Wiser v Havelock Housing Association Inc - [2014] ACTSC 138

HUMAN RIGHTS ACT

FREEMAN WISER v HAVELOCK HOUSING ASSOCIATION INC
[2014] ACTSC 138 (6 June 2014)

LEASES AND TENANCIES – Occupancy Agreements – leave to appeal from ACAT – whether agreement a Residential Tenancy or an Occupancy Agreement – common law definition modified by legislation: ss 6A, 6E, 71C Residential Tenancies Act 1997 (ACT) – occupation of stated premises for a fixed period determinative of residential tenancy – applicant’s agreement gave right to an assigned room, not the specific room assigned

APPEAL AND NEW TRIAL – Occupancy Agreement – leave to appeal from ACAT – appeal from original decision, not dismissal of appeal by Appeal President – whether agreement breached – compliance with occupancy agreement

HUMAN RIGHTS – Occupancy Agreements – leave to appeal from ACAT – whether applicant’s human rights breached – no breach

ACT Civil and Administrative Tribunal Act2008 (ACT), ss 79, 86
Human Rights Act 2004 (ACT), s 12
Residential Tenancies Act 1997 (ACT),ss 6A, 6E, 8, 35, 36, 57, 71C, 71E, 71F, 71G; Pt 4; Sch 1

Residential Tenancies Regulation 1998 (ACT)

Universal Declaration of Human Rights, Arts 3, 12, 25

CommonwealthLife (Amalgamated) Assurance Ltd v Anderson (1946) 46 SR (NSW) 47
Bruton v London and Quadrant Housing Trust [2000] 1 AC 406
Lewis v Bell [1985] 1 NSWLR 731
Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48
Noble v Centacare (2003) 150 ACTR 12
Noblett and Mansfield v Manley [1952] SASR 155
Radaich v Smith (1959) 101 CLR 209
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331
Street v Mountford [1985] 2 All ER 289
Torrisi v Oliver [1951] VLR 380

ON APPEAL FROM THE AUSTRALIAN CAPITAL TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL

No. SCA 107 of 2013

Judge: Burns J
Supreme Court of the ACT

Date: 6 June 2014

IN THE SUPREME COURT OF THE       )
  )          No. SCA 107 of 2013
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE AUSTRALIAN CAPITAL TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL

BETWEEN: FREEMAN WISER
Applicant

AND: HAVELOCK HOUSING ASSOCIATION INC
Respondent

ORDER

Judge:  Burns J
Date:  6 June 2014
Place:  Canberra

THE COURT ORDERS THAT:

Leave to appeal from the decision of the ACAT is refused.

The applicant, Freeman Wiser, was a resident of Havelock House from about 14 October 2009 until 6 December 2012, when the respondent, Havelock Housing Association, gave him 26 weeks notice to vacate the premises (the notice). He did not vacate the premises in accordance with the notice, and on 18 June 2013, the respondent commenced proceedings in the ACT Civil and Administrative Tribunal (the ACAT) seeking orders terminating his Occupancy Agreement and for payment of rental arrears. On 30 July 2013, the ACAT (President Symons) made orders terminating the occupancy agreement and requiring the applicant to pay $209.60 in rental arrears.

On 19 August 2013, the applicant appealed the decision to an appeal tribunal within the ACAT, as provided for by s 79 of the ACT Civil and Administrative Tribunal Act2008

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] ACTSC 138
Decision Date: 6 June 2014

CaseChat Overview and Summary

Wiser v Havelock Housing Association Inc involved a dispute between the applicant, Wiser, and the respondent, Havelock Housing Association Inc, regarding the nature of their agreement as either a residential tenancy or an occupancy agreement under the Residential Tenancies Act 1997 (ACT). The applicant sought to have the Administrative Appeals Tribunal (ACAT) decision reviewed on the basis that the agreement should be classified as a residential tenancy, rather than an occupancy agreement, and that the respondent breached the occupancy agreement. Additionally, Wiser argued that the respondent's actions breached their human rights.

The court had to determine whether the agreement was a residential tenancy or an occupancy agreement, whether the respondent breached the occupancy agreement, and if the respondent's actions violated the applicant's human rights. The court considered the common law definition of a residential tenancy, modified by sections 6A, 6E, and 71C of the Residential Tenancies Act 1997 (ACT). The court examined the nature of the agreement and whether it gave the applicant the right to a specific room or an assigned room. Furthermore, the court assessed the respondent's compliance with the occupancy agreement and whether the respondent's actions breached the applicant's human rights.

The court found that the applicant's agreement gave the right to an assigned room, not a specific room, and therefore did not constitute a residential tenancy. The court also determined that the respondent complied with the occupancy agreement and that the respondent's actions did not breach the applicant's human rights. Consequently, the court refused the applicant's leave to appeal from the ACAT decision. As a result, the court upheld the original ACAT decision that the agreement was an occupancy agreement, and the respondent did not breach the agreement or the applicant's human rights.

Orders

Orders of the court

1. Leave to appeal from the decision of the ACAT is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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