NSW Land and Housing Corporation v Christodoulou

[2013] NSWDC 81

District Court

New South Wales

Medium Neutral Citation:

NSW Land & Housing Corporation v Christodoulou [2013] NSWDC 81

Hearing dates:

20 & 21 March 2013, and subsequent written submissions

Decision date:

04 June 2013

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.The appeal is allowed;

2.The decision and orders made by the Consumer, Trader and Tenancy Tribunal on 24 September and 3 October 2012 are set aside;

3.The proceedings are remitted to the Consumer, Trader and Tenancy Tribunal for determination according to law;

4.The plaintiff's costs of the summons and of the appeal are to be paid by Mr Christodoulou on the ordinary basis, unless otherwise ordered;

5.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - appeal from decision of Consumer, Trader and Tenancy Tribunal seeking to set aside an order of that Tribunal declining to grant an order for the termination of a public housing tenancy - whether Tribunal made a decision involving an error on a question with respect to a matter of law pursuant to s 67(1) of the Consumer, Trader and Tenancy Act 2001 - appeal allowed - remittal for rehearing

Legislation Cited:

Companion Animals Act 1998, s 55
Consumer, Trader and Tenancy Act 2001, s 28, s 67
Residential Tenancies Act 2010, s 87, s 90, s 187

Cases Cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Foley v Padley [1984] HCA 50, (1984) 154 CLR 349
Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32, (2010) 241 CLR 390
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Maurici v Chief Commission of State Revenue [2003] HCA 8; (2003) 212 CLR 111
Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611
NSW Land and Housing Corporation v Green [1997] NSWSC 532

Category:

Principal judgment

Parties:

New South Wales Land and Housing Corporation (Plaintiff/Appellant)
Gregory Christodoulou (Defendant/Respondent)

Representation:

Mr S Gardiner (Plaintiff/Appellant)
Mr G Ng (Defendant/Respondent)
Michael Callen, Housing NSW (Plaintiff/Appellant)
Steve O'Connor, Legal Aid NSW (Defendant/Respondent)

File Number(s):

2012/341262

Publication restriction:

None

 Decision under appeal 

Date of Decision:

2012-09-24 00:00:00

Before:

Consumer, Trader and Tenancy Tribunal
Member S Hennings

File Number(s):

SH 12/29811

Judgment

Table of Contents

Summons	[1]
Underlying dispute	[2] - [3]
Factual background	[4] - [14]
Decision of the CTTT	[15] - [17]
Grounds of appeal	[18]
Orders sought	[19]
Legal principles governing the appeal	[20] - [26]
Evidence in the appeal	[27] - [29]
Submissions of the parties	[30]
Consideration	[31] - [82]
Ground 3 - Findings made without evidence	[32] - [48]
Ground 2 - Interpretation of lease clause 28.2	[49] - [66]
Ground 1 - Application of s 90 of RT Act	[67] - [82]
Conclusion	[83]
Disposition	[84]
Costs	[85]
Orders	[86]

Summons

1. The present summons raises an appeal from the decision of the Consumer Trader and Tenancy Tribunal ["CTTT"], which refused an application by the plaintiff, the NSW Land and Housing Corporation for an order terminating the public housing tenancy of the defendant, Gregory Christodoulou in respect of Housing Department premises at 22 Heathfield Place, Airds, NSW.

Underlying dispute

1. The dispute underlying this appeal relates to Mr Christodoulou's refusal to comply with a notice calling upon him to remove from the premises, his companion animal, a dog described as a male Rhodesian Ridgeback Cross Pit Bull, whom he called George.

1. The plaintiff's request for removal of the animal was because it had attacked and seriously injured the lower right leg of an employee of Housing NSW, who had lawfully entered the grounds for the purpose of speaking to Mr Christodoulou on departmental business. The injury in question is evident from the photograph within the CTTT file, as follows:

Factual background

1. On 13 September 1999, Mr Christodoulou entered into a formal residential tenancy agreement with the plaintiff, with effect from 5 July 1999. This agreement permitted him to occupy the public housing premises in question, but subject to conditions. Beforehand, he had lived at the same premises with his mother, who was the previous longstanding tenant. From time to time, representatives of the plaintiff would visit the premises for legitimate purposes. Those previous visits had occurred without incident, notwithstanding the presence of the dog.

1. Shortly after 10.00am on Tuesday 29 May 2012, an employee of Housing NSW, who need not be named for present purposes, made an unscheduled visit to the premises, in the course of visiting similar tenancies in the street, to advise Mr Christodoulou as to why and when he was to be relocated from those premises.

1. In order to gain entry into the premises for that purpose, that employee opened an unlocked gate from which a sign had been hung stating "DANGER NO UNAUTHORISED ENTRY". Before opening the gate, the employee had observed that sign, then looked around the front yard and saw nothing untoward. The context of that sign can be seen in the photograph that immediately follows:

1. Upon entering the front yard, the employee knocked on a garage door within the yard, and after receiving no response, she made her way to Mr Christodoulou's front door, and at the same time, looking about for animals as she did so. Seeing none, she knocked on the front screen door of the home occupied by Mr Christodoulou. At that time she heard sounds of a dog growling and running from within and from behind a screen door. On hearing those sounds, she immediately turned to leave, and as she did so, she saw the head of a large dog push itself through the screen door. The dog then chased her as she made her way to the gate. In those circumstances, she was in fear of the dog, and she ran screaming loudly as she proceeded to the gate.

