NSW Land and Housing Corporation v El Rifi

[2025] NSWCATCD 31

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NSW Land and Housing Corporation v El Rifi [2025] NSWCATCD 31

Hearing dates:

20 May 2025

Date of orders:

26 May 2025

Decision date:

26 May 2025

Jurisdiction:

Consumer and Commercial Division

Before:

Graham Ellis SC, Senior Member

Decision:

1 The Tribunal makes an order, under section 90 of the Residential Tenancies Act 2010 (NSW), terminating the tenancy immediately.

2 The Tribunal makes an order, under section 114 of the Residential Tenancies Act 2010 (NSW), that the order for possession is suspended until 23 June 2025.

3     The respondent/tenant is to pay the applicant/landlord a daily occupation fee, at the rate of $12.58 per day, from the day after the date of termination, namely 27 May 2025, until the date when vacant possession is given.

4     The applicant/landlord may request the relisting of this application, to determine the occupation fee owing, within 60 days from the date when the landlord obtains vacant possession.

5     The applicant/landlord is to advise the respondent/tenant in writing of the orders made today by the delivery of a letter to the premises by 12 noon on the day after the date of these orders, namely 27 May 2025.

Catchwords:

LEASES AND TENANCIES – Social housing – termination order – tenant caused injury to neighbour – termination not mandatory – discretion exercised in favour of termination

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Crimes Act 1900 (NSW)

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Carr v NSW Land and Housing Corporation

[2019] NSWCATAP 144

NSW Land and Housing Corporation v Lesniewski [2015] NSWCATAP 185

Orr v NSW Land and Housing Corporation

[2018] NSWCATAP 237

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Applicant – NSW Land and Housing Corporation
Respondent – Assem El Rifi

Representation:

Applicant – P White
Respondent – Self-represented

File Number(s):

2024/00299101

Publication restriction:

Nil

REASONS FOR DECISION

Outline

1. The applicant (the landlord) commenced these proceedings against the respondent (the tenant), seeking orders for termination and possession, based on s 90 of the Residential Tenancies Act 2010 (the RTA). Having considered the evidence and submissions, the Tribunal was satisfied that a termination order should be made but with the warrant for possession deferred for four weeks.

Jurisdiction

2. As there has been a landlord-tenant relationship between the parties since 18 May 2017, the Tribunal has jurisdiction to deal with this matter and make orders under the RTA.

Hearing

3. Mr White represented the landlord. The tenant was self-represented.

4. The landlord’s documents admitted as evidence were the pages numbered from 1 to 55, which became Exhibit A. There was also 14 pages of written submissions from the landlord, which were not admitted as evidence, but were instead marked for identification (MFI 1). As the tenant had submitted six bundles of documents, on 2 October 2024, 23 October 2024, 11 November 2024, 24 December 2024. 24 February 2025 and 4 April 2025, those documents were admitted as Exhibits 1 to 6 respectively.

5. There was no request for cross-examination.

6. An opportunity was then provided for the parties to supplement their written submissions with oral submissions. The usual sequence of applicant then respondent then applicant in reply was followed to enable each party to not only speak in support of their case but also to respond to the case of the other party.

Relevant law

7. Section 90 of the RTA is set out below:

(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.

8. Section 154D, so far as is relevant to these proceedings, provides:

(1)   Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord under a social housing tenancy agreement if-

(a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90(1)(b) and the injury constitutes grievous bodily harm within the meaning of the Crimes Act 1900, …

(2)   Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord if—

(a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90(1) (and subsection (1) of this section does not apply), …

(3)   However—

(a)   subsection (1)(a) does not apply if the application for the termination order is based on an act of a person who although not a tenant is occupying or jointly occupying the residential premises and not on an act of the tenant, and

(b) subsections (1) and (2) do not apply if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made or a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 who is occupying or jointly occupying the social housing premises, and

(c)   subsection (2) does not apply if the tenant satisfies the Tribunal that there are other exceptional circumstances that justify the order not being made.

…

9. Section 154E of the RTA is in the following terms:

(1)   In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following-

(a)   the effect the tenancy has had on neighbouring residents or other persons,

(b)   the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated,

(c)   the landlord’s responsibility to its other tenants,

(d)   the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord,

(e)   whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal.

(2)   This section does not limit any other matter that may be considered by the Tribunal under this Act.

