Evolve Housing v Winter

[2025] NSWCATCD 122

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Evolve Housing v Winter [2025] NSWCATCD 122

Hearing dates:

8 May 2025

Date of orders:

28 August 2025

Decision date:

28 August 2025

Jurisdiction:

Consumer and Commercial Division

Before:

E Bateman, General Member

Decision:

The Tribunal orders:

(1)   The tenant must comply with the terms of the residential tenancy agreement by not causing or permitting a nuisance or interference with the reasonable peace, comfort or privacy of any neighbour of the tenant.

(2)   The tenant must comply with the terms of the residential tenancy agreement by not creating any noise in the flat or on the common area likely to interfere with the peaceful enjoyment of the tenant of another flat or any other person lawfully using the common area.

(3)   The tenant must comply with the terms of the residential tenancy agreement by not marking, painting, driving nails or screws or the like into, or otherwise damaging or defacing, any structure that forms part of the common area without the approval in writing of the landlord or an order of the Tribunal.

(4)   The tenant must comply with the terms of the residential tenancy agreement by not using language or behaving in a manner likely to cause offence or embarrassment to the tenant of another flat or to any person lawfully using the common area.

(5)   The tenant must comply with the terms of the residential tenancy agreement by taking all reasonable steps to ensure that invitees of the tenant do not behave in a manner likely to interfere with the peaceful enjoyment of the tenant of another flat or any person lawfully using the common area.

Catchwords:

Residential tenancy agreement – termination – breach of tenancy agreement

Legislation Cited:

Residential Tenancies Act 2010 (NSW) 

Category:

Principal judgment

Parties:

Evolve Housing (applicants)
Kristy Winter (respondent)

Representation:

Applicant -self-represented Konispoliatis
Respondent – self-represented and accompanied by Mr John Robertson

File Number(s):

2024/00469984

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by Evolve Housing Limited (the landlords) for orders pursuant to sections 87(1) and 187(1)(i) of the Residential Tenancies Act 2010 (NSW) (the Act) that would terminate a residential tenancy agreement that subsists between them and Ms Kristy Winter (the tenant) and return possession of the premises to them on the ground that the tenant has breached the residential tenancy agreement in a number of respects. This application was made to the Tribunal on 18 December 2024.

Issues in dispute

2. The issue in dispute in this matter is whether the residential tenancy agreement between the parties should be terminated.

Applicable Principles

3. A tenancy only terminates in the circumstances set out in the Residential Tenancies Act 2010, see section 81. The Tribunal may terminate a residential tenancy agreement for breach if it is satisfied of the matters set out in section 87(4) of the Residential Tenancies Act 2010 (as it was at the relevant time of making this application), and in considering the circumstances of the case may have regard to the matters set out in section 87(5) of that Act.

4. Further, in determining whether to terminate a social housing tenancy the Tribunal must have regard to the matters set out in section 154B and 154E of the Residential Tenancies Act 2010.

Evidence

5. At the hearing, the landlords attended in person represented by Ms Chloe Konispoliatis with authority. The tenant appeared in person and was represented by Mr John Robertson.

6. The landlord relied on a 61 page bundle of documents comprised of hearing notes, an authority to act, a copy of the residential tenancy agreement, a notice of termination, statement of facts, a statement of Ms Konsipoliatis with attachments, a section 154F neighbourhood impact statement, written submissions and a tenant ledger.

7. Ms Konsipoliatis gave evidence under oath and was cross examined.

8. The tenant relied on a bundle of documents being seven photographs of depicting her daughter and screen shots of mobile phone messages.

9. The parties made extensive oral submissions.

Material facts

10. Based on the evidence the Tribunal makes the following findings of fact.

11. A social housing residential tenancy agreement subsists between the parties in relation to premises at [address], being an apartment within an apartment block of 43 units managed by the landlord housing single males, females and elderly and small families. The tenant has resided at apartment 108 along with her daughter in the apartment block since May 2022. Apartment 109 is in the same apartment block and is adjacent to apartment 108.

12. There is significant police involvement in the neighbourhood due to drug consumption, domestic violence and other matters. The tenant has not been involved in these activities.

13. The tenancy agreement incorporates standard clauses 16.2, 16.3, 17.3, 27.3 and 63.3 that in summary require that the tenant not interfere with neighbours, not cause any damage to the residential premises, be responsible to the landlord for actions of invitees and comply with applicable By-Laws. Relevant By-laws 1, 5, 6 and 8 in summary forbid excessive noise, damage to common areas, regulate behaviour on common property and otherwise require reasonable steps to be taken by the tenant so as to not interfere with neighbours.