1. At the gate, she found herself flung onto the footpath. She then realised she had been bitten by the dog. She received significant and painful tearing and puncture wounds to her left calf, with associated blood loss, and some loss of flesh from those wounds was evident. In those events, Mr Christodoulou approached and disengaged the dog from further attacking her. She was assisted at the scene by a colleague, and was then taken to hospital by ambulance for treatment. She has been left with scarring to her lower left leg, and she suffers from significant residual emotional trauma.

1. On 31 May 2012, Housing NSW sent Mr Christodoulou a letter, in the form of a notice recounting the above incident. That notice gave him 48 hours in which to remove the dog in question from the premises, a right that the Department was able to legitimately exercise under the terms of the residential tenancy agreement. That notice was not met with compliance.

1. As a result of Mr Christodoulou's non-compliance with that notice, on 4 June 2012, the plaintiff sent Mr Christodoulou a notice of termination of his residential tenancy agreement, citing the above incident, the request to remove the dog, and also citing his failure to comply with the earlier request to remove the dog. The notice was stated to be pursuant to s 87 of the Residential Tenancies Act 2010 ["RT Act"], and required that Mr Christodoulou give vacant possession of the premises within 14 days, namely 29 June 2012.

1. Mr Christodoulou did not comply with that termination notice. The plaintiff then advised Mr Christodoulou it would be proceeding with an application to terminate his tenancy. As a result of a notice given to Mr Christodoulou by investigating police, he then went about collecting signatures and evidence in support of his position to suggest that the dog was not of a breed to which s 55(1) of the Companion Animals Act 1998 applied. In order to keep his dog, he needed to show that the dog was not aggressive or dangerous within the meaning of that legislation. The availability of such evidence did not render ineffective the notices given by the plaintiff to Mr Christodoulou to remove the dog, and to vacate the premises.

1. On 6 June 2012, the plaintiff filed an application under s 90 of the RT Act, seeking an order terminating Mr Christodoulou's tenancy on account of the injury caused it its employee. After serving supporting documentation on Mr Christodoulou on 22 June 2012, the plaintiff then filed a second application in the CTTT on 3 July 2012.

1. That second application sought more clearly expressed orders against Mr Christodoulou compared to those evident in the first application. These proposed orders were, first, pursuant to s 187(1)(a) of the RT Act, seeking to restrain any action in breach of the residential tenancy agreement, secondly, pursuant to s 187(1)(b) of the RT Act, seeking performance of compliance with the residential tenancy agreement, and an order pursuant to s 87(1)(a) of the RT Act, on account of alleged breach of the residential tenancy agreement by Mr Christodoulou.

1. The CTTT heard both applications together and determined those matters on 24 September 2012. At that time, a short order was made dismissing the application. This was later followed by reasons, signed on behalf of the Registrar of the CTTT, 9 days later.

Decision of the CTTT

1. On 24 September 2012, the CTTT file recorded that it had dismissed the plaintiff's application, in the following terms:

"Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established."

1. Subsequently, on 3 October 2012, the CTTT delivered several pages of reasons for the above decision.

1. With two editing modifications that I have made for the purpose of publishing this judgment, a copy of those reasons has been replicated in the Appendix to this judgment. The first such modification relates to format, in that paragraph numbers have been added to the CTTT reasons for convenient reference in this judgment. The second such modification is the deletion of any references to the name of the injured employee of the Department, as it is not relevant that she be referred to by name, or identified in the appeal other than in the abstract.

Grounds of appeal

1. The plaintiff's summons raised the following grounds of appeal:

(1) The Tribunal erred in law in considering the meaning of "intentionally or recklessly" in section 90 of the Residential Tenancy Act 2010.

(2)   The Tribunal erred in law in determining and considering the "reasonable opinion of the landlord" in clause 28.2 of the residential tenancy agreement.

(3)   The Tribunal erred in making findings and subsequent orders based on no evidence.

Orders sought on appeal

1. The orders sought by the plaintiff in these proceedings are that the decision and orders of the CTTT be set aside, and a remittal of the proceedings to the CTTT to be determined according to law, plus costs.

Legal principles governing the appeal

1. In order to succeed in this appeal, the plaintiff must show that the CTTT erroneously decided a question with respect to a matter of law: s 67(1) of the Consumer, Trader and Tenancy Act 2001 ["CTTT Act"].

1. The question of whether or not there was evidence to support a factual finding is a question of law, not a question of fact: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32, at [91], (2010) 241 CLR 390. If the decision of a tribunal is guided by extraneous or irrelevant matters, this requires appellate intervention: NSW Land and Housing Corporation v Green [1997] NSWSC 532.

1. In an appeal of this kind, determining whether there has been Wednesbury unreasonableness in the decision under appeal, when a tribunal gives inadequate weight to certain matters, and undue weight to others, this of itself does not establish a case of unreasonableness: Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611, at [45] per Gleeson CJ and McHugh J; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

1. In reviewing decisions such as the one under present appeal, except in the case of a hearing de novo, the required test is not whether a court on review would have formed the opinion in question, but whether the repository of the power making the initial decision, could have formed the opinion in question, reasonably: Eshetu at [134] and [137], per Gummow J, following Foley v Padley [1984] HCA 50, (1984) 154 CLR 349, at 370.

1. Those latter propositions are subject to the following principles.

1. An appeal pursuant to s 67(1) of the CTTT Act on questions with respect to questions of law are not limited to explicit decisions formulated within the reasons under view. Such questions extend to the necessary steps in the reasoning of the Tribunal whose decision is under review, whether or not such reasons have been made explicit by the Tribunal: Kostas, at [23] approving Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312, at [47] per Bryson JA.

