Gerringong Housing Aboriginal Corporation v Williams

[2022] NSWCATCD 133

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Gerringong Housing Aboriginal Corporation v Williams [2022] NSWCATCD 133

Hearing dates:

4 August 2022

Date of orders:

10 August 2022

Decision date:

10 August 2022

Jurisdiction:

Consumer and Commercial Division

Before:

P French, Senior 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 30 August 2022.

4. The tenant shall pay the landlord a daily occupation fee at the rate of $23.57 per day from the day after the date for termination, namely 10 August 2022 until the date vacant.

5. Within 60 days of the date for 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. Any application for costs is to be filed with the Tribunal and served on the other party by 23 August 2022. The application is to include any evidence and supporting submissions limited to 5 A4 pages in not less than 11point font.

7. Any reply to any application for costs is to be filed with the Tribunal and served on the other party by 7 September 2022. Any reply is to include any supporting submissions limited to 5 A4 pages in not less than 11point font.

8. The Tribunal proposes to dispense with a hearing in relation to any application for costs. The parties are to include any submission they wish to make in relation to this proposed order in any application or reply to an application for costs.

9. Any costs application must set out the grounds upon which such an order should be made having regard to s 60(1), (2) and (3) of the Civil and Administrative Tribunal Act 2013.

10. The Tribunal is satisfied that the notice of hearing has been duly served on the respondent.

Catchwords:

LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – termination of a residential tenancy agreement – 90-day no grounds termination notice – defences – retaliatory notice

LEASES AND TENANCIES – words and phrases - meaning of “social housing provider” – whether agreement is a “social housing tenancy agreement”

Legislation Cited:

Aboriginal Housing Act 1998 (NSW), Part 5

Civil and Administrative Tribunal Act 2013 (NSW), s 60

Civil and Administrative Tribunal Rules 2014 (NSW), r 35

Companion Animals Act 1998 (NSW), Part 5

Residential Tenancies Act 2010 (NSW), ss 82, 83, 85, 115, 136, 254E, 154G

Residential Tenancies Regulation 2019 (NSW), rr 22, 39

Cases Cited:

Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317

Steinbeck v McDonald [2015] NSWCATAP 90

Williams v Gerringong Housing Aboriginal Corporation [2022] NSWCATAP 144

Texts Cited:

Consumer and Commercial Division Guideline: Costs

Category:

Principal judgment

Parties:

Gerringong Housing Aboriginal Corporation (Applicant)

Melissa Williams (Respondent)

Representation:

S Jarrett (Gerringong Housing Aboriginal Corporation (Applicant)

No appearance (Respondent)

File Number(s):

RT 22/20864

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by Gerringong Housing Aboriginal Corporation (the landlord) for orders pursuant to ss 83 and 85 of the Residential Tenancies Act 2010 (NSW) (the Act; RT Act) that would terminate a residential tenancy agreement that subsists between it and Melissa Williams (the tenant) and require her to give up possession of the rented premises on the basis that she has been served with a 90-day no-grounds termination notice. This application was originally made to the Tribunal on 23 June 2021 (the termination application). The tenant resists this order being made. She contends that the termination notice was given, and that this application has been made, in retaliation against her because she requested the landlord to carry out repairs to the premises.

2. For the reasons set out in greater detail following, the Tribunal has made orders terminating the residential tenancy agreement and requiring the tenant to give up possession of the premises. It is not satisfied that the landlord was wholly or partly motivated to give the notice because the tenant was asserting her right to repairs.

3. What was plainly causal of the landlord’s decision to terminate the tenancy was the tenant’s conduct in relation to her dangerous dog being impounded by Kiama Council Rangers under Part 5 of the Companion Animals Act 1998 (NSW). In this respect a tenant has no right to require a landlord to build (or pay for) a high fence, or to consent to the construction of another enclosure, to prevent a dangerous dog from escaping onto the street. Nor does a tenant have any right to abuse officers and associates of the landlord for failing support efforts to recover a dangerous dog that has been impounded by a local government authority. These are not matters capable of coming within the scope of s 115(2)(b).

