Legislation cited: Evidence Act 2011 s 160

Human Rights Act 2004 s 40B

Legislation Act 2001 s 250

Residential Tenancies Act 1997 ss 47, 59, standard terms 94, 98

Subordinate

Legislation cited: Residential Tenancies Regulation 2008 s 5

1. By an application for resolution of a dispute under the Residential Tenancies Act 1997 (RT Act), the Commissioner for Social Housing (the lessor) seeks a termination and possession order pursuant to section 47 of the RT Act in relation to a residential tenancy agreement with the respondent (the tenant), dated 9 October 2015, for premises in Scullin, ACT.

2. Pursuant to clause 94 of standard residential tenancy terms in schedule 1 of the RT Act, a lessor may serve a notice to vacate during the term of the tenancy requiring the tenant to vacate the premises at the end of the notice, provided that the notice is for 26 weeks and the notice does not require the tenant to vacate the premises during a fixed term.

3. Section 47(1) of the RT Act provides that, on application by a lessor, the ACAT may make a termination and possession order if satisfied of three things: first, a ground for termination exists under the standard residential tenancy terms, other than for breach; second, the lessor has served a termination notice on the tenant based on that ground; and third, the tenant has not vacated the premises as required by the termination notice.

4. On 16 September 2020, the lessor served a notice to vacate on the tenant by posting the notice by prepaid post to the address of the rented premises and to the Alexander Maconochie Centre, where the tenant is presently incarcerated. The notice required the tenant to vacate the premises on or before 22 March 2021.

5. Pursuant to section 250(1) of the Legislation Act 2001, a document served by post is taken to be served when the document would have been delivered in the ordinary course of post. Subsection 250(2) clarifies that subsection (1) does not affect the operation of section 160 of the Evidence Act 2011.

6. Section 160(1) of the Evidence Act 2011 creates a rebuttable presumption that a postal article sent by prepaid post was received on the seventh working day after it was posted. The Dictionary in the Legislation Act 2001 defines 'working day' to mean a day that is not a Saturday or Sunday, or a public holiday in the ACT.

7. 16 September 2020 was a Wednesday. The seventh working day after that day was Friday, 25 September 2020. As the lessor has presented no evidence to suggest that the tenant received the notice to vacate earlier than 25 September 2020, that date is taken to be the date of service and the date from which the notice of 26 weeks begins to run.

9. As the notice to vacate required the tenant to vacate on or before 22 March 2021, which was less than 26 weeks, the notice did not comply with clause 94 of the standard residential tenancy terms.

10. Section 59 of the RT Act provides for limited circumstances in which a lessor may apply to the ACAT for a waiver of a defect in a termination notice and for the making of a termination and possession order. The first circumstance is that the notice is not in the form approved under section 133 by the Minister for a termination notice. The second is that the notice is not served as prescribed by regulation.

11. Section 133(1) provides that the Minister may approve forms for the RT Act. Subsection (3) provides that an approved form is a notifiable instrument. There is, in fact, no approved form for a termination notice.

12. Section 5(a) of the Residential Tenancies Regulation 1998 prescribes the requirements for service of a termination notice on an individual. Three modes of service are permissible: first, by delivering it to the person personally; second, by leaving it at, or sending it by prepaid post to, the address of the place of residence or business of the person last known to the person serving the document; and third, by leaving it at, or sending it by prepaid post to, the address for service provided by the person under clause 98 of the standard residential tenancy terms.

13. In this case, the prescribed method of service was followed.

14. The problem here lies in the fact that when the day on which service is taken to occur is considered, the notice given to the tenant was for less than the statutory minimum of 26 weeks. This is not a case where the notice is defective in a sense that, upon application by the lessor, can enliven the ACAT's discretion to waive the defect under section 59 of the RT Act. The notice does not comply with a statutory requirement, which is an essential pre-condition to the lessor's right to seek a termination and possession order under section 47 of the RT Act and for the ACAT to have jurisdiction to grant the order nor is the discretionary power given to the ACAT by section 83 of the RT Act engaged in those circumstances.

15. The tenant opposes the granting of a termination and possession order on discretionary grounds, including that the lessor's actions amount to a breach of the statutory duty that section 40B of the Human Rights Act 2004 imposes on a public authority to act consistently with human rights. As the Tribunal's jurisdiction has not been invoked validly, it is neither necessary nor appropriate to express any views in relation to these matters.

16. The appropriate order in the circumstances is to dismiss the lessor's application.