NSW Land and Housing Corporation v Ibrahim - [2016] NSWCATCD 91

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NSW Land and Housing Corporation v Ibrahim [2016] NSWCATCD 91
Hearing dates: 10 June 2016 and 16 September 2016
Decision date: 04 November 2016
Jurisdiction: Consumer and Commercial Division
Before: D Harvey, General Member
Decision:
1. The application for termination is dismissed.

2. The respondent is to comply with the terms of her agreement, namely, not cause or permit the use of the residential premises to be used for an unlawful purpose.
3. If the respondent does not comply with the above order, the applicant may request this application to be re-listed on or before 27 April 2017 and request that the tenancy be terminated and the respondent to vacate the premises.
Catchwords: Section 91, illegal use, residential complex, discretion to terminate
Legislation Cited: Residential Tenancies Act 2010
Drug Misuse and Trafficking Act 1985
Cases Cited: Cain v NSW Land & Housing Corporation [2014] NSWCA 28
NSW Land and Housing Corporation v Nihangun Ozen [2014] NSWCATCD 27
McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98
New South Wales Land and Housing Corporation v Lesniewski [2015] NSWCATAP
Davis v NSW Land and Housing Corporation [2015] NSWCATAP 271
Briginshaw v Briginshaw (1938) 60 CLR 330
NSW Land and Housing Corporation v Romeyn [2015] NSWCATCD 123
NSW Land and Housing Corporation v John Raglione [2015] NSWCATAP 75
NSW Land and Housing Corporation v Kline [2014] NSWCATCD 210
Stiff v NSW Land and Housing Corporation [2014] NSWCATCD 123
R v Knight, Brian, and Knight Kevin [2008] NSWDC 135
Category: Principal judgment
Parties: NSW Land and Housing Corporation (applicant)
Fatme Ibrahim (respondent)
Representation:
On 10 June 2016:
Mr O’Connor, counsel, Ms Hooke, legal advocate (applicant)
Mr Turner, solicitor (respondent)
On 16 September 2016:
Ms Madgwick, counsel, Ms Hooke, legal advocate (applicant)
Ms Hehir, solicitor (respondent)

File Number(s): SH 16/07184

reasons for decision

The Application

On 12 February 2016 the NSW Land and Housing Corporation (hereinafter referred to as “the applicant”) lodged an application with the Tribunal seeking termination and vacant possession (section 187) of the rented premises and a daily occupation fee (section 123) on the grounds that the respondent used the premises for illegal purposes (section 91(1)) pursuant to the Residential Tenancies Act 2010 (hereinafter referred to as “the Act”).
The application refers to a police search of the “residential premises and the property available for use by the tenant in common with others” on 24 November 2015. As a consequence of that search Ali Ibrahim, the respondent’s son and an occupant of the residential premises (hereinafter referred to as “the occupant”), was charged as follows:

supply prohibited drug – large commercial quantity x2

supply prohibited drug – commercial quantity x2

supply prohibited drug – indictable quantity of prohibited drug x2

recklessly deal with proceeds of crime and possess prohibited drug x5

The applicant clarified, at the commencement of the hearing, that they are seeking termination pursuant to section 91(1)(a) and (b) of the Act in relation to the conduct of the occupant.

Jurisdiction

There is a residential tenancy agreement between the parties dated 14 July 1997 for unit 13 of the residential complex in Virginia Street, Wollongong. The applicant is a social housing provider and the premises are social housing premises within the meaning of section 136 of the Act.
Section 91 of the Act does not specify a time period in which an application is to be lodged; however, clause 23(b) of the NCAT Rules provides that where the enabling legislation does not provide a time limit, the application is to be made within 28 days of becoming entitled to make the application.
On 25 November 2015, an employee of the applicant learned from a media report that on the previous day the police arrested the occupant after commercial quantities of prohibited drugs were found at the residential complex in which the respondent lives. On that same day, the applicant requested the police, under their Memorandum of Understanding, for information regarding the charges.
The police provided that information to the applicant on 25 January 2016. The Tribunal is satisfied that the applicant became “entitled” to make this application after it had received the particulars of the charges and summary of facts on 25 January 2016. It is only after the applicant received that information that they were in a position to form an opinion about the nature of any breach.
The application was lodged on 12 February 2016 and is therefore lodged within the 28 day time limit.
The Tribunal is satisfied that it has jurisdiction to determine the application.

Procedural matters

The application was first listed on 23 February 2016. The file contains a signed conciliated agreement terminating the tenancy and providing vacant possession on 23 May 2016. The Tribunal declined to make orders in accordance with the agreement, noting on the file that it was “not satisfied that the [respondent] made agreement of her own free will”. Directions were then made for the issuing of a summons and exchange of evidence.
The hearing proceeded on 10 June 2016. The Tribunal organised an Arabic interpreter for the respondent. The interpreter was in attendance throughout the hearing, including conciliation discussions.
The parties each lodged a bundle of documents and confirmed that they each received a copy of the other’s evidence.
At the end of the allocated hearing time, the hearing was adjourned for a decision, in chambers, on the issue of whether the occupant contravened section 91(1) of the Act.
Directions were made for the parties to provide written submissions, including copies of any case law on which they intended to rely. The Tribunal received the applicant’s submissions on 23 June 2016 and the respondent’s submissions in reply on 1 July 2016.
The Tribunal determined that the occupant did contravene section 91(1)(a) of the Act. The matter was adjourned for hearing and directions were made for the parties to provide and exchange written submissions in relation to whether the Tribunal ought to exercise its discretion to terminate the tenancy by 13 September 2016.
The matter proceeded to hearing on 16 September 2016. The Tribunal organised an Arabic interpreter for the respondent. The respondent gave evidence and was cross examined by the applicant. At the conclusion of the hearing the parties were invited to provide any further written submissions by 30 September 2016. The Tribunal received further submissions from both parties.
The matter was reserved for determination and these written reasons. In determining this application the Tribunal considered the evidence, written submissions, applicable legislation and the relevant case law. The evidence is simply too voluminous to relay in detail, so the following reasons summarise the evidence as relevant to the findings and determination.

