Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7

Between

Jasmine Cavanagh, Enid Young, Robert Conway and Clayton Smith (Applicants) and Chief Executive Officer (Housing) (Respondent)

Tribunal Member

Les McCrimmon

Judgment

The Northern Territory Civil and Administrative Tribunal (Tribunal) found that the Chief Executive Officer of Housing (NT) had breached their responsibilities to provide properties that were:

• 'habitable', under s 48 of the Residential Tenancy Act 1999 (NT) (RTA) (The Tribunal finding that to breach this provision, the property would need to be not 'habitable' in a way that threatened the tenant's safety, either structurally or in relation to the tenant's health) [120];
• reasonably secure, under s 49 of the RTA; and
• in a reasonable state of repair, under s 57 of the RTA.

All applicants were awarded compensation for these breaches under s 122 of the RTA.

The Tribunal also found that the tenancy agreements between the applicants and the CEO of Housing were invalid, either because they were not signed or because the terms were inconsistent with the RTA. When a tenancy agreement is found to be invalid, the agreement is replaced by the prescribed tenancy agreement in Schedule 2 of the RTA [63]-[65].

The applicants also claimed compensation for overpaid rent, arguing that rent should not have been paid because both the original and the prescribed tenancy agreements were invalid. This claim was rejected by the Tribunal, which found that the prescribed tenancy agreements were valid because the tenants could all be shown to have known of the expected rent amount at the commencement of tenancy [106-107].

The Tribunal also found that the CEO of Housing had asked the applicants to sign 'replacement' tenancy agreements during the litigation without first notifying the applicants' lawyers. Because of this, the Tribunal found that the respondent had acted in a manner which '[fell] below' that expected of a model litigant [24].

Significance

This action was brought against the CEO of Housing by residents of 70 households in Santa Teresa. The first four of these cases were decided in this hearing, seeking to clarify the factual and legal issues in dispute. This decision provided a framework for resolving the remaining cases. 

Subsequent Developments

Enid Young and Robert Conway appealed this decision in the Supreme Court of the Northern Territory. The Court then clarified the meaning of 'habitable', finding that the Tribunal had constructed the term too narrowly and remitted the issue back to the Tribunal for further consideration under the Court's broader construction (Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59, 84).

The Court also found that the Tribunal had failed to consider whether the CEO of Housing had engaged in unconscionable conduct that could invalidate the tenancy agreements and result in a different outcome (see Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59).

This case empowered other communities, such as Laramba, to bring actions regarding their housing conditions. The Laramba case focussed on the issue of unsafe water (Grata Fund, 2019).

Background

In 1977, under the Aboriginal Land Rights (Northern Territory) Act 1976, control of Santa Teresa, a former Catholic Church mission, passed into the hands of the Santa Teresa Land Trust. The Trust held the title on behalf of the local Aboriginal community, which was renamed Ltyentye Apurte (Find&Connect).

As the community now held the title to the land, they had the responsibility of managing their housing and determining land use. 

However, on 18 August 2007, the Northern Territory National Emergency Response Act 2007 (Cth) commenced. This legislation granted the Commonwealth Government five-year leases over 64 Northern Territory Aboriginal communities, including Santa Teresa, and is part of what is known as the Commonwealth Government's Northern Territory Intervention.

The community continued to own the land but was no longer able to manage their housing. This became the responsibility of the Commonwealth Government who delegated this responsibility to the NT Government, who in turn delegated it to the CEO of Housing (see Cavanagh v Chief Executive Officer (Housing) [2018] NTSC 52 [10] -[16]).

Details of Judgment

Breaches of the RTA

Breaches of s 48 of the RTA - not providing safe and habitable housing

The Tribunal found that the CEO of Housing breached the requirements of ss 48(1)(a) and (b) of the RTA to provide safe and habitable housing.

Under s 48(1)(a), a landlord must ensure a premise is habitable. The Tribunal found that the CEO of Housing was in breach of this provision in two instances:

• renting premises which had a major water leak [141]-[147]; and
• renting premises without an air conditioner, in circumstances where an air conditioner was needed [181]-[182].

Under s 48(1) (b) of the RTA, a landlord must ensure that a premise meets all the safety and health requirements. The CEO of Housing breached this provision by renting premises without smoke detectors.

Breaches of s 57 of the RTA - failure in the duty to repair the properties

Under s 57 of the RTA, a landlord must maintain a premise in a reasonable state of repair.

The Tribunal found the CEO of Housing breached this provision in three instances:

• failing to provide a back door for a property for over six weeks [164];
• failing to repair a stove for over five months [243]; and 
• failing to fix a blocked toilet for over three months [195].

Breaches of s 49 of the RTA - failure to provide and maintain security devices

Under s 49 of the RTA, a landlord must provide and maintain security devices to ensure the property is reasonably secure.

The Tribunal found that the CEO of Housing had breached this provision in two instances by not providing front door keys and by not providing a handle and lock on a front door [212], [154].

The applicants also claimed that failure to provide a back door was a breach of this provision. Whilst the Tribunal held that failing to provide a back door was a breach of s 57, it held that it was not a breach of s 49.

The Tribunal interpreted s 49 narrowly, to refer to the maintenance of locks and similar devices. Without a door, there was no lock/device to maintain [166]. 

Compensation

The Tribunal awarded compensation to the tenants for the breaches of the RTA under s 122.

Compensation was awarded by way of repaid rent where it could be demonstrated the applicants suffered a loss.

Ms Cavanagh was awarded $1,042.03 and Ms Young was awarded $4,735.80 for the 269 days and 590 days respectively that their houses were not habitable. They were also awarded $2,500 and $4,000 respectively for distress resulting from the physical inconvenience of this breach [284].

As no loss could be shown from the other breaches, only a small amount of damages could be awarded. This ranged between $100-$200 [284]-[288].

Invalid Agreements

The Tribunal found that the tenancy agreements between the applicants and the CEO of Housing were invalid [84]. This was because the agreements had either not been signed by the CEO of Housing, or contained clauses that were inconsistent with the RTA [63], [78]. 

The applicants argued that because the tenancy agreements were invalid, they should not have had to pay rent over this period. The Tribunal found that despite the agreements being invalid, there was a valid tenancy agreement in place during this period. This was because the RTA states that when there is an issue with the terms or format of an agreement, the prescribed tenancy agreement in Schedule 2 of the RTA operates instead [65], [78].

The applicants put forward that the prescribed tenancy agreements were invalid for uncertainty, because of a failure to agree upon a rent amount at the beginning of the tenancy [82]. The Tribunal referred to the original tenancy agreements which, although invalid, demonstrated that the tenants were aware of the rent required in the prescribed tenancy agreements [84].

As the applicants were determined to have been aware of the amount of rent to be paid, the prescribed tenancy agreements were valid, and the tenants could not claim reimbursement of rent [94]. 

Unconscionable conduct

The Tribunal noted that the residents had limited English language skills and were not given explanations of what they were signing, nor were they told about the amount of rent due [14], [28] -[29], [36], [44], [102].

However, the Tribunal did not find it necessary to address this issue in light of how the case was decided. 

Model Litigant

A model litigant is a litigant that adheres to their ongoing obligation to 'act honestly, consistently and fairly when handling claims and litigation brought by or against the Northern Territory' [24]. The standard of this obligation was described as an 'elementary' level of fair play [24]. 

The Tribunal found that because the CEO of Housing contacted the applicants rather than their lawyers to execute 'replacement' tenancy agreements, the CEO fell below the honest and fair handling of litigation expected of a model litigant [24].

Related Entries

References