14. The landlord properly served a termination notice on 2 December 2024 seeking vacant possession. The termination notice identifies breaches of the residential tenancy agreement which are reflected in the findings of material facts set out below at paragraphs 15 to 21.

15. The tenant breached the residential tenancy agreement on 5 November 2024 as follows.

16. At 1:10pm, on 5 November 2024, whilst holding a bottle and whilst accompanied by three other persons (two females one male) all of whom were yelling, the tenant kicked the front door of apartment 109 twice, drank from the bottle, then kicked the door a further two times.

17. An accompanying female (the tenant’s daughter) was bleeding from the face and spat in the hallway, being a common area of the building. The daughter then removed a Christmas wreath from the front door of apartment 109 so that it fell to the ground.

18. The tenant returned to apartment 108. The tenant subsequently exited apartment 108 and stomped on the Christmas wreath on the ground at the front of apartment 109.

19. At 4:17pm on 5 November 2024, the tenant used a cricket bat to forcefully strike the front door of apartment 109 once, damaging the front door.

20. At 10:11pm the tenant, accompanied by a male and two females, exited apartment 108 and approached the front door of apartment 109. The tenant repositioned a security camera so that it no longer captured images of the door of apartment 109.

21. Throughout the events the tenant and the persons accompanying her were yelling.

22. The tenant conducted themselves in the manner set out above based on her belief that person’s associated with apartment 109 had assaulted her daughter earlier on 5 November 2024 and presented an ongoing threat to her daughter.

23. The persons accompanying the tenant during the above events were her daughter and other persons who resided at the apartment block.

24. The following has previously occurred during the tenant’s residency at the premises prior to 5 November 2024.

25. In July 2022, a guest of the tenant created graffiti in an elevator at the apartment block. There is no evidence the tenant had control over this person at the time of the conduct.

26. In October 2022, a guest of the tenant stole a fire extinguisher affixed to common property at the apartment block. There is no evidence the tenant had control over this person at the time of the conduct.

27. In November 2022, the Tribunal made orders for specific performance in relation to impacts on neighbours.

28. In November 2022, a guest of the tenant damaged a fire exit sign on common property in the apartment block. The tenant disputes this occurred. There is no evidence that the tenant had control over this guest at the time of the conduct.

29. In December 2022, a guest of the tenant urinated in an elevator at the apartment block. There is no evidence that the tenant had control over this guest at the time of the conduct.

30. In July 2023, the tenant’s daughter vomited in the common area hallway at the apartment block. There is no evidence that the tenant had control over her daughter at the time of the conduct. The tenant made efforts to clean up the vomit.

31. In March 2024, the tenant’s daughter was heard by a neighbour to be yelling across to persons located across the street. The tenant disputes that this occurred. The Tribunal finds that it occurred.

32. In May 2024, guests of the tenant marked the walls of the apartment block with drawings. There is no evidence that the tenant had control over these persons at the time of the conduct. The tenant offered to clean the markings and alternatively pay for the cleaning.

33. There has been no other conduct of similar nature in relation to this tenancy since 5 November 2024.

34. Other than the matters set out above there is no evidence that the tenancy has had a negative effect on neighbouring tenants.

35. No other events occurring prior to 5 November 2024 capable of disclosing a breach of the residential tenancy agreement were proven by the landlord to have occurred. There was evidence of conduct by the tenant and persons associated with the tenant occurring in public areas outside of the apartment block. The tenant disputes this conduct occurred. This evidence does not establish a breach of the residential tenancy agreement.

36. The landlord alleged that the tenant had unauthorised occupants in residence in May 2024. The Tribunal accepts the tenant’s denial of this allegation as credible including her denial in relation to an occupant who is the subject of an apprehended violence order at present.

37. There is no evidence that neighbouring tenants will suffer serious adverse effects if the tenancy continues in the future.

38. Orders were made by the Tribunal for specific performance in relation to payment of rent on 19 August 2024. Those orders were complied with by the tenant.

39. There is no evidence that the tenant is wilfully or otherwise in breach of Tribunal orders.

Consideration

40. The Tribunal had regard to the oral submissions of the parties. The submissions of the parties may be summarised as follows. The landlord submitted that it had a responsibility to other tenants to bring the application, that the conduct was sufficient to warrant termination of the tenancy and that there was a future risk of adverse impacts on other tenants based on the section 154F neighbourhood impact statement. The landlord also submitted that the tenant’s daughter had further breached the residential tenancy agreement by altering the position of security cameras on one occasion after 5 November 2024 but there were otherwise no other breaches that had occurred between that time and the hearing.