Procedural History

4. This application was first heard and determined by the Tribunal, differently constituted, on 29 October 2021. The Tribunal made orders for termination and possession. That decision was the subject of a successful Appeal, determined on 6 May 2022, which resulted in the remittal of the application for re-determination by a differently constituted Tribunal: Williams v Gerringong Housing Aboriginal Corporation [2022] NSWCATAP 144.

5. The remitted application first came before the Tribunal, differently constituted, on 24 May 2022. The landlord attended that listing of the application. There was no appearance by the tenant. The Tribunal issued directions to the parties for the filing and exchange of the documentary evidence that they intended to rely upon at the final hearing. It granted leave to both parties to be represented in the proceedings, including by an Australian Legal Practitioner.

6. The application was listed for a Special Fixture Hearing before a differently constituted Tribunal on 30 June 2022. However, that hearing did not proceed because the tenant had only recently applied to Legal Aid to be represented in the proceedings, and no Legal Aid solicitor was available on that day to represent her. The Tribunal granted the tenant an adjournment for reasons it gave in writing at the conclusion of the hearing. The landlord applied for its costs of that hearing thrown away. The Tribunal deferred the question of costs to be determined in the final disposition of the application.

Hearing and Evidence

7. The landlord complied with the Tribunal’s directions for the filing of its documentary evidence. The landlord’s bundle, filed on 3 June 2021, was marked Exhibit A1. The tenant did not comply with the directions made on 24 May 2022 for the filing of evidence. This resulted in the Tribunal, on 30 June 2022, extending the time for the tenant to comply with these orders to 14 July 2022. The tenant did not comply with that order, but did submit an unsigned, undated statement with several documents attached, and submissions, on 28 July 2022. That effectively deprived the landlord of the opportunity to file any evidence in reply as permitted by order 4 of the orders made on 24 May 2022, as extended on 30 June 2022.

8. The landlord objected to the admission of the tenant’s bundle on this basis. However, after hearing the landlord’s objection I admitted it, insofar as it contained evidence, and marked it as Exhibit R1. I did so because it was in the interests of both parties that the application was dealt with to finality at the hearing, and this required me to consider the tenant’s defence to the application. Given the tenant’s non-appearance at the hearing, the only way that I could do so was to admit her statement and other documents into evidence and carefully consider their contents. For the same reason, I also admitted into evidence in this proceeding the bundle of documents the tenant filed in the original proceedings on 15 October 2021, which was marked Exhibit R2. There was some relevant material in this bundle that was not included in R1. Having reviewed the tenant’s documents and submissions I was satisfied that the landlord’s representative could make any necessary reply orally at the hearing.

9. The Special Fixture Hearing was conducted by AVL in a VMR in accordance with NCAT’s COVID-19 revised hearing procedure. The landlord was represented at the hearing by the Chairperson of its Board of Management, Mr Stanley Jarrett. He gave oral evidence under affirmation.

Ex-parte hearing

10. The hearing was scheduled to commence at 2:45pm. There was no appearance by either party at that time. The start of the hearing was delayed allowing the parties further time to appear. Mr Jarrett appeared at 3:00pm.

11. The Tribunal’s file contained a copy of the Notice of Hearing that the Divisional Registrar sent to the tenant on 5 July 2022. The addresses for service of the Notice were an email address the tenant had provided to the Registrar for this purpose and the address of the rented premises. There was no indication on the file that these Notices had not been received. Neither had been returned as undelivered. The file also indicated that the tenant had responded previously to Notices of hearing served to these addresses. In the absence of any evidence to the contrary, I was therefore satisfied that the tenant had received Notice of the hearing.

12. I confirmed with the Divisional Registrar’s delegate that the tenant had not made any last-minute application for adjournment of the hearing. Nor had she made any contact with the Registry to advise that she was having difficulties connected to the VMR.

13. Rule 35 of the Civil and Administrative Tribunal Rules2014 (NSW) provides that when exercising functions in the Consumer and Commercial Division the Tribunal may proceed to hear an application in the absence of a party provided it is satisfied that the absent party is on notice as to the hearing.