10. In the RTA, s 90 is headed “Serious damage or injury by tenant or other occupant” and s 91 is headed “Use of premises for illegal purposes”. Since similar considerations apply, cases which considered an application for termination based on s 91 are of assistance when considering an application based on s 90.

11. The Court of Appeal, in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr CA) at [80] said:

The starting point is that “undue hardship” within the meaning of s 154D(3)(b) of the Act is what needs to be established to open a gateway to a discretionary consideration of a termination application under s 91 of the Act; if “undue hardship” is not established, the termination of the tenancy is mandatory under s 154D(1) of the Act.

12. Based on what was said by the Appeal Panel in Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 (Orr AP) at [36], not disturbed on appeal, the proper approach in applications such as this is as follows:

(1) Determining whether the elements of s 90 are met.

(2)   If so, determining whether s 154D requires termination or, alternatively, gives the Tribunal a discretion as to termination.

(3)   If necessary to exercise a discretion as to termination, have regard to any relevant factors, including the matters set out in s 154E(1).

Landlord’s evidence

13. Exhibit A contained a copy of the residential tenancy agreement (A1, ie from page 12 in Exhibit A), the landlord’s application that was lodged with the Tribunal on 14 August 2024 (A16), documents obtained from NSW Police which included five witness statements (A18), documents relating to applications for an Apprehended Violence Order (AVO) either by or against the tenant (A35), a copy of the tenant’s bail conditions (A41), the landlord’s business records in relation to the subject tenancy (A42), a statement made by Ms Leigh (A44), photos of the injuries said to have been inflicted by the tenant (A51), and a copy of the pages which describe Delusional Disorder in DSM5, being the 5^th edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association (A53).

14. Copies of the reported decisions in Orr CA, Orr AP, and Carr v NSWS Land and Housing Corporation [2019] NSWCATAP 144 were also provided.

Tenant’s evidence

15. Exhibit 1 contained documents relating to applications for an AVO plus listing notices, but no document showing the finalisation of any such application, plus a hospital report in relation to the day of the subject incident: 27 July 2024.

16. Exhibit 2 is a single, handwritten page in which the tenant claims that what the witnesses told the police in relation to what happened on 27 July 2024 is untrue.

17. Exhibit 3 comprised an unsigned statement of the tenant, a statement signed by two neighbours denying allegations not made against the tenant in these proceedings, numerous photos (some with date and time details and some with handwriting added), emails, AVO and other court documents.

18. Exhibit 4 includes many of the same document plus additional, similar documents together with further unsigned statements of the tenant. This exhibit also contained a medical report dated 29 October 2024 which did no more than state that the tenant was, at that time, receiving treatment for “medical issues” following a motor vehicle accident.

19. Exhibit 5 included pages which suggested the tenant was involved in a motor vehicle accident on 18 March 2022 and that on 1 February 2024 he was diagnosed as having left-sided gynecomastia, which involves an increase in the amount of breast gland tissue in a male person does not result in any disability. This exhibit also contained a report from a psychologist dated 15 August 2024. While that report suggested the tenant has a delusional disorder of the persecutory type, it went on to state that he is “not a mentally ill person”. A five-page document in this exhibit makes allegations against the tenant’s neighbours which is consistent with that diagnosed disorder.

20. Exhibit 6 was comprised, predominantly, of photos with comments added.

21. As it was suggested some of those documents had not been provided to the landlord, copies were made and provided to Mr White with time allowed for him to consider them, before proceeding with the hearing.

22. That was done because this application had been previously listed for hearing and since, if there any failure to serve documents, that should not be allowed to delay the hearing of an application which sought orders for termination and possession.

23. Further, during the tenant’s oral submissions, he referred to another bundle of documents, copies of which did not appear to be within any of his documents that became Exhibits 1 to 6. A practical course was taken. After the Tribunal made a copy of those pages, they were marked for identification as MFI 2 and it was indicated that (1) if copies of those pages were found in Exhibits 1 to 6, they would be considered, but (2) if they were not included in those exhibits, they would not be considered. Having carefully considered the large volume of documents submitted by the tenant, the pages marked MFI 2 could not located and, for that reason, have not been considered.