41. The tenant made submissions as follows. The tenant submitted that she had previously been assaulted by the occupant of apartment 109 and that person was significantly pressuring her daughter to engage in illegal activities. The tenant submitted that it was in that context, with tensions running high, she engaged in the acts on 5 November 2024 set out in paragraphs 15 to 21 of this decision. The tenant expressed remorse for having done so. The tenant also submitted that all events of concern occurred on that single day in November 2024 and that she was not a bad tenant.

42. The tenant made further submissions, unsupported by evidence, as follows. The tenant submitted that she was the victim of domestic violence, The tenant expressed a desire to leave the residential tenancy eventually but submitted that she could not afford to move, had no other alternative arrangements in place, did not know when she might be in a position to do so, and was of limited financial means being in receipt of government benefits as her income. The tenant denied that her daughter had interfered with a security camera after 5 November 2024 on the basis that she and her daughter were not at the apartment block at that time.

43. During submissions it appeared to be agreed between the parties that prior to the 5 November 2024 incident the landlord offered the tenant alternative accommodation. The tenant submits that she refused the offer on the basis that the alternative was too small and a short term tenancy only.

44. The Tribunal considers that the termination notice issued by the landlord is a valid termination notice in that it complies with the technical requirements of a termination notice under the Residential Tenancies Act 2010.

45. The Tribunal considers that the conduct of the tenant on 5 November 2024 was in breach of the residential tenancy agreement.

46. The Tribunal has considered the circumstances of the case including the circumstances set out in section 87(4) of the Residential Tenancies Act 2010.

47. The Tribunal considers that the breach of the residential tenancy agreement on 5 November 2024 was serious and substantial. The Tribunal has also taken into consideration the circumstances in which the breach occurred. Those circumstances explain the reasons why the tenant acted as they did on 5 November 2024 but do not in any way excuse that action.

48. The Tribunal considers that there is no evidence of any breach of the tenancy agreement, including any breach involving aggression and property damage, engaged in by the tenant since 5 November 2024. The tenancy has been uneventful since 5 November 2024 to the date of the hearing on 8 May 2025, a period of 6 months. The Tribunal gives substantial weight to this in determining whether to terminate the tenancy.

49. The Tribunal has also considered the previous history of the tenancy. The tenancy has been in place for three years at the time of the hearing. In the context set out in paragraphs 11 and 12 of this decision, the tenancy has been relatively uneventful save for the intermittent matters set out in paragraphs 22 to 32 of this decision. The evidence has not demonstrated the tenant’s role in that conduct other than in attempting to mitigate the impacts of the conduct. Some of the conduct occurred in the context of Tribunal orders for specific performance made in October 2022 by consent.

50. For these reasons, the Tribunal considers that the breach, albeit serious, was isolated, not characteristic of the tenancy when considered as a whole and not reflective of the current position of the tenancy.

51. The Tribunal has also considered the mandatory matters as required by sections 154B and 154E of the Residential Tenancies Act 2010.

52. For the above reasons, and in the exercise of its discretion, the Tribunal considers that the tenancy should not be terminated. It is, however, appropriate to make orders for specific performance as breaches of the tenancy agreement did occur.

Orders

53. For the foregoing reasons I make the following orders:

1. The tenant must comply with the terms of the residential tenancy agreement by not causing or permitting a nuisance or interference with the reasonable peace, comfort or privacy of any neighbour of the tenant.

2. The tenant must comply with the terms of the residential tenancy agreement by not creating any noise in the flat or on the common area likely to interfere with the peaceful enjoyment of the tenant of another flat or any other person lawfully using the common area.

3. The tenant must comply with the terms of the residential tenancy agreement by not marking, painting, driving nails or screws or the like into, or otherwise damaging or defacing, any structure that forms part of the common area without the approval in writing of the landlord or an order of the Tribunal.

4. The tenant must comply with the terms of the residential tenancy agreement by not using language or behaving in a manner likely to cause offence or embarrassment to the tenant of another flat or to any person lawfully using the common area.

5. The tenant must comply with the terms of the residential tenancy agreement by taking all reasonable steps to ensure that invitees of the tenant do not behave in a manner likely to interfere with the peaceful enjoyment of the tenant of another flat or any person lawfully using the common area.

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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: 27 October 2025