NSW Land and Housing Corporation v Evangelos Rouvinetis

[2014] NSWCATCD 253

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NSW Land and Housing Corporation; v Evangelos Rouvinetis [2014] NSWCATCD 253
Hearing dates:	25 September 2014
Date of orders:	17 October 2014
Decision date:	17 October 2014
Jurisdiction:	Consumer and Commercial Division
Before:	S Corley, General Member
Decision:	1. The application for termination of the tenancy agreement is not granted. 2. The tenant is to comply with the conditions of his residential tenancy agreement. 3. The tenant shall not use threatening or abusive words or behaviour towards the landlord, the landlord’s agent or any contractor engaged by the landlord. 4. If the above orders are not complied with then at any time before 16 October 2015 the applicant may request the relisting of this matter to determine if the tenancy should be terminated.
Catchwords:	Threaten, abuse, intimidate, contractor
Legislation Cited:	Residential Tenancies Act 2010 Civil and Administrative Tribunal Act 2013
Cases Cited:	Cain v NSW Land and Housing Corporation [2014] NSWCA 28 (26 February 2014)
Category:	Principal judgment
Parties:	NSW Land and Housing Corporation (Applicant), Evangelos Rouvinetis (Respondent)
Representation:	Ms S Hook an employee of the applicant Mr Rouvinetis in person
File Number(s):	SH 14/40529

reasons for decision

THE APPLICATION

1. This application was lodged on 13 August 2014 by the NSW Land and Housing Corporation (“Housing NSW”) the owner of residential property occupied under a residential tenancy agreement by Mr Rouvinetis (“the Tenant”).

2. The application form records that a number of different orders are sought, including a termination order pursuant to section 92 of the Residential Tenancies Act 2010 (“RTA”), an order that restrains any action in breach of the residential tenancy agreement (s 187(1)(a) RTA) and an order requiring the tenant to remedy a breach of the tenancy agreement.

3. The matter was first listed on 1 September 2014. Ms Hook attended for the applicant and Mr Rouvinetis appeared in person. Orders were made requiring both parties to file and serve their evidence prior to a formal hearing. Leave was granted for the Tenant to be represented by a tenant’s advisor or advocate.

4. Housing NSW and the Tenant filed documents in accordance with these directions.

5. This matter was listed for hearing before me on 25 September 2014. Ms Hook attended for Housing NSW and Mr Rouvinetis appeared in person.

6. At the commencement of the hearing the Tenant was agitated and spoke loudly and aggressively challenging the fact that Ms Hook appeared for the applicant and also challenging the jurisdiction of NCAT to hear this matter. The Tenant submitted that Ms Hook is a lawyer and that she should not be allowed to represent Housing NSW when he had not been able to secure legal representation.

7. The Tribunal established that Ms Hook has no legal qualifications although she is employed in the Legal Services Division of Housing NSW. It was also pointed out to the Tenant that he was previously given leave to have representation at the Tribunal hearing and that he should have arranged this in advance of the hearing.

8. It was suggested by Housing NSW that the Tenant had previously been assisted by the Older Persons Legal Service, however, this support had been withdrawn from the Tenant. The Tenant confirmed that he was not able to secure a lawyer to attend at the Tribunal on his behalf.

9. The applicant was prepared to proceed today and had its witnesses in attendance. Bearing in mind the guiding principle to be applied in NCAT proceedings, which is to facilitate the just, quick and cheap resolution of the real issues in dispute (s 36 Civil and Administrative Tribunal Act 2013) I concluded that it was fair in the circumstances to proceed with the hearing.

THE TRIBUNAL’S JURISDICTION TO HEAR THIS APPLICATION

10. The Tenant challenged the jurisdiction of NCAT to hear this matter. It was difficult to understand his argument, however, it seemed to be that NCAT is a “common law body” which in his opinion has no jurisdiction to hear a claim brought by Housing NSW, which is a “statutory body”. I do not see any legal basis to the Tenant’s argument. This dispute concerns a residential tenancy agreement where the landlord is a social housing provider. Therefore, it is a dispute relating to a “social housing tenancy agreement” within the meaning of s 136 RTA. This is an application for termination under s 92 RTA. I find that this matter clearly comes within NCAT’s jurisdiction.

BACKGROUND AND EVIDENCE

11. Housing NSW and the Tenant entered into a written residential tenancy agreement in relation to a unit in an apartment block at Kensington (‘the Kensington property’) on 10 December 1996.

12. The tenant is now 74 years old. He has lived at the Kensington property for some 18 years pursuant to the abovementioned tenancy agreement.

13. Previous applications have been made to the Tribunal in relation to access to the Kensington property for the purpose of carrying out inspections. As far as I know this is the first application for termination of the tenancy brought against the Tenant.

14. The Tenant is very concerned about others accessing his property. He alleges that Housing NSW and its contractors do not follow the correct legal procedures in attempting to gain access to his property. In particular, he says Housing NSW does not provide correct notice and contractors do not present any authorisation when they attend seeking access.

15. According to Housing NSW the tenant does not co-operate in providing access for inspections and Tribunal orders are generally required to gain access.

16. The Tenant does not appear to feel secure if others enter his property. Nor does he want to be in his property alone with representatives of Housing NSW or its contractors. He has in fact posted his key to Housing NSW in advance of an inspection in the hope that this can occur without him being present. In these circumstances the Tenant has been advised that Housing NSW cannot accept his key or enter the property without him being present.

17. Housing NSW is well aware that the Tenant is very sensitive to others entering his home. The Tenant insists that legal process be adhered to precisely and he labels instances where this does not occur as “indictable trespass”.

18. The incident at the crux of this complaint occurred on Tuesday 17 June 2014.

19. On Thursday 12 June 2014, Housing NSW wrote to the Tenant stating that it had made an appointment to have his smoke alarm serviced on Tuesday 17 June 2014 between 8 am – 12pm.

20. On the morning of Tuesday 17 June 2014, Mr Afsar Khan, an electrician employed by the business, Spotless, attended at the Kensington Property to carry out the smoke alarm inspection.

21. Housing NSW submitted a Statutory Declaration made by Mr Khan on 5 September 2014, regarding his attendance at the Kensington property. Mr Khan was also called to give evidence at the hearing. The Tenant questioned Mr Khan regarding his evidence. In summary, Mr Khan’s evidence is that:

• He was at the intercom of the Kensington property when the Tenant who was driving out of the premises saw him. The Tenant got out of his vehicle and approached him at the intercom.

• The Tenant was angry and aggressive and shouted obscenities at him.

• The Tenant asked Mr Khan to produce written authorisation from Housing NSW. Mr Khan attempted to show the Tenant his identity card but the Tenant only wanted to see written authorisation from Housing NSW.

• The Tenant told him “You do not appear here again”.

• The Tenant stood close to him, pointing his finger at him while he shouted at him.

• The Tenant got back into his vehicle to continue on his journey but then pulled up beside Mr Khan’s parked vehicle and shouted at him again.

22. He was traumatised by the Tenant’s abuse and will not return to the Kensington property again.

23. Housing NSW also submitted a Witness Statement prepared by Mr Peter Carnachan, a Senior Client Service Officer employed by Housing NSW. Mr Carnachan was called to give evidence at the hearing and the Tenant questioned Mr Carnachan at the conclusion of his evidence. In summary Mr Carnachan’s evidence is that:

• All visits or meetings with the Tenant are conducted by two employees of Housing NSW because the Tenant is considered volatile and potentially dangerous. This procedure was instigated in 2008.

• The Tenant is generally considered to be aggressive, not very co-operative and difficult to manage.

• It is generally necessary to obtain Tribunal orders to allow Inspections of the unit. Police assistance is also sought.

• Although he was not present at the Kensington property on 7 December 2010 he can make the following statements based on his reading of the file and knowledge of the event. Housing NSW had obtained Tribunal orders for access to carry out a smoke alarm inspection. The Tenant did not provide access. When the police arrived the Tenant refused them access. The police organised for the police rescue squad to attend and gain forcible access. The police formed the view that the Tenant may have a mental health problem and took him to the Kiloh Mental Health Unit at Prince of Wales Hospital for assessment.

24. No formal assessment of the Tenant’s mental health status has been tendered to the Tribunal. Housing NSW has provided a copy of an email sent from Ms Sage Benishay (Housing NSW, Senior Client Service Officer) to Mr Simon Gillespie (Housing NSW) on 8 December 2010 regarding the Tenant’s mental health assessment at the Kiloh Centre. Her email was based on a telephone conversation with ‘Mia’ a psychologist. According to this advice the assessing psychiatrist concluded that the Tenant was not afflicted with a mental illness and he was allowed to return home.

25. The Tenant submits that he is attempting to uphold the law. He believes that he has a right to refuse access to his property unless the statutory provisions regarding access are strictly observed. He says that Housing NSW does not observe these requirements and he will be the one to stand up to them. The Tenant says he was formerly a naval officer and that he is not someone who will be intimidated by authority. He says he ‘is a man’ and by this implies that he is someone who has the courage of his convictions.

26. The Tenant also suggested that Mr Khan and Mr Carnachan who are younger and physically more robust than him could not have felt threatened or intimidated to any significant degree.

DECISION

27. Housing NSW seeks termination of this tenancy pursuant to s 92 RTA. To establish the grounds for a termination order under this provision the applicant must produce evidence which satisfies the Tribunal that the Tenant has seriously or persistently threatened or abused the landlord, the landlord’s agent or an employee or contractor of the landlord.

28. Housing NSW alleges that the Tenant did seriously threaten or abuse Mr Khan, a contractor of the landlord who attended the Kensington property on Tuesday 17 June 2014 for the purpose of inspecting the smoke alarm.

29. Furthermore, Housing NSW alleges that the Tenant has persistently threatened the landlord’s employees and contractors and that this course of conduct has occurred over some years.

30. In relation to the allegation of serious threat or abuse inflicted upon Mr Khan on 17 June 2014, I find:

1. Housing NSW posted a written notice to the Tenant requiring access to the Kensington property for the purpose of carrying out a smoke alarm inspection. The inspection was to occur on Tuesday 17 June 2014. The notice was posted no earlier than Thursday 12 June 2014.

2. Mr Khan, an electrician employed by Spotlight attended at the Kensington Property on the morning of Tuesday 17 June 2014 for the purpose of carrying out the smoke alarm inspection.

3. It seems most unlikely that the Tenant was given at least two days notice of the inspection, as required by s 55 RTA.

4. The Tenant was in this vehicle about to drive out of the Kensington property when he first saw Mr Khan at the intercom. The Tenant stopped his vehicle in the driveway and approached Mr Khan.

5. The Tenant approached Mr Khan in a belligerent manner and asked him to produce written authorization from Housing NSW in relation to the inspection. Mr Khan attempted to show the Tenant his contractor identity card but the Tenant refused to look at this. It appears that Mr Khan did not have a written authority issued by Housing NSW as required pursuant to s57(2) RTA.

6. The Tenant was angry and swore at Mr Khan with a stream of obscenities. The Tenant told Mr Khan that he was not to return to the unit.

7. The Tenant returned to his vehicle and continued to drive away from the property, however, he stopped his vehicle close to Mr Khan as Mr Khan was approaching his parked vehicle. The Tenant resumed his angry tirade at Mr Khan from the open window of his vehicle before driving away.

8. I find that Mr Khan was very shaken by this experience. Although the Tenant is a 74 year old man and Mr Khan is a much younger man I accept that Mr Khan did not know what the Tenant was capable of or whether he had been physically violent in the past. In the circumstances I find that Mr Khan did fear for his safety and was threatened and abused by the Tenant.

31. I have today observed that the Tenant can be volatile and belligerent. These traits have been observed previously in the Tribunal. Accordingly, arrangements were made in the Tribunal to allow a security officer to be present during the hearing today. The Tenant does exhibit an extreme personality type. However, I am not qualified to make any determination regarding his mental health and in the absence of any evidence from an appropriately qualified person, I refrain from doing so.

32. Although the Tenant was difficult he was not unintelligent. Some of the arguments he makes regarding the failure of Housing NSW to adhere to the requirements of the RTA regarding access seem well founded. The incident at the crux of this complaint is a case in point.

33. There is no suggestion that the Tenant did use or attempt to use any physical force against Mr Khan. Nevertheless the applicant says the threat or abuse suffered by Mr Khan was ‘serious’ and I tend to agree.

34. Housing NSW has also alleged that the Tenant’s abusive behaviour towards employees of the landlord has been persistent. In my view the evidence produced by the applicant does not establish persistent abuse or threats.

35. It is not at all clear to me that the Tenant threatened or abused anyone during the visit that occurred on 7 December 2010. I do accept that the Tenant refused access on this occasion and that Housing NSW determined that it could not enter the property without the assistance of the police and that there was considerable delay whilst waiting for the police to attend. Furthermore, it appears that police had concerns for the mental health of the Tenant. However, none of this is evidence that the Tenant did threaten or abuse Housing NSW or its contractors on this occasion.

36. Mr Carnachan’s description of the Tenant as being “very in your face” and “very hard to communicate with” appears to be accurate, from my observation of him today. However, this does not go so far as to constitute persistent threat or abuse.

37. I also accept Mr Carnachan’s statement that Housing NSW believe it would be inappropriate to have one employee deal with the Tenant alone, given that Housing NSW has, in Mr Carnachan’s words a ‘duty of care’ towards its employees. I accept that this does have an impact on team resources. But again, this alone is not evidence of the Tenant abusing or threatening the landlord’s employees.

38. Overall, Housing NSW has not satisfied me that the Tenant has persistently threatened or abused its employees or contractors.

39. I am satisfied that the Tenant threated and abused the landlord’s contractor, Mr Khan, on Tuesday 17 June 2014.

40. Section 92 RTA provides that the Tribunal may make a termination order if it is satisfied that a tenant has seriously or persistently threatened or abused the landlord, the landlord’s agent or a contractor of the landlord. It was recently confirmed that the word ‘may’ when used in section 91 RTA does indicate a discretion which is to be exercised by the Tribunal (Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28 (26 February 2014)).

41. In deciding whether to terminate a social housing agreement for breach by a tenant, the Tribunal is directed by s152 RTA to consider certain matters to the extent that they may be relevant. I am not sure that it is necessary to apply this section to a termination application brought under s92 RTA. The considerations under s 152 RTA mainly go the effect on other tenants to whom Housing NSW is also responsible. There is no suggestion in this case that the Tenant has had any problems with other tenants in this complex or that his continuing tenancy would put neighbours at risk.

42. In exercising my discretion as to whether this tenancy should be terminated I have had regard to the nature of this complaint in the overall context of this tenancy. The Tenant is a 74 year-old man who has resided at the rental premises for 18 years under the current tenancy agreement. He verbally abused a contractor of the landlord on 17 June 2014. There is evidence that the Tenant is difficult and unco-operative with Housing NSW staff, however, there is no evidence that the Tenant has ever caused any disturbance or problem with his neighbours over this long period of time. Neither is there any evidence of physical violence. The problems that have occurred in this tenancy appear to be focussed on access issues.

43. The Tenant believes that he is a champion of justice and that he is upholding the law in relation to access to his property. It seems that he has become obsessed with this view and has lost sight of the effect his behaviour has on those around him. The Tenant’s behaviour is not acceptable. It is possible that he lacks the insight to appreciate this and I would suggest that he seek counselling or medical help to change his behaviour. I also believe that inspections could be better handled by the applicant. At the very least, the statutory provisions regarding notice and authorisation of contractors should be followed.

44. Having considered this matter carefully, I have concluded that the Tenant should be given another chance to maintain his tenancy, the loss of which is likely to have grave consequences for him. I will not grant termination now, however, I will make orders requiring the Tenant to comply with his tenancy obligations. Further, the Tenant must not threaten or abuse or cause harm to the landlord’s employees or contractors. I will grant the applicant the ability to relist the termination application if the Tenant fails to comply with these obligations over the next 12 months.

S Corley

General Member

Civil and Administrative Tribunal of New South Wales

17 October 2014

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: 20 February 2015