14. Having regard to that Rule, when there was no appearance by the tenant at 3:15pm I proceeded to hear the application in her absence.

Material facts

The termination application

15. The landlord is an Aboriginal Corporation that is a registered as an Aboriginal housing provider under Part 5 of the Aboriginal Housing Act 1998 (AH Act). It appears on the Aboriginal Housing Office’s Register of Aboriginal housing providers. However, it does not receive funding from the Aboriginal Housing Office to provide social housing services. The landlord contends on this basis that it is not a social housing provider and that the agreement that is the subject of this dispute is not a social housing tenancy agreement.

16. It appears to me that this proposition is at odds with the definition of “social housing provider” contained in s 136 of the RT Act, which I have set out below. That definition does not turn on whether the entity receives public funding to provide housing services. It turns on the entity’s registration status under Part 5 of the AH Act. A “social housing tenancy agreement” is defined in s 136 as a residential tenancy agreement where the landlord is a social housing provider, and “social housing premises” is defined as residential premises under a social housing tenancy agreement. I therefore conclude despite the landlord’s submission that this is a social housing tenancy proceeding to which Part 7 of the Act potentially applies.

17. However, this has limited practical relevance for the disposition of the proceedings. Section 85(3) concerns the exercise of a mandatory power which cannot attract any discretion conferred by s 154E of Part 7 of the Act for the reasons stated by the Court of Appeal in Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317. The fact that this is a social housing tenancy will however be relevant in relation to a possession order because of the operation of s 154G (as to which see following).

18. The landlord’s corporation is managed by a Board of Management some members of which are closely related to each other. This includes the Chairperson, his wife and a daughter, sister-in-law, and niece. Board members are also related to the tenant. Before the onset of this dispute, Board Members and the tenant socialised together, including in family gatherings. The events that preceded the issuing of the termination notice involved a breakdown of family relationships as well as the relationship of landlord and tenant (as to which see following).

19. At all material times the landlord had appointed a Managing Agent trading as Ray White Berry to manage the tenancy on its behalf. However, there was a high degree of interaction by the tenant in relation to tenancy issues not only through the agent, but also with members of the Board of Management of the landlord.

20. The dispute arises from an agreement in the (then) standard form for a residential tenancy agreement that was made between the parties on 20 May 2004. It was initially a fixed term agreement of 26 weeks duration which was expressed to commence on 20 May 2004 and end on 18 November 2002. In her statement the tenant refers to a second fixed term agreement being made in 2011. There is no evidence of a second agreement in the documents filed by either party. In any event, it is not in issue that at all material times for this dispute the tenancy has continued as a periodic agreement.

21. The rented premises is a three-bedroom house on a residential block in Gerringong. The tenant lives at the property with one other adult, Mr Athol Lester. The tenant has two children, one of whom is now an adult and the other 16 years of age. Neither now lives at the premises.

22. The rent payable under the agreement as at the date of the hearing is $165.00 per week, which equates to a daily rate of $23.57.

23. By a Notice of Termination dated 11 March 2021 the landlord terminated the residential tenancy agreement and required the tenant to return possession of the premises with effect on 9 June 2021. The Termination Notice was given under s 85(1) of the Act. It is a 90-day, no-grounds notice. The Termination Notice is in a standard form. The Notice was served by hand-delivery to the tenant’s letter box of a letter addressed to the tenant enclosing the termination Notice on 11 March 2021.

24. The tenant refused to give up possession of the premises in accordance with the Termination Notice which resulted in the landlord instituting this application.

The retaliatory eviction defence

25. In or about 2014 while her children were still living with her the tenant obtained a pup, which she named Jaxx. Jaxx is a Siberian Husky/Kelpie cross. The tenant and her children became very attached to Jaxx.

26. In or about March 2020 a large tree fell onto a section of the back fence of the premises. The tenant made several requests to the landlord’s agent to repair the fence. No repair was carried out.

27. The tenant contends that due to the state of disrepair of the fence Jaxx was able to get out of the back yard. On or about 3 September 2020 Jaxx escaped from the back yard and chased and either threatened or attacked (it is not clear which) a pedestrian and his dog on a public street near the premises. This resulted in Jaxx being captured and impounded by Kiama Council Rangers.