1. Questions with respect to a matter of law are wide enough to encompass a mixed question of law and fact. Such questions are often closely intertwined: Kostas, at [25], following Maurici v Chief Commission of State Revenue [2003] HCA 8; (2003) 212 CLR 111, at page 116, [8], where it was stated that questions of fact, law and opinion do not always readily and neatly divide themselves into discrete matters.

Evidence in the appeal

1. In addition to the material available in the underlying CTTT files, the evidence in the appeal was in affidavit form. Those affidavits included formal documents such as the residential tenancy agreement, relevant correspondence, and the notices to the defendant that have given rise to the present proceedings. Also included in the affidavit material was the transcript of the oral evidence before the CTTT, which comprised the evidence of the injured Departmental employee, and the evidence of Mr Christodoulou. There was no additional oral evidence.

1. During the course of argument in the appeal, on behalf of Mr Christodoulou, a point was taken as to whether there was evidence that the plaintiff in these proceedings was the correct entity for the purposes of forming opinions and issuing relevant notices.

1. In that regard, a distinction between the respective NSW Government entities, namely, NSW Land and Housing Corporation, which owned the premises, and Housing NSW, which administered the property, was sought to be made. That point had not arisen during the course of the hearing in the CTTT, and arose as a notice of contention filed on behalf of Mr Christodoulou. The plaintiff was given leave to file a supplementary affidavit to deal with that matter.

Submissions of the parties

1. Each party presented written submissions and supplemented those submissions with oral argument, which were in turn supplemented with further written submissions. I will refer to the substance of those submissions in the course of my consideration of the respective grounds relied upon by the plaintiff.

Consideration

1. In the paragraphs that follow, I set out my consideration of the respective grounds of appeal raised by the summons. For convenience of analysis, I will first give consideration to Ground 3, followed by Ground 2, and then Ground 1.

Ground 3 - Findings and orders made without evidence

1. In proceedings before the CTTT, it is a given that in determining the merits of the case before it, subject to the rules of procedural fairness, the jurisdiction of the CTTT is to be exercised according to equity, good conscience and the substantial merits of the case, with as little formality as the circumstances of the case permit, without regard to technicalities or legal forms: s 28(2) and (3) of the CTTT Act.

1. In such proceedings, on grounds of expedient justice, and subject to the rules of procedural fairness, the CTTT is not bound by the rules of evidence; s 28(2) of the CTTT Act.

1. It is against that background that the reasons of the Tribunal, which are replicated at paragraphs [1] to [35] of the Appendix to this judgment, should be evaluated.

1. In the appeal, the plaintiff complains that some matters which clearly influenced the outcome of the proceedings in the CTTT, were decided without evidence. In response, on behalf of Mr Christodoulou, it was contended that the findings made were justified on the evidence, and an attack on the CTTT reasons was impermissible as it involved a review of the merits of the decision.

1. In examining the decision of the CTTT, it is plain that in the course of giving his reasons, the CTTT Member engaged in a process of impermissible anthropomorphic speculation concerning the behaviour and motivation for the behaviour of Mr Christodoulou's dog: CTTT Reasons, para [33]. Those conclusions were plainly influenced by matters extraneous to, and therefore irrelevant to, the issues that were required to be decided by the CTTT.

1. At paragraphs [15] and [19] of the CTTT reasons (with the full text of paragraph [19] being repeated at paragraph [32] verbatim), it is clear that in the consideration, the CTTT Member was distracted and influenced by a consideration of the causative significance of the fear stricken behaviour of the injured employee as she attempted to flee from the dog that was pursuing and attacking her. The consideration the CTTT member gave to those matters was in the sense of a causation analysis as to what had led to the attack by the dog: CTTT Reasons, paragraphs [16], [19] and [33].

1. The perspective of that causation analysis was the CTTT Member focussing upon whether the plaintiff's employee had undergone training in how to deal with dogs on the job. The CTTT Member continued to be distracted by that matter which flowed on into the reasons for decision. The relevant passage of evidence appears in the CTTT transcript between pages T18.12 to T19.6, which is replicated as follows:

"Q. Does Housing give you any training in relation to how to deal with premises if you come upon them and there's a dog involved?

A. I haven't had any training. I don't know if it's offered.

Q. So you'd had no training by Housing in relation --

A. Not by Housing.

Q. -- to how to deal with dogs? Perhaps there's some type of general, I guess, theory that, you know, perhaps the community understands that if a dog starts to chase you, the worse thing you can do is run, scream; are you aware of that kind of thought?

A. I have seen it in the little fliers that are produced. I have only seen it when the kids have brought a flier home from school.

Q. So why did you then run and scream?

A. That was my first instinct. I don't know. That was the first thing I thought of doing.

MR SPACKMAN: Member, I would submit that in the circumstances, if a large bull mastiff dog is chasing you, someone is hardly likely to hang around and wait to see what the result may be.

THE TRIBUNAL MEMBER: I guess that's a matter for the submissions, Mr Spackman, but I'm just asking her in relation to a general understanding of dogs and the fact that, you know, the worst thing you can do is run and scream, and this witness agreed that she was aware of that kind of flier, so I'm just asking her why she ran and screamed.

MR SPACKMAN: Because she had a bull mastiff chasing her.

THE TRIBUNAL MEMBER: I accept that, but that may be something that's relevant to what's happened.

THE WITNESS: The alternative is just to stand there and be eaten alive."

