Ecclesia Housing Limited v Tio

[2015] NSWCATCD 91

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ecclesia Housing Limited v Tio [2015] NSWCATCD 91

Hearing dates:

3 July 2015

Date of orders:

03 July 2015

Decision date:

31 July 2015

Jurisdiction:

Consumer and Commercial Division

Before:

J A Ringrose, General Member

Decision:

1. The Residential Tenancy Agreement is terminated in accordance with s 85 of the Residential Tenancies Act 2010 as the landlord has served a 90 day notice for termination of a periodic agreement.

2.   The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.

3.  The order for possession is suspended until 14 August 2015.

4.  The tenant shall pay the landlord a daily occupation fee at a rate of $24.45 per day from the day after the date of termination, namely 4 July 2015 until the date vacant possession is given to the landlord.

5.  Within 60 days of the date of possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.

6.  The landlord’s agent is to advise the tenant in writing by delivery of a letter to the premises by 6pm on 3 July 2015 of the orders made today.

Catchwords:

TERMINATION OF TENANCY – no grounds – discretion to suspend possession orders.

Legislation Cited:

Residential Tenancies Act 2010 s 85 and 114

Category:

Principal judgment

Parties:

Ecclesia Housing Limited (applicant)
Leyna Tio (respondent)

Representation:

Mr Morath - appeared for the applicant
There was no appearance for the respondent

File Number(s):

SH 15/07829

Publication restriction:

Nil

REASONS FOR DECISION

APPLICATION

1. By an application filed on 16 February 2015 the applicant sought an order for termination and possession of premises known as [***] Victoria Street Potts Point following the issue of a 90 day termination notice in accordance with s 85 of the Act.

2. The respondent tenant failed to attend the Hearing on 26 February 2015 and on that occasion the Presiding Member made an order for possession which was suspended until 13 April 2015. The tenant was ordered to pay the occupation fee prescribed until possession was delivered up.

3. The tenant sought written reasons for the decision and these were published on 13 March 2015. A copy of the decision with written reasons was forwarded to the tenant under cover of a letter dated 13 March 2015. The orders for termination and possession were stayed and on 27 April 2015 the Tribunal directed that the application be considered by a Tribunal Member at hearing and directed that date be fixed on the basis that;

1. the applicant was not present at the final hearing.

2. the applicant had submitted evidence not presented before.

3. procedural fairness dictated that the applicant should have an opportunity to have her views heard.

4. The matter was listed for hearing on 13 May 2015 when the applicant produced a medical certificate dated 11 May 2015 indicating that she was suffering from a medical condition and would be unfit to attend the conciliation hearing listed on 13 May 2015. The medical certificate was accompanied by a cover page which noted in part;

“you cannot evict me in my absence and without a legal representative. To evict me there must be valid reasons.”

5. The applicant, Ecclesia Housing, consented to the adjournment of the listing on 13 May 2015.

6. The matter was next listed for 29 May 2015 and there was no appearance of the tenant.

7. In a letter received by the Tribunal on 18 May 2015 the respondent noted that the next hearing date after the adjournment on 13 May 2015 was to be in the near future. She stated “I am writing to ask the new hearing date will not be in the near future but in not so near future.” She suggested that they set aside order should not be treated lightly and followed immediately by an application to not set aside what is being set aside.

8. The letter was regarded as a request for an adjournment and the adjournment application was initially refused as the applicant had not provided sufficient reasons to support an adjournment of the Hearing listed for 29 May 2015.

9. The respondent tenant then produced a medical certificate dated 27 May 2015 noting that she was suffering from a medical condition and would be unfit to attend the Hearing on 29 May 2015. That certificate was noted by the presiding member on 29 May 2015 and he made orders that the applicant provide all its documents by 5 June 2015 and that the respondent provide any documents on which she wished to rely by 19 June 2015. Two further relevant orders were that if a party failed to provide documents in accordance with the Tribunal orders that party may not be able to rely on the documents at the Hearing unless leave was granted to do so. A further order made on 29 May 2015 provided that if the respondent was unable to attend the Hearing she was to arrange for an agent or representative to attend on her behalf.

10. The matter was then listed for hearing on 3 July 2015. On 16 June 2015 the respondent again provided a request for an adjournment and attached a medical certificate dated 13 June 2015 which simply stated that she was suffering from a medical condition and would be unfit to attend the Hearing on 3 July 2015.

11. The request for further adjournment was considered by a Tribunal Member on 17 June 2015 and refused.

12. On 25 June 2015 the respondent forwarded documents to the Tribunal requesting that the Tribunal Member “allow all my submissions to be read out loud and clear in the Tribunal hearing on 3 July 2015, in my personal absence due to sickness.”

