agreement) and an offer was made to all tenants, including Mr Williams, to sign up to the 2009 agreement. He said 12 or 13 families residing at the houses chose not to sign up. Mr Williams’ family was one of these families.
When asked if, before 2009, he was aware of any written tenancy agreements for the housing properties in Wreck Bay he said “Not that I am aware of”.
He said that the 2009 agreement had been saved as a word document by Council. Until he had seen the agreement attached to Mr Williams’ application he had not seen a copy of that agreement with Mr Williams’ and Ms Mundy’s signatures. He pointed out that the attached agreement had 2013 written in it. He said that Mr Williams’ daughter had requested a copy of the agreement from Council in 2013 so she could provide it to Legal Aid in Nowra as an example of the type of document that was part of the lease arrangement. The Council provided her with an unsigned copy of the 2009 agreement. After this, there was no communication between the Council, Mr Williams, his daughter or Ms Mundy whose name was on the 2009 agreement. Council had not received the agreement which was attached to the application.
Mr Ardler said that there are 49 housing properties at Wreck Bay and four buildings used by the community. All 49 properties are currently occupied. The Council manages the properties and collects the rent, but not on all properties because some people choose not to pay rent.
He said that since 2009 about 12 or 13 of the housing properties do not have written tenancy agreements. These are the same 12 or 13 properties referred to in paragraph 36 above.
The Council kept paper records for as long as required. Council records for rent possibly go back to 2002. The Council had done a complete search of their records to see if Mr Williams had paid rent and it couldn’t locate any records, for anybody, before 2002. The Council’s records showed that Mr Williams had not paid rent since 2002.
Mr Ardler told the Tribunal that the Council, as well as collecting rent, insured the properties and since 2000 carried out emergency repair and maintenance to the properties. The Council did emergency repairs for properties where there were signed agreements and the rent was not being paid. Council only carried out other repairs to properties if rent was being paid.
Mr Ardler told the Tribunal that the agreements offered by Council were not offered on the basis of the RTA; rather they were leases offered pursuant to sections 38 and 40 of the ALG (JBT) Act which allowed the Council to offer leases to registered members of the community.
Consideration
Mr Williams variously claimed that a residential tenancy agreement between himself and the Council came into existence in 1989 when he signed the lease, and if not in 1989, then in 2009 or earlier when the ‘2009 agreement’ was offered to registered members and if not in 2009, then in 2013 when he and Ms Mundy signed the Residential Tenancy Agreement annexed to his application and marked “H”.
The Council contends that the leases offered to registered members in 1989 were offered pursuant to sections 38 and 40 of the ALG(JBT) Act and governed by Commonwealth law. Mr Glen Williams’ name is included on the Register pursuant to section 17 of the ALG (JBT) Act.
The 1989 document
In 1989 the relevant Territory legislation was the LTO known as the Landlord and Tenant Act 1949 (LT Act).
The Tribunal noted that while Mr Williams had stated in his witness statement dated 18 August 2015 that “he cannot recall if an agreement was signed when we first moved into the property” he told the Tribunal under affirmation that he signed a lease in 1989 in the Community Hall; that Mr McLeod was the then Chairman of the Council, which was corroborated by Mr Ardler; that Mr McLeod saw him sign the lease and Mr McLeod gave him a key to the property.
The onus is on Mr Williams to prove the existence of the agreement which he asserts. It is true that there was no independent evidence corroborating Mr Williams’ evidence of the events in 1989. He did not produce a copy of the document he said he signed. While Mr McLeod was still alive and could have corroborated Mr Williams’ evidence, the Tribunal accepted that he was not in good health and this may explain why he did not provide a witness statement to the Tribunal.
The only other evidence was from Mr Ardler who had been employed in his current role by the Council since 2006. He said Council had not been able to locate a copy of this document when searching their records. Mr Ardler told the Tribunal that Council kept records for as long as required. On searching the records he was only able to locate rent records back to 2002. The Tribunal is not satisfied that the fact that Mr Ardler was not able to locate any lease document from 1989 confirms that there was no such document.
Apart from Mr Ardler’s evidence, there was no other evidence which challenged Mr Williams’ evidence. It appears to the Tribunal that the Council must have given Mr Williams a key or keys to the property in 1989 and, according to Mr Williams, accepted rent of $35 a week from him for some 12 weeks. Mr Williams and his family have had exclusive occupancy of the property since then and still reside at the premises. Apparently the Council has not taken any steps to remove him from the property.
There was no evidence of the term of the lease Mr Williams understood he had signed. It appears from section 38(3) of the ALG (JBT) Act the lease could have been for as long as 99 years. The Tribunal simply does not know. Mr Williams told the Tribunal that the rent payable in 1989 was $35.00 a week which he paid for about 12 weeks. He had not paid any rent for the property since 1989 or 1990.
The word ‘lease’ is not defined in the ALG (JBT) Act. In the LTO applicable at that time ‘lease’ is defined as:
‘lease’ includes every contract for the letting of any prescribed premises, whether the contract is express or implied or is made orally, in writing or by deed, and includes a contract for the letting of prescribed premises together with goods …
Butterworth’s Concise Australian Legal Dictionary[7] defines ‘lease’ as
A right to exclusive possession of land given by one person (lessor or landlord) to another person (lessee or tenant) usually in return for rent.
[7] Third Edition, reprinted 2008
In Brown & Commonwealth; Attorney General for the ACT[8] an earlier tribunal considered whether the RTA applies to the Jervis Bay Territory and said:
21. … The ACT Legislative Assembly has power to make laws for the peace, order and good government of the Australian Capital Territory.[9] The ACT Legislative Assembly does not have the power to make laws specifically for the peace, order or good government of the Jervis Bay Territory. The Jervis Bay Territory Acceptance Act 1915(Cth) provides at section 4A(1)
Subject to this Act, the laws (including the principles and rules of common law and equity)in force from time to time in the Australian Capital Territory are, so far as they are applicable to the Territory and are not inconsistent with an Ordinance, in force in the Territory as if the Territory formed part of the Australian Capital Territory.