28. Jaxx was subsequently declared a dangerous dog pursuant to the provisions of Part 5 of the Companion Animals Act 1998 (NSW). It appears from the tenant’s evidence and submissions that Council would only agree to release Jaxx if the tenant complied with two conditions. First, a 1.8m fence had to be installed around the perimeter of the property. Second, Jaxx had to be housed in a fully enclosed pen no less than 4m x 3m in size with a solid floor, preferably concrete.

29. Sometime in early September 2020 the tenant telephoned Ms Gwenda Jarrett, who is a member of the landlord’s Board of Management to request the landlord to install a 1.8m perimeter fence and grant permission for her to construct an animal enclosure in the back yard. Ms Jarrett told the tenant she would table the request at a Board meeting for decision. The landlord did not make any decision concerning these requests for some time, which resulting in Jaxx continuing to be impounded. This was distressing for the tenant and one of her children.

30. The tenant formed a belief, based on statements made to her by Ms Jarrett, that Ms Jarrett and the Board more generally were supportive of her efforts to recover Jaxx from Council.

31. Later in September 2020 the tenant engaged a fencing contractor to install a 1.8m perimeter fence. This work was carried out on or about 25 September 2020. Prior to that work commencing the tenant wrote to Ms Jarrett as a Board Member of the landlord to request the landlord to pay half the cost of the fence. The landlord did not respond to that request. The landlord contends that it did not give its permission for the installation of this fence.

32. On 19 February 2021 the landlord’s agent conducted a routine inspection of the premises. There was a discussion between the Property Manager who conducted the inspection and the tenant about the fence and enclosure. The Property Manager told the tenant that the landlord did not want Jaxx to come back to the property.

33. On 19 February 2021 the tenant and Mr Lester made posts to a Facebook page shared with the landlord’s directors using hashtags #gogetfucked and #knifeinyaback.

34. The tenant’s post states:

Fuming!

Pretty putrid that people can’t be up Front … nah gotta spin ya lies n talk shit to ya face!

I’m Fucken DONE!

Can’t wait to leave this town to get me dog back.

35. Mr Lester’s post states:

Fuckin low life cunts!!! Ya’s know who ya’s are ya fuckin lower than a snakes belly. Don’t every call me family again you dogs. If ya got the balls come see me ya weak cunts!!! You know there I am ya fuckin putrid mutts … Sly, lying fuckin maggots … Always was & always will be dead & dog shit in my eyes … WEAK!!!!!

36. As a result of these posts and other communications by the tenant and Mr Lester some Board Members received emails, text messages and telephone calls from members of the local Aboriginal community in which they were criticised for failing to support the tenant to recover Jaxx from Council. One of these interactions involved Ms Tracey Van Oploo who is the tenant’s son’s aunt and first cousin of Ms Jarrett. Ms Van Oploo had at least two telephone calls with Ms Jarrett in which she expressed criticism of the Board’s handling of the situation and in which she demanded that action be taken to resolve matters.

37. On 25 February 2021 Ms Jarrett and the tenant and her father, Mr Robert Williams, met with Kiama Council Rangers to discuss what was required for Jaxx to be returned. It appears that the Rangers informed the meeting that they required the landlord to provide a letter giving the tenant authority to install the enclosure. Ms Jarrett stated at the meeting that the Board would review the situation based on the information Rangers had provided. At the conclusion of the meeting Ms Jarrett asked the tenant to post a comment to the Facebook page to the effect that the dispute with the Board (landlord) had now been resolved. The tenant refused to do so.

38. On 27 February 2021 there was to be a 70th birthday party for a relative of the tenant and Ms Jarrett (Ms Van Oploo’s mother). On 26 February 2021 Ms Van Oploo, who was one of the birthday organisers, telephoned Ms Jarrett to advise that she and her family were disinvited because of their failure to support the tenant to recover Jaxx.

