ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MUNDAY v MUNDAY (Residential Tenancies) [2016] ACAT 129

RT 568/2016

Catchwords: RESIDENTIAL TENANCIES – termination and possession order – hardship – whether the Tribunal should exercise discretion to suspend the termination and possession order for a period of three weeks

Legislation cited: Legislation Act 2001 s 139Residential Tenancies Act 1997 ss 48, 50, 51, standard terms 63, 96

Cases cited: Bangura & Fan [2013] ACAT 38Commissioner for Social Housing v Woodward [2016] ACAT 85 Director of Public Prosecutions v Scheele [2016] ACTCA 23

Tribunal: Senior Member H Robinson

Date of Orders: 17 October 2016Date of Reasons for Decision: 24 November 2016

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 568/2016

BETWEEN:

MICHAEL JOHN MUNDAYApplicant/Lessor

AND:

LEONARD MUNDAYFRANCES MUNDAY

Respondents/Tenants

TRIBUNAL: Senior Member H Robinson

DATE: 17 October 2016

ORDER

The Tribunal orders that:

1. The residential tenancy agreement is terminated at 5:00 pm on Monday 17 October 2016.

2. The tenant must vacate the premises on or before 5:00 pm on Monday 17 October 2016.

3. This Order has effect as a warrant for eviction.

4. All Officers of the Australian Federal Police are hereby authorised to take appropriate action to evict the tenant/s from the premises upon the giving of two days notice in accordance with subsection 40(1) of the Residential Tenancies Act 1997, with such assistance as is necessary and reasonable.

……………signed……..Senior Member H Robinson

REASONS FOR DECISION

1. This was an application by Mr Michael Munday (Lessor) for a Termination and

Possession Order (TPO) evicting the respondents, Mr Leonard and Mrs Frances

Munday (Tenants) from his property in Kambah (the property).

2. The Tenants are the Lessor’s parents. They have resided in the property for around

30 years, originally as tenants of the Commissioner for Social Housing, then

(perhaps only briefly) as the owners of the property, and then as tenants of the

Lessor. The current tenancy agreement (Lease) commenced in 2005.

3. The application for the TPO was filed on 16 June 2016 (application). It set out a

history of the fraught relationship between the parties, detailed the recent

financial difficulties of the Lessor, and broadly set the scene for this dispute. It

did not state the section of the Residential Tenancies Act 1997 (ACT) (the RT

Act) under which the Lessor sought the TPO, although it did attach a document

entitled ‘Notice to Vacate’ that the Lessor purported to have issued under

section 50 of the RT Act.

4. The application was first listed for hearing before me on 21 July 2016. On that

date, the Lessor appeared in person, accompanied by his wife, Ms Day. The

Tenants also attended, and were represented by Ms Faulder of the Tenant’s

Union. That representation remained consistent throughout the proceedings,

other than a brief period during the final day of hearing when Ms Day appeared

as advocate for the Lessor.

5. At the first listing on 21 July 2016 there was neither sufficient time nor sufficient

evidence for the Tribunal to make a decision. The Tribunal made directions for

the filing by both parties of all documents and other evidence relied upon, and

the filing of an amended application by the Lessor setting out the grounds he

relied upon. Having regard to the Lessor’s claims of urgency, a tight timeframe

was set and the matter was adjourned for hearing on 15 August 2016, later

relisted to 18 August 2016. Liberty was given to both parties to relist on 24

hours notice, should there be any urgent developments.

6. Consistent with the directions, on 28 July 2016 the Lessor filed an amended

application (amended application) and a bundle of documents that included

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witness statements and other evidence. The amended application clarified that

the Lessor sought a TPO on three grounds under the RT Act:

(a) section 50 - significant financial hardship;

(b) section 48 - certain breaches of the Standard Residential Tenancy Terms,

with reference to clause 63 of those terms; and

(c) section 51 - damage, injury or intention to cause damage to the lessor or a

member of the lessor’s family.