13.  Further material was provided by the tenant on 1 July 2015 and a reply to submissions from Ecclesia Housing was also included in the papers.

APPLICANT’S SUBMISSIONS

14. The property [***] Victoria Street Potts Point was leased to the tenant on 4 September 2003 for a period of 4 months ending on 11 January 2004. The landlord at that time was Churches Community Housing Limited, later to be known as Ecclesia Housing Limited. On or after 12 January 2004 the tenancy became a periodic tenancy and the tenant has remained in possession of the premises to the present time.

15. The property is owned by New South Wales Land and Housing Corporation and has, to the present time, been managed by Ecclesia Housing Limited who is a head tenant.

16. By a letter which was undated, but which was noted as received on 1 October 2014, Ecclesia Housing Limited was advised that the subject property along with a number of other properties was going to form part of a going home, staying home service in the south eastern Sydney district to provide a city rapid response, homelessness unit. This represented a change of use and a new service provider agency was contracted.

17. The general purpose of the program was to deliver a safe suite of responses consistent with the going home staying home service delivery framework and to work with young people, women and men with targeted support to aboriginal people.

18. The service was required to deliver innovative solutions to reduce the drift of people into the inner city and to support clients in crisis. The service was designed to intervene early to prevent homelessness, rapidly rehouse people who become homeless and provide support accommodation. It is designed to provide intense response for clients with complex needs who are homeless or at risk of homelessness.

19. Under the going home, staying home program, transitional accommodation is provided for usually up to 12 months with a possible extension to 18 months.

20. When the going home, staying home program commenced in August 2014 there was a transition period to 31 October 2014. Housing New South Wales and Community Services anticipated the tenants who did not meet the new program requirements would be found alternative accommodation within the transition period.

21. As the program was particularly directed to younger persons, both male and female, it was determined that for a number of reasons Ms Tio did not meet the new program requirements of the property. During the transition period, Mission Australia offered Ms Tio alternative accommodation with ongoing support at either of two locations, namely Drummoyne or Strathfield.

22.  In January and February 2015 after the go home, Stay home transition period had concluded, representatives from Mission Australia repeated offers of accommodation at two specific alternate locations.

23. On 1 June 2015 Mission Australia repeated an offer of accommodation at 162A Concord Road, North Strathfield. The property was described as a one bedroom cottage in a complex which only accommodates single women. It was noted that there are staff on site during business hours and it is close to public transport and shops.

24.  Mr Morath, on behalf of the applicant, submitted that Ms Tio’s rejection of offers of alternative support of accommodation meant that she was taking up a tenancy position needed by other high need applicants and in her present situation she does not receive from the new service provided the type of support that she requires and which was previously provided to her by Mission Australia.

25. Mr Morath duly sworn gave evidence that on 16 October 2015 a notice pursuant to s 85 of the Residential Tenancies Act 2010 giving 90 days’ notice, was posted on that date and that the notice required the tenant to give vacant possession on 28 January 2015. He gave evidence that the tenant remains in possession to the present date after an order of the Tribunal made on 13 March 2015 requiring delivery of possession up to the landlord by 13 April 2015 was set aside and the matter was adjourned on two occasions in May owing to the illness of the tenant.

RESPONDENT’S EVIDENCE

26. Apart from providing medical certificates which simply noted that Ms Tio was suffering from a medical condition and would be unfit to attend the Hearings from time to time, Ms Tio first objected to the matter being reheard on the basis that it was illogical to seek the same order which had just been set aside. She also noted on a document received on 12 May 2015 that the reason to evict her was invalid.

27. In further documents submitted on 18 May 2015 Ms Tio wrote requesting that the new hearing date not be in the near future but in the not so near future as the set aside order had just been made and she needed space to breathe between happenings. It was noted that she was not able to come to a hearing herself and that she was looking for a representative and communicating with the government. She requested that a new hearing date should be within two months’ time so that she could be well prepared.

28.  In further documents forwarded on 27 May 2015 Ms Tio stated that she became unwell because she had a very large liver. The further adjournment of the matter was requested on the basis that she was unfit to attend the Hearing and that she had a “sister problem”.

29. Further documents were forwarded on 16 June 2015 when another request was made for an adjournment on the basis that she was very sick. She claimed that the only safe place for her to live was at [***]Victoria Street, Potts Point and pointed out that her sister was in control of her life, she claimed again that she was a sick woman, some 76 years of age.

30. Her further request for adjournment on 16 June 2015 was rejected on 17 June 2015 and she was advised accordingly.

31. 31   On 25 June 2015 Ms Tio wrote to request that all of her submissions should be read out loud and clear in the Tribunal hearing on 3 July 2015. She also noted that she had thought of Mission Australia’s North Strathfield cottage to live in but she found it impossible (her sister did not agree). It is too far away from Lau’s place and is not allowed by my sister. She claimed to be still fighting to live in [***]Victoria Street, Potts Point for there is no other place for her to live in Sydney.