39. At a meeting of the landlord’s Board conducted on 3 March 2021 it was resolved that the tenant would be issued with a 90-day termination notice and advised that the Board did not approve the installation of the enclosure. Among other minutes taken at that meeting the following statements appear:

Due to Melissa William’s dealing with Kiama council Rangers, as a tenant there are may issues and breaches, such as

• Numerous parties contacting the board via emails, text, phone calls which has caused animosity and negative conflict within the Gerringong Aboriginal communities and families within Gerringong.

• Fence was fixed, after being advised for her not to add any fixtures to the property without permission from GHAC board (Doc to support)

…

• Defaming and slandering comments on social media post towards GHAC Board.

40. On 11 March 2022 the landlord wrote to Kiama Council to state that the tenant would not be given permission to keep Jaxx or construct an enclosure to house him.

41. The tenant relies upon a witness statement given by Ms Van Oploo dated 12 October 2021. In that statement Ms Oploo states the following opinion:

I believe that Ms Williams eviction was in fact retaliatory and my involvement and pressure to make the GHAC act appropriately had agitated them.

I believe that Miss Williams eviction was in fact retaliatory as a result of my phone call informing the family they were not welcome to attend the 70th birthday celebration for mum.

42. The tenant also relies upon a witness statement given by Mr Williams which is dated 12 October 2021. In that statement Mr Williams states the following opinion:

I believe to be true that my daughter’s eviction was retaliatory as a result of her not agreeing to post on Facebook at Ms Jarrett’s request to indicate that the relationship between them was “all good” now, and that Ms Williams constant pressure to deal with the matter was agitating the GHAC.

I believe to be true that my daughter’s eviction was retaliatory as a result of her pressuring GHAC to fix her property where major repairs were needed such as her broken fence …

Contentions of the parties

43. The landlord contends that it is not required to justify its decision to terminate the agreement by reference to a specific reason, but states that it wants to recover the premises so that it can be relet to a family in need. It contends that the premises is not well utilised by providing accommodation to a single adult. It denies that it was wholly or partially motivated to make the termination application because of complaints by the tenant about a state of disrepair in the premises.

44. The tenant contends that the landlord was motivated to make this application because she made various requests for repairs. In particular, she says it was motivated by her request to the landlord to install (and her later request that it part pay for) a 1.8m perimeter fence, and an enclosure to accommodate Jaxx in the back yard.

Applicable law

45. Section 66 sets out the circumstances in which a tenant is entitled to make alterations to rented premises. It relevantly provides:

66 Tenant must not make alterations to premises without consent

(1) A tenant must not, without the landlord’s written consent or unless the residential tenancy otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises.

(2) A landlord must not unreasonably withhold consent to a fixture, or to an alteration, addition or renovation that is of a minor nature.

(2A) The regulations may make provision for or with respect to the following –

(a) the kinds of fixtures, or alterations, additions or renovations that are of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent,

…

(3) A landlord may withhold consent to any other action by the tenant that is permitted under this section whether or not it is reasonable to do so.

(4) This section is a term of very residential tenancy agreement.

46. Regulation 22(2) of the Residential Tenancies Regulation 2014 (NSW) (RT Regulation) prescribes the kind of fixtures, or alterations, additions or renovations that are of a minor nature for the purposes of s 66(2A)(a). For present purposes it is sufficient to note that they do include a perimeter fence or an animal enclosure.

47. Section 82 of the Act sets out the requirements for a termination notice. It provides:

82 Termination notices

(1) A termination notice must set out the following matters –

(a) the residential premises concerned,

(b) the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given,

(c) if the notice is not given under section 84, 85, 96 or 97, the ground for the notice,

…

(2) A termination notice must be in writing and be signed by the party giving the notice or the party’s agent.

(3) A termination notice for a periodic agreement may specify a day other than the last day of the period for the payment of rent as the termination date.

48. Section 85 of the Act deals with the termination of a residential tenancy agreement by a landlord. It provides (relevantly):

85 Termination of periodic agreement – no grounds required to be given

(1) A landlord may, at any time, give a termination notice for a periodic agreement.

(2) The termination notice must specify a date that is not earlier than 90 days after the day on which the notice is given.

