Wiser v Havelock Housing Association Inc
[2014] ACTSC 138
•6 June 2014
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 (ACT) (the ACAT Act). On 7 November 2013, Appeal President Stefaniak dismissed the applicant’s appeal. The applicant now applies for leave to appeal from the decision of President Symons. The present application is governed by s 86 of the ACAT Act, which relevantly provides:
86Appeals to Supreme Court
(1)A party to an application, other than an application mentioned in subsection (2), for an appeal to the Supreme Court on a question of fact or law from –
(a)a decision of the appeal tribunal; or
(b)if the appeal president dismissed the appeal under section 80 – the original decision of the tribunal; or
(c)if the appeal president decides not to deal with the appeal under section 85 – the original decision of the tribunal.
...
(3)However, the appeal may be brought only with the Supreme Court’s leave.
The discretion to grant leave conferred by s 86 is broad, and not susceptible to exhaustive definition. In Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, Phillips JA, with whom Tadgell and Batt JJA agreed, set out (at 335–337) guidelines to be applied to the grant of leave for an appeal on a question of law under s 148 of the Victorian Civil and Administrative Tribunal Act 1998, which were later summarised by Warren CJ in Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48 at [28]:
·whether leave is granted or not must always depend upon the justice of the particular case;
·if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal’s succeeding or failing;
·the applicant need not establish an error below – that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
·although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
·once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
·where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.
Whilst these guidelines were intended to apply to an appeal based on a question of law, they may readily be adapted to an appeal on a question of fact or law.
It will be noted that, as the Appeal President dismissed the applicant’s appeal, any appeal under s 86 is from the decision of President Symons, and not from that of the Appeal President.
The premises
Havelock House has 103 rooms. It was the respondent’s case before the ACAT that the Agreement between itself and the applicant granted him occupancy of a single room, Room 8.7. Room 8.7 is a bedroom and is one of seven bedrooms grouped around a “common area” comprising of a lounge/dining room, kitchen and bathroom, described in the evidence as Unit 8. Each of the seven bedrooms in Unit 8 are occupied under separate agreements, each agreement only granting the occupant exclusive possession of a bedroom and requiring them to share the common areas.
President Symons’ decision
President Symons identified the primary issues before ACAT to be:
a)whether the Agreement by which the applicant resided at Havelock House was an occupancy agreement as provided by s 71C of the Residential Tenancies Act 1997 (ACT) (the RTA), or a residential tenancy agreement;
b)whether the notice to vacate was validly issued or retaliatory;
c)if the notice to vacate was validly issued, whether the applicant’s right to occupation should be terminated;
d)if the plaintiff’s right to occupation is terminated, the amount, if any, of arrears of rent were payable by the applicant; and
e)whether the respondent breached the applicant’s human rights and/or “right to privacy”, and, if so, whether compensation was payable.
President Symons concluded that the Agreement between the parties under which the applicant occupied a room in Havelock House was an occupancy agreement as provided for by s 71C of the RTA, and not a residential tenancy agreement. She was further satisfied that the notice to vacate was in accordance with the Occupancy Agreement, that it was not defective and was validly given to the applicant. President Symons rejected the proposition that the notice to vacate had been “retaliatory”, as that concept is defined in s 57 of the RTA. She concluded that the applicant’s arrears of rent, as at the date of her decision, totalled $209.60 and were continuing to accrue at $16.15 a fortnight. She further determined that the respondent had not breached the applicant’s “right to privacy” in the use of his room as granted by clause 52 of the Occupancy Agreement and that it had not breached any right possessed by the applicant by virtue of the provisions of the Human Rights Act2004 (ACT) (the Human Rights Act). President Symons concluded that the ACAT “should exercise the discretion to make a termination and possession order” and an order for payment of rent arrears.
The proposed appeal to this Court
The applicant filed a prolix document entitled “The Reasons For Appeal Of The Decision In Case AA 13/33” (Annexure A to his affidavit of 5 December 2013), in which he set out the topics he proposes ventilating on any appeal. He appears to have been under the misapprehension that any appeal to this Court lay from the decision of the Appeal President, so that, unhelpfully, many of the references in this document are to the decision of the Appeal President. It is tolerably clear, however, that his fundamental position is that President Symons was in error in determining that he occupied the premises pursuant to an occupancy agreement and not a residential tenancy agreement. Based upon that asserted mischaracterisation of the basis of his occupation, he asserts that the respondent increased rents for the premises contrary to ss 35 and 36 of the RTA and provisions of the Occupancy Agreement, with a consequence that he was not obliged to pay these increases, so that there were no rental arrears.