Applicable legislation as at 24 November 2015

The applicant seeks a termination order under section 91(1)(a) and (b) of the Act. The occupant is charged with a number of offences, including under section 25 of the Drug Misuse and Trafficking Act 1985 on 24 November 2015. The occupant’s alleged contravention of section 91(1) of the Act ceased on 24 November 2015 when he was arrested. On that day the police removed the prohibited drugs and other items, including a large sum of money.
The Act was amended in late 2015. The amendments, which came into effect on 18 December 2015, included section 154D which limits the Tribunal’s discretion to terminate a tenancy under section 91 of the Act.
The Tribunal is of the view that the 2015 amendments only apply to contraventions that occur on or after 18 December 2015. Therefore, it is the provisions of the Act pre 18 December 2015 that apply in these proceedings.
Accordingly, the Tribunal has discretion whether or not to terminate a tenancy in circumstances where a tenant is found to be in contravention of section 91 of the Act (see Cain v NSW Land & Housing Corporation [2014] NSWCA 28).
The applicant initially submitted that the amended legislation, (namely, the restriction on the Tribunal’s discretion to terminate section 154D of the Act) is retrospective and applicable in these proceedings. The respondent objected to this submission on the basis that the parties had agreed previously that it was the pre 18 December 2015 provisions that were applicable in these proceedings.
The Tribunal advised the parties that if the applicant is to press this argument the matter would need to be adjourned so as to allow the respondent a fair opportunity to respond and, if the provisions are found to be retrospective, obtain evidence in support of an argument that the respondent falls within the exception(s) provided in section 154D of the Act. The applicant did not press their submission in relation to the retrospectivity of the amended legislation.
The Tribunal is satisfied that the applicable provisions of the Act in these proceedings are those in effect pre 18 December 2015.
The applicant seeks a termination order under section 91(1)(a) and (b) of the Act which provides (in part) as follows:

Use of premises for illegal purposes
(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) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 , or
(b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination.

Evidence and Submissions

The applicant relies on the written statement of its employee, Ms Coull, expert reports on finger prints and DNA, the NSW Police Indictable Brief (containing two hundred and forty pages) and information on affordable private rental properties in the Illawarra.
The applicant summarises the police evidence as follows:

the occupant was arrested after being seen with a bag which when later searched was found to contain drugs*

police found $10,900 on the lawn near where the occupant was seen before his arrest

police located packages containing MDMA in the roof eave of the common area

police located packaging identical to the packaged drugs in the garage of unit 3

police located a PVC pipe which contained cocaine and MDMA in garden outside of the garage at unit 3

the occupant’s fingerprints were found on the PVC pipe and other items in which the presence of drugs was found

the occupant admitted to the police that he frequented the garage to unit 3 and converted the garage for his own use**

the occupant’s mobile phone contained photographs of himself in the garage with other persons and photographs of syringes and what appear to be drugs

the occupants mobile phone contained text messages which contain references to drugs and $11,000 cash

* The Tribunal notes that the police evidence is that the neighbours who found the bag saw pills inside which they believed to be drugs; however, when the police later located the occupant with the bag, it did not contain drugs.

** The Tribunal notes that the occupant’s admission was that he and others used the garage of unit 3 to take drugs

The applicant submits that the fact that the occupant has been charged with nine separate offences, including supply prohibited drug (large commercial quantity), possess prohibited drug and recklessly deal with the proceeds of crime is evidence of breach(es) of section 91(1) of the Act.
The respondent submits that the occupant is not responsible for the drugs the subject of the charges and has plead not guilty to all charges. The criminal proceedings have not finalised at the time the final hearing in this matter..
The respondent states that her unit was searched and “nothing of interest was located” in her residential premises.
The respondent states that she was regularly in the occupant’s room and did his laundry and that she had no reason to be suspicious. She states that she had no idea what the occupant was up to outside the residential premises.
The respondent submits that the applicant has not established that the occupant has not intentionally or recklessly permitted the premises to be used for illegal purpose. There were no drugs found in her premises and the occupant “had no ability to control who uses or enters the garage of Unit No.3”. The respondent submits that it is the tenant (and her son) of unit 3 that have the “power and responsibility” for the use of their garage.
The respondent submits that the police brief refers to several other persons who “appear to have had involvement in the offences for which Ali Ibrahim has been charged”, namely, the tenant and her son in unit 3, the person in the photograph (in the police brief) with the occupant in the garage of unit 3 and the owner of the vehicle parked at the rear of the complex in which drugs were located.
The respondent submits that the applicant has not established “use” of the residential premises in relation to the alleged contravention of section 91(1)(a) because:

there is no evidence of persons coming to the premises to buy drugs

there is no evidence of complaints from neighbours

the premises are not altered

phone records of the occupant do not relate to the sale of drugs

scales found in the premises do not establish supply*

* The Tribunal notes that there is no reference to “scales” in the police brief.

The respondent submits that the applicant must demonstrate that “the offence is connected with the use of the premises and not merely the scene of the commission of the offence” (see NSW Land and Housing Corporation v Nihangun Ozen [2014] NSWCATCD 27).
The respondent submits that the applicant has not established a contravention of section 91(1)(b) of the Act, namely, any “other unlawful purpose”. They submit that no drugs or materials associated in connection with drugs were located in the residential premises and, therefore, there is no evidence that the residential premises were used for any other unlawful purpose.