…

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

…

49. Section 115 of the Act deals with retaliatory evictions. It provides, relevantly:

115 Retaliatory evictions

(1) The Tribunal may, … when considering an application for a termination order … -

(a) declare that a termination notice has no effect, or

(b) refuse to make a termination order,

if it is satisfied that the termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.

(2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons –

(a) the tenant had applied or proposed to apply to the Tribunal for an order.

(b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law,

(c) an order of the Tribunal was in force in relation to the landlord and tenant.

…

50. Part 7 of the Act deals with social housing tenancy agreements. Division 1 of that Part contains, in s 36, definitions of the terms “social housing premises”, “social housing provider”, and “social housing tenancy agreement” as follows:

136 Definitions

In this part –

…

“social housing premises” means residential premises under a social housing tenancy agreement.

“social housing provider” means any of the following –

…

(d) an organisation for the time being registered under Part 5 of the Aboriginal Housing Act 1998

…

“social housing tenancy agreement” means a residential tenancy agreement where the landlord is a social housing provider.

Consideration

51. To determine the outcome of this application the Tribunal must pose and answer the following questions:

1. Has the applicant issued a valid termination notice?

2. Was the application lodged within the applicable time limitation period?

3. Is the application retaliatory?

4. If so, should the Tribunal refuse to make a termination order?

5. If not, how should the Tribunal exercise its discretion in relation to the date for possession?

Validity of termination notice

52. The Termination Notice complies with the requirements of s 82. It is addressed to the tenant, sets out the address of the residential premises, specifies the date for termination and possession, is in writing, and it is signed by the landlord’s agent. The Notice was served on the tenant by delivery of a letter enclosing it to the tenant’s letter box on 11 March 2021. That is a method of service for notices required to be given under the Act permitted by s 223(1)(a)(iii). The tenant was thus provided with 90 days’ notice of termination as required by s 85(2). The Termination Notice is therefore valid.

The time limitation period

53. Section 83(2)(a) of the Act provides that an application for an order terminating a residential tenancy agreement must be made after the date for termination and within the period prescribed by the Regulation. Regulation 39(2) of the Residential Tenancies Regulation 2014 prescribes that period to be within 30 days after the date for termination. As I have set out above, the date for termination specified in the Notice was 9 June 2021 and this application was made on 23 June 2021. The application was thus made within the period permitted.

Retaliatory application

54. It follows from this factual determination that the Tribunal is bound by the mandatory terms of s 85(3) to make an order terminating the residential tenancy agreement unless it determines that this application is a retaliatory application, and in the exercise of discretion, it decides not to make a termination order. In this respect it is settled law that s 115 is a defence to a s 85 termination application despite the mandatory terms of s 85(3): Williams v Gerringong Housing Aboriginal Corporation [2022] NSWCATAP 144 at [30] and the cases cited there.

55. Consideration of a defence to a termination application based on s 115 is a two-step process: Steinbeck v McDonald [2015] NSWCATAP 90 at [26]. The Tribunal must first determine having regard to the terms of section 115(2) if the termination application is a retaliatory application. If that is not found, step 2 is not reached. If the termination application is found to be retaliatory the Tribunal must then consider in its discretion if it ought to refuse to make a termination order. If it does refuse, the termination application will be dismissed and the tenancy will continue unaffected by it.

56. For the tenant’s defence to succeed she bears the onus of establishing one or more of the circumstances described in s 115(2). The circumstances described in paragraphs (a) and (c) do not apply in this case. It is not contended that the tenant had applied or proposed to apply to the Tribunal for an order, or that any order of the Tribunal was in force with respect to the tenancy at the time the Termination Notice was given.

57. The tenant must therefore establish her defence based on paragraph (b). It is necessary for her to prove on the balance of probabilities that the landlord was wholly or partly motivated to make the termination application because she had taken or proposed to take other action to enforce a right that she had under the residential tenancy agreement, the RT Act, or another law.

58. The tenant refers generally in her submissions to requests for repairs that she made to the landlord’s agent and the landlord’s Board Members from 2017 up to the date the Termination Notice was issued. However, there is no evidence that these requests were in any way causal of the issuing of the Termination Notice.