1. The last answer ought to have put an end to that aspect of the consideration, but it did not.

1. The causation consideration was entirely extraneous to the central questions before the CTTT, namely, the question of whether or not the plaintiff had issued to Mr Christodoulou a valid notice to remove the dog from the premises, and the question of whether Mr Christodoulou was in fact in breach of that notice.

1. At paragraph [33] of the CTTT reasons, without evidence, the CTTT Member stated the anthropomorphic conclusion that "the dog was ultimately just protecting its territory". That conclusion was without supporting evidence. It was given as a justification for refusing the plaintiff's application.

1. The conclusion cited above was plainly an inference based upon speculation, where this was not the only inference available. An alternative inference equally open, being that the dog was not under relevant or adequate control by Mr Christodoulou at the time of the attack: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.

1. These matters, for which there was no evidence, are not just factual matters or matters of assumed notoriety that permitted evidence to be dispensed with by an application of the facilitative or permissive rubric of "the circumstances of the case": s 28(3) of the CTTT Act.

1. It is a well settled legal principle that when a tribunal decides a question of fact where there is no evidence to support that finding of fact, this amounts to an error of law: Kostas at [91]. Findings of that kind without supporting evidence, amount to errors on a question with respect to a matter of law, within the meaning of s 67(1) of the CTTT Act.

1. Furthermore, the CTTT reasons demonstrate that the extraneous matters cited, were necessary steps that were implicit in influencing the outcome: Kostas, at [23]; Kalokerinos, at [47].

1. In my view, the reasons of the CTTT in this case are affected by such errors as explained in the preceding paragraphs. This involved error on a question with respect to a matter of law because a decision was made on a factual matter without supporting evidence. As a consequence, I have concluded that Ground 3 of the appeal should be allowed.

1. Furthermore, the CTTT reasons do not engage with the central issues identified at paragraph [34] above. Instead, the proceedings seemed to involve considerations in the nature of a plea for keeping the dog because of Mr Christodoulou's attachment to it, which was a secondary matter that had little to do with the legal issues to be decided by the CTTT.

1. Although the conclusion on Ground 3 determines the outcome of the summons in favour of the plaintiff, it is still necessary to consider the remaining grounds of the appeal.

Ground 2 - Landlord's reasonable opinion - lease Clause 28.2

1. Clause 28.2 of the lease or residential tenancy agreement for the premises provides:

"The tenant agrees to remove any pet, within forty-eight hours, where in the reasonable opinion of the landlord, the pet is not suitable to be kept on the premises and the landlord gives the tenant written notice to that effect"

1. There was no issue that Mr Christodoulou had not complied with that 48-hour notice to remove the dog from the premises. The true matter at issue in connection with Ground 2 was whether the evidence before the CTTT established the existence of the reasonable opinion of the landlord as to the unsuitability of the dog to be kept on the premises, as provided by Clause 28.2 of the residential tenancy agreement.

1. In that regard, the plaintiff has argued that the evidence before the CTTT was sufficient to base the conclusion that Mr Christodoulou was in breach of Clause 28.2 of his agreement with the plaintiff. The plaintiff further argued that the finding of the CTTT concerning the suitability of the dog to be kept on the premises was so unreasonable and plainly unjust that the appeal should be upheld.

1. In contrast, on behalf of Mr Christodoulou, it was argued that there was no evidence before the CTTT of the fact or content of the landlord's reasonable opinion as to the unsuitability of the dog, which was argued to be the necessary precondition for the notice given to Mr Christodoulou to remove the dog from the premises. That argument proceeded according to a notice of contention relied upon by Mr Christodoulou, which was not opposed by the plaintiff.

1. In my view, the argument concerning the claimed absence of evidence as to the content of the landlord's opinion, should not be accepted, for the reasons that follow.

1. The evidence discloses that Mr Christodoulou was a tenant in public housing which was owned by the State of New South Wales, through the Department of Housing. The logo of "Housing New South Wales", and the document header "Department of Housing" appear on the front page of Parts 1 and 2 of the residential tenancy agreement relating to Mr Christodoulou's tenancy.

1. The term "landlord" is defined to be the person who grants the right to occupy residential premises under the agreement, and includes assigns: Exhibit "A", page 47. The term "landlord's agent" means the person who acts as the landlord's agent, amongst other things, the letting of premises or the collection of rent: Exhibit "A", page 47. The descriptions in the documentary evidence, and the employment status of the injured Housing NSW employee compel the conclusion that the injured employee was visiting the premises as the landlord's agent. The definitions of these terms have to be afforded a purposive and practical construction.

1. The notice dated 31 May 2012 addressed to Mr Christodoulou calling upon him to remove the dog pursuant to Clause 28.2 was issued on the letterhead of "NSW Government, Family and Community Services Housing NSW", and it was clearly written on behalf of "Housing NSW": Exhibit "A", page 57.

1. On the evidence of this case, there is no reasonable room for doubt that when Mr Christodoulou received the notice to remove his dog, he was made aware that he was being addressed as the tenant of public housing premises, by the owner of that property, an instrumentality of the State of NSW. By that notice, he was being called upon by the owner to take the action of removing his dog in accordance with the terms of the residential tenancy agreement: Exhibit "A", page 57.

1. Similarly, the first paragraph of the letter of notice made clear reference to the undisputed fact that Mr Christodoulou's dog had attacked an employee of Housing NSW at the premises on the day in question, requiring that the employee be hospitalised. The letter clearly foreshadowed a notice of termination of the tenancy and subsequent proceedings in the CTTT in the event of non-compliance with the notice to remove the dog from the premises.

