The tenant's entitlement to a rebated rent expired in April 2010 and no further rent rebate application was lodged by the Applicant causing rent to accrue at a commercial rate.

In July 2010 the Commissioner commenced proceedings for possession of the premises. On 22 September 2010 the Tribunal terminated the tenancy and a warrant issued for the eviction of the tenant. The Commissioner took possession of the premises under the warrant but did not remove the tenant's property from the premises. The premises were not re-tenanted and had not been re-allocated to any new tenant.

The tenant returned to Canberra on 3 December 2010 and found that the locks to his flat had been changed.

On 14 December 2010 the tenant applied to set aside the order for termination, the warrant and be restored to the flat. The matter was listed for directions before the Tribunal as an urgent matter on 23 December 2010. Mr Adkins appeared for the Commissioner and Mr Emerson-Elliott, solicitor from the Welfare Rights and Legal Centre, appeared for the tenant.

The evidence on that occasion was that the tenant was homeless and had no accommodation over Christmas. All his possessions were still in the flat. The tenant had been in crisis accommodation since returning from Belgrade and this crisis accommodation was no longer available.

Evidence was given at the hearing of the circumstances of the tenant in Belgrade and the communications between the parties over the period from the tenant leaving Australia until his return. The Tribunal made certain observations to the effect that the email communications produced by the Commissioner casted considerable doubt on the veracity of the tenant's assertions that he had no communications with the Commissioner whilst overseas and hence knew nothing of the evictions process or proceedings.

The Tribunal raised the issue of restoring the tenant to the flat over Christmas pending a hearing of the matter on its merits. Mr Adkins opposed this suggestion on a number of grounds including: * (a) that once the warrant had been executed the tenancy no longer existed. It was not possible to recall the effect of the execution of the warrant. Thus the tenant's application to set aside the order for termination was not one that the Tribunal had any power to grant: * (b) even if the Tribunal had the power to set aside the executed warrant, the delay in time from the execution of the warrant in September 2010 to the application to set aside the warrant in December 2010 was sufficient reason not to exercise that power: * (c) that if the tenant were restored to the premises over Christmas there was a real risk that the Tribunal would then adopted his occupancy as the status quo as the starting point for the substantive hearing.

The Tribunal acknowledged the prima facie strength in these submissions which were not dealt with as part of the directions hearing.

Mr Adkins explained that the Commissioner had deliberately refrained from moving the tenant's possessions from the flat because: * (a) the Commissioner believed that she was bound by the terms of the Uncollected Goods Act 1996 (ACT) which required the goods to be stored for 3 months: and * (b) it was in the tenant's interest that the Commissioner store the goods on the premises for the statutory retention period of 3 months required under the Uncollected Goods Act 1996 because the cost to the tenant of accruing rent was cheaper than would be cost of hiring other storage for the goods for that 3 months.

The Tribunal acknowledged that actions taken to minimise the accruing liabilities to the tenant was as positive approach on the Commissioner's part but made the further observation that maintaining the flat unoccupied for 3 months might not be the best use of the premise in the face of the waiting list for public housing. The Tribunal noted that had the flat already been re-let the present issue of restoring the tenant to the flat would not have arisen.

The Tribunal questioned the Commissioner's assumption that the Uncollected Goods Act applied to goods left on premises by departing tenants.

Mr Emerson-Elliott argued that the tenant should be restored to the premises pending the hearing of the substantive application. To do otherwise would cause irreparable harm to the tenant and would have the practical effect of rendering the substantive hearing nugatory. He relied upon Squires v Stephenson [1981] FCA 91 and Re Holmes and Commissioner for Social Housing [2010] ACAT 33.

Mr Emerson-Elliott advised that the tenant took issue with the some of the evidence filed by the Commissioner, would call his own witnesses, and wished to cross examine some of the Commissioner's witnesses. It was sufficiently clear to the Tribunal that there was a dispute on both the facts and the law.

After hearing argument the Tribunal made an interim order restoring the tenant to the flat until further order of the Tribunal and fixed the hearing of the substantive matter for 19 January 2011. The tenant was to pay rent during this adjournment period.