Consideration and Findings

The applicant submits that the Tribunal “should take into account the whole of the evidence contained in the Police brief” and find that the occupant is in contravention of section 91 of the Act.
Tempting though that may be given the extent of the evidence in the police brief, in determining whether there is a contravention of the Act, it is necessary for the Tribunal to consider the occupant’s connection to the drugs, the specific location of the drugs within the residential complex, whether that location is within an area proscribed by the Act; and if so, whether the location was being “used” for the unlawful purpose, namely supply of prohibited drugs.
The applicant has the burden of proof. The appropriate standard of proof in these proceedings is the civil standard as referred to by Dixon J in the High Court of Australia case of Briginshaw v Briginshaw (1938) 60 CLR 330 in the following passage:

…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

Accordingly, having regard to the gravity of the consequence flowing from a finding of a contravention of section 91(1) of the Act, the Tribunal adopts the Briginshaw approach to weighing the evidence and making findings of fact.
The requirements of section 91(1) of the Act have been considered in numerous Tribunal decisions including, and importantly, by the Appeal Panel. The Tribunal is guided by the decisions of the Appeal Panel.
In order to determine whether the occupant has contravened section 91(1)(a) and (b) of the Act, it is necessary for the Tribunal to determine the following:

Whether the occupant is responsible for the prohibited drugs or other unlawful purpose

Whether the prohibited drugs were located:

on the residential premises (as per definition in section 3 of the Act) and/or

on any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others)(as per section 91(1)(a) of the Act).

Whether the premises, adjacent or adjoining property or land was being “used” for the purpose of supply prohibited drugs )(as per section 91(1)(a) of the Act).

Whether the residential premises were being “used” for any other unlawful purpose (as per section 91(1)(b) of the Act).

Addressing each of the above considerations in turn, the Tribunal finds as follows:

Whether the occupant is responsible for the prohibited drugs and money

The applicant submits that “the evidence relied on by the police to support the numerous charges brought against Mr Ibrahim confirms that he was using the residential premises for the purposes of manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985”.
The respondent submits that the applicant has not established that the occupant is responsible for the drugs or money the subject of the charges.
The police evidence is that the commercial quantities of various drugs (methylamphetamine, MDMA and cocaine) and $10,900.00 cash the subject of the criminal charges were located in four areas in the residential complex: (1) in the garden outside the garage of unit 3; (2) in an abandoned BMW motor vehicle at the rear of the complex; (3) inside the roof eave outside unit 6; and (4) on the lawn at the rear of the complex.
In addition, the photographs obtained from the occupant’s telephone show: drugs (two large piles of a crystalline substance, cannabis and a liquid in a syringe); packaging materials (PVC pipe, plumbers glue, cry vac bags and a heat sealer); and a money counting machine located in the garage of unit 3. The police state that “all the items located in the garage [are] identical to the packaging of the drugs” which were located around the residential complex.
The Tribunal is satisfied that the police charges are prime facie evidence that there is sufficient evidence to connect the occupant, on the balance of probabilities, to the prohibited drugs, packaging materials and $10,900.00 cash located in the various areas of the residential complex.
In determining for itself whether the occupant “intentionally or recklessly caused or permitted” the drugs and money to be located within the residential complex, the Tribunal considered the following evidence contained in the police brief:

(a) a diagram of the location and a photograph of the following items found around the residential complex:
(i) the drugs located inside a PVC pipe the garden outside the garage of unit 3
(ii) the drugs located inside black plastic in the eave outside the garage of unit 6
(iii) the drugs inside a PVC pipe and inside a “lock box” inside the unlocked the BMW
(iv) $10,900 found in the middle of the lawn in the rear garden
(v) a PVC pipe in plain sight, on the drive way on other side of the blade wall separating the garage of unit 3 from the neighbouring garage

(vi) the occupant’s blackberry phone was found in the garden at the front of the complex
(vii) a blackberry phone box was found in the garden at the rear of the complex
(viii) the occupant’s bag which was found in the garden area at the rear of the complex
(ix) the occupant’s shoes and a ladder outside his garage at unit 13
(b) the photographs on the occupant’s mobile phone taken inside the garage of unit 3, which show the following:
(i) the occupant with another male and a length of PVC pipe in the background
the occupant sitting beside a package of a white substance in a bag on the couch
(iii) a hand holding a syringe filled with a clear fluid with what appears to be cannabis and the occupant’s wallet and ID on a table
(iv) two large piles of white crystals sitting on black plastic
(c) the text messages to and from “Rach” on the occupant’s mobile telephone which include the following:
(i) the occupant negotiating with “Rach” for the return of the bag of drugs and $11,000
(ii) Rach stating: “I threw your meth in the bushes out the front”;
(iii) Rach stating: “do the police know to check your gutter pipes...The white ones”
(iv) Rach stating: “I have photos you have sent me of meth in your garage from your phone”
(v) The occupant stating: “I’m waiting for my bag lol”
(vi) Rach stating: If I was going to steal why the fuck would I take $700 why wouldn’t I take $1000 or the whole $11,000”
(vii) Rach stating “why would I steal your drugs when I just came to bring them back to you after I hid it because the cops came!!!!!”
(d) the occupant’s admission that he retrieved a bag containing drugs from a neighbour after the neighbour found the bag in the garden bed at the front of the residential complex (which is consistent with one of Rach’s messages)
(e) the $10,900 in cash which was located in the garden area at the rear of the complex in close proximity to where the bag was found (the quantum of which is consistent, with Rach’s message regarding “$11000”)
(f) the police located the same packaging which was used to wrap various parcels of drugs, including PVC pipe, plumbers glue, cry vac bags, heat sealer in the garage of unit 3
(g) the police located the occupant’s possessions, including clothing, keys, wallet and identification in the garage of unit 3
(h) the police located a similar lock box in the respondent’s unit as the lock box found in the BMW which contained drugs
(i) the police found the occupant’s finger prints on the PVC pipe (containing drugs) inside the BMW at the rear of the complex (which is consistent with Rach’s description of “gutter pipes…the white ones”)
(j) the police found a length of PVC pipe (containing drugs) in the garden outside the garage of unit 3 (which is consistent with Rach’s description of “gutter pipes…the white ones”)
(k) the occupant’s admission to the police about using the garage (with others) to take drugs and drink alcohol

Given the evidence above the Tribunal is comfortably satisfied that the occupant is responsible for the drugs, packaging materials and money located in the residential complex. The Tribunal is comfortably satisfied the occupant hid the drugs and money in various areas of the residential complex.
The Tribunal is comfortably satisfied, in absence of evidence from the occupant to the contrary, that the $10,900.00 cash is proceeds of crime; namely, from the supply of drugs.
The Tribunal acknowledges that there are other person(s) who may also be connected to and/or responsible for the drugs and money located at the residential complex. The photographs on the occupant’s phone include another person, Wassim Baydoun, in the garage of unit 3. Further, the police located drugs in the bedroom of Robert Olman, the son of the tenant in unit 3. The Tribunal is of the view that the possible involvement of other persons does not detract from the finding that the occupant intentionally caused the drugs and cash to be located in the various areas of the residential complex.