The applicant also takes issue with the finding of President Symons that the notice to vacate was not retaliatory.
While the applicant, in dealing with the question of the application of the right to privacy found in s 12 of the Human Rights Act, refers exclusively to the findings of the Appeal President, it may be taken from what he says that he contests the findings of President Symons on this issue. He also contests the validity of certain provisions in the Occupancy Agreement, saying that they are contrary to his right to privacy, and purport to allow others to trespass on his premises. He further alleges that an employee of the respondent trespassed on his premises, entitling him to compensation.
The applicant also alleges breaches of the “Service Rules – Part A” by the respondent in failing to consult with him when filling vacancies in the rooms of Unit 8 and in failing to remove “intimidating and threatening persons” following reports by the applicant of their “threatening and violent behaviours”.
Next, he alleges that the reasons of President Symons reveal bias, thus depriving him of “the human right to a fair trial”.
The applicant then complains that “false evidence” was placed before President Symons.
Finally, he complains that the eviction order made by President Symons only gave him 3 weeks to vacate the premises, which put him at risk of homelessness.
The Occupancy Agreement
The written agreement by virtue of which the applicant occupied the premises is titled “Occupancy Agreement” and is dated 14 October 2009 (the Agreement). It specifies the respondent as “the Grantor” and the applicant as “the Occupant”. It provides:
It is agreed that the Grantor grants to the Occupant for value a right of occupation of the premises for use as a residence by the Occupant in accordance with this Occupancy Agreement. This Occupancy Agreement comprises the information on the first two pages of the agreement and the below listed attachments:
Attachment A – Occupancy Agreement Terms (including 110 terms of the Occupancy)
Attachment B – Service Rules, Part A
Attachment C – Supply of keys
Attachment D – Reviews
Attachment E – Asbestos
Attachment F – Centrelink Authority
Attachment G – Maintenance
Attachment H – Vacating ChecklistAttachment I – Electricity Authority
The Occupancy Agreement Terms mirror the standard residential tenancy terms required to be included in a residential tenancy agreement (s 8 of the RTA), but adapted to use in an occupancy agreement.
The Agreement identifies the premises which the applicant had a right to occupy as “Room Number 8.7 Havelock House, 85 Northbourne Avenue Turner ACT”. As the Agreement did not specify a fixed term, it was a periodic occupancy (clause 5 Occupancy Agreement). The Occupancy Agreement has provision for a weekly rent to be agreed as the rent by the parties. That section of the Agreement was left blank, meaning that the parties had not agreed on a weekly rent. By virtue of the Agreement, rent is payable fortnightly in advance. The Occupancy Agreement Terms provide, in clause 37.1, that in full satisfaction of the obligation to pay rent, the respondent agrees to accept “Income-related Rent”, based on household income. The applicant was obliged to provide proof of income to the respondent for the purpose of calculation of the income-related rent. If he failed to provide the required information, he was required to pay a fixed percentage of “market rent” for the premises. As I understand it, the applicant at all times paid income-related rent. The Occupancy Agreement Terms provide:
· That the grantor will not cause or permit any interference with the reasonable peace, comfort or privacy of the occupant in his or her use of the premises: clause 52;
· That unless otherwise agreed in writing, the occupant will have exclusive possession of the premises: clause 53;
· That the grantor will not require access to the premises during the occupancy except as provided by law, the Occupancy Agreement, the Residential tenancies Act or the ACAT: clause 75 (1);
· That the grantor will not have access to the premises:
a) on Sundays;
b) on public holidays; or
c) before 8am and after 6pm;
other than for the purpose of carrying out urgent repairs or for health and safety reasons or with the consent of the occupant: clause 76;
· That notwithstanding the above, the grantor may enter the premises at any time without notice in case of emergency, or where there is a reasonable concern for a person in the premises: clause 76.1;
· That the grantor may inspect the premises twice every 12 months following the commencement of the occupancy, with the grantor to give one weeks’ written notice on inspection. If the parties cannot agree on a time for an inspection, the grantor or occupant may apply to the ACAT for an order permitting access at a specific time: clauses 77 and 79;
· For access for inspection of the premises by prospective occupants in the three weeks prior to the expiration of the occupancy (clause 80) or for prospective purchasers if the grantor intends to sell the premises: clause 81;
· That the obligation of the occupant in relation to the premises also extend to the common areas associated with the premises “in common with other occupants sharing accommodation in the home”; and
· That the occupant, the grantor and the other occupants have a right of access, at all times, to the common areas; and
· That the grantor may terminate the occupancy without cause on 26 weeks’ notice, so long as the notice to vacate does not require the occupant to vacate the premises during a fixed term: clause 94.