The order was made on a balance of convenience basis to permit the tenant to be housed over Christmas whilst he and his legal advisers prepared their case for hearing on the merits. It was made plain to the tenant that the interim order did not reflect any finding of fact or law in his favour or otherwise.

At the substantive hearing on 19 January 2011 Mr Adkins and Mr Emerson-Elliott advised the Tribunal that an agreement had been reached between the parties under which: * (a) the Tribunal should set aside the termination order and the warrant; and * (b) make a conditional termination order under which the tenant was restored to possession on the condition that he make good the rent arrears by instalments and otherwise comply with the terms of the tenant agreement.

The Tribunal made the order agreed between the parties without a hearing on the merits.

The Tribunal made it plain that the order by consent was made for social reasons and did not reflect any view of the Tribunal on the issues of law raised by Mr Adkins. In fact the issues raised by Mr Adkins may have been determinative of the issue had the Tribunal been required to deliver a decision on the dispute.

At a practical level it was open to the parties to enter a new tenancy agreement for the still vacant flat if the parties so chose. It was open to the parties to reach this same agreement on the basis that the tenant make good his previous rent arrears. Accordingly, in practical terms it did not matter whether the Tribunal made the consent order sought by the parties or allowed the parties to enter a new tenancy agreement in the same terms.

Mr Adkins asked to read a statement from the Commissioner onto the record which recorded the Commissioner's view of the approach taken by the presently constituted tribunal to the social dimension of the Commissioner's responsibilities. That statement in full read:

Following the interim order made by Senior Member Anforth on 23 December 2010 the Commissioner would like to acknowledge that Mr Radovanov has supplied the information required, is engaging with HACT and is making rental payments. Under the circumstances the Commissioner has no objections if the Senior Member decides to make a Conditional Termination and Possession order in this matter.

In relation to the broader thrust of the Senior Members interim order the Commissioner wishes to make the following, short statement to the ACAT.

The Commissioner recognises that the Senior Member included in his considerations that Housing ACT needs to deliver social outcomes and the interim decision in this matter delivered that social outcome. Whether influenced by the respondent's plea in relation to the season or not, the social outcome for Mr Radovanov is that he has been able to re-enter and continue receiving the benefits of housing assistance.

Housing ACT is often referred to by the Tribunal and others as the "housing provider of last resort" and increasingly is providing housing assistance to some of the most vulnerable and needy members of the ACT community.

Housing ACT has the responsibility of managing what is a scarce resource, on behalf of the community and the Housing Assistance Act 2007 and the Housing Assistance Public Rental Housing Assistance Program 2010 (No 1) (The Program) provide the legislative framework for the provision of housing assistance in the ACT.

Within this legislation Housing ACT is charged

(a) to maximise the opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs; and

(b) to facilitate the provision of housing assistance for those most in need; and

(c) to maximise value for money in the provision of housing assistance

Housing ACT works thoroughly to create the social outcome of long-term sustainable tenancies in an equitable way. Housing ACT has created a human services framework which brings an approach which includes the broader social responsibilities of the Department of Housing and Community Services in its role as the Territory Parent and its general community service obligations.

The Program requires that the relative needs of applicants are considered and that applications are viewed on merit against the applicable legislation. The Community is involved in the assessment of those applicants who require priority housing assistance, a two level internal appeal processes is available for applicants and tenants who are dissatisfied with the outcomes of reviewable decisions and all decisions to seek eviction via the ACAT are reviewed by the Director Housing ACT and the Executive Director Housing and Community Services.

Recognising this, Housing ACT as a social landlord is not like any other landlord. The Senior Member affirmed this difference in identifying that his decision making would have been different if it had not been in relation to a social housing property. However, the distinction between Housing ACT and other landlords is not codified within the Residential Tenancies Act 1997 and needs to be treated with some caution.

Tenants of the Commissioner who receive housing assistance enjoy the benefits of well maintained properties with security of tenure and income based rent assessments that are not available to those in mainstream housing. In obtaining housing assistance the recipient not only enters a tenancy agreement with its attendant obligations but also enters a social contract of mutual responsibility with the community.