59. Despite the landlord’s contention to the contrary, what was plainly causal of the issuing of that Notice was:

1. the tenant’s demand that the landlord install (or at least part pay for) a 1.8m perimeter fence and permit her to install an enclosure to house Jaxx so that he would be released back to her to live at the premises, and

2. the breakdown in the relationship between the tenant and the landlord’s Board Members that resulted, first, from the Board’s delay and indecision, and then later from its decision to refuse to permit the construction of the enclosure. In particular, the tenant and Mr Lester’s Facebook posts and the community reaction triggered by those posts was causal of the Board’s decision to issue the Termination Notice.

The Minutes of the landlord’s Board Meeting of 3 March 2021 put the issue of causation beyond doubt in this respect.

60. The difficulty for the tenant is that the installation of the high perimeter fence and enclosure do not involve any right inhering in her under the residential tenancy agreement, the RT Act, or any other law that is capable of enforcement. Her action with respect to the landlord in relation to these matters is therefore not capable of falling within the scope of s 115(2)(b).

61. The tenant may have had a right to the repair (and perhaps even the replacement) of the pre-existing fence which had been damaged by a falling tree. There is no evidence as to the condition of that fence, so it is not possible to be certain. But the dispute does not turn on that fence. It turns upon the installation of a 1.8m perimeter fence to contain Jaxx. In the circumstances such a fence constituted a capital improvement, and a (major) alteration to the premises within the meaning of s 66 of the Act. The tenant had no right to require the landlord to carry such an alteration, and she had no right to make such an alteration. The residential tenancy agreement did not permit it, and she did not have the landlord’s written consent to it as required by s 66(1). Because this was not a minor alteration (as prescribed by the Regulation) the landlord had an absolute right to refuse to permit it, whether it was reasonable or not to do so. No contingent tenant right exists in these circumstances, as it does with respect to the prescribed minor alterations (etc).

62. The enclosure would also have involved the installation of a fixture in the back yard of the premises. It would have been a 4m x 3m enclosure with a solid floor. Such a structure is not a minor fixture for the purposes of s 66(2), as Regulation 22(2) makes clear. The tenant therefore had no right with respect to the installation of such a fixture capable of enforcement that could bring her action against the landlord in relation to the enclosure within the scope of s 115(2)(b). The residential tenancy agreement did not permit it and the landlord had not given written permission for its installation.

63. It follows from this analysis that the tenant’s and Mr Lester’s Facebook posts do not concern action taken by the tenant to enforce a right, and in any event, a tenant does not have a right under the residential tenancy agreement, the RT Act, or any other law to use social media to abuse an officer or officers of the landlord.

64. For the foregoing reasons, the action taken by the tenant that was causative of the landlord’s decision to issue the Termination Notice and make the termination application is incapable of engaging a defence under s 115(2)(b). It did not involve action to enforce a right of the tenant known in law. There is therefore no basis upon which the termination application could be found to be a retaliatory application within the meaning of s 115. The tenant’s attempt to rely upon this defence fails.

65. It follows from this that the Tribunal must obey the mandatory terms of s 85(3) and make an order terminating the residential tenancy agreement.

66. If, for some reason, I am wrong in my conclusion that s 115(2)(b) is not engaged in the circumstances of this case and step to (the exercise of discretion to refuse to make a termination order) is reached, I would nevertheless have declined to exercise that discretion for two reasons. First, the tenant has now been on notice for a period of 17 months that the landlord wishes to recover possession of the premises. Ultimately, the tenant’s inferior leasehold interest in the property must give way to the landlord’s superior freehold interest. Second, it is clear there is a very serious breakdown in the relationship between the tenant and the landlord’s officers. It is not appropriate for the tenancy to continue in circumstances of such hostility.

Date for possession

67. Section 83 of the Act provides that if the Tribunal makes an order terminating a residential tenancy agreement, it must also make an order for possession of the residential premises, specifying the day on which the order takes effect. Section 114(1) provides that the Tribunal may suspend the operation of an order for possession for a specified period if it is 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. Section 114(2) provides that the Tribunal may impose an obligation on a tenant to pay a specified occupation fee for the period for which the order for possession is suspended.