The Service Rules - Part A, which are part of the Occupancy Agreement, provide that the occupant agrees to observe the objects, rules and policies of the Havelock Housing Association Inc.
· Rule 3 of the Service Rules provides that the Occupancy Agreement grants the occupant occupancy of a room at Havelock House, and the use of the kitchen, bathroom and living/dining room in common with other household members of the unit. It provides that the occupant agrees that this does not imply occupancy rights to a specific room or unit.
· Rule 4 provides that the grantor may enter any room in Havelock House, other than the occupant’s premises, without giving notice to the occupant.
· The Service Rules also provide a mechanism for occupants of rooms in a particular unit to participate in the process of choosing suitable persons to occupy vacant rooms in their unit. The grantor “agrees to make every effort to put forward applicants that are compatible with existing household members of the unit noting that the grantor’s policy is not to discriminate on the basis of age, disability, gender, place of origin, social-economic status, colour, religion or sexual preference”. The majority of the household members of the unit are then required to choose a new occupant within three weeks. If following the relevant period the household members are unable to identify a suitable applicant, the grantor can place an applicant. (Rules 8 to 11)
· The occupant agrees to work cooperatively with other “household members” to ensure that their unit is kept clean, and to pay their share of the cost of electricity and other services in the unit. The occupant also agrees to participate in house meetings and in drawing up a house roster. (Rule 15)
· The Service Rules also place restrictions on the ability of an occupant to house guests, requiring that an occupant’s guests may stay for a maximum of two weeks free of tariff subject to the agreement of all the other household members in the occupant’s unit. (Rules 20 to 24)
· There is also provision for an occupant to be given a seven day eviction notice for certain breaches of the Occupancy Agreement, such as supplying illegal drugs from Havelock House. (Rules 27 to 32)
· The Service Rules also provide for an immediate eviction notice to be given in some circumstances, such as the use of physical violence against other people at Havelock House. (Rules 33 to 36)
At common law, a lease is distinguished from a licence to be upon land by virtue of the fact that the former constitutes an interest in land whereas the latter does not. At common law, the test to determine whether an agreement creates an interest in land, and thus a lease, or is merely a licence to be upon land, is whether the grantee has been given a right of exclusive possession or occupation for a determinate period: Radaich v Smith (1959) 101 CLR 209.
The Occupancy Agreement signed by the applicant provides that the applicant may occupy a room in Havelock House, described in the schedule to the Agreement as Room number 8.7, but also specifically provides that the Agreement does not imply occupancy rights to a specific room or unit. While the Agreement anticipates that the applicant will have uninterrupted occupation, or exclusive possession, of a room in Havelock House, the Agreement does not give him a right of exclusive possession of a specific room. In addition, the Occupancy Agreement does not provide for a specific term of occupation, either fixed or periodic.
The relevant legislation
The present application, however, must be considered in the light of the provisions of the RTA. The RTA does not use the terms “lease” or “license”, instead referring to residential tenancy agreements and occupancy agreements. Section 6A of the RTA defines a residential tenancy agreement:
What 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 6E is also relevant:
Certain people given right of occupation not tenants
(1)A residential tenancy agreement does not include an agreement for the right to occupy premises if the person given the right of occupation is—
(a)a party to an agreement entered into honestly for the sale or purchase of the premises; or
(b)a boarder or lodger; or
(c)a person prescribed by regulation.
(2) This section is subject to the following sections:
•section 6B (Residential tenancy agreement if agreement written and says it is residential tenancy agreement)
•section 6C (Residential tenancy agreement if agreement part of employment).