It is therefore very important that Housing ACT tenants understand that they have entered into responsibilities under a residential tenancy agreement and that these responsibilities are real and enforceable law, and will be given appropriate weight by the ACAT.

When support is required to sustain a tenancy, Housing ACT encourages engagement via one of the many support and advocacy services like Welfare Rights that the ACT Government funds to assist in the achievement of the social outcome of a sustainable tenancy. In addition, Housing ACT has significant internal support services, not the least of which are Housing Managers who engage extensively with tenants.

Due to the importance of housing assistance and its limited availability there is a community expectation that where someone ceases to comply with their legal responsibilities and the social contract has broken down, the ACAT will, make decisions under applicable legislation, but also give consideration to the prior actions of Housing ACT to sustain the tenancy in question.

Housing ACT would expect that in doing this, the ACAT would assess the legitimacy of the application under law and acknowledge how Housing ACT has complied with its broader social obligations

In this matter the social outcome for the individual is clear; however in abrogating his obligations by not residing at or paying rent on a property for nearly a year, Mr Radovanov has deprived the broader community of their social outcome of properties being fully utilized and revenue to provide maintenance and improvement of other properties.

The Commissioner has an expectation that the ACAT will provide consistency and clarity in its decision making to enhance the quality of decision making under legislation and ensure that decisions of the tribunal are fair. To this end, in this matter reasons for the Senior Members interim decision were requested and the Commissioner will continue engage with the ACAT to create a shared understanding of the means by which the needs of the individual can be balanced equitably with the need of those awaiting housing assistance.

To summarize the Commissioner administers the provision of housing assistance in a transparent, equitable and fair way in accordance with the legislation and with the social outcome of creating and maintaining sustainable long term tenancies and submit that applications made by Housing ACT to the ACAT should be considered under relevant legislation, and appropriately, with reference to its social obligation and previous efforts to sustain individual tenancies.

1. The Commissioner has sought reasons for the Tribunal decision, including the reasons for the interim decision.

2. The essence of the Tribunal's reasons are those set out above. The decision of 19 January was made by consent. The Tribunal had not made any determinations on the issues of law raised by Mr Adkins other than acknowledge their prima facie merit. Nevertheless the Tribunal did encourage the Commissioner to agree to an interim arrangement over Christmas pending a hearing on the substance of the matter. In the end the Tribunal made the interim order under section 103 Residential Tenancies Act 1997 on the bases:
   • (a) that there was an obvious detriment to the tenant if the interim order was not made;
   • (b) a failure to make the order would have substantially interfered with the tenant's capacity to prepare for the substantive hearing;
   • (c) it was unlikely that the Commissioner would have taken any steps to re-tenant or re-allocate the flat over Christmas and so the Commissioner would suffer no detriment (and in fact would collect rent);
   • (d) there was no detriment to any other person caused by the order.

3. In the course of the dialogue at the hearing and the Commissioner's statement two issues require further comment. The first is the content of the Commissioner's statement about the manner in which the Tribunal views social housing programs and the second is the role of the Uncollected Goods Act 1996.

1. The Commissioner raised concerned about whether the Tribunal had overstated the Commissioner's social housing obligations in the difference in approach to the Commissioner's tenancies relative to private tenancies.

2. Prior to 1 January 2009 the Commissioner received funds from the Commonwealth under the Commonwealth-State Housing Agreement which was a statutory instrument under the Housing Assistance Act 1996 (Cwth). The objects of the funding under the Commonwealth statute were set out in

section 4:

4 (1) The objects of this Act are to provide financial assistance to the

States for the purpose of ensuring that people can obtain housing that is affordable, secure and appropriate to their needs, and to make payments for the purposes of research, development, demonstration and evaluation in relation to housing.

(2) The overall aim of this Act is to provide housing assistance by which people can obtain affordable, secure and appropriate housing. Within this aim the goals are:

(a) to target housing assistance to those most in need,

including the homeless and those discriminated against in the private rental market; and ...

1. Since 1 January 2009 the Commonwealth supplies funding to the States and Territories for social housing through the Intergovernmental Agreement on Federal Financial Relations under the National Affordable Housing Agreement. This Agreement imposes the same kind of objectives for the supply of Commonwealth funding as set out above.