Landlord’s submissions

24. The landlord’s written submissions (MFI 1) helpfully summarised the landlord’s evidence as well as the applicable statutory provisions and relevant case law. As to what constitutes a neighbouring property, reference was made to the Appeal Panel decision in NSW Land and Housing Corporation v Lesniewski [2015] NSWCATAP 185 (Lesniewski) which included the following paragraphs:

110 That is, there must be some proximity between the location where the injury was inflicted and the residential premises the subject of the residential tenancy agreement sought to be terminated. Hence where the residential premises the subject of the residential tenancy agreement is a unit within a larger complex of units, subs 90(5)(a) should not be limited to the units immediately adjoining or adjacent to the subject unit. What is adjoining and adjacent must be considered in the context of the circumstances having regard to the complex as a whole and the intent of the subsection.

111   Again, ultimately, whether the “injury” inflicted by the tenant occurred on property “adjoining or adjacent” to the residential premises is a question of fact to be determined from the circumstances of the matter before the Tribunal.

25. These submissions included details of how it was suggested s 90, s 154D and s 154E applied in the circumstances of this case. If a termination order was made, it was suggested that possession should be required within the following 28 days.

26. Additional matters raised in oral submissions were that the tenant is aged 49, single, with no children, who pays rebated rent of $88.05 per week. The landlord’s case was that (1) s 90 applied, (2) s 154D(2)(a) operated to require mandatory termination, (3) that requirement would only not apply of the tenant satisfied s 154D(3), (4) if there was a discretion, a consideration of the factors set out in s 154E did not favour a continuation of the tenancy. It was noted that the presiding member had brought the operation of s 154D and s 154E to the attention of the tenant at the intended hearing on 19 February 2025.

27. The tenant was said to be (1) a tertiary-qualified architect, (2) the owner of a small business, (3) apparently in need of pain medication following a motor vehicle accident in 2022, (4) with a diagnosed medical condition that was not such as to render him mentally ill, (5) a person who has been charged twice previously (A20), (6) who was, when charged after the incident on 27 July 2024, bailed on the condition that he live with relatives at Riverwood, and (7) who owns a car.

28. No submissions were made in reply.

Respondent’s submissions

29. As the landlord’s representative had spoken for 50 minutes, the tenant was given the same amount of time for his oral submissions. The tenant’s case was that, in the incident on 27 July 2024, he was the victim and that a knife was used against him and not by him. He referred to CCTV footage and to a USB, neither of which forms part of the evidence.

30. Most of the tenant’s submissions referred to claims that he was targeted by people related to the Assad regime, which previously ruled in Syria.

31. Those matters were said to have included: (1) poisoning the tenant’s dogs and chickens and a tree in the premises he occupies, (2) making threats to him, (3) blocking his driveway, (4) hacking his computer, (5) accessing his bank account, and (6) involvement in the 2020 motor vehicle accident.

32. Other than those allegations, there was no mention of any undue hardship or exceptional circumstances beyond a claim by the tenant that he is on Centrelink payments because of the 2022 motor vehicle accident. The matters set out in s 154E were not addressed and the landlord’s contentions as to the tenant’s circumstances were not disputed by him.

Consideration

Issues

33. After the application was lodged on 14 August 2024, there were preliminary hearings prior to an intended final hearing on 19 February 2025. On that occasion, the hearing was adjourned to enable the tenant to address issues of “undue hardship” and “exceptional circumstances”. On that occasion, the presiding member made the comments to identify the issues and put the parties on notice as to what evidence would be required. The comments made on that occasion included the passages quoted below.

On the next occasion the matter will be listed for final hearing to determine whether the tenancy should be terminated under s 90(1)(b) of the Residential Tenancies Act. The landlord concedes the tenant is a person under a disability for the purposes of s 154D(3)(b). Accordingly, if the tenant establishes termination is likely to result in him suffering undue hardship termination will be discretionary under s 154D(3)(b) or if the tenant establishes there are other exceptional circumstances that justify the termination order not being made. Termination is discretionary in the alternative under s 154D(3)(c). If undie hardship or exceptional circumstances are not established, termination will be mandatory if the alleged breach is established. If termination is discretionary as a result of s 154D(3)(b) or (c) applying, discretionary matters will include those set out in s 154E. Parties attention is drawn to the provisions of the Residential Tenancies Act mentioned in this paragraph and should ensure they address relevant issues in their evidence.

The tenant is encouraged to immediately seek advice from the Tenants Advice and Advocacy Service (TAAS): the tenant is to ensure medical reports etc are in their complete form and not partial documents, noting the present medical reports are incomplete.