The terms “boarder” and “lodger” are not defined in the RTA. As Crispin J observed in Noble v Centacare (2003) 150 ACTR 12 at [25], “the common law is replete with cases concerning the circumstances in which an occupier will be held to be a boarder or lodger”. In Noblett and Mansfield v Manley [1952] SASR 155, Mayo J expressed it this way (at 158):
The primary and usual meaning of “lodger”, as so defined, is “one who resides as an inmate in another person’s house, paying a certain sum periodically for the accommodation,” or “one who occupies an hired room in another person’s house”... A “boarder” is “one who... has his food, or food and lodging, at the house of another for compensation; one who lives in a boarding house, or with a family as one of its members, at a fixed rate; one who has food at another’s table, or meals and lodgings in his house for pay, or compensation, of any kind. In ordinary circumstances with both lodger and boarder legal possession remains in the person who provides room or rooms, or meals. He retains possession and control over rooms and means of ingress and egress, but grants license to guests who pay, or give consideration for the privilege.
In Street v Mountford [1985] 2 All ER 289, Lord Templeton expressed it this way (at 293):
In the case of residential accommodation there is no difficulty in deciding whether the grant confers exclusive possession. An occupier of residential accommodation at a rent for a term is either a lodger or a tenant. The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his own...
If on the other hand residential accommodation is granted for a term at a rent with exclusive possession, the landlord providing neither attendance nor services, the grant is a tenancy; any express reservation to the landlord of limited rights to enter and view the state of the premises and to repair and maintain the premises only serves to emphasise the fact that the grantee is entitled to exclusive possession and is a tenant.
See also: Torrisi v Oliver [1951] VLR 380; Lewis v Bell [1985] 1 NSWLR 731; Bruton v London and Quadrant Housing Trust [2000] 1 AC 406.
It is difficult to reconcile the provisions of s 6A(3)(a) and s 6E(1)(b) of the RTA based upon the common law test for determining whether an occupant is a tenant, or a boarder or a lodger. Section 6E(1)(b) provides that a boarder or lodger is not a tenant occupying premises under a residential tenancy agreement. At common law, the test to distinguish a tenant from a boarder or lodger was exclusive possession, but s 6A(3)(a) provides that an agreement may be a residential tenancy agreement even if the right to occupy is not exclusive. The cases to which I have referred, and to which Crispin J referred in Noble v Centacare, also speak of boarders and lodgers receiving services such as the provision of meals or the cleaning of rooms, but these are frequently referred to in the cases as relevant to the issue of exclusive possession. There is, in any event, no suggestion in these cases that the provision of services, or their absence, was itself determinative of the issue.
The RTA defines an occupancy agreement in section 71C:
What is an occupancy agreement?
(1) An agreement is an occupancy agreement if—
(a)a person (the grantor ) gives someone else (the occupant ) a right to occupy stated premises; and
(b)the premises are for the occupant to use as a home (whether or not with other people); and
(c)the right is given for value; and
(d)the agreement is not a residential tenancy agreement.
(2)The agreement may be—
(a)express or implied; or
(b)in writing, oral, or partly in writing and partly oral.
Note After 6 weeks, the occupancy agreement should be in writing (see s 71E (c)).
(3)The right to occupy may be—
(a)exclusive or not;
(b)given with a right to use facilities, furniture or goods.
(4)The person given the right to occupy the premises may be—
(a)a boarder or lodger; or
(b)someone prescribed by regulation for this section.
Note This Act does not apply to nursing homes, hostels for aged or disabled people or other prescribed premises (see s 4).
Section 71F of the RTA provides that regulations may make provision in relation to occupancy agreements including standard occupancy terms. Section 71G provides that an occupancy agreement must contain, and is taken to contain, terms to the effect of the standard occupancy terms prescribed by regulation. The only regulation which has been made under the RTA is the Residential Tenancies Regulation 1998 (ACT), which makes no reference to standard occupancy terms. As such, the legislature has not provided for standard occupancy terms. Occupancy agreements are subject to the occupancy principles set out in section 71E of the RTA:
Occupancy principles
(1)In considering a matter, or making a decision, under this Act in relation to an occupancy agreement for premises, a person must have regard to the following principles (the occupancy principles):
(a)an occupant is entitled to live in premises that are—
(i) reasonably clean; and
(ii) in a reasonable state of repair; and
(iii) reasonably secure;
(b)an occupant is entitled to know the rules of the premises before moving in;
(c)an occupant is entitled to the certainty of having the occupancy agreement in writing if the occupancy continues for longer than 6 weeks;
(d) an occupant is entitled to quiet enjoyment of the premises;
(e)a grantor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes;
(f)an occupant is entitled to 8 weeks notice before the grantor increases the amount to be paid for the right to occupy the premises;
(g)an occupant is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction;
(h)an occupant must not be evicted without reasonable notice;
(i) a grantor and occupant should try to resolve disputes using reasonable dispute resolution processes.