7. The Tenants, through Ms Faulder, filed a response on 15 August 2016. They

argued that the application should be dismissed on the basis that:

(a) section 48 was not available as no notice of remedy had been issued;

(b) section 50 was not available as the tenancy was a periodic tenancy; and

(c) there was insufficient evidence to justify a finding that the tenant was

going to cause injury to the Lessor or a member of the Lessor’s family

such that an order could be made under section 51.

8. At the hearing on 18 August 2016, the Tribunal, after hearing from the parties,

determined that it would be appropriate to consider the Tenants’ application to

dismiss the claims under section 48 and section 50 first, so as not to spend

excessive time on evidence relating to these grounds if they were not available.

It is important to note that the Tenants were arguing that these grounds were

simply not open to the applicant on any view of the evidence before the

Tribunal – and accordingly, the dismissal application could be determined

without the need to hear that evidence.

9. After hearing from both parties, I determined that it was not open to the Tribunal

to make a TPO on the basis of either section 48 or section 50 of the RT Act. I

determined that there was an arguable case for an order under section 51, and

declined to dismiss the application under that ground. The hearing proceeded on

the basis that it was an application for a TPO under section 51 of the RT Act.

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10. The Tribunal then commenced to hear the Lessor’s evidence, but was required to

adjourn part heard.

11. Having been advised of the urgency of this application, the Tribunal adjourned the

hearing to the next suitable date, 31 August 2016.

12. On 22 August 2016, the Lessor wrote to the Tribunal and sought an adjournment

of his application to 15 October 2016. He foreshadowed lodging an amended

application relying on clause 96(d) of the Standard Residential Tenancy Terms

in Schedule 1 of the RT Act (Standard Residential Tenancy Terms). The

Tenants did not oppose the adjournment. The matter was relisted for 17 October

2016, with further directions for the filing of material by both parties before that

date.

13. The Lessor filed a range of further material on 21 September 2016, including an

amended application that sought to rely on a notice to vacate issued under

Clause 96 of the Standard Residential Tenancy Terms on 19 August 2016

(NTV).

14. The respondent filed no further material.

15. When the hearing recommenced on 17 October 2016, the Lessor sought to rely on

the NTV. Although the Tribunal had some reservations about amending the

application to incorporate the NTV, the respondents indicated that they did not

oppose the amendment and preferred to have the matter dealt with in the context

of the current application. Accordingly, the Tribunal allowed the application to

proceed.

16. The Tenants accepted that the NTV was valid. They did not oppose the making of

a TPO under section 47 of the RT Act, but requested that the Tribunal exercise

its discretion to stay the operation of any order for the maximum period of three

weeks, on the basis that the Tenants would suffer significant hardship, and

greater hardship than the Lessor, were the order not suspended for that period1.

17. The Lessor opposed any suspension of the TPO and sought that it be issued with

effect as a warrant. 1 See RTA Act s47(2)(b)

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18. At the conclusion of the hearing, I made a termination and possession order, with

effect as a warrant, and declined to suspend the order. I gave oral reasons at that

time.

19. The Lessor has now sought written reasons for my decision, and particularly my

decision not to hear his application under section 50 of the RT Act. I set out

those reasons below.

The applicability of section 50 – significant hardship

20. Section 50 of the RT Act provides as follows:

Significant hardship(1) On application by a lessor, the ACAT may make a termination and

possession order in relation to premises occupied under a fixed term agreement if satisfied that—(a) the lessor would suffer significant hardship if the ACAT did not make

the order; and(b) that hardship would be greater than the hardship the tenant would

suffer if the ACAT made the order.(2) If—

(a) the ACAT decides to terminate a residential tenancy agreement in accordance with this section; and

(b) the ACAT is satisfied that—(i) the lessor would suffer significant hardship if the agreement

were not terminated within 8 weeks after the making of the decision to terminate; and