1. In those circumstances, I find that there is no room for reasonable doubt that the author of that letter was conveying a reasoned opinion for Mr Christodoulou's dog to be removed from the premises within 48-hours as it was a pet that was unsuitable to be kept on the premises: Exhibit "A", page 57.

1. The reasons of the CTTT at paragraphs [27] and [29], suggesting that the landlord's consideration to the effect that the dog was unsuitable to be kept on the premises was not "a genuine process" has ignored the explicit and implicit reasoning in the notice served by the landlord, which was in turn based on the fact of the attack by the dog. In that sense, the CTTT decision overlooked important evidence on the issue of suitability of the dog to be kept on the premises, and the opinion of the landlord on that topic.

1. In those circumstances, the argument made on behalf of Mr Christodoulou, that the plaintiff did not hold the requisite opinion for invoking Clause 28.2 of the residential tenancy agreement, is apt to mislead in the context in which it is made, and must be rejected.

1. The relevant context to which I refer is the reality of the fact that the premises comprised public housing owned by the NSW Government, the fact that the plaintiff is a legal instrumentality of the NSW Government, and the proceedings in the CTTT were required to be conducted without regard to technicalities or legal forms: s 28(3) of the CTTT Act. Furthermore, the "full circumstances" referred to in paragraphs [30] and [32] of the CTTT reasons amount to no more than a subjective plea to keep the dog, and have very little to do with the enforcement of Clause 28.2 of the residential tenancy agreement which bound the parties.

1. In light of that analysis, I consider that it cannot be a reasonably held view that the necessary precondition for a valid termination notice for the tenancy was not established in the evidence before the CTTT.

1. There was no contest that Mr Christodoulou failed to comply with the terms of the notice to remove his dog. That failure in turn triggered the termination notice relied upon by the plaintiff to commence the termination of tenancy proceedings in the CTTT, as was foreshadowed by the Departmental letter to Mr Christodoulou dated 31 May 2012.

1. In those circumstances, I consider that the finding by the CTTT Member that Mr Christodoulou was not in relevant breach of Clause 28.2 of his residential tenancy agreement, was so wholly unreasonable that it should not stand: Eshetu, at [134] and [137].

1. Accordingly, I therefore find that Ground 2 of the appeal should also be allowed.

Ground 1 - s 90 of the RT Act - "intentionally or recklessly"

1. Section 90 of the RT Act provides:

"90 Serious damage or injury by tenant or other occupant

(1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted:

(a) serious damage to the residential premises or any neighbouring property (including any property available for use by the tenant in common with others), or

(b) injury to the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent, or an occupier or person on neighbouring property or premises used in common with the tenant.

(2) The termination order may specify that the order for possession takes effect immediately.

(3) A landlord may make an application under this section without giving the tenant a termination notice.

(4) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.

(5) In this section:

neighbouring property means:

(a) property adjoining or adjacent to the residential premises, or

(b) property owned by the landlord in the general locality of the residential premises."

1. The plaintiff contended that the CTTT erred in law when applying s 90 of the RT Act to the facts, and therefore reached an unreasonable and unjust conclusion that there had been no relevant breach of s 90.

1. In contrast, on behalf of Mr Christodoulou, it was submitted that the plaintiff's attack upon the reasons of the CTTT concerning the construction of s 90 of the RT Act, amounted to no more than an impermissible attack on the merits of the decision under appeal: Eshetu, at [134].

1. I do not accept that submission, for the reasons that follow.

1. In the CTTT, the plaintiff's invocation of s 90 of the RT Act required a consideration of whether the facts and circumstances of the case came within the purview of that section.

1. There is no room for doubt that the injured employee was injured on the footpath outside of the premises. In that sense, she was a person on "neighbouring property" within the meaning of s 90(1)(b) of the RT Act. Similarly, and within the meaning of s 90(1) of the RT Act. She was an employee of the plaintiff as was conceded at CTTT transcript T4.6 and T10.18 - T10.21, who was seriously injured in the attack by the dog, a fact that was "undisputed" and accepted by the CTTT at paragraphs [6] and [20] of the CTTT reasons.

1. In those circumstances, provided the plaintiff could show that Mr Christodoulou had "intentionally or recklessly caused or permitted" the damage in question, it was entitled to an order terminating the tenancy: s 90(1) of the RT Act.

1. At paragraph [21] of the CTTT reasons the plaintiff's application under s 90 of the RT Act was dismissed. That dismissal was notwithstanding that all the required elements of s 90 had been proven, and accepted by the CTTT. Those elements were:

(a)   The employment status of the employee of the plaintiff: see CTTT Reasons, para [6]; CTTT transcript of evidence T4.6; T10.8-T10.21;

(b)   The infliction of serious injury on the employee after she had left the premises and had tried to close the gate behind her: see CTTT reasons, paragraphs [7], [16], [19], [20]; CTTT transcript of evidence, at T729-T7.32; T13.1-T13.6; T21.13-T24.39.

1. On the question of whether the tenant intentionally or recklessly caused the employee to be injured, the CTTT first embarked upon an irrelevant enquiry, namely whether the employee caused or contributed to her own injury, and found that she had contributed to her injuries: see CTTT reasons, paragraphs [13], [16], [32] and [33].

1. The finding that the actions of the employee contributed to her own injury (by entering the premises in the face of a non-specific sign and then running and screaming when she became aware of the presence of the dog) and the speculation that the dog was "just protecting his territory" (at para [33] of the CTTT reasons) was as a result of a misdirected inquiry on the question of whether there was the requisite intent or recklessness on the part of Mr Christodoulou, within the meaning of s 90(1) of the RT Act.