It will readily be observed that the definitions of residential tenancy agreement and occupancy agreement in the RTA are virtually identical. Each is an agreement by virtue of which a person is given a right to occupy stated premises. Each agreement provides for the premises to be used as a home, whether or not with other people. In each case, the right to occupy is given for value. In addition, the common law touchstone for determining whether an agreement created a tenancy or a licence has effectively been swept away, as the definition of residential tenancy agreement and occupancy agreement both provide that the right to occupy may be exclusive or not exclusive.
One obvious and significant difference, for the purposes of the RTA, between a residential tenancy agreement and an occupancy agreement, is that the former must incorporate the standard residential tenancy terms found in Schedule 1 of the Act. Clause 2 of the standard residential tenancy terms provides that by signing a tenancy agreement, the lessor and the tenant agree to be bound by its terms “during the period of the tenancy it creates”. As such, in order for an agreement to be a residential tenancy agreement, it must be an agreement expressed, among other things, as granting a right to occupy stated premises for a term. Such an agreement may be for a fixed term (clause 4 of the standard residential tenancy terms) or it may be periodic (clause 5 of the standard residential tenancy terms).
The applicant’s submissions
The applicant referred to a number of features of his occupation of premises at Havelock House which he suggested indicated that he was a tenant under a residential tenancy agreement rather than an occupant under an occupancy agreement. First, he submitted that the respondent does not supply any board, and does not supply any separate centralised dining facilities. Secondly, he submitted that the respondent does not maintain control over any part of the unit, being Unit 8, in which his room is located. He submitted that in commercial boarding houses or lodges the owner retains all of the keys to the one and only front door, and in doing so, gains control of every occupant’s door and the common areas, while the occupants only retain a key to their room and facilities such as toilets. The applicant submitted that the Occupancy Agreement gives the occupier a right of exclusive possession of the premises, with the respondent having a limited right to enter the premises. Further, the applicant submitted that the Occupancy Agreement must be interpreted as granting him exclusive right to occupy the common areas in Unit 8, as the RTA defines “premises” as including “any habitable structure”, and, the applicant says, a single room is not a habitable structure by itself. As such, the applicant says, in the case of Unit 8, the premises the subject of the Agreement, to which he is given an exclusive right of occupancy, must include all of the areas necessary to make it a habitable structure including the toilets, the bathroom, the kitchen, and the living room.
This last argument may be immediately dismissed. The RTA uses the term “premises” to describe that which may be occupied both under a residential tenancy agreement and under an occupancy agreement. If the argument put forward by the applicant is correct, all occupancy agreements would be required to give the occupant exclusive possession of facilities such as the toilets, the bathroom, the kitchen and the living room. Premises may be habitable, or fit to be lived in, without providing all of the necessary or desirable facilities for modern living. As the applicant himself points out, it is not uncommon for a number of leased premises to share a laundry.
The proposition apparently advanced by the applicant, that each unit in Havelock House is the equivalent of a shared house rented from a lessor, is untenable. In the case of shared rental premises, there is only one lease granting the lessees exclusive possession to the whole premises. The lessees may choose to allocate bedroom and other areas for the exclusive use of one of them, but there remains a single lease. In the case of Unit 8 at Havelock House, if the applicant were correct, there would be seven different leases to seven different lessees each granting exclusive possession to, at least, the common areas.
There are undoubtedly many different ways in which a boarding or lodging house may be conducted. It may well be the experience of the applicant that it is usual for the owner of such a house to reside in the house, and to maintain control over entry to the house by control of external door keys. Similarly, it may be the experience of the applicant that it is usual for such a house to have centralised dining facilities and, in the case of a border, to provide some meals. I see no reason, however, to infer that these circumstances must exist in order to characterise an agreement granting a right of occupation as an occupancy agreement as opposed to a residential tenancy agreement.