(ii) that hardship would be greater than the hardship the tenant would suffer if the agreement were terminated within 8 weeks after that day;

the ACAT must—(c) specify the day, less than 8 weeks after the making of the decision to

terminate, when the termination is to happen; and(d) give the tenant the notice of the proposed termination that is

reasonable in the circumstances.(3) If—

(a) the ACAT decides to terminate a residential tenancy agreement in accordance with this section; and

(b) the ACAT is not satisfied about the matters mentioned in subsection (2) (b);

the ACAT must—

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(c) taking into consideration the need to comply with paragraph (d), specify the day, not less than 8 weeks after the making of the decision to terminate, when the termination is to happen; and

(d) give the tenant no less than 8 weeks notice of the proposed termination.

21. Subsection 50(1) expressly provides that section 50 applies only to a ‘fixed term

agreement’.

22. A ‘fixed term agreement’ is defined in the Dictionary to the RT Act as ‘a

residential tenancy agreement under which a tenant has a right of occupation for

a fixed term.’

23. Under the Standard Residential Tenancy Terms in Schedule 1 of the RT Act2, a

fixed term tenancy must be for the single period specified in the tenancy

agreement (clause 4).  A periodic tenancy includes a tenancy that is not

specified to be for a fixed term, including a tenancy which commences on the

expiration of a fixed term tenancy (clause 5). This means that once the fixed

term of a tenancy expires, the tenancy becomes a periodic tenancy, and remains

so unless the parties enter into a new, fixed term tenancy agreement.

24. There is some difference in language between the RT Act and the Standard

Residential Tenancy Terms, in that the RT Act refers to a ‘fixed term

agreement’ and the Standard Residential Tenancy Terms refer to a ‘fixed term

tenancy’. This language likely reflects that the Standard Residential Tenancy

Terms are terms that are incorporated by reference into a tenancy agreement,

under which the ‘tenancy’ is established. I do not consider the difference in the

terms is of any practical consequence for this proceeding.

25. The residential tenancy agreement entered into by the parties was in evidence

before the Tribunal. The terms relating to its duration were somewhat

confusing, as the clauses for both a fixed term tenancy and a periodic tenancy

are filled in, and both state that the relevant tenancy commenced on 12 March

2005. However, the clause that applied to fixed term tenancy provided that the

agreed fixed term was “from 12/3/05 ... to 31/12/15”, with a periodic tenancy

2 Which are implied into residential tenancy agreements by operation of section 8(1)(a) of the RT Act.

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beginning automatically thereafter. On any interpretation, the fixed term period

must have ended on or before 31 December 2015, and hence before the

commencement of this application.

26. The Lessor did not disagree that the fixed term period had ended. However, he

argued that section 50 was still applicable anyway. His argument was technical

in nature, so in fairness to him, I have extracted the relevant portion of the

transcript:

MR M MUNDAY: I say there’s three types of tenancies. I say there is a fixed-term agreement. I say there is a periodic agreement, and I say the last term is a periodic tenancy which is not an agreement at all, it is a default. And what I have prepared in response to Ms Faulder’s claim that I have no grounds here is section 50 of the Act states to premises occupied under a fixed-term agreement, now that is what she is sort of focused on, but I can only claim financial hardship if there is a premises occupied under a fixed-term agreement. Well, it was occupied under a fixed-term agreement, and at the end of that fixed-term agreement, it did not then turn into a periodic agreement, it turned into a periodic occupation. They were occupying the house simply because I, here in the ACT, cannot force them to sign a new fixed-term agreement, so that words, those words, and this is – I have no legal qualifications, but I would say commonsense prevails, but section 50 of the Act states “to premises occupied under a fixed-term agreement, not to exclude other less restrictive forms of occupancy especially where lessors in the ACT are unable to force a renewal of a fixed-period tenancy agreement. Without the ability to ensure tenants sign a new fixed-term agreement at the end of a fixed term, it is unreasonable to assume that section 50 does not apply to ongoing periodic tenancies as well.3