1. The evidence did not support a case of intentional damage, and that element was not argued. The evidence did however support a case of recklessness, which was not given the consideration that was required by s 90(1) of the RT Act.

1. The case for recklessness was as follows:

(a)   Mr Christodoulou had erected a "Danger" sign at the gate because of the presence of the dog on the premises, yet that sign did not specify or particularise the danger, a matter that must have been known to him as being peculiarly within his knowledge. The only reason for attaching that sign, on the evidence, was the presence of the dog on the premises. This shows that Mr Christodoulou recognised that the dog posed a danger to others. Contrary to the finding at paragraph [18] of the CTTT reasons, it is therefore plain that Mr Christodoulou had "some kind of information about the dog" that was relevant to a consideration of recklessness;

(b)   In his evidence, Mr Christodoulou acknowledged that 9 times out of 10, the dog was locked in the house: CTTT transcript T28.46. This could well explain why there were no other incidents of a similar nature: see CTTT reasons, para [19];

(c)   Mr Christodoulou was able to successfully command the dog to stop it from continuing to attack the Housing NSW employee, which suggests he was able to keep the dog under control if he had turned his mind to that task: see CTTT reasons, para [17];

(d)   To the knowledge of Mr Christodoulou, the dog habitually had in the past behaved aggressively to others in that on Mondays to Fridays the dog barks at the postman, and the dog is therefore kept inside: CTTT transcript T24.18-T24.26;

(e)   On the occasion of the attack in question, the dog was not locked in the house, but was instead able, without restraint or impediment or other means of control, such as a leash, push its way through a screen door to pursue and attack a person: CTTT transcript T20.46;

(f)   The fact that there was a non-specific warning sign on the gate, warning of a danger and purporting to prohibit "unauthorised entry", was not a legal barrier to an employee of the plaintiff, or a related instrumentality, or other persons with legitimate purposes, from opening an un-padlocked gate to seek to speak with Mr Christodoulou, the tenant and occupant of the premises;

(g)   On the day in question, the gate was not re-padlocked after Mr Christodoulou had taken the dog for a walk because Mr Christodoulou "hadn't clicked the padlock back on": CTTT transcript T23.47.

1. In light of the above factors, in my view, the decision at paragraph [21] of the CTTT reasons, that there was no recklessness on the part of Mr Christodoulou, involves a question of mixed fact and law which involves an error on a question with respect to a matter of law: s 67(1) of the CTTT Act; Kostas, at [91].

1. Against that conclusion is the argument put on behalf of Mr Christodoulou, that for acceptance, such a conclusion must necessarily proceed upon the basis of an impermissible attack on the reasons of the CTTT: Eshetu, at [134].

1. In my view, that argument is no answer to the conclusion at paragraph [77] above, for two reasons. First, in considering the plaintiff's claim that the requisite "recklessness" within the meaning of s 90(1) of the RT Act had been made out on the evidence, the CTTT did not refer to the relevant elements within the evidence. Secondly, the examination of the factors outlined in paragraph [78] above, is part of the process of determining whether or not s 90(1) of the RT Act has been satisfied, in order to determine whether a basis had been shown for the remedy claimed. The failure of the CTTT to undertake that evaluation of the evidence is not simply a matter of whether greater weight had been given to some matters in favour of others, as was discussed in Eshetu, at [45], but rather, it represents a failure to give any relevant consideration to those matters.

1. Therefore, in my view, this amounts to an error with respect to a question of law, thus requiring that Ground 1 of the plaintiff's appeal should also be allowed.

Conclusion

1. As a consequence of the dismissal of the plaintiff's application under s 90(1) of the RT Act, the CTTT determined, at paragraph [35] of its reasons, that it was not necessary for it to proceed to determine the application by the plaintiff pursuant to s 87 and s 187 of the RT Act, seeking possession of the premises or specific performance. Those issues must now be determined by a differently constituted CTTT on remittal following this judgment.

Disposition

1. On each ground of appeal, the plaintiff has demonstrated that within the reasons for decision by the CTTT there are relevant errors on questions with respect to matters of law. The appeal must therefore succeed on all grounds.

Costs

1. As the plaintiff has succeeded in the appeal, it is entitled to an order that the defendant pay its costs on the ordinary basis unless a party can show an entitlement to some other order.

Orders

1. I make the following orders:

(1)   The appeal is allowed;

(2)   The decision and orders made by the Consumer, Trader and Tenancy Tribunal on 24 September and 3 October 2012 are set aside;

(3)   The proceedings are remitted to the Consumer, Trader and Tenancy Tribunal for determination according to law;

(4)   The plaintiff's costs of the summons and of the appeal are to be paid by Mr Christodoulou on the ordinary basis, unless otherwise ordered;

(5)   Liberty to apply on 7 days notice if further orders are required.

Appendix - Reasons for Decision of CTTT

1.   Reasons for Decision:

2.   These reasons are issued in relation to both related matters 12/29811 and 12/34613.

3.   Both parties sent in material in accordance with the process for the Tribunal to consider. Both parties attended the formal hearing and stated that they were ready to proceed. Both parties agreed that conciliation had not resolved the matter. Both parties sought the matter be determined by the Tribunal. Both parties were given an opportunity to state their case. The Tribunal has reached this decision following due and careful consideration of the legislation, the evidence presented and the submissions made by the parties at the formal hearing.

4.   The landlord was represented by Mr Spackman.

5.   The tenant was represented by Ms Coveney from the South West Sydney Tenants Advice and Advocacy Service.

6.   The undisputed facts are as follows:

-  The tenant has lived at the premises for approximately 40 years, initially under his mother's tenancy with NSW Land and Housing Corporation.

-  The tenant took over his mother's tenancy and the parties entered into a residential tenancy agreement on 13 September 1999.

-  The tenant is still in the premises.

-  The tenant has had the subject dog at the premises since he was a puppy.

-  The dog is approximately 10 years old.

-  NSW Land and Housing Corporation was aware of the dog being at the premises.

-  [Name of employee is deleted] is employed by NSW Land and Housing Corporation.

-  On 29 May 2012 she attended the tenant's premises as part of her job to explain to the tenant about why and when he would be relocated.

-  The visit was unscheduled in that NSW Land and Housing Corporation had not written to the tenant to advise of the visit.

-  The tenant's premises have a gate with a large red sign on it saying "DANGER NO UNAUTHORISED ENTRY".

-  The gate was shut when [Name of employee is deleted] attended the tenant's premises. The gate was not padlocked.

-  [Name of employee is deleted] opened the gate, entered the premises and approached the front door.

-  [Name of employee is deleted] became aware of the dog inside the premises.

-  [Name of employee is deleted] attempted to leave the premises running and screaming.

-  The dog got out of the house, chased and bit [Name of employee is deleted] causing her injury.

-  There are no other incidents of concern or any previous issues in relation to the dog.

7.   The Tribunal was satisfied that the incident was very traumatic for [Name of employee is deleted] and has caused her injury which resulted in her being off work for approximately 3 months. The Tribunal was also satisfied that the tenant showed genuine concern for [Name of employee is deleted] and was apologetic for what had happened.

8. The landlord sought an order for termination and possession of the premises under both Sections 87 & 90 of the Residential Tenancies Act 2010 (Section 90 application was matter 12/29811 and Section 87 application was matter 12/34613). The tenant opposed the orders. The Tribunal has jurisdiction to determine both matters.

9. The relevant provision of Section 90 of the Residential Tenancies Act 2010 is set out as follows:

10.   90 Serious damage or injury by tenant or other occupant

(1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted:

(b) injury to the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent, or an occupier or person on neighbouring property or premises used in common with the tenant.

11.   The Landlord's submission was that the tenant recklessly caused or permitted the injury to [Name of employee is deleted]. The landlord relied upon the fact that the tenant had failed to padlock the gate. The landlord submitted that the tenant has now put a "Beware of the Dog" sign on the gate and this should have been there before.

12.   The Tribunal was satisfied that the tenant had placed a large red sign on the gate saying "DANGER NO UNAUTHORISED ENTRY".

13.   The Tribunal was satisfied that the tenant was not expecting a visit from anyone from NSW Land and Housing Corporation on that day. [Name of employee is deleted] agreed that she had read the sign but still decided to enter the property. The parties agreed that at that time the dog was inside the house with the tenant.

14. The Tribunal accepted the tenant's independent written evidence that he has since had the dog assessed as a non restricted dog under Section 55(1) of the Companion Animals Act 1998.

15.   The Tribunal also accepted the tenant's corroborated evidence that in 10 years the dog has not exhibited any other similar behaviour and this was out of character.

16.   [Name of employee is deleted] agreed that when she heard and saw the dog she turned, ran and screamed in trying to get off the premises. [Name of employee is deleted] stated that her employer had not given her any training about how to deal with dogs if she came across them during home visits. [Name of employee is deleted] agreed that her own general knowledge was that if you are being chased by a dog, you shouldn't run and scream. The dog caught and bit [Name of employee is deleted] as she was trying to get out of the gate.

17.   The Tribunal accepted the tenant's evidence that as soon as he became aware of what was happening he took immediate action and ran outside and called the dog to stop. The Tribunal accepted that the dog responded to the tenants command and stopped. The evidence was that the dog did not continue to bite [Name of employee is deleted].

18.   The Tribunal considered that for the tenant in theses circumstances to recklessly cause or permit the dog to injure [Name of employee is deleted] would have required him to have some kind of information about the dog which he failed to turn his mind to and act upon or some type of action which he inadvertently promoted that allowed the dog to attack.

19.   The applicant was aware of the tenant's dog at the premises. Previous representatives of the landlord have attended the premises without incident. The tenant was not expecting a visit from the landlord's representative on that day. The gate had a sign on it warning [Name of employee is deleted] not to enter. [Name of employee is deleted] disregarded the sign and entered the property. The dog was inside the premises with the tenant. In 10 years there have been no other incidents of a similar nature and the dog is not a restricted dog. [Name of employee is deleted] on hearing and seeing the dog ran and screamed in trying to get off the premises. The dog got out of the house and chased her and bit her as she was trying to get out the gate. The tenant immediately reacted and intervened to stop the dog. The dog responded to the tenants command and stopped.

20.   The Tribunal accepts that it was a serious and traumatic incident for [Name of employee is deleted]. However, in the circumstances as they occurred, the Tribunal accepted the tenant's submission in finding that he did not recklessly cause or permit the injury to [Name of employee is deleted]. The Tribunal does not accept that in not having the gate padlocked, or a sign stating "Beware of the Dog" that the tenant recklessly caused or permitted the injury to [Name of employee is deleted].