In his written submissions, the applicant concentrates on the issues of control of the premises and the presence of the owner as determining whether there is an occupancy agreement or a residential tenancy agreement. This is understandable bearing in mind the common law position that the test for distinguishing between a lease and a licence focused on the concept of exclusive possession. As is clear from the terms of the RTA, and in particular the definitions of “occupancy agreement” and “residential tenancy agreement”, exclusive possession is no longer determinative of the nature of the right to occupy premises. What is determinative is whether any agreement provides for a right to occupy stated premises for a stated term, whether that be a fixed term or periodic.
The Occupancy Agreement signed by the applicant does not provide for occupation during a fixed term, nor did it provide for what might be described as a periodic tenancy. A periodic tenancy requires that the tenancy be for a specified period, albeit not a fixed period: CommonwealthLife (Amalgamated) Assurance Ltd v Anderson (1946) 46 SR (NSW) 47. The agreement of a term is a fundamental requirement for an agreement to be a residential tenancy agreement. In some circumstances, a periodic tenancy may be inferred from the intervals of rent payment, but it must be observed that persons occupying as licensees, or as boarders or lodgers, would also commonly pay an occupancy fee at fixed intervals.
It is clear that the parties chose to cast their agreement in terms of an occupancy agreement rather than a residential agreement, although by itself this would not be determinative. It is also relevant that the premises the subject of the Agreement consists of a single bedroom, with all other facilities such as kitchen, bathroom, dining and lounge, being shared with other residents occupying under their own separate agreements. By itself, this may also not be determinative. What, I think, makes it clear that the present case is not a residential tenancy agreement is the express acknowledgement that the applicant was not granted occupancy rights to a specific room or unit in Havelock House: Service Rules - Part A, Rule 3. While the Agreement contemplates the applicant occupying Room 8.7, reading the Agreement as a whole, he was not given a right of continuing occupation of that room, and he may have been required to change rooms by the respondent during the period of the Agreement. This right on the part of the respondent is utterly inconsistent with purported leasehold or residential tenancy agreement.
Rent
One of the issues the applicant would seek to ventilate on appeal is whether the increases in “rent” imposed by the respondent were inconsistent with the provisions of the Occupancy Agreement. He points to clauses 34 and 35 of the Agreement, which provide that the rent will not vary from period to period except as provided by the Agreement and the RTA, and that rent may not be increased at intervals of less than 12 months from the date of the last increase. As I understand it, the respondent imposed increases in “rent” every six months. In addition he refers to clause 38 of the Agreement which provides that the respondent must give eight weeks written notice of any intention to increase the rent. In my opinion, for the reasons that follow, there is no merit in the issue the applicant wishes to argue.
In order to understand this issue, it is important to recognise that the Agreement distinguishes between weekly rent and income related rent. The agreement signed by the applicant did not provide for weekly rent, and the applicant paid only income related rent. The provisions the applicant relies upon, clauses 34 and 35, refer to weekly rent. Income related rent is dealt with in clauses 37.1(HH) to 37.3(HH) of the Agreement. These clauses provide that in full satisfaction of the applicant’s obligation to pay rent to the respondent, the respondent agrees to accept income related rent based on household income. The applicant agreed to provide the respondent with proof of income, and if no proof of income was provided the respondent would calculate the rent payable at 74.99% of market rent at six monthly intervals throughout the occupancy. The Agreement signed by the Applicant does not provide for an agreed weekly rent. The clauses relied upon by the applicant simply did not apply to this Agreement.
The applicant complained that clause 37.2(HH) of the Agreement, in which he agreed to provide the respondent with proof of income on a regular basis, effectively allowed the respondent to harass him by requiring him to provide financial information at a level that other organisations, such as the Australian Taxation Office, did not require. The short answer to this is that, by signing the Agreement, the applicant agreed to provide this information. In any event, there is a mechanism for setting an agreed weekly rent if the applicant chose not to provide the required information.
The applicant also seeks to challenge the assessment of market rent made by the respondent. At the time of the hearing in the ACAT the market rent was, I understand, approximately $200 per week. The applicant complains that this was too much, and that he could have obtained alternative accommodation at a lesser rate. Attachment D to the Occupancy Agreement deals with the setting of market rent. In effect, the respondent was entitled to assess market rent for the premises equivalent to the rent which would be payable for the property in the private rental market. The failure by an occupant to provide proof of income to the respondent results, by virtue of clauses 37.2(HH) and 37.3(HH) of the Occupancy Agreement, in the occupant being required to pay a proportion of the assessed market rent, but such a person is not paying market rent and as such those provisions of the Agreement, and of Attachment D, concerning persons paying market rent do not apply. In my opinion, where a proportion of market rent was payable from time to time by the applicant by reason of his failure to provide income information the respondent was entitled to calculate this proportion based upon market rent as assessed from time to time in accordance with Attachment D. There are insufficient prospects for the applicant to succeed on this issue to justify a grant of leave to appeal.
Whether termination retaliatory
The applicant also proposes challenging the findings of President Symons that the decision of the respondent to terminate his Occupancy Agreement was not retaliatory. In that regard he relies upon section 57 of the Act which provides:
Retaliatory applications
(1)This section applies if—
(a)a lessor has applied for a termination and possession order under this part; and
(b)the tenant presents evidence that—
(i) the tenant applied to the ACAT for an order in relation to the lessor; or
(ii) the tenant complained to a governmental entity in relation to the lessor; or
(iii) the tenant took reasonable action to secure or enforce the tenant's rights; or
(iv) the ACAT made an order in favour of the tenant against the lessor.
(2)The ACAT must refuse to make the termination and possession order—
(a)if satisfied that the circumstance mentioned in subsection (1) (b) exists; and
(b)in the absence of proof to the satisfaction of the ACAT that the lessor was not motivated to apply for a termination and possession order by the circumstance.
(3)Subsection (2) applies despite any other provision of this part.
Leaving aside the factual merits of the applicant’s complaint, which in my opinion were adequately dealt with by President Symons, s 57 is found within Pt 4 of the RTA which deals with the termination of residential tenancy agreements. As the Agreement which was signed by the applicant was an occupancy agreement, and not a residential tenancy agreement, s 57 has no application. In his written submissions the applicant conceded that the respondent was entitled to give him 26 weeks’ notice terminating the Agreement without cause. He submitted that this right was subject to the prohibition on retaliatory applications to terminate found in s 57. Whether that is so with respect to a residential tenancy agreement is an issue I do not need to determine. The simple fact is that the provisions of s 57 did not apply to this Agreement, and as such the respondent was entitled to terminate the Agreement without cause on 26 weeks’ notice.
The applicant sought to bolster his case, as I understand it, that the respondent was not entitled to terminate the Agreement without cause by reference to Articles 12 and 25 of the Universal Declaration of Human Rights and the Human Rights Act, concerning rights to privacy and to adequate housing. These provisions have no specific application in these circumstances.
Right to Privacy
The applicant also sought to rely upon provisions of the Human Rights Act 2004 (ACT), including provisions concerning the right to privacy, to advance a claim for compensation against the respondent. Having read the decision of President Symons on this issue I am not satisfied that the applicant has sufficient prospects of success to justify a grant of leave to appeal. In his written submissions the applicant cavils with comments made by the Appeals President doubting that a claim for compensation based upon an alleged breach of the Human Rights Act can be maintained in the ACAT, but it is unnecessary for me to finally determine that issue. The finding by President Symons that the applicant’s human rights had not been breached by the respondent is not attended by sufficient doubt to justify a grant of leave to appeal.
Breach of the Agreement by entering common areas and applicant’s room
The next matter that the applicant would seek to agitate on appeal is based upon an allegation that employees of the respondent regularly breached the terms of the Occupancy Agreement by entering the common areas of Unit 8. This complaint is based upon the proposition which I have already rejected that in order to qualify as premises for the purposes of the RTA, the area the subject of the Agreement must include living areas. The simple fact is that the premises the subject of the Agreement consists of a single room. The Agreement provides that the applicant, in common with other occupants of Havelock House, is entitled to access and use common areas such as living areas, bathrooms and kitchens. There is no prospect of success on this ground on any appeal.
The applicant advances the argument that even if the Occupancy Agreement is not a residential tenancy agreement, the respondent has breached the occupancy principles set out in section 71E of the RTA by entering the common areas of Unit 8. The occupancy principles certainly provide that, in considering a matter or making a decision under the Act in relation to an occupancy agreement, a person must have regard to the principle that an occupant is entitled to quiet enjoyment of the premises. Of course, the premises in this case was the applicant’s room, and not the common areas of Unit 8. In any event, the RTA provides no mechanism for enforcement of the occupancy principles.
The Applicant complained before President Symons that an employee of the respondent had trespassed by entering Room 8.7. The notice to vacate issued to the applicant by the respondent was dated 6 December 2012 and gave him 26 weeks to vacate the premises. After the expiration of the 26 weeks an employee of the respondent attended the applicant’s room and knocked on the door to determine if the applicant had vacated the premises as required by the notice. Although the applicant was inside the room, he did not answer. The employee of the respondent then used a key to open the room to see if the applicant had vacated, but left after determining that the applicant was present. The applicant complained that this was a trespass entitling him to damages. In my opinion, there is no merit in this submission. At the expiration of the 26 weeks’ notice provided in the notice to vacate, the Agreement was terminated. The provisions of the RTA requiring a landlord to obtain a warrant for eviction only apply to residential tenancy agreements. In my opinion, having given the applicant a valid notice to vacate, the respondent was entitled to enter his room after the expiration of the period of 26 weeks, particularly so as to determine whether the applicant had complied with the notice. The action of the respondent in seeking a warrant for the eviction of the applicant was, if anything, generous to him, as was the decision of the ACAT to give him some 3 weeks to vacate. The Occupancy Agreement itself, while making provision for the manner of termination of the Agreement, places no restriction upon the right of the respondent to evict the applicant after the termination. There is no prospect of the applicant succeeding on any appeal on this ground.
Breach of vacancies rules
The applicant further argued that he should be awarded compensation for a failure by the respondent to follow the Service Rules - Part A as to vacations. As mentioned above at [19] list the rules for the filling of a vacancy in a room at Havelock House. The rules are part of the Agreement (see [16] above). However, the rules place obligations on both the household members of the unit and on the respondent. The written submissions of the applicant essentially allege that he was not consulted regarding new occupants whom he described as threatening to the extent that he made complaints in relation to those individuals to the management of Havelock House and the police. The applicant says failure to follow the rules violated his human rights and he lists specifically Article 3 of the Universal Declaration of Human Rights being that “Everyone has the right to life, liberty and security of person”. Even if it can be said that there was a failure to follow the terms of the Agreement (which is far from clear on the evidence before me), I do not consider that an occupant residing with others with whom he comes into conflict would have had their human rights violated by the Grantor. This is especially so as letters from the respondent to the applicant tendered at the hearing before President Symons speak of attempt to accommodate the applicant including moving him to another unit. There are insufficient prospects of success on this ground.
Bias
The next matter the applicant would wish to argue on appeal is that President Symons and the Appeals President were biased against him. The basis for this complaint is that President Symons gave no reasons for preferring the evidence of the respondents’ witnesses over that of the applicant. A failure to give adequate reasons is an error of law and in an appropriate case will justify the granting of leave to appeal. This is not such a case. The significant issues before the ACAT turned upon the interpretation of the RTA and the Occupancy Agreement.
Similarly, the complaint that the Appeal President demonstrated bias by not dealing with all of the arguments advanced by the applicant cannot justify a grant of leave to appeal. Any appeal is from the decision of President Symons, not from that of the Appeal President.
False evidence
A further issue the applicant would raise on appeal is the allegation that witnesses for the respondent gave false evidence in the proceeding before President Symons, constituting an attempt to pervert the course of justice. It was no part of the function of ACAT to determine whether there had been an attempt to pervert the course of justice. Findings of fact were made by President Symons with which the applicant disagrees. An apparent error of fact may, in an appropriate case, justify the granting of leave to appeal. In the present case, the significant issues were determined by characterising the Agreement as an occupancy agreement, and, in any event, the respondent had a right to terminate the Agreement without cause on 26 weeks’ notice, which it did. There are insufficient prospects for success on any appeal on this ground to justify a grant of leave.
Whether the three weeks’ stay was too short
The final point the applicant seeks to argue is that the three weeks’ stay of eviction granted by the ACAT was too short and placed him at a risk of homelessness. There are a number of impediments to this argument. First, the applicant had been given 26 weeks’ notice of the need to vacate the premises, notice which he chose to ignore. Secondly, for the reasons I have already given, no appeal on this ground could succeed.
ORDER
The application for leave to appeal is refused.
I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 6 June 2014
Counsel for the Applicant: the applicant appeared in person
Counsel for the Respondent: Mr R Markham
Solicitor for the Respondent: Minter Ellison
Date of hearing: 21 March 2014
Date of judgment: 6 June 2014
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