And

...’Specific reference’ - in section 50 - “to a fixed-term agreement indicates that a more restrictive agreement can be cancelled because of financial hardship, and it is unreasonable to imply that financial hardship no longer applies simply because a fixed term has ended and it has gone into a default periodic occupancy. Periodic tenancies/occupancies are identified in the Act and can be cancelled for a host of other less serious reasons included in schedule 1 section 96, termination of periodic tenancies.”Section 96(1) says, “If there is a periodic tenancy”, not a periodic agreement, “periodic tenancy, the lessor may serve on the tenant a notice to vacate for the following periods on the following grounds. Four weeks notice if the lessor genuinely intends to live in the premises.” Now, if I

3 Transcript of Proceedings page 12, lines 4-22

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intended to live in the premises, to me, that would be far less severe than if I’m having my property seized by the bank.

27. As I understand these submissions, the Lessor made two arguments.

28. First, the Lessor drew a distinction between the concepts of a ‘periodic tenancy’

and a ‘periodic occupancy’. It is not completely clear to me what he meant by a

‘periodic occupancy’, although I understand that he was suggesting that an

implied occupancy agreement arose at the expiration of the end of the fixed

term residential tenancy agreement. He did not expressly suggest that the

arrangement between himself and his parents was an ‘occupancy agreement’ of

the kind dealt with in section 5A of the RT Act. When asked by the Tribunal if

he understood the difference between an occupancy and the tenancy under the

RT Act, he replied as follows:

I know in the Act there is a definition between an occupancy and a tenancy and as a layperson, an occupancy would be if I lived at the ANU hostel, I’m occupying a room there et cetera. The Act needs to be more specific in what happens at the end of the fixed term, because the occupation, and I’m not using it in the term of an occupancy as far as the Act goes, but the occupation that commenced under a fixed-term has continued. They never moved out and then moved back in and then came into this periodic agreement. They simply continued. 4

29. Having regard to the Lessor’s submissions, I remain unsure whether the Lessor

was actually contending that the arrangement between he and his parents was an

occupancy agreement within the meaning of that term in the RT Act.

Consequently, for completeness, I considered that possibility, and concluded

that such an argument, even if made, would not be sustainable.

4 Transcript of Proceedings 18 August 2016 page 22, line 42 to page 23, line 5

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30. The RT Act differentiates between occupancy agreements and residential tenancy

agreements. The approach taken to determining which category a particular

agreement falls into was considered by Senior Member Anforth in Bangura &

Fan [2013] ACAT 38 as follows:

[41] ...The only relevant difference between the definitions of a ‘residential tenancy agreement’ and an ‘occupancy agreement’ is the inclusion in the definition of an ‘occupancy agreement’ of section 71C(1)(d), which simply says that an occupancy agreement is an ‘agreement [which] is not a residential tenancy agreement’.

[42]... Section 71C(1)(d) provides no guidance whatever in how to distinguish between a residential tenancy agreement and an occupancy agreement. If section 71C(1)(d) is intended to invoke the subjective intention of the parties concerning the legal character of their agreement, then again the Act is in opposition to the common law’s objective approach to the same question. It would also introduce difficulty in determining what the subjective intention of each party was, and whether those subjective intentions were consistent with each other, i.e. was there in fact a meeting of minds on the question? It would run into the difficulty that most non-legal parties to agreements would probably have with little idea of the distinction that they were expected to direct their attention to.

[43] What section 71C(1)(d) does suggest is that there is an order of priority between the definitions. The first question to be asked is whether an agreement between parties does or does not answer the description of a residential tenancy agreement. Only if the answer is in the negative is the further question asked as to whether the agreement answers the definition of an ‘occupancy agreement’.

31. In this case, there was an express, written residential tenancy agreement, and one

which expressly incorporated the Standard Residential Tenancy Terms (which

apply only to tenancies, not occupancies). As I have discussed above, the

Standard Residential Tenancy Terms clearly provide that when a fixed term

residential agreement expires, the tenancy becomes a periodic tenancy. There

was no suggestion by either party that they have entered into any other,

subsequent agreement. Accordingly, there is no doubt that the agreement

between the parties was, at the time the application was filed and at the time of

the hearing, a periodic tenancy, and not an occupancy agreement.

32. The second argument raised by the Lessor appeared to be that, because the section

50 hardship ground is available in the case of a fixed term tenancy, it should

also be available in the case of a periodic tenancy (or occupancy), because it

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“...is unreasonable to imply that financial hardship no longer applies simply

because a fixed term has ended.”

33. There are two problems with this argument.

34. First, it is not necessary to ‘imply’ that section 50 applies only to fixed term

tenancies. The section expressly states as much. If section 50 is to apply to some

other kind of tenancy, then the Tribunal must imply a meaning that is contrary

to that express language.

35. Secondly, the Lessor is contending that this Tribunal should imply a meaning that

is contrary to the express wording of the legislation, on the basis that the express

meaning leads to unreasonable result in his circumstances. Even assuming that

the Lessor were able to establish that the express language of section 50 leads to

an ‘unreasonable’ result, there is still very little scope for this Tribunal (or any

other administrative or judicial body) to simply reject the express language of

the provision on that ground.

36. Section 139 of the Legislation Act 2001 provides that, in working out the meaning

of an Act, an interpretation that would best achieve the purposes of the Act is to

be preferred to any other interpretation. This ‘purposive’ approach to

interpretation permits the Tribunal to look beyond the express language of a

provision in certain circumstances, including where the apparent meaning of an

Act leads to a result that is manifestly absurd or is unreasonable.5 It does not,

however, provide the Tribunal with a licence to ignore the words of an Act, or

to rewrite a provision so as to achieve its own preferred policy objective.6

37. In any case, there is no need to look beyond the express language of section 50, as

there is nothing ambiguous about its wording, its apparent meaning, or its

application. For whatever reason, the legislature intended that the hardship

ground would be available only where a tenancy is in its fixed term period. I can

speculate that the reason for this was that there are many other, more flexible

bases upon which a lessor can terminate a periodic tenancy, so as to do

5 Legislation Act 2001 section 1396 See the Director of Public Prosecutions v Scheele [2016] ACTCA 23 at [29] per Refshauge, Burns and Wigney JJ

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something about their financial or personal hardship, and therefore section 50

was not needed. For example, a lessor in a periodic tenancy can issue a notice to

vacate on four weeks notice if the lessor genuinely intends to live in the

premises7, or on eight weeks notice if the lessor intends to sell the premises.8

Ultimately, however, the reasons for the different approaches are matters

beyond the purview of this Tribunal.

38. Section 50 was not available to the Lessor in this case. Accordingly, the

application under section 50 of the RT Act was dismissed.

Termination under section 48 and clause 63

39. Section 48 of the RT Act provides, relevantly, that:

Certain breaches of standard residential tenancy terms(1) On application by a lessor, the ACAT may make a termination and

possession order if—(a) satisfied that—

(i) the tenant has breached the standard residential tenancy terms (other than by failing to pay rent that has become payable); and

(ii) the lessor has served a termination notice on the tenant based on the breach; and

(iii) the tenant did not vacate the premises in accordance with the notice; and

(iv) the breach of the standard residential tenancy terms was not in accordance with a term of the residential tenancy agreement endorsed by the ACAT; and

(v) the breach justifies the termination of the tenancy; or...

40. Clause 63 of the Standard Residential Tenancy Terms provides that:

The tenant must take reasonable care of the premises and keep the premises reasonably clean63 During the tenancy, the tenant must—

(a)not intentionally or negligently damage the premises or permit such damage; and(b)notify the lessor of any damage as soon as possible; and

7 RT Act, Schedule 1, 96(1)(b)8 RT Act, Schedule 1, 96(1)(d)

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(c)take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living.

41. There was a considerable degree of evidence before the Tribunal that indicated

that the house and yard of the property were in a poor state of cleanliness, and

some suggestion that they were also in a poor state of repair. The front and

back yards were filled with a variety of the Tenants’ personal property and

effects, including cars, trailers, scrap metal, barrels and spare tyres (although I

note that there was also some suggestion that some of the material also belonged

to the Lessor). The rooms inside the house were piled with boxes, plastic bags,

linen, and various other household items. Movement inside the house was

seriously restricted by the volume of items. Undoubtedly as a consequence of

the volume of material on the property, the Lessor had received a “show cause”

notice from ACTPLA, asking for reasons why he should not be the subject of a

controlled activity order for failing to keep the property clean (although there

was no evidence that an order had been actually issued). There was some

disagreement between the parties as to the extent of the problem, but it was not

seriously contested that the property needed to be cleaned up.

42. Given the condition of the property, the Lessor may well have had an arguable

case that the Tenants breached the residential tenancy agreement by failing to

keep the premises clean. The difficulty for the Lessor, however, was that in

order to rely upon this ground as the basis for an application for a TPO, he

needed to have followed an appropriate process set out in the Standard

Residential Tenancy Terms and the RT Act. He did not do so.

43. Clause 93 of the Standard Terms sets out the process to be followed before a

termination and possession order can be made for a breach of the Standard

Residential Tenancy Terms (other than a breach for a failure to pay rent). The

provision provides:

Termination of tenancy for breach other than nonpayment of rent93 The tribunal may order the termination of the tenancy and eviction of

the tenant on the ground of breach of the tenancy agreement in the following circumstances:

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(a) the lessor must serve a written notice requiring the tenant within 2 weeks after the day of service to remedy the breach if it is capable of remedy;

(b) if the breach is not remedied within 2 weeks after the day of service or if the breach is not capable of remedy—the lessor must give a notice to vacate the premises within 2 weeks after the date of service of the notice to vacate;

(c) if the tenant does not vacate the premises within the period of 2 weeks after the date of service of a notice to vacate—the lessor may apply to the tribunal for an order terminating the tenancy and for the eviction of the tenant;

(d) if the tenant breaches the terms of the tenancy on 3 occasions on any ground—on the 3rd occasion the lessor may serve a notice to vacate and need not give the tenant 2 weeks to remedy the breach.

44. The first step, set out in subsection (a) of clause 93, is that a lessor must serve a

written notice to remedy on the tenant, allowing the tenant two weeks to remedy

the breach. The Lessor did not comply with this clause.

45. The second step, set out in subsection (b) of clause 93, is for the lessor to issue a

notice to vacate (assuming the notice to remedy was not complied with). A

notice to vacate must be in writing9 and include the information set out in clause

83, including the grounds on which the notice is served and the date the tenant

is required to vacate the property by. Not only did the Lessor not complete this

step, but the notice to vacate would not have been valid in the absence of a

notice to remedy.

46. Section 59(1) of the RT Act provides that the Tribunal may make an order

waiving a defect in the notice to vacate or in the service of a notice to vacate,

and section 83(k) provides that the Tribunal may make an order correcting a

defect in a notice or in the service of a notice. The Lessor suggested that I could

use these provisions to make an order that one of his numerous oral “orders to

vacate” be taken to be a “written notice”. In my view, that is beyond the scope

of what may be remedied by way of an order under section 59(1) or section

83(k).10 Such an order would amount to not just the waiver or amendment of a

defective written notice to vacate, but effectively the waiver of the requirement 9 Clause 83 of the Standard Residential Tenancy Terms10 See discussion in Commissioner for Social Housing v Woodward [2016] ACAT

85

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that there be a written notice to vacate. Moreover, such an order would not

address the failure of the Lessor to issue any written notice to remedy.

47. Accordingly, as the Lessor had not complied with the procedural prerequisites set

out in the Standard Residential Tenancy Terms and the RT Act, it was not open

to the Tribunal to make a termination and eviction order under section 48 of the

RT Act, and this aspect of the Lessor’s claim was dismissed.