21. The application for an order pursuant to Section 90 of the Residential Tenancies Act 2010 is dismissed.

22. The landlord also sought an order for termination and possession of the premises under Section 87 of the Residential Tenancies Act 2010. The landlord claimed that the tenant had breached clause 28.2 of the residential tenancy agreement by failing to comply with written notice issued on 31 May 2012 requiring the tenant remove the dog from the premises within 48 hours.

23.   Clause 28 of the residential tenancy agreement is set out as follows:

Keeping of Pets

28.1 The landlord agrees the tenant may keep pets in the premises if the pets do not interfere with the reasonable peace, comfort and privacy of neighbours.

28.2 The tenant agrees to remove any pet, within forty-eight (48) hours, where in the reasonable opinion of the landlord, the pet is not suitable to be kept on the premises and the landlord gives the tenant written notice to that effect.

24.   In relation to Clause 28.1 there was no evidence before the Tribunal to suggest that the tenant's dog was interfering with the reasonable peace, comfort and privacy of neighbours. In contrary, the tenant submitted evidence from Franchesca Zacchini, Jeffery Blume and Shirley McNab to establish that his dog was well cared for, obedient, interacts well with children and had never exhibited this type of aggressive behaviour before.

25.   The tenant also submitted a "Petition to save George" with many names on it. The Tribunal was told that the petition was left at a local business for people to sign in the area if they knew George or after being told by the Business Owner the facts about the case. There was no evidence from the Business Owner as to what they told the petitioners and the circumstances of their signing the petition. The names and addresses of a number of the petitioners appeared to the Tribunal to be remote from the tenant's premises. In those circumstances the Tribunal placed very little weight on the petition.

26.   The Tribunal was satisfied that the application for termination and possession related to Clause 28.2 and the tenant failing to comply with the written notice issued on 31 May 2012 requiring the tenant remove the dog from the premises within 48 hours.

27.   For the landlord to rely upon Clause 28.2, the Tribunal was satisfied that the first element to be considered was whether the landlord's opinion was "reasonable" that the dog was not suitable to be kept on the premises. It is implicit in this clause that the consideration of whether the dog was not suitable to be kept on the premises must be a genuine process and each situation must be considered by the landlord on its individual merits. Conversely if the landlord's opinion was not reasonable, then the landlord had no justification for issuing the written notice and the landlord could not rely upon the notice to allege that the tenant had breached the residential tenancy agreement.

28.   The Tribunal was satisfied that the reasonableness of the landlord's opinion as to whether the dog was not suitable to be kept on the premises must be considered in relation to the full merits of the matter.

29.   The landlord's submission revolved around the fact that the dog has attacked someone and therefore they decided after the attack that the dog was not suitable to be kept on the premises. However, the landlord's submission failed to demonstrate how they had taken into account the full circumstances of the matter.

30.   Again the full circumstances of the matter are as follows:

31. The tenant has had the subject dog at the premises since he was a puppy. The dog is approximately 10 years old. The dog has since been assessed as a non restricted dog under Section 55(1) of the Companion Animals Act 1998. There has been no previous similar incident of any kind. There was no evidence before the Tribunal to suggest that the tenant's dog was interfering with the reasonable peace, comfort and privacy of neighbours. The tenant had placed a large red sign on the gate saying "DANGER NO UNAUTHORISED ENTRY". The tenant has since put an additional sign on the gate stating "Beware of the Dog". The tenant is very attached to his dog and does not want to loose (sic for lose) him. Other people who know the dog attest to his good nature and that the event is out of character. The tenant submitted that it is very unlikely that a similar event will ever occur again.

32.   Additionally, the applicant was aware of the tenant's dog at the premises. Previous representatives of the landlord have attended the premises without incident. The tenant was not expecting a visit from the landlord's representative on that day. The gate had a sign on it warning [Name of employee is deleted] not to enter. [Name of employee is deleted] disregarded the sign and entered the property. The dog was inside the premises with the tenant. [Name of employee is deleted] on hearing and seeing the dog ran and screamed in trying to get back out the gate. The dog got out of the house and chased her and bit her as she was trying to get out the gate. The tenant immediately reacted and intervened to stop the dog. The dog responded to the tenants command and stopped.

33.   The Tribunal can only reasonably conclude that this was a one off event in 10 years which is out of character for the dog. The Tribunal found the tenant genuine in his apology for what has happened. The tenant has since installed extra signage. The tenant clearly wants to keep his dog and it would have a big impact upon him if the dog was removed. The Tribunal also considers it more likely than not that if [Name of employee is deleted]'s actions on the day were not the main factor for what occurred, then her actions at least contributed to the unfortunate incident. The Tribunal considers it likely that the dog was ultimately just protecting his territory. Finally, there is nobody else in the area that is complaining or asking for the dog to be removed.

34.   When looking at the full circumstances of the matter the Tribunal is not satisfied that the landlord's opinion was "reasonable" that the dog was not suitable to be kept on the premises as required pursuant to Clause 28.2. Therefore the Tribunal finds that the landlord was not justified in issuing the written notice pursuant to Clause 28.2 on 31 May 2012 requiring the tenant remove the dog from the premises within 48 hours. The Tribunal finds that the landlord cannot rely upon that notice to allege that the tenant has breached the residential tenancy agreement. The Tribunal is not satisfied that the tenant has breached the residential tenancy agreement.

35. Following those findings, the Tribunal does not need to further determine the application for termination and possession of the premises under Section 87 of the Residential Tenancies Act 2010, nor in the alternative any specific performance order under Section 187 of the Residential Tenancies Act 2010. The application for termination and possession of the premises under Section 87 of the Residential Tenancies Act 2010 is dismissed.

Decision last updated: 04 June 2013