2. The Housing Assistance Act 2007 (ACT) sets up the infrastructure in the ACT for receiving and applying the Commonwealth funds. Section 30 defines a 'Commonwealth-Territory funding agreement" to means:

an agreement between the Commonwealth and the Territory for the Commonwealth to give financial assistance to the Territory for housing assistance or to promote the objects of this Act.

1. This definition catches both the pre and post 1 January 2009 agreements with the Commonwealth.

2. Section 6 of the Housing Assistance Act 2007 (ACT) sets out the objects to which the Commonwealth funding must be applied:

(a) to maximise the opportunities for everyone in the ACT to

have access to housing that is affordable, secure and appropriate to their needs; and

(b) to facilitate the provision of housing assistance for those

The Housing Assistance Act 2007 (ACT) gives effect to these objects via housing assistance programs which are statutory instruments. The presently relevant program is the Housing Assistance Public Rental Housing Assistance Program 2010 (No 1) (PRHAP).

The object of the PRHA is: * (a) to provide assistance to eligible people in the Territory who are most in need; and * (b) to facilitate the provision of community rental housing assistance (including affordable housing assistance) by housing providers through the administration of a register that includes community applicants.

The Commissioner is required by both the Commonwealth and ACT statutes to provide social housing that accords with the above objects.

Prominent among these objects is the provision of 'secure and affordable' housing. The Tribunal takes it to be self evident that security of tenure requires making all reasonable endeavours to save tenancies rather than evicting people from their homes. Evictions are a last resort to be employed only in those cases where there is clear repudiation by a tenant. Repudiation does not occur where the tenant has fallen on unexpected adverse circumstances that make compliance with the terms of the residential tenancy agreement impossible. Repudiation arises where the tenant has determined that he or she will not comply with the terms of the agreement. Thus there is a basic distinction between the case of 'cannot' and 'will not' comply with the terms of the residential tenancy agreement.

It seems to the Tribunal to be clear beyond any doubt that the Commissioner's social housing role is entirely different from that of the commercial motivations of private landlords. Nowhere does the Commonwealth or the ACT statute impose any profit making obligation on the Commissioner.

The Commissioner also stands in a different position to that of private landlords in that the Commissioner is a public officer exercising public administrative powers. The Commissioner is thus subject to a range of public law duties that do not apply to private landlord's including the duty to afford procedural fairness to tenants.

The Commissioner carries out the above functions via the use of residential tenancy agreement which are regulated by the Residential Tenancies Act 1997. These agreements are contracts at law. In this sense the Commissioner's tenancies are regulated by the same legislation that regulates private tenancies. This fact alone does not operate to deny the very different nature of the two forms of tenancy. The Residential Tenancies Act 1997 contains a range of discretions and evaluative judgements vested in the Tribunal. In discharging those duties the Tribunal is required to have regard to all relevant considerations and the circumstances of each case. The existence and terms of the Housing Assistance Act and Housing Assistance Public Rental Housing Assistance Program 2010 (No 1) is a matter of judicial notice and is a relevant consideration in the discharge of the Tribunal's functions in relation to the Commissioner's tenancies. These same statutory instruments do not apply to private tenancies and thus do not raise the same relevant considerations.

Unlike private landlords, the Commissioner is also bound by the terms of the Human Rights Act (ACT).

The Commissioner raised the relevance of the waiting list as a factor supporting termination of agreements where breaches have occurred. The Commissioner's waiting lists are notoriously long, measured in years. If the existence of the waiting list was a reason in its own right for evicting public tenants then it would apply in the case of every breach by a public tenant, whether repudiatory or not. There would be a regular and substantial turnover of public tenants as one family was evicted for breach to make way for another family on the waiting list. The evicted family would then return to the bottom of the waiting list. This revolving door approach would not result in any greater number of people being housed. It would not save the ACT community any money. The newly homeless family would raise issues for the child welfare authorities, the mental health authorities and would ultimately call upon the welfare resources of the community. The loss of rent to the Commissioner of the order of $100 per week would be insignificant in comparison with the costs to the ACT of the other welfare services the community would be called upon to meet.

