NSW Land and Housing Corporation v George Katanasho & Anor

[2014] NSWCATCD 198

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NSW Land and Housing Corporation v George Katanasho & Anor [2014] NSWCATCD 198
Hearing dates:	27 August 2014
Date of orders:	08 October 2014
Decision date:	08 October 2014
Jurisdiction:	Consumer and Commercial Division
Before:	S Hennings, General Member
Decision:	1. The Tribunal authorises the landlord NSW Land and Housing Corporation - T503 and/or their contractors to enter the residential premises between 10:00 am and 2:00 pm on 10 September 2014 for the purpose of:  - carrying out the following work: removal of the banana trees and poisoning of the tree stumps. 2. The Tribunal authorises the landlord NSW Land and Housing Corporation - T503 and/or their contractors to enter the residential premises between 10:00 am and 2:00 pm on15-Sep-2014 for the purpose of:  - carrying out the following work: removal of the colorbond fence that requires replacement due to the banana trees. 3. The Tribunal authorises the landlord NSW Land and Housing Corporation - T503 and/or their contractors to enter the residential premises between 10:00 am and 2:00 pm on 16-Sep-2014 for the purpose of: - carrying out the following work: grind all banana tree stumps and remove the grindings and cover the relevant area with top soil. 4. The Tribunal authorises the landlord NSW Land and Housing Corporation - T503 and/or their contractors to enter the residential premises between 10:00 am and 2:00 pm on 17-Sep-2014 for the purpose of: - carrying out the following work: replacement of the colorbond fence. 5. The tenant is not to obstruct the landlord in carrying out these orders. 6. If the landlord cannot gain access to the residential premises on the date agreed or in accordance with the above order, the landlord or their representative may engage a locksmith to gain entry to the premises and if the locksmith alters the locking device the landlord is to provide a copy of the door opening device to the tenant immediately. 7. The respondent's name GEORGE KATANASHO, is amended to George Katanasho.
Catchwords:	Access to the premises to carry out work
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010
Category:	Principal judgment
Parties:	NSW Land and Housing Corporation (landlord) George Katanasho (tenant)
Representation:	Landlord: Michelle Parkinson (Housing officer) Tenant: No appearance
File Number(s):	SH 14/38445

reasons for decisioN

APPLICATION

1. The applicant landlord's representative appeared at the Tribunal for the hearing. The respondent tenant failed to attend the Tribunal for the hearing.

2. There appears on the Tribunal file a copy of a notice of hearing addressed to the tenant dated 31 July 2014 advising of the time, date and location of the hearing.

3. I am aware of the Registrar's standard practices in notifying parties of the time, date and location of the hearing as set out in her statutory declaration of 30 July 2014.

4. Having perused the Tribunal file I am satisfied that in accordance with the Registrar's usual practices the notice of hearing of today's proceedings was posted to the tenant. The notice of hearing was addressed to the tenant with his full name in capital letters. The notice of hearing was returned to the Tribunal with a letter attached, which in part stated:

“All capital letters refer to either a corporation or a slave. In the above mentioned address, no Corporation or a slave reside here. So obviously the letter mentioned above is either addressed with a misspelling or sent to the wrong address.”

The letter was signed off:

“Resident of the above mentioned address.”

5. The landlord's representative gave evidence that the tenant doesn’t like the use of all capital letters in his name. Ms Parkinson stated that the tenant was still definitely residing at the premises but was not surprised that the letter was returned to the Tribunal due to the capital letter issue.

6. The Tribunal was persuaded by the landlord's representative’s evidence that it was the tenant that had returned to the Tribunal the notice of hearing with the attached letter. The letter stated that it was sent by the “Resident of the above mentioned address”. The Tribunal accepted that the tenant was still the resident at the premises.

7. The Tribunal found that the notice of hearing of today's proceedings was posted to the tenant and the tenant had been given an opportunity to make himself aware of today’s proceedings, but he had decided to return the notice of hearing to the Tribunal. The Tribunal did not accept that the use of capital letters in the tenant’s name was a justifiable or sufficient reason for the tenant to ignore and return the notice of hearing to the Tribunal. However, the Tribunal did amend the tenant’s name in accordance with the tenant’s preferred format.

8. The landlord was ready to proceed. Ms Parkinson stated that the tenant was well aware of the issue and their attempts to gain access to remove the banana trees from the premises. The landlord's representative asked that the matter proceed.

9. Clause 35 of the Civil and Administrative Tribunal Rules 2014 states:

35 Ex parte proceedings in Consumer and Commercial Division

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if:

(a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or

(b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party.

(3) If proceedings to which this rule applies are adjourned by the Tribunal in the absence of a party, a registrar is to give notice (or direct that notice be given) of the time and place of the adjourned hearing to the absent party.

10. The Tribunal found that the notice of the hearing was duly served on the tenant in that it was posted to the tenant and the tenant had been given an opportunity to make himself aware of today’s proceedings. Or in the alternative as a minimum, the Tribunal found that service of notice of the hearing on the tenant had been duly attempted by the process.

11. The Tribunal was conscious of procedural fairness and natural justice. The Tribunal considered the guiding principle to be applied to practice and procedure before the Tribunal, as set out in Section 36 of the Civil and Administrative Tribunal Act 2013.

12. Overall, the Tribunal found that justice required that the matter be dealt with in the absence of the tenant and that it was a matter that could be dealt with on the day.

13. The matter was relatively straight forward. Section 63 of the Residential Tenancies Act 2010 requires the landlord to maintain the premises in a reasonable state of repair. The landlord gave evidence that for some time they had been trying to obtain access to the tenant’s premises to remove some large banana trees that were growing too big and starting to cause damage to the colorbond boundary fence. The landlord produced a photograph showing the large banana trees against the colorbond fence and a contractor’s report recommending the removal of the banana trees. Again the landlord’s representative stated that the tenant was well aware of the issue and their attempts to gain access to remove the banana trees from the premises.

14. Section 55 of the Residential Tenancies Act 2010 sets out the circumstances in which a landlord can gain access to the premises without the consent of the tenant. Section 55(2)(b) states:

55 Access generally by landlord to residential premises without consent

(2) A landlord, the landlord’s agent or any other person authorised by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, after giving notice to the tenant, only in the following circumstances:

(b) to carry out or assess the need for necessary repairs (other than urgent repairs) to, or maintenance of, the residential premises, if the tenant has been given not less than 2 days notice each time

15. Section 58 of the Residential Tenancies Act 2010 states:

Duty of tenant to give access to residential premises

(1) A tenant must permit a landlord, landlord’s agent or other person exercising a right of access to the residential premises in accordance with this Division to have access to the premises.

(2) This section is a term of every residential tenancy agreement.

16. Section 60 of the Residential Tenancies Act 2010 states:

60 Landlord’s remedies relating to access to premises

(1) The Tribunal may, on application by a landlord, make any of the following orders:

(a) an order authorising the landlord or any other person to enter the residential premises for a purpose permitted under this Division,

(b) an order authorising the landlord or any other person to enter the residential premises for the purposes of showing the residential premises to prospective purchasers on a periodic basis,

(c) an order authorising the landlord or any other person to enter the residential premises for the purpose of determining whether the tenant has breached a term of the residential tenancy agreement.

(2) The order may specify the days and times, and purposes for which, entry to the residential premises is authorised.

17. The landlord gave evidence that in accordance with Section 55(2)(b) on 16 July 2014 a letter was hand delivered to the tenant’s address requesting access to the premises on 29 July 2014 to carry out the repairs being the removal of the banana trees.

18. The landlord gave evidence that on attending the premises on the nominated date, the tenant became verbally aggressive, denied access and wouldn’t entertain the removing of the banana trees. The landlord gave evidence that they had no alternative other than to leave. The landlord has then lodged the application with the Tribunal seeking orders for access to carry out the work and related orders for a locksmith if required.

19. The Tribunal was satisfied that Section 63 of the Residential Tenancies Act 2010 requires the landlord to maintain the premises in a reasonable state of repair. The Tribunal found on the landlord’s uncontested evidence that the banana trees are growing too big and starting to cause damage to the colorbond boundary fence at the tenant’s premises. The Tribunal was satisfied that the landlord had a bona fide reason for seeking access to the premises to carry out repairs.

20. The Tribunal was satisfied that the landlord gave proper notice to the tenant seeking access to the premises pursuant to Section 55(2)(b) of the Residential Tenancies Act 2010. The Tribunal was satisfied that the tenant ignored his duty to provide access to the landlord as required pursuant to Section 58 of the Residential Tenancies Act 2010.

21. In these circumstances, the Tribunal found that the landlord had lodged a proper application to seek an access order to the premises in accordance with Section 60 of the Residential Tenancies Act 2010.

22. The Tribunal was persuaded on the landlord’s uncontested evidence that it was appropriate to make the orders sought. The orders included specific dates and times for the access to be provided in order that the various stages of the work could be carried out. The tenant is not to obstruct the landlord in carrying out the orders.

23. Finally, given the history between the parties, the Tribunal considered it appropriate to make an order that if the landlord cannot gain access to the residential premises on the date agreed or in accordance with the above order, the landlord or their representative may engage a locksmith to gain entry to the premises and if the locksmith alters the locking device the landlord is to provide a copy of the door opening device to the tenant immediately.

S Hennings

General Member

Civil and Administrative Tribunal of New South Wales

8 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: 30 January 2015