Davis v NSW Land and Housing Corporation

The New South Wales Court of Appeal considered an appeal by a tenant against an order terminating her residential tenancy agreement. The dispute arose after police, executing a search warrant at the tenant's third-floor apartment, discovered multiple mobile phones, a significant amount of cash, scales, and balloons. The tenant shared the apartment with her husband, who was subsequently charged with supplying heroin in the communal sixth-floor laundry. The landlord sought to terminate the tenancy agreement under section 91 of the *Residential Tenancies Act 2010* (NSW), alleging the tenant had intentionally or recklessly caused or permitted the residential premises to be used for the sale or supply of a prohibited drug.

The primary legal issues before the Court of Appeal were whether the tenant's residential premises were used for an unlawful purpose within the meaning of section 91(1) of the *Residential Tenancies Act 2010* (NSW), and whether the appellate court was entitled to determine the appeal by reference to decisions necessarily implicit in the Tribunal's findings, pursuant to section 83(1) of the *Civil and Administrative Tribunal Act 2013* (NSW). The interpretation of the word "use" in the context of section 91(1) was central to the determination of whether the tenant's actions or omissions constituted a breach of the tenancy agreement.

The Court of Appeal reasoned that the findings of the Tribunal, which were not challenged on appeal, established that the tenant's husband was using the apartment for the storage and preparation of drugs for supply. While the drugs themselves were not found within the apartment, the presence of the paraphernalia, coupled with the husband's drug supply charges, led to the conclusion that the premises were being used for an unlawful purpose. The Court affirmed that an appeal on a question of law under section 83(1) of the *Civil and Administrative Tribunal Act 2013* (NSW) permits an appellate court to draw inferences and make findings of fact that are necessarily implicit in the Tribunal's findings. Consequently, the appeal was dismissed.