These financial ramifications do not address the personal trauma and social disruption caused by homelessness which underpins the original motivations for social housing.

This is not to say that evictions will not sometimes be necessary in the case of repudiations but the existence of the waiting list alone does not convert a non-repudiatory breach into a repudiatory one.

The applicability of the Uncollected Goods Act 1996:

1. The operative provisions of the Uncollected Goods Act 1996 apply to goods that are 'uncollected goods' within the meaning of section 5:

5. Goods shall be deemed to be uncollected goods for this Act -

(a) where the possessor received the goods in pursuance of an agreement under which -

(i) the owner was to collect the goods at a certain time or within a certain period and has failed to do so; or

(ii) the possessor was to deliver the goods to the owner and, after making a reasonable attempt, the possessor is unable to do so in accordance with the agreement; and

(b) where the possessor has a lien on the goods under the Mercantile Law Act 1962 and a notice of intention to sell the goods has been given in accordance with section 22 (2) of that Act, but the charges stated in the notice have not been paid by the day specified in the notice; and

(c) where the goods are received by the possessor in the absence of any agreement regarding collection of the goods -

(i) in the case of perishable goods or goods of no value - immediately the goods are received by the possessor; or

(ii) in the case of any other goods - the owner has refused or failed to comply with a request made in accordance with section 7 to collect the goods; and

(d) where the goods were lost or abandoned at public baths -

(i) in the case of perishable goods or goods of no value - immediately the manager or attendant at the baths takes possession of the goods; or

(ii) in the case of any other goods - if the goods have not been given to a person entitled to their possession within the period specified in section 12; and

(e) where the goods were lost or abandoned on public or unleased land -

(i) in the case of perishable goods or goods of no value - immediately the goods are found by an authorised officer; or

(A) immediately the goods are moved to a retention area under section 14 (1) (a) (i); or

(B) if the goods have not been collected by the owner in accordance with a notice affixed to the goods under section 14 (1) (a) (ii).

1. Section 5(a) requires that the Commissioner have 'received the goods in pursuance of an agreement' of kind set out in paragraphs 5(a)(i) or (ii). Presumably 'received' means to 'take possession' of the goods as opposed to ownership of the goods. In the present case the Commissioner did not take possession of the goods under either of the kinds of agreements referred to in paragraphs 5(1)(i) and (ii). The only agreement between the parties is the residential tenancy agreement which required the tenant to remove his property at the end of the tenancy (prescribed term 64). The residential tenancy agreement is otherwise silent on the issue of the tenant's goods left on the premises at the end of the lease.

2. Section 5(b) does not apply in this case. There is no lien under the Mercantile Law Act 1962.

3. Section 5(d) obviously does not apply.

4. Section 5(e) may prima facie apply in the sense that land owned by the Commissioner is 'public land' but section 13 explicitly excludes land leased by the Commissioner from the definition of public lands for the purposes of the Uncollected Goods Act 1996:

(c) on which there are premises in respect of which the housing commissioner is the lessor under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1997 to which that Act applies. any other unleased land, other than unleased land

This leaves only section 5(c) which applies to goods 'received by the possessor in the absence of any agreement regarding collection of the goods'.

The first difficulty with the application of section 5(c) is whether it can be said that the lessor 'received possession' from the tenant of the tenant's goods left on the premises. The word 'received' connotes a 'giving' of possession by the tenant as opposed to a 'taking' of possession by the lessor against the wishes of the tenant. It is not true to say that a tenant 'gives' the lessor possession of his goods if they are left on the premises at the end of the tenancy. The lessor may take possession in the sense that the goods are on the lessor's property and the lessor intends to hold onto them, but this is not the same as the tenant 'giving' possession to the lessor.

In Martin v King (1996) 7 BPR 14, 681, the NSW Supreme Court affirmed the common law rule that a landlord (lessor) has no right to seize goods left on the premises by a tenant as a lien for unpaid rent. The court held that, at common law, the tenant had the right to re-enter the premises for a reasonable time after vacation to remove their goods. See also Connell v Mirochna (unreported, NSWSC, 9 April 1997, Dunford J) at [2.126.3] to the same effect.