The application under section 51

48. During the course of the hearing on 18 August 2016, the Tribunal commenced

hearing the Lessor’s claim for a TPO for a breach of section 51 of the RT Act.

The application was adjourned part-heard. When the hearing recommenced on

17 October 2016, the Lessor did not press his application on this ground.

Accordingly, no orders were made on this ground.

Reasons for making an unconditional termination and possession order under section 47 of the RT Act

49. As set out above, when the hearing recommenced on 17 October 2016, the Lessor

sought a TPO under section 47 of the RT Act on the basis that he had served a

notice to vacate pursuant to section 96(1)(d) of the RT Act, and the Tenants had

failed to comply with it. The order was not opposed. The only issue before the

tribunal was whether I should exercise my discretion to suspend the order for a

period of three up weeks.

50. The relevant provisions provide:

47 No breach of standard residential tenancy terms...(2) If—

(a) the ACAT makes an order under subsection (1); and (b) the ACAT is satisfied that—

(i) were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and (ii) that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period;

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the ACAT may suspend the operation of the termination and possession order for a specified period of no more than 3 weeks.

.

51. The Lessor argued that the order should have immediate effect, and effect as

warrant, as the hardship caused to him by any delay would outweigh that likely

to be caused to the Tenants because:

(a) he was unemployed, having been made redundant;

(b) he has a young daughter with medical concerns, and associated medical

and other expenses;

(c) the bank was foreclosing on the mortgage on the property in two weeks

from the date of the hearing, unless he appointed a sale agent by that

date;

(d) the property was currently untenentable and unsaleable, if not

uninhabitable, and if sold in its current state the price would be

seriously reduced;

(e) it was not possible clean the property to a saleable state within 14 days,

but the more time that was available to clean the property, the more

that could be done, and the higher its sale value; and

(f) if the bank repossessed and sold the property, it would do so at the

minimum price necessary to recover the outstanding debt, and any

costs associated with cleaning, and would be unconcerned about any

return to the Lessor, meaning he would lose money if he were not able

to commence tidying the property immediately.

52. The Lessor said that, if his parents were evicted, he had people ready to go to

clean the premises, and he did not have to make further arrangements.

53. In pressing for the maximum suspension period of three weeks, Ms Faulder

contended that the hardship to the Tenants would be greater than that to the

Lessor, because:

(a) the Tenants had lived in the property for thirty years;

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(b) the Tenants were aged and infirm;

(c) the Tenants were pensioners of limited means;

(d) the Tenants had no other place to live;

(e) although the Tenants were on the wait list for government housing, there

was a significant wait; and

(f) if evicted, the tenants would be facing homelessness.

54. Many of the Tenants’ assertions were contested by the Lessor, particularly the

claims about the Tenants’ financial affairs. The Lessor consistently asserted that

the Tenants were in a significantly better position financially than they admitted

to, and cited some reasons why he believed this. The Lessor also alleged that the

Tenants had an inhabitable property in Goulburn that they could move into. The

Tenants denied this, claiming the property was uninhabitable.

55. It is noted that, at the Lessor’s request, the Registrar had issued subpoenas for the

Tenants’ income tax returns, share trading records and bank account statements.

The subpoenas were returnable on the day of the hearing. The Tenants did not

comply. Moreover, the Tenants offered no reasonable excuse to the Tribunal for

their failure to either comply with the subpoenas, or to have them set aside. Ms

Faulder confirmed that she had explained the importance of compliance to her

clients. The Tenants’ defiance of the subpoena was both inappropriate and,

indeed, unlawful. It was also unhelpful, both to the Tribunal and to themselves,

as they were potentially compromised in their ability to respond to some of the

allegations made by the Lessor as to the actual state of their financial affairs.

Ultimately, however, I did not need this evidence to decide the matter, so I

continued in the hearing in its absence.

56. Having regard to all the evidence before the Tribunal, I was satisfied that both

parties were in difficult situations. The Lessor was unemployed, struggling to

meet some bills and has an ill daughter. That the bank would foreclose the

property appeared inevitable, and that he wanted to maximise any benefit from a

sale of the property, or at least minimise any detriment to himself and his family

was understandable. The property was in a poor state, needed a lot of work, and

there was limited time in which to do it. The Tenants did not appear overly

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willing to assist in getting that work done, and their circumstances and past

history indicated they would find it difficult to do so, even if they were willing.

57. The Tenants, on the other hand, were facing eviction from a property they had

lived in for three decades. They were aged and possibly infirm. They no doubt,

and with good reason, considered the property their home. They had a vast

amount of personal property. Obtaining any alternative accommodation was

going to be difficult. Their hardship was significant, even without me giving

consideration to their financial circumstances (which I was not prepared to draw

any conclusion about, having regard to the blatant failure to comply with the

subpoena).

58. Accordingly, before making any final decision, I raised with the parties the

prospect of reaching an agreement whereby the TPO would be suspended for a

short period of time, on the basis that the Tenants would allow the Lessor’s

cleaners and tradesmen into the property to conduct repairs and clean up. The

Tenants stated that they were open to that proposal, although they wanted a

couple of days to start the clean up themselves before third parties entered the

premises. The Lessor insisted on immediate access.

59. I took the opportunity to warn the Lessor that the making of a TPO with effect as

a warrant was not an immediate solution. In practical terms, although an order

may have effect as a warrant, it does not always lead to the immediate eviction

of a tenant. The order must be finalised through Tribunal administrative

processes, then sent to the Australian Federal Police (AFP) for execution. The

terms of the warrant usually require two days notice be given, the AFP do not

execute warrants of eviction on Fridays or on weekends, and the officers often

have competing priorities in any case. I suggested to the Lessor that it may be

better to try to reach a compromise that at least allowed his workers access to

the property in the meantime, so that they could start the clean up. He was not

agreeable to this course of action.

60. The Lessor’s refusal to countenance a settlement must be viewed against

background of facts that indicate a very complicated family dynamic and a high

degree of animosity between the parties. That animosity played out throughout

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these proceedings, with the parties sniping at each other across the hearing room

and several incidents of high emotion. The Lessor clearly had minimal

confidence that he or his appointed tradesmen would be able to work with his

parents to ensure the house was fit for sale, and having heard the parties, and

witnessed their behaviours and interaction throughout the hearing days, I must

say that I shared his lack of faith. I was concerned that there was a very real

prospect that, if I suspended the TPO for a period of a week, nothing would

happen in that time (for whatever reason), and I would have delayed the

inevitable for no reason, causing the Lessor further loss. Accordingly, I did not

seek to enforce my proposed compromise position through an order.

61. Rather, I made a TPO with effect as a warrant, with effect from 5pm that

afternoon. I declined to suspend it for any period at all.

62. After the order was made, the Lessor asked if he could access the property

immediately. I advised him that he could not access the property until his

parents had vacated – which may not occur until the AFP executed the warrant.

63. I note, in passing, that under section 40(2), there is capacity to make an order that

would entitle the AFP to execute the warrant with immediate effect, without the

necessity to give two days notice. No application was made for me to exercise

discretion under this section, and I would not have done so in any case. Such an

order should only be made where there are exceptional circumstances, and

where it would be inappropriate to give two days notice. Notwithstanding the

acknowledged very significant financial difficulties of the Lessor, there was

nothing before the Tribunal that would satisfy either ground.

………………………………..Senior Member H Robinson

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HEARING DETAILS

FILE NUMBER: RT 568/2016

PARTIES, APPLICANT: Michael John Munday

PARTIES, RESPONDENT: Leonard Munday & Frances Munday

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT Tenant’s Union ACT

TRIBUNAL MEMBERS: Senior Member H Robinson

DATES OF HEARING: 17 October 2016

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