68. As I have set out above, this is a social housing tenancy agreement. Section 154G provides that if an order is made for termination of a social housing tenancy agreement, the order for possession must not specify a day that the order for possession is to take effect that is later than 28 days after the day on which the termination is made unless the Tribunal is satisfied that there are exceptional circumstances justifying a later day.

69. The landlord submitted that it should be given immediate possession of the rented premises given the long period that has elapsed since the tenant was required to return possession, being a period of just under 14 months up to the date of the hearing. It submits she is a single person and that consequently the Tribunal does not have to have regard to the interests of dependent children or adults. The tenant did not address the issue of how much time she should be given to move out, if her defence failed, in her submissions.

70. In the exercise of discretion, I have determined to suspend the order for possession for a period of 21 days to 30 August 2022 to allow the tenant time to move from the premises in an orderly way. I do so by having regard to the following considerations:

1. Justice requires that the tenant have some further reasonable time to find alternative accommodation,

2. Although there is no specific evidence before the Tribunal as to the extent of the tenant’s household goods and personal effects, she has lived at the property for 18 years. There is therefore a likelihood that the tenant will have substantial household goods and personal effects to pack and move,

3. Although there is no corroborating objective evidence, in her unsigned statement the tenant states that she has mental health conditions that are disabling for her (paragraphs 14 to 16). It is therefore appropriate to provide some accommodation of the tenant’s disability by allowing her reasonable time to move,

4. It is in the interests of both parties that the tenant has time to attend to her end of tenancy obligations to the landlord before returning possession,

5. There is no evidence that the landlord requires immediate possession for any specific reason, such as the sale of the property, or for the commencement of work under a contract with a builder, for example,

6. The tenant has been on notice since 11 March 2021 that the landlord intends to recover possession of the premises. That is a substantial period, being a period of 17 months,

7. The tenant is a single adult who does not live with dependent children or adults whose needs limit her ability to find suitable alternative accommodation and move within a 21-day period.

8. Having regard to the history of the termination proceedings, and the breakdown in the relationship between the tenant and the landlord’s officers it is appropriate to bring the tenancy to an end within a reasonable time.

9. For the purposes of s 154G, there are no exceptional circumstances that would justify a suspension of the order for possession for greater than 28 days. Section 154G is not reached.

Costs

71. At the Special Fixture Hearing conducted on 30 June 2022 the landlord expressed an intention to apply for its costs of that hearing thrown away. The Tribunal, differently constituted, decided that any question of costs would be determined in disposition of the whole of the proceeding. I have therefore made orders to facilitate this.

72. Before any application for costs is made, the party making the application must have regard to the costs provisions found in s 60(1), (2) and (3) of the NCAT Act and the Consumer and Commercial Division’s Costs Guideline (August 2017). Submissions in support of, and in reply to, any costs application must address the relevant considerations identified in s 60 and the Guideline.

Orders

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

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 30 August 2022.

4. The tenant shall pay the landlord a daily occupation fee at the rate of $23.57 per day from the day after the date for termination, namely 10 August 2022 until the date vacant.

5. Within 60 days of the date for 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. Any application for costs is to be filed with the Tribunal and served on the other party by 23 August 2022. The application is to include any evidence and supporting submissions limited to 5 A4 pages in not less than 11point font.

7. Any reply to any application for costs is to be filed with the Tribunal and served on the other party by 7 September 2022. Any reply is to include any supporting submissions limited to 5 A4 pages in not less than 11point font.

8. The Tribunal proposes to dispense with a hearing in relation to any application for costs. The parties are to include any submission they wish to make in relation to this proposed order in any application or reply to an application for costs.

9. Any costs application must set out the grounds upon which such an order should be made having regard to s 60(1), (2) and (3) of the Civil and Administrative Tribunal Act 2013 (NSW).

10. The Tribunal is satisfied that the notice of hearing has been duly served on the respondent.

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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

Amendments

29 September 2023 - Formatting amendments.

Decision last updated: 29 September 2023