In Curtin v Meadlow Holdings P/L [2001] QCA 145 the Queensland Court of Appeal held there is no change in ownership in chattels arising by reason of the fact the tenant left them on the property, and the tenant retains the right to claim them at any time (subject to any provision in any Act of Parliament or contract to the contrary).

The second difficulty with the application of section 5(c) is that section 13(c) explicitly provides that Division 2.4 of Part 2 of the Uncollected Goods Act does not apply to premise owned by the Commissioner. Division 2.4 deals with goods left on public lands.

Part 4 of the Uncollected Goods Act expressly deals with goods found on land owned or controlled by the Territory, which would normally include the Commissioner's premises. But section 27A provides that Part 4 does not apply to the Commissioner's premises.

Each of the provisions of the Uncollected Goods Act applicable to goods found or left on public lands is excluded in its operation to the Commissioner's premises. Two conclusions may follow from this: * (a) that because the Commissioner's premises are public lands, the Uncollected Goods Act does not apply at all to these premises: or * (b) for the purposes of the Uncollected Goods Act the Commissioner's premises are to be treated as if they were not public lands.

A perusal of the Explanatory Statement accompanying amending Act 4 of 1998 which inserted section 27A into the Uncollected Goods Act 1996 suggests the second alternative.

If the tenant's goods are treated as if they were found or left on private lands then Part 3 of the Uncollected Goods Act would apply. In this case section 24 provides that goods of significant value must be sold at public auction after 3 months unless the tenant makes demand for the return of the goods before the auction. If the tenant makes such a demand then section 26(2)(d) permits the lessor to levy a charge for the cost of storage and the auction plus for the rent owed.

It is the last item that causes the Tribunal concern. If the lessor is able to withhold the tenant's goods and proceed with the public auction unless the tenant makes good any rent arrears then in practical terms section 26(2)(d) represents a restoration of the long abrogated common law doctrine of 'distress for rent'. This doctrine permitted landlords to seize tenant's goods and sell them for rent arrears. This doctrine has been abrogated by statute in the UK and all Australian states and territories may decades ago. The abrogation of the doctrine in the ACT was contained in Sch 2, Part 15 cl 1 Imperial Acts (Substituted Provisions) Act 1986 and re-enacted in section 5 the Law Reform (Abolition and Repeals) Act 1996 (ACT)( Scientific Management Associates (Australia) Pty Limited and Keith Eddy Snell v. Australian Capital Territorys [1999] ACTSC 17)).

At common law the doctrine of 'distress for rent' may only have operated where the landlord entered into possession during the lease, as opposed to the tenant abandoning or vacating the premises (Turner v Kostoglou [2003] SASC 105)). It may be that section 26(2)(d) is limited in its application to cases where the tenant leaves goods on the premises after vacating as opposed to the lessor taking possession of the goods as part of an eviction process. Even if

section 26(2)(d) can be distinguished from 'distress for rent' on this basis, the practical difference is very little and it leaves open the potential for the same abuse that motivated the abrogation of 'distress for rent'.

The alternatives would appear to be that: * (a) section 5(c) Uncollected Goods Act applies to tenant's goods left on the premises with the consequence that the lessor must incur the cost of 3 months storage and then the cost of a public auction for goods of any significant value. The tenant would then be open to a levy for 'distress for rent' and for the costs of storage and auction: or * (b) section 5(c) Uncollected Goods Act does not apply to tenant's goods left on the premises for the reasons given above. In this case the issue of the tenant's goods is regulated by the common law and is a matter that is within the Tribunal's power to deal with under section 104 Residential Tenancies Act 1997.

Given that the parties resolved their dispute by consent the issue of the application of the Uncollected Goods Act did not need to be finally dealt with by the Tribunal. It is however an issue that requires resolution or clarification.

It is noted that the NSW Parliament has legislated on the topic as part of the R_esidential Tenancies Act 2010_.

APPLICANT: The Commissioner for Social Housing in the ACT

OTHER: APPLICANT: Mr Adkins, Operational Services of the Commissioner for Social Housing in the ACT

DATE/S OF HEARING: 19 January 2011 PLACE: CANBERRA

DATE/S OF DECISION: 19 January 2011 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )