El Husseini v Department of Housing of NSW

[2007] NSWSC 1531

CITATION:	EL HUSSEINI v DEPARTMENT OF HOUSING OF NSW [2007] NSWSC 1531
HEARING DATE(S):	27 July 2007
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
EX TEMPORE JUDGMENT DATE:	27 July 2007
DECISION:	1. Application for leave to appeal dismissed; 2. Discharge orders made by this Court on 22 June 2007. That discharge to be effrective at midnight on 3 August 2007 ; 3. The applicant, Mrs El Husseini, to pay the Department of Housing's costs in relation to the application.
LEGISLATION CITED:	Consumer, Trader and Tenancy Tribunal Act 2001
PARTIES:	Hanna El Husseini (Plaintiff) Department of Housing of NSW (Defendant)
FILE NUMBER(S):	SC 13147/07
COUNSEL:	J Nicopoulos (Plaintiff) R Foord (Defendant)
SOLICITORS:	Nicopoulos & Associates (Plaintiff) Department of Housing of NSW (Defendant)
LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	RT06/60910
LOWER COURT JUDICIAL OFFICER :	N Vrabac
LOWER COURT DATE OF DECISION:	19 June 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

FRIDAY 27 JULY 2007

13147/07 EL HUSSEINI v DEPARTMENT OF HOUSING OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: This is an application by Hanna El Husseini for leave to appeal the decision of the Consumer Trader and Tenancy Tribunal. The application for leave is out of time. Time for the making of the application expired on 18 July 2007. The proceedings in the Tribunal were an application by the Department of Housing for the termination of a lease granted to Ms El Husseini.

2 The grounds upon which that application was made relate to the use of the premises for an illegal activity. Before the Tribunal evidence was tendered that the police had located at the premises a significant arsenal of weapons and ammunition together with other paraphernalia normally associated with the distribution of illegal drugs. The Tribunal records the evidence before it as to the items located at the premises in these terms:

“Small plastic resealable bags within the first-floor bathroom of the premises. The bags contained drugs. A set of electronic scales, two fully automatic rifles, two semiautomatic rifles, a Mach 10 fully automatic pistol, a Browning pistol, a Smith and Wesson revolver, about 5000 rounds of ammunition and ammunition magazines, two boxes of Glock brand pistols, bottles of Hoppers, that is a solvent, located within a compartment underneath the stairs. A fully automatic bill counter was located within an upstairs room of the premises. 1.64 kilograms of what was believed to be amphetamines was found behind the staircase on the first floor.”

3 I understand that there is a dispute as to whether or not drugs were actually found on the premises but that is of no present consequence.

4 The Tribunal records the submission which was made on behalf of Ms El Husseini in the proceedings before it. That submission clearly identifies the issue which the Tribunal was required to resolve as being whether Ms El Husseini “had actual or constructed knowledge of the matters contained in the police brief”. The reference to the police brief is a reference to the police record of the items located at the premises. The Tribunal records the fact that Ms El Husseini submitted that it is common ground between the parties that the issue before the Tribunal is whether on balance of probabilities (sic), Ms El Husseini conceded the circumstantial evidence in the police brief which I understand to relate to the matters found. It then said:

“If the Tribunal was to find that the tenant had constructive knowledge of the matters contained in the police brief, the grounds would be established to terminate the agreement.
The tenant conceded that the contraband located at the residential premises is of a very serious criminal nature and carries sentences in the upper range of double figures.”

5 In its findings the Tribunal concluded that Ms El Husseini had breached cl 7.1 of the Residential Tenancy Agreement. The Tribunal found that the tenant permitted the premises to be used for an illegal purpose – being the storage for a large quantity of contraband when the search warrant was executed by the Police.

6 The Tribunal said:

“Having recited all the items recovered at the execution of the warrant, the Tribunal accepts the landlord’s submissions that it defies belief that the tenant could not have known of her husband’s criminal activity.
The kickboard at the top of the landing, at the bottom of the stairs, was only wedged in. It would have been possible for the tenant to know that there was contraband underneath the kickboard.
The other areas of the house where contraband was located, such as the bedroom and bathroom, are accessed often by the tenant. The Tribunal finds she would have seen the contraband, such as 100 small bags containing drugs, but she turned a blind eye to it.
The Tribunal does not accept the landlord’s argument that the tenant would have known that her son sold a gun three days prior to the warrant being executed.
The Tribunal finds that the tenant had constructive knowledge of the contraband located in the house.
It may be possible to be persuaded that the tenant did not know of the other contraband or the large quantity of arms secreted at the bottom of the stairs. It is not possible to contend that the tenant did not know of the other contraband such as drugs, the bill counter and the electronic scales. These items were in the open, and easily accessible to the tenant. She has small children and would be compelled to move often and freely around the house.
It may be unfortunate that the tenant’s tenancy is terminated as she may have been in no position to exclude a person or persons who offended from her premises. Nevertheless, she knowingly permitted the offending activity to take place.

7 An examination of the Tribunal’s decision makes plain that the proceedings before it were fought on a narrow basis. The only question which the Tribunal was required to decide was whether Ms El Husseini had knowledge of the presence of the items described as contraband which the police found at the premises. There was no issue that if she had knowledge, she was in breach of the lease. As I have indicated, the Tribunal found that she had that knowledge and made appropriate orders. When those orders were made, the consequence was that the Tribunal issued a warrant for possession of the premises. That warrant was executed on 22 June 2007. On that day Adams J was approached and although the warrant had been executed, his Honour made orders staying the further execution of the warrant and ordered that the Department of Housing make arrangements to return Ms El Husseini’s furniture to her. As I understand the position, she continues to reside in the premises pursuant to the orders which his Honour made. Those orders were continued by Rothman J and I have continued them up until today.

8 Ms El Husseini seeks leave to file an appeal against the Tribunal’s decision out of time and seeks a further extension of the orders made by Adams J. To my mind, I would only grant the leave which is sought if I was persuaded that there was a prospect of success in the appeal. I am not so persuaded.

9 Counsel who appeared for Ms El Husseini submitted that there are two bases upon which the appeal might succeed. Firstly, it is said that the decision reveals jurisdictional error. He has further submitted that the decision was unreasonable. The submission that there has been a jurisdictional error is framed in terms of the Tribunal having regard to the factual material which was not relevant to its decision. However, an explanation of the reasons of the Tribunal would not support that submission even if it could be framed as an error of law. The submission that the decision is capable of challenge as being unreasonable is concentrated on the fact that, apparently, although Mr El Husseini was arrested in relation to the possession of the contraband items the police did not proceed with those charges. I have not been told whether other charges have been laid in relation to those items or what other consequences the police intervention may have had. However, as I have indicated, Ms El Husseini was content to defend the Department of Housing’s application by raising the issue of her knowledge, accepting that if she knew of the various items she was in breach of the relevant clause in the lease.

10 I can see no substance in the argument that the Tribunal has acted reasonably or that its decision is infected by legal error.

11 The right of appeal to this Court from the Consumer Trader and Tenancy Tribunal is provided by s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001. It is confined to these circumstances where the Tribunal has decided a question with respect to a matter of law. Findings in relation to factual matters may not be challenged.

12 I have been provided with a draft summons which includes the relief claimed and nominates 12 grounds of appeal. To my mind, none of those grounds raised questions of law and some of them seek to traverse matters which were conceded before the Tribunal. That being the case, those concessions could never have founded errors of law reviewable by this Court. In those circumstances I order that the application for leave to appeal be dismissed.

13 I will discharge the orders made by this Court on 22 June 2007, that discharge to be effective at midnight on 3 August 2007. I order the applicant, Ms El Husseini, to pay the Department of Housing’s costs in relation to this application.

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