22. The effect of the Jervis Bay Acceptance Act is to apply ACT laws to the Jervis Bay Territory as if the Jervis Bay Territory formed part of the ACT, but only so far as the ACT laws are applicable to the Jervis Bay Territory and not inconsistent with an Ordinance. The Tribunal accepts the submission of the Respondent and the Intervener that a law in force in the Australian Capital Territory may be treated as being inconsistent with an Ordinance if it detracts from the efficacy of the Commonwealth law, or could be said to operate to qualify, impair or detract from the essential legislative scheme which is established under the Ordinance[10].
[8] [2012] ACAT 83
[9] Australian Capital Territory (Self Government) Act 1998 (Cth) s. 22
[10] University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & Others [1984] HCA 74
The Wreck Bay Aboriginal Community Council was established by the ALG(JBT) Act in 1989. The lease the subject of this matter was granted to Mr Williams pursuant to section 38 of the ALG(JBT) Act. The ALG(JBT) Act is, apart from granting leases to members on the register, otherwise silent about the management of the leases and the rights and obligations attaching to the leases.
Having considered all of the evidence before the Tribunal and the parties’ submissions, the Tribunal is satisfied that the LT Act as it was known in 1989, applied to the leased domestic properties in the Wreck Bay Village. It did not conflict with the Commonwealth ALG(JBT) Act.
The Tribunal is satisfied and finds that the ‘lease’ given to Mr Williams in 1989 meets the definition of lease in the LT Act, in that the parties entered into a contract to let the prescribed premises to Mr Williams. The Tribunal has found Mr Williams’ evidence credible and is satisfied and finds from the evidence that the lease was made in writing, giving Mr Williams exclusive possession of the property to use as his home in return for Mr Williams paying weekly rent of $35.00.
If the Tribunal is wrong in finding that there was a written lease between the parties, then Tribunal finds, for the reasons set out above, that there was an oral agreement between the parties to lease the prescribed premises to Mr Williams in 1989; that Mr Williams paid and the Council accepted rent from Mr Williams for the prescribed premises for some 12 weeks; that Mr Williams and his family have resided at the prescribed premises since 1989 and the Council has not taken any steps to remove him or his family from the property.
Other matters
Mr Williams’ application relied on there being a tenancy agreement in 1989, and if not in 1989, then in 2009 and if not in 2009 then in 2013. As a result of the Tribunal’s decision, it is not strictly necessary to consider whether or not there was a tenancy agreement in 2009 or in 2013. However, and for the sake of completeness, the Tribunal has considered the evidence in relation to the 2009 and 2013 ‘agreements’.
Mr Ardler’s evidence was that in 2009, or perhaps earlier in 2008, the Council provided draft Residential Tenancy Agreements to the Wreck Bay residents for the properties in which they resided. This agreement was titled:
Draft
WRECK BAY ABORIGINAL COMMUNITY COUNCIL
RESIDENTIAL TENANCY AGREEMENT
The Landlord is identified as the Wreck Bay Community Council. The tenant is identified as ‘First Tenant: Glen Williams Second Tenant: Jacqueline Mundy’
The premises are identified as ‘House No: 10 Street Name: Dhugan Close Wreck Bay, Jervis Bay Territory 2540’ and Rent states ‘The rent is $........ per week.’ The Bond is ‘$Nil’ and the term of the lease is ‘Until’. On page two under ‘Preliminary’, clause 1 states:
This lease is entered into as a residential tenancy agreement under the Residential Tenancies Act 1997 of the Australian Capital Territory.
24 pages of Standard Residential Tenancy terms are annexed to the Agreement.
The Tribunal is satisfied and finds that this document was a Residential Tenancy Agreement subject to the RTA. It clearly meets the requirements of section 6B of the RTA. It is unambiguous evidence of Council’s intentions to enter into a residential tenancy agreement with Mr Williams.
It appears to the Tribunal that the ‘2013 agreement’ came about because Mr Williams’ daughter requested a copy of the lease documentation in 2013 to show her lawyer. Mr Ardler said that Council had saved the 2009 agreement as a word document. It may have been possible that when the agreement was printed and provided to Mr Williams’ daughter that 2013 was automatically printed into the document. The Tribunal doesn’t know. In the end it doesn’t make any difference to the Tribunal’s findings that there was a tenancy agreement in 1989 which appears to have been confirmed by the Council providing Mr Williams with the 2009 agreement.
Conclusion
The Tribunal concludes as follows:
(a)The parties entered into a tenancy agreement in 1989;
(b)Since 1989 there has been a residential tenancy agreement between the parties;
(c)The Tribunal has jurisdiction under the Residential Tenancies Act 1997 to hear and determine the application; and
(d)The substantive application be listed for a conference and directions.
………………………………..
Ms E. Symons
Presidential Member
HEARING DETAILS
FILE NUMBER: | RT 32 of 2015 |
PARTIES, APPLICANT: | GLEN RICHARD WILLIAMS |
PARTIES, RESPONDENT: | WRECK BAY ABORIGINAL COMMUNITY COUNCIL |
SOLICITORS FOR APPLICANT | Ms V. Faulder, Tenants Union ACT |
SOLICITORS FOR RESPONDENT | Mr S. Tierney, Ken Cush & Associates |
TRIBUNAL MEMBERS: | Ms E. Symons, Presidential Member |
DATES OF HEARING: | 13 November 2015 |