32. On 1 July 2015 the respondent submitted further documentation noting that part of what she referred to was repetition which was for emphasis and importance. She then noted that the main point she wanted to repeat was that she would be homeless if she was evicted and that she would not sell herself to be men’s constant companion and inevitably lead to marriage. She noted that a slave master, her sister, totally controlled her life and every move and she requested at least one more year to live at 164 and claimed that the most she would otherwise live was 3 years in 164 if she was not evicted.

33. A final typed submission was received on behalf of the respondent, being an email sent on 30 June 2015 in which she suggested that if she was evicted there was no alternative housing and that she would be homeless. She stated the North Strathfield cottage would mean she would have to commit herself to a certain carpenter known to her, to marry him and go out with other men. She added that after reading the submissions from the applicant, she could only be evicted because there was alternative housing but she suggested that there was none because of the slave master.

DECISION

34. I am satisfied that the Tribunal has jurisdiction to determine the matter under the Residential Tenancies Act 2010. The applicant has relied upon a notice of termination dated 16 October 2014 requiring the resident to give vacant possession of the premises on 28 January 2015 and the notice was issued as a “no grounds notice” under s 85 of the Act.

35. I am satisfied that the notice of termination complies with the requirements of s 82 and s 85 and sufficient time has been given for the tenant to comply under the notice.

36. The notice of termination was properly served in accordance with s 223 of the Residential Tenancies Act and the application for termination was properly brought in time.

37. Section 85(3) of the Act provides;

85(3) the Tribunal must, on application by a landlord make a termination order if it satisfied that the termination notice was given in accordance with the section and the tenant has not vacated the premises as required by the notice.

The making of a termination order is mandatory under s 85 in circumstances where the Tribunal is satisfied that the requirements of the Act have been complied with. The only matter requiring further consideration is the provisions of s 114 of the Act.

38. Section 114 provides;

114 suspension of possession orders

(1)   the Tribunal may suspend the operation of an order for possession of residential premises for a specified period if it satisfied that it is desirable to do so having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension.

(2)   the Tribunal may impose an obligation on a tenant to pay a prescribed occupation fee for the period for which the order for possession is suspended.

39.  In considering the balance of hardship I must take into account the hardship of the applicant landlord, noting that the Department of Family and Community Services has since 1 August 2014 allocated the whole of the property at [***]Victoria Street Potts Point, to a going home, staying home program, designed to prevent homelessness and rapidly rehouse people who have become homeless and provide supported accommodation. I am satisfied that the current service provider charged with the management of [***]Victoria Street Potts Point supports clients with a different cluster of support needs than those required by Ms Tio and I further accept that she is not, while in that complex, receiving the type of assistance she needs that was previously provided by Mission Australia. I note that Ms Tio’s rejection of offers of alternative accommodation mean that she is taking a tenancy position that is needed by other high need applicants of a different type.

40. I must note in support of hardship of the applicant that Ms Tio has had notice of the program since August 2014 and that she has been aware of a requirement that she vacate the property in accordance with s 85 of the Act since late October 2014.

41. The termination notice required her to vacate the premises by 28 January 2015 and she has remained in possession since that time. Her response to a termination order made on 13 March 2015 and requiring her to vacate the premises by 13 April 2015 has been to have that order set aside and thereafter to seek adjournments of the further proceedings on the basis of illness. As a result of these matters she has remained in the premises for almost 12 months since the time she first had notice of her need to vacate.

42. This must be balanced against the hardship of the tenant in circumstances where her submissions suggest that she is in need of some type of support and assistance. I note and accept that she had previously received assistance from Mission Australia but, notwithstanding that orders made on 29 May 2015 required her to produce documents by 15 June 2015 and, if she was unable to attend the Hearing, to arrange for an agent or representative to attend on her behalf, no attendance was arranged on her behalf.

43. I have thoroughly considered all of the submissions she put in writing consistent with her requests and I note that she has refused offers of alternate accommodation but her reasons for refusal are somewhat vague.

44. I am disposed to allow a further period of 6 weeks from the date of the Hearing to enable her to seek further assistance and to relocate. The respondent has had almost 12 months occupation of the premises since she was first put on notice that she would be required to move. She obviously has family but her only request for postponement of an order is for a period of between 1 and 3 years. This request is not tenable and on balance I am satisfied that the suspension of the mandatory termination order on this occasion should be limited to a period of 6 weeks taking into account all of the matters I have referred to in the decision.

J A Ringrose

General Member

Civil and Administrative Tribunal of New South Wales

31 July 2015

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 September 2015