…

Issues

The applicant is seeking an order pursuant to s 90(1)(b) of the Act that the tenant has intentionally or recklessly caused injury to an occupier or person on neighbouring property or premises used in conjunction with the tenant. It is noted that the tenant is disputing that breach=.

The parties are to address the following issues in the submissions and documents:

i.   whether, if the breach is established, termination is mandatory under s 154D(2)(a) or discretionary as a result of either s 154D(3)(b) of the Act or because the tenant is a person suffering a disability (conceded by the landlord) and termination is likely to result in undue hardship or s 154D(3)(c) because there are other exceptional circumstances that justify the termination order not being made.

The tenant will need to clearly identify the disability (and include any supporting documents relied on) and undue hardship that termination would cause.

ii.   The parties must also address the factors contained in s 154E in their evidence, in the event the Tribunal finds it may exercise a discretion.

34. The issues which require determination are:

1. Whether the elements of s 90 are met.

2. If so, determining whether s 154D operates to require termination or to gives the Tribunal a discretion as to termination.

3. If it is necessary to exercise a discretion as to termination, have regard to any relevant factors, including the matters set out in s 154E(1).

4. If satisfied that a termination order should be made, what should be the date by which the tenant should provide possession to the landlord.

35. To reach a decision in relation to those issues, it is first necessary to assess the evidence, then make findings of fact relevant to those issues. That is because the relevant provisions in the RTA have to be applied to the facts of this case.

Assessment of evidence

36. As there was no cross-examination, the Tribunal must make decide who to believe, based on the documents that form the evidence in these proceedings.

37. The Tribunal prefers the version of events for which the landlord contended for the following reasons. First, the police officers who attended the scene of the incident are considered competent, unbiased experts whose assessment can be considered reliable. Secondly, the weight of the evidence favours the victim’s version of events: the tenant’s version uncorroborated.

Findings of fact

38. Based on the all the evidence, and the submissions that have been made for both parties, the Tribunal makes the following findings of fact:

1. The tenant lives in a property at Yagoona for which he pays rebated weekly rent of $88.05 to the landlord.

2. On 27 July 2024 there was an altercation outside those premises, during which the tenant produced a knife which he used to inflict cuts on the hand and knee of the occupier of a neighbouring property.

3. As a result of the attendance of police officers, statements were obtained and the tenant was charged with (a) being armed with intend to commit a felony, and (b) assault occasioning actual bodily harm, domestic violence related.

Does s 90 apply?

39. While the subject incident appears to have occurred on the footpath in front of the residence of the tenant and/or the residence of his neighbours, that is considered neighbouring property, falling within the definition of those two words contained in s 90(5)(a) of the RTA.

40. It would create a perverse situation if an incident was caught by s 90 if it occurred on either the property where the tenant lives, or the property where his neighbours live, but not immediately outside either of those properties. The footpath is both adjoining and adjacent to the residential premises occupied by the tenant. It is clear the location of the incident satisfies the proximity test suggested by Lesniewski.

41. In view of the findings of fact set out above, the landlord has satisfied the Tribunal that s 90 of the RTA applies in this instance.

42. Considered in isolation, the effect of s 90 is that the Tribunal may make a termination order by reason of s 90(1), the Tribunal may specify that the order for possession takes effect immediately, as indicated in s 90(2), and the landlord was entitled by s 90(3) to commence these proceedings without giving the tenant a termination notice.

Does s 154D require termination?

43. There would be a requirement to terminate if s 154D(2) is satisfied. However, only paragraph (a) of s 154D(2) applies to s 90 since the remaining paragraphs apply when the termination application is based on s 91, which relates to the use of premises for illegal purposes. Paragraph (a) only applies if the injury constitutes grievous bodily harm within the meaning of the Crimes Act 1900 (NSW). In that act, s 4 contains the following definition of “grievous bodily harm”:

(a)   the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and

(b)   any permanent or serious disfiguring of the person, and

(c)   any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).

44. There is no evidence that suggests the victim sustained “any permanent or serious disfiguring of the person” and the police have only charged the tenant with assault causing actual bodily harm, not grievous bodily harm.

45. As a result, s154D(2) does not require termination and it is therefore not necessary consider s 154D(3).

46. For the sake of completeness, if it were necessary to consider s 154D(3)(b), there would be two matters requiring consideration. First, whether the tenant has a disability, which was conceded by the landlord. Secondly, whether there would be undue hardship if the tenancy were to be terminated.

47. It is noted that it is the tenant who bears the onus of proof, meaning that it is he who needs to satisfy the Tribunal that he would suffer undue hardship if his tenancy were to be terminated. A finding of undue hardship cannot be justified in this instance for the following reasons. First, there is no evidence that would warrant a finding of undue hardship. Secondly, no submissions were made in support of that issue by the tenant. Thirdly, that was despite the Tribunal providing the tenant with a warning on 19 February 2025. Fourthly, the Tribunal is unable to discern any basis for such a finding.

The application of s 154E

48. When considering how to exercise the discretion to terminate the tenancy, it is necessary to first address each of the five matters which s 154E(1) requires the Tribunal to consider.

49. First, the effect the tenancy has had on neighbouring residents or other persons. While the Tribunal does not doubt that the tenant perceives that he is under threat from his neighbours, that perception has not been established by the evidence. In such circumstances, maintaining this tenancy would create an avoidable risk of further incidents and injury. Support for that view derives from the prior incidents revealed by the Police’s Facts Sheet (A20) and his desire, expressed while he was in custody, to have a knife and/or a gun.

50. Secondly, the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated. The matters referred to in the previous paragraph, plus the number of AVOs sought by or against the tenant suggests there is a significant prospect of further incidents if the subject tenant is not terminated. The subject incident involves an escalation from earlier incidents.

51. Thirdly, the landlord’s responsibility to its other tenants. As the tenant resides in a stand-alone house, this consideration does not apply.

52. Fourthly, the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord. The subject tenancy commenced on 18 May 2017 and there have now been problems between the tenant and his neighbours for a period of about four years, including AVO breaches and assault charges.

53. Fifthly, whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. There is no prior order of the Tribunal in relation to the tenant.

54. Section 154E(2) permits the Tribunal to taken into consideration matters other than the five mandatory considerations set out in s 154E(1). Plainly, it is relevant to consider the circumstances of the tenant. The tenant, who did not follow the suggestion that he obtain advice, did not put forward any matters in opposition to termination. There are a number of matters put forward by the landlord which favour termination because many of the matters normally encountered when considering whether to terminate a social housing tenancy are not present in this instance: (1) the tenant is single and has no children, (2) while he has a persecutory disorder, his evidence says that is not a mental disorder, (3) he has tertiary qualifications, (4) he operates a small business, (5) the evidence favours the view that he has alternative accommodation at Riverwood, where he lived from 29 August 2024 until January 2025, (6) he has a car, and (7) there is nothing to suggests any need to remain in the premises where he currently resides.

Conclusion

55. A breach of s 90 of the RTA by the tenant has been proved and, while termination is not considered mandatory in this instance, the relevant considerations clearly favour the Tribunal exercising its discretion in favour of termination of the tenancy which is the subject of these proceedings.

56. The landlord’s representative suggested that any order for possession should be suspend for four weeks, the tenant did not speak against that, and the Tribunal considers that period to be reasonable.

57. For completeness, it is noted that the tenant submitted documents after the conclusion of the hearing. They have not been considered as (1) the tenant had ample opportunity to submit documents upon which he wishes to rely, and did so on no less than six occasions, (2) there is no basis for re-opening the case, and (3) it would be procedurally unfair to consider those documents without providing the landlord with an opportunity to reply to them.

ORDERS

58. For the reasons set out above, the following orders are made.

1. The Tribunal makes an order under section 90 of the Residential Tenancies Act 2010 (NSW) terminating the tenancy immediately.

2. The Tribunal makes an order, under section 114 of the Residential Tenancies Act 2010 (NSW), that the order for possession is suspended until 23 June 2025.

3. The respondent/tenant is to pay the applicant/landlord a daily occupation fee, at the rate of $12.58 per day, from the day after the date of termination, namely 27 May 2025, until the date when vacant possession is given.

4. The applicant/landlord may request the relisting of this application, to determine the occupation fee owing, within 60 days from the date when the landlord obtains vacant possession.

5. The applicant/landlord is to advise the respondent/tenant in writing of the orders made today by the delivery of a letter to the premises by 12 noon on the day after the date of these orders, namely 27 May 2025.

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

Registrar

Decision last updated: 27 June 2025