Contravention of section 91(1)(a) of the Act:

The Tribunal is not assisted by the submissions of either party in determining whether the residential premises or any property adjoining or adjacent the premises (including any property that is available for use by the tenant in common with others) was being “used” for the purpose of supply prohibited drugs.
The drugs were not located inside the respondent’s residential premises. The question then is whether the various locations in which the drugs were located come within the definitions and provisions in the Act.
Section 3 of the Act defines “residential premises” as follows:

…any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence.

Section 91(1)(a) includes the following location:

…any property adjoining or adjacent (including any property that is available for use by the tenant in common with others)…

The evidence in the police brief is that prohibited drugs and $10,900.00 in cash, being the proceeds of a crime, were located in the following areas:

(1) In the garage of unit 3
The police brief includes photographs retrieved from the occupant’s telephone. There are a number of photographs taken inside the garage of unit 3; including: one that shows a “large amount of crystalline substance in two large piles”; one with the occupant and another person beside “two small zip lock bags one containing a white powder”; and one of a “person holding a syringe with cannabis on the table, two blackberry phones and Ibrahim’s [the occupant] wallet dated 25/10/15”. Although no drugs were located in the garage of unit 3 on 24 November 2015, the police found packaging materials (e.g., black plastic and lengths of PVC pipe) and a heat sealing device which were consistent with the packaging used for the drugs that were located in the residential complex.
The garage of unit 3 is located in the same residential complex as the respondent’s premises. The residential complex is comprised of two separate buildings. The garage of unit 3 is located in a different building to that in which the respondent’s unit is located
(2) In the roof eave near the garage of unit 6
The drugs were found inside black plastic packaging inside the roof eave near the garage of unit 6.
The garage of unit 6 is located in the same residential complex as the respondent’s residential premises. The residential complex is comprised of two separate buildings. The garage of unit 6 is located in a different building to that in which the respondent’s unit is located.
(3) In the garden outside the garage of unit 3
The drugs were found inside a capped length of PVC pipe which was situated on top of the raised garden bed across for the garage of unit 3. The PVC pipe is visible in the photograph which appears to be taken from a person standing at or near the garden bed wall.
The garage of unit 3 is in the same residential complex as the respondent’s residential complex; however it is located in a different building to that in which the respondent’s unit is located.
(4) Inside the BMW on the paved area at the rear of the residential complex
The drugs were found inside a capped length of PVC pipe and inside a locked box which was inside a bag in the boot of the BMW at the rear of the complex. The boot of the BMW in which the drugs were located was not locked.
The respondent’s residential premises are located in the building at the rear of the complex. The BMW is located on the paved area alongside the rear of the building in which the respondent’s building.

Whether the drugs were located on any property adjoining or adjacent to the premises

The Appeal Panel in New South Wales Land and Housing Corporation v Lesniewski [2015] NSWCATAP 185 considered the meaning of “adjacent or adjoining” as found in section 90 of the Act, and determined as follows:

108 In our view the words “adjoining” and “adjacent” should not be given a technical or narrow meaning. Each word should be given its ordinary meaning in the context of the location of the residential premises the subject of the residential tenancy agreement for which a termination order is sought so as to give effect to the intent of the subsection.
109 In this regard the Macquarie Dictionary defines the word “adjoining” and “adjacent” to mean:
“adjoining adjective bordering; contiguous: the adjoining room”
“adjacent adjective lying near, close, or contiguous; adjoining; neighbouring: a field adjacent to the main road.”
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. [emphasis added]
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.

In Lesniewski the Appeal Panel considered whether an injury occasioned on a public road was “adjoining or adjacent” the residential premises. Whilst the Appeal Panel was considering an application under section 90 of the Act, their interpretation and reasoning is pertinent to these proceedings, particularly with respect to the approach to be taken in circumstances where a residential premise is located within a large complex, as is the case in these proceedings.
The Appeal Panel in Davis subsequently considered the meaning of “adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others)” in section 91(1)(a) of the Act. The Appeal Panel determined as follows:

15 ... and we also agree that the laundry on level 6 does not fall within the description contained in s 91(1)(a). In our view, the words in parenthesis – that is, “including any property that is available for use by the tenant in common with others” - are qualified by the words “or any property adjoining or adjacent to the premises”. In a large building containing a number of storeys, it would do undue violence to the language to interpret “property adjoining or adjacent to the premises” as apt to include a room three storeys above the premises. Neither “adjoining” “nor” “adjacent” is defined in the statute and should be given their ordinary meanings. According to the Macquarie Dictionary Third Edition, “adjoining” means “bordering contiguous” and “adjacent” “lying near, close or contiguous, adjoining, neighbouring”...

The Davis decision involved the use of a laundry, being property that is available for use by the tenant in common with others, to sell drugs. The Appeal Panel found that the location of the laundry could not be said to be “adjacent” or “adjoining” the premises because it was located three stories above the residential premises.
The Tribunal is guided by the principles set out by the Appeal Panel in the decisions of Lesniewski and Davis in determining whether the drugs in these proceedings were located on “any property adjoining or adjacent to the premises” as per section 91(1)(a) of the Act.
Applying the considerations in Lesniewski, there must be “some proximity” between the location(s) of the drugs and the respondent’s residential premises. The Appeal Panel addressed circumstances where the residential premises is located within a larger complex of units, and stated that the legislative provisions should not be limited to the units immediately adjoining or adjacent to the subject unit. That is, “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 legislation” (at [110]).
The issue then is whether the locations of the drugs are sufficiently “proximate” to the respondent’s premises. The Appeal Panel in Davis had strong views as to what is not sufficiently proximate, finding that:

...in a large building containing a number of storeys, it would do undue violence to the language to interpret “property adjoining or adjacent to the premises” as apt to include a room three storeys above the premises...

Having regard to the above finding in Davis, the Tribunal is not satisfied that the drugs that were located in a completely separate building within the residential complex (namely, the garage, the garden and the roof eave) are sufficiently proximate to the respondent’s premises to be considered “property adjoining or adjacent to the premises”.
Having regard to the decision in Davis, the Tribunal is not satisfied that the location of the BMW has the requisite proximity to the respondent’s premises and, therefore, falls foul of the Appeal Panel’s interpretation of property “adjoining or adjacent” to the respondent’s premise. The BMW in which drugs were located is at the rear of the building in which the respondent’s residential premises is located. There is no evidence as to what the distance is between the respondent’s garage and the BMW; however, the police diagram and photographs indicate that there are three garages between the respondent’s garage and the end of her building. The BMW is located around the corner of the building which appears to be out of the view of the respondent’s entry to her premises or garage.
In conclusion, none of the areas were drugs were located are sufficiently proximate to be considered “property adjoining or adjacent” as per section 91(1)(a) of the Act.
The Tribunal, as presently constituted, finds this conclusion disconcerting. If section 91(1)(a) employed the same wording used in section 90(1) of the Act, then the occupant would have been in contravention of the Act. Section 90(1) deals with serious damage or injury by tenant or occupant which occurs to or on the residential premises or neighbouring property and defines “neighbouring property” as follows:

(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.

The various locations of the drugs within the residential complex the subject of these proceedings are on “neighbouring property” as defined in section 90(1) of the Act. There is no obvious reason why different definitions should be employed in the Act.

Whether the prohibited drugs were located on “land occupied with the premises”

The definition of residential premises in section 3 of the Act is not qualified and does not require exclusive use. Indeed, the definition of “residential tenancy agreement” in section 13 of the Act specifically does not require the agreement to grant a right of exclusive occupation. Therefore, there is no reason to find that the “land occupied with the premises” must be for the exclusive use of the tenant of the premises.
The Tribunal is satisfied that land around the residential complex is “land occupied with the premises”.
In regards to whether the specific locations in which drugs were located is “land occupied with the residential premises”, the Tribunal finds as follows:

The Tribunal is not satisfied that the garage of unit 3 comes within “land occupied with the premises”.

The Tribunal is not satisfied that the roof eave comes within “land occupied with the premises”.

The Tribunal is satisfied that the garden area outside the garage of unit 3 in the complex is “land occupied with the residential premises”.

The Tribunal is satisfied that the BMW at the rear of the complex is on “land occupied with the residential premises”.

The Tribunal is satisfied that the drugs which were located in the garden area outside the garage of unit 3 and inside the BMW parked at the rear of the complex were on “land occupied by the residential premises” and therefore, fall within the definition of residential premises and location proscribed by section 90(1)(a) of the Act.

Whether the land was being “used” for the purpose of supply prohibited drugs or any other unlawful purpose.

In McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98, the Appeal Panel considered a number of authorities in determining the meaning of “use” in section 91 of the Act. The following passage from McGuiness is relevant to the considerations in these proceedings:

37 The meaning of “use” is, in our view, the ordinary meaning of “employ for some purpose”, as was submitted by the Landlord (see also Rintel at 529.45) or “to avail oneself of; apply to one’s own purposes”: see Macquarie Dictionary. This meaning accords with the familiar concept of use of a property for residential purposes to which use for an unlawful purpose is to be contrasted.
38 What will satisfy the requirement of use for an unlawful purpose will depend on the circumstances of each case matters of degree may be involved.
39 However, there is nothing in the words, context or purpose of the statute that leads to a construction that precludes mere presence or storage at the premises of stolen items, or items reasonably suspected of being the proceeds of crime, or prohibited substances, from amounting to use of the premises for an unlawful purpose.
40 To the extent that the contrary view was taken in Marshall and Ozen, we disagree with that view and agree with the view of the Tribunal in Robertson on this point.
41 The language used is broad and unqualified. The section does not provide, for example that the use is to be:
(1) for the dominant purpose of the unlawful activity,
(2) an essential or integral component of the unlawful purpose,
(3) a substantial part, or substantially connected with, the unlawful purpose,
(4) directly related to the unlawful purpose.
42 The use for an unlawful purpose need not displace use of the premises for residential purposes. The uses can co-exist.
43 As Malcolm CJ said in Rintel (at page 530.3), use for residential purposes involves use for a variety of purposes, including shelter, eating, sleeping, storage of goods, recreation and even taking a bath.
44 In this company, keeping stolen goods, or goods suspected to be proceeds of crimes, even if openly on display (as some goods were in Marshall) is an additional, but unlawful use. As is also, very clearly, using the premises for the operation of an illegal brothel.
45 On the other hand, the connection between the premises and the unlawful purpose may be so limited that it is not sensible to say that the premises were employed, or availed of, for an unlawful purpose.
46 An example can be taken from the facts of this case. The Tenant’s possession of cash in the sum of $1,100 in her handbag found at the premises, suspected of being proceeds of crime, had some connection with the premises. However, on these facts alone, the premises, as distinct from the handbag, were not employed or availed of for an unlawful purpose.
47 On the other hand, had it been established that the cash in her handbag was at the premises because it was about to be placed in a safe installed at the premises then, in our view, the required use would exist.
48 In some cases it may be said that the required use of the residential premises does not exist because the premises are merely the scene of the crime. In Schneiders case, Bankes LJ (at page 307.3) gave the example of an assault on someone who happened to be on the premises. He doubted that this would constitute use of the premises for an illegal purpose.
49 We share such doubt. On the other hand, if the victim of the assault had been lured to the premises so that the assault could be carried out there, a different answer may well be given.
50 There is no reason why a passing connection with the premises could never suffice. For example, if stolen goods were harboured at the premises for five minutes on their way to another destination this would, in our view, still be use of the premises for an unlawful purpose.

[emphasis added]

The Appeal Panel’s approach to the meaning of “use” in McGuiness was subsequently adopted by the Appeal Panel in Davis.
The Appeal Panel in McGuiness stated that “what will satisfy the requirement of use for an unlawful purpose will depend on the circumstances of each case [,] matters of degree may be involved”.
In determining whether the occupant is using the land for the purpose of supply, the Tribunal considers the circumstances giving rise to the drugs being placed in the garden and BMW by the occupant.
Prior to the police attending in the afternoon, two neighbours found a bag of pills in the front garden of the complex. The presence of that bag of pills in the front garden is consistent with Rach’s text message to the occupant that she left the “meth” in the front garden. When the occupant retrieved the bag from the neighbours they told him that they were going to call the police. In his statement to police, the occupant stated that he expected the police to arrive within half an hour of his interaction with the neighbours.
The evidence in the police brief is that the occupant was waiting for them in the driveway at the front of the complex when they arrived. They later located his blackberry telephone in the garden near where the occupant was waiting.
The police evidence contains photographs taken from the occupant’s phone show that many of the items (for example, the crystalline substance, the cannabis, the blackberry telephone, the PVC pipes, and the ladder) that were found in various areas around the complex were at one time located inside the garage of unit 3.
The Tribunal is of the view that the drugs and money located in various places around the complex, some in plain view (e.g., the PVC pipe and ladder on the driveway, the $10,900 on the lawn), is consistent with the occupant trying to dispose of the items in a hurry and before the police arrived at the complex so that they would not be found on his person or in the garage of unit 3.
The Tribunal is satisfied that the occupant intended to use the garden area and BMW, which are on land occupied with the premises, for the purpose of hiding and storing the prohibited drugs to avoid detection by the police during the time that the police were at the complex.
The Tribunal is of the view that the placement of the drugs in the garden and unlocked BMW was not for permanent long term storage because those locations are not secure.
Notwithstanding the temporary nature of the drugs presence in the garden and BMW, the Tribunal is satisfied that the occupant “used” the land occupied with the premises for an unlawful purpose (namely, to hide/store the drugs for later supply). As stated in McGuiness, nothing in the Act precludes the “mere presence or storage” of unlawful goods from “amounting to use of the premises for an unlawful purpose”. Further, the Appeal Panel found that there is no reason why “a passing connection with the premises could never suffice”.
Although the McGuiness case related to stolen goods, the same principles apply to the supply prohibited drugs. Indeed, the circumstances in these proceedings are analogous to the hypothetical posed in McGuiness: “if [prohibited drugs] were harboured at the premises for five minutes on their way to another destination this would, in our view, still be use of the premises for an unlawful purpose”.
The Tribunal is satisfied that the connection between garden area and the BMW with the unlawful purpose, naming hiding and storing drugs for the purpose of supply, is sufficient to find that the land was being “used”, as in employed or availed of, for an unlawful purpose.
The Tribunal is comfortably satisfied that occupant contravened section 91(1)(a) in relation to the drugs located in the garden and the BMW on the land occupied with the residential premises.

Contravention of section 91(1)(b) of the Act:

The applicant submits that the conduct of the occupant amounts to a contravention of section 91(1)(b) of the Act which (in part) provides as follows:

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) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination.

Section 91(1)(b) of the Act relates specifically to “use of the residential premises for any other unlawful purpose; that is, other than the unlawful purposes referred to in section 91(1)(a) of the Act (see NSW Land and Housing Corporation v Romeyn [2015] NSWCATCD 123 at [56]).
The applicant submits that the garage at unit 3 was used as a “drug house”; that is, a place in which prohibited drugs were consumed.
The occupant, in his statement to police admitted that people came to the garage of unit 3 to smoke “week (sic)”. The Tribunal is satisfied that, in the context of the paragraph on the occupant’s phone, “week” is a typographical error and ought to read “weed”, as in cannabis.
The evidence in the police brief includes a photograph from the occupant’s mobile phone showing a syringe filled with clear liquid and cannabis on the table.
The Tribunal is comfortably satisfied that the occupant (and others) used the garage to take drugs and that the garage was being used as a drug house.
However, section 91(1)(b) requires the “residential premises” to be used for an unlawful purpose. The garage at unit 3 is not a part of the respondent’s residential premise nor is it a part of the “land occupied with the premises” as per the definition in section 3 of the Act.
The Tribunal is not satisfied that the occupant’s use of the garage of unit 3 to take drugs is a contravened section 90(1)(b) because the garage at unit 3 does not form part of the respondent’s residential premises.
The Tribunal considered whether the money the subject of the “recklessly deal with the proceeds of crime” charge which was found in the garden is a contravention of section 91(1)(b).
As determined above, the Tribunal is satisfied that the garden area comes within the statutory definition of “residential premises”; namely, the garden is “land occupied with the premises”.
The photographs in the police brief show that the money was found in the middle of the lawn and in clear view at the rear of the complex.
The Tribunal finds that the manner in which the money was left on the lawn is consistent with the occupant being surprised by the police and dropping or throwing the money away from his person so that it would not be in his possession when the police caught up with him.
In these circumstances, the Tribunal finds that the connection between the garden area where the monies were located and the unlawful purpose (storing the proceeds of crime) is so limited that it is not sensible to say that the garden was employed, or availed of, for an unlawful purpose (see McGuiness).
The Tribunal is not satisfied that the occupant has contravened section 91(1)(b) of the Act in relation to the unlawful conduct relating to the proceeds of crime.

Exercise of discretion to terminate

The Tribunal is satisfied that the occupant has contravened section 91(1)(a) of the Act in relation to the prohibited drugs located in the garden area and in the BMW located on the land occupied with the residential premises.
A tenant is vicariously responsible to the landlord for any act by any other person who is lawfully on the premises pursuant to section 54(1) of the Act. That is, the respondent is liable for the actions of the occupant in these proceedings.
The Tribunal has discretion whether or not to terminate a tenancy in circumstances where a tenant is found to be in contravention of section 91 of the Act (see Cain v NSW Land & Housing Corporation [2014] NSWCA 28).
Although the Tribunal’s discretion whether to terminate a tenancy in circumstances where there has been a contravention of section 91(1)(a) of the Act is unfettered, it must be exercised judicially.
The Court of Appeal’s decision in Cain left open the question of whether the considerations listed in section 152 of the Act (as it was pre 18 December 2015) need to be taken into account when exercising discretion whether to terminate on the basis of a contravention of the Act. Section 152 refers to a “breach” and “breach of an agreement”; therefore, it is arguably only relevant when the Tribunal is considering terminating a social housing tenancy agreement on the basis of a breach of the tenancy agreement.
In NSW Land & Housing Corporation v Kline [2014] NSWCATCD 210, the Tribunal determined that it was not required to consider the factors listed in section 152 of the Act when determining an application for termination based on a contravention of the Act, “unless the application for termination and possession is also based on a breach of the tenancy agreement by the tenant”.
Even though the application in these proceedings is not based on a breach of the residential tenancy agreement; both parties addressed the factors set out in section 152 of the Act. The Tribunal is satisfied that these factors are relevant considerations in the exercise of its discretion.

The applicant’s submissions

The applicant submits that the Tribunal should exercise its discretion to terminate the tenancy agreement for the following reasons in relation to the section 152(1) factors:

(a) any serious adverse effects the tenancy has had on neighbouring residents or other persons

The applicant submits that the Tribunal should be satisfied that the presence of drugs in and around the complex would have serious adverse effect on other residents (see Stiff v NSW Land and Housing Corporation [2014] NSWCATAP 58).

(b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk

The applicant submits that the nature of the occupant’s contravention was very serious and that a failure to terminate the tenancy will subject neighbours to an unreasonable risk of the future presence of illegal drugs.

The applicant submits that the Tribunal should take into consideration the occupant’s previous conduct; namely, his conviction and imprisonment for the manufacture and supply of illegal drugs in August 2013. Those charges arose while the occupant resided in the premises and the premises were searched by the police and a number of items were seized pursuant to a warrant.

The applicant submits that the respondent did not inform them of the occupant’s conviction when she applied to have her son re-admitted as an occupant after his release from prison. The occupant then “re-commenced his previous involvement in the manufacture and supply of illegal drugs” resulting in the 2015 charges the subject of these proceedings.

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

The applicant submits that they owe a contractual and statutory duty to protect other residents in the complex from the occupant’s illegal behaviour.

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

The applicant submits that the respondent has not been in breach of a Tribunal order.

(e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement

The applicant submits that the Tribunal should take into consideration the conduct of the occupant in 2013 and 2015 as discussed in (b) above.

The applicant submits that the Tribunal should take into account the following additional factors in determining whether the tenancy ought to be terminated:

a. The respondent’s knowledge of the occupant’s illegal behaviour

The applicant submits that the respondent knew or ought to have known of the occupant’s involvement in prohibited drugs.

The applicant cross examined the respondent in relation to her knowledge of the occupant’s criminal charges and imprisonment in 2013. The applicant put to the respondent that drugs were found in the premises in 2013 and, notwithstanding the occupant’s conviction and imprisonment for supply prohibited drugs, she took the risk of allowing the occupant to return to the premises. The applicant submits that the respondent did not advise the applicant of the occupant’s criminal behaviour in 2013.

The applicant submits that the respondent had done little to understand the nature of the 2013 conviction and that she is “wilfully blind” to the occupant’s criminal behaviour. The applicant submits that the respondent ought to “have taken more precautions” and that she had a “natural reluctance to come to grips with what is going on” with respect to the occupant’s involvement with drugs.

The applicant questioned the respondent in relation to the occupant’s behaviour (for example, hanging out in the garage, staying out all night on occasion and his change in mood), the implication being that she did, or ought to have, realised the occupant was involved in drugs.

b. The respondent’s medical conditions

The applicant submits that there is no evidence from the respondent or the medical reports that termination of the tenancy would have any effect on her ability to have shoulder surgery; rather, it is the uncertainty of the outcome of these proceedings that is causing the respondent to delay the elective shoulder surgery.

The applicant submits that the respondent does not say that her depression and anxiety is related to the fear of losing her home but rather, her own evidence is that her anxiety is a result of the stress associated with her son’s circumstances.

The applicant submits that the Tribunal should not place much, if any, weight on the six medical and psychological letters submitted by the respondent because they are not addressed to the Tribunal, they do not adopt the Expert Code of Conduct and do not specifically address any adverse effects that a termination order may have on the respondent’s mental health.

The applicant further submits that the reliability of the medical evidence is questionable given that the respondent has visited six different practitioners in a relatively short time; the respondent’s mental health history is inconsistently reported (for example, as commencing in 1996, 2004 and 2014) and there is no evidence as to what treatment (other than pharmacological) that the respondent is receiving for any mental health condition.

c. The ability of the respondent to obtain housing in the private rental market

The applicant submitted a “Centrelink Estimator” completed on the basis of the respondent’s most recent Centrelink Income Statement which indicates that the respondent would be entitled to receive rent assistance at $130.40 per fortnight.

The private rental affordability calculation indicates that the respondent is entitled to commonwealth rent assistance of $65.20 per week and that the respondent could afford rent of $331.02 per week. The applicant submitted a property search of Wollongong which showed 29 properties for $300 per week or less. The applicant relies on the respondent’s evidence that shows that the median weekly rent for a one bedroom place in the 2500 post code (Wollongong) is $280 and $230 for the nearby 2502 postcode.

The applicant submits that the respondent can afford the private rental market in the area which she currently resides or, alternatively, because she has a car and is able to drive, she could move to a nearby suburb with lower rent.

The applicant submits that the respondent’s evidence in cross examination was inconsistent; namely, that at the start her answers were vague and she relied on her “ignorance and distress”; and later in cross examination her evidence was given with greater clarity and detail.
The applicant submits that this conduct goes to the respondent’s lack of credibility.

The respondent’s submissions

The respondent submits that there is no basis for the Tribunal to make an adverse finding in relation to her credibility.
The respondent submits that her evidence given during cross examination was internally consistent and consistent with her written statement. The respondent submits that she was “clearly upset” at the commencement of cross examination and, if the respondent’s answers were more forthcoming toward the end of her evidence, that is “because the Respondent was feeling more comfortable and counsel’s [for the applicant] questions became clearer”.
The respondent submits that the Tribunal should exercise its discretion not to terminate the tenancy agreement for the following reasons in relation to the section 152(1) factors:

(a) any serious adverse effects the tenancy has had on neighbouring residents or other persons

The respondent states that the neighbours, like the respondent, were unaware of the drugs and the illegal activity.

The respondent submits letters from two neighbours in support of her character and continued tenancy. One neighbour, Ms Nessell, states that she considers the respondent “to be a good tenant and neighbour and would like to see her continue residing in our building”. Another neighbour, Ms Prilous, states “there has been no trouble from [the respondent]. She is quite (sic) and friendly… I strongly believe that she is a good and kind neighbour”.

The respondent submits that there is no evidence of an adverse effect on the neighbours.

The respondent submits that the occupant is no longer at the premises. She states that he has other places he can reside and is currently living with his grandmother.

Further the respondent submits that the applicant has:

…removed [the occupant] from the tenancy as an authorised occupant and it is clear that the Landlord will not allow him to be reinstated. If he attempts to live in the premises this will be a breach of the agreement, the Respondent accepts that this is the case.

The respondent submits that under clause 9 of the applicant’s “Tenancy Supplement” document the applicant has the option not approve an additional occupant if their presence is likely to lead to antisocial behaviour. Therefore, the respondent submits that it is not necessary to terminate the tenancy to prevent a risk of further unlawful use because the applicant has other mechanisms to prevent the occupant from returning to the premises.

Further, the respondent submits that if the occupant is convicted, it is likely that he will receive a custodial sentence so there will not be a further risk.

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

The respondent does not make a submission in relation to this factor.

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

The respondent submits that she has an unblemished rental history.

(e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement

The respondent submits that she has a lengthy, some 19 years, and unblemished rental history save for a brief period of time when she fell into rental arrears because her then husband was not working.

The respondent submits that there is no record of any complaints from her neighbours about her or the occupant.

The respondent submits that the Tribunal should take into account the following additional factors in determining whether it should terminate the tenancy:

a. The respondent’s knowledge of the occupant’s illegal behaviour

The respondent states that she was present in 2013 when the police searched her unit. She says that the police removed some of the occupant’s clothes, shoes, phone and computer. She says that no drugs were found in the premises.

The respondent states that she was aware of the charges and the occupant’s conviction and imprisonment for drug supply in 2013. She says that after he was released from prison, she did not think that he would ever be involved in drugs again.

The respondent agrees that she did not tell the applicant about the occupant’s conviction; however, she submits that she was never asked about his criminal history and that there is no policy that requires her to advise the applicant of the occupant’s drugs conviction.

The respondent states that the occupant was working with his brothers as an apprentice carpenter and that she “always asked his brothers” about the occupant and that they said “everything is ok”. She says that his activities, such as going out, were not usual.

The respondent says that the occupant’s mood had changed. She submits that any withdrawal or depression experienced by the occupant is not unreasonable in circumstances where he had recently been released from prison.

The respondent states that she regularly “checked” the occupant’s “room, bag and pockets” and that she did his laundry. She says that she never found any drugs in the occupant’s room or possessions.

The respondent submits that on 24 November 2015 the police did not find “drugs or anything else of an unlawful nature” in the premises and that the drugs “were very well hidden” in the garden and the roof eave, which required the use of a ladder to access. The respondent submits that the occupant went to great lengths to conceal his unlawful conduct, including from the respondent.

The respondent submits that the applicant has not identified factors which would have alerted the respondent to the occupant’s unlawful conduct. She submits that she was not aware of the occupant’s unlawful conduct and there was no reason for her to have been suspicious prior to the police search on 24 November 2015.

b. The respondent’s medical conditions

The respondent submits that the medical evidence identifies her mental health conditions as PTSD, depression and anxiety which have been exacerbated by the prospect of a termination order. The respondent relies on the following medical evidence:

The letter of Dr Wighton dated 26 February 2016 which states that the respondent presented with “extreme anxiety and depression with concerning suicidal ideation” and that she “requires a safe and secure living environment”.
The letter of Dr Wael Wahaib, senior consultant psychiatrist, dated 17 July 2016, which states that the “pressure of being evicted… had major impact on her mental state” and “she feels hopeless and helpless and she will be on the street with no support”. The respondent submits that the letter also refers to a risk of self harm.
The letter of Dr Iqbal dated 22 July 2016 which states that the respondent:

….feels very distressed and disturbed as the eviction will leave her on the street. Without suitable shelter as her physical, medical, financial and psychological conditions are concerned… She may be saved from further suffering and helped to avoid to be doomed to an unhappy future in her middle and old age by cancelling the above mentioned [termination] orders.

The letter from, Dr Gerard Stoyes, registered clinical psychologist dated 12 July 2016 which states that the respondent is in a “state of deep emotional stress” and:

… Personally I am concerned about Fatima’s capacity to cope with the situation in a way that maintains her state of mind and emotional well being.

The respondent submits that the Tribunal ought to consider future events as set out by Basten JA in Cain:

There is no basis for reading the statute as excluding… the likely effect of the termination order on the tenant’s health and medical treatment.

The respondent submits that whilst her suicidal thoughts and depression is related to the occupant’s conduct, it is in large part brought about by the prospect of losing her home.

Finally, the respondent submits that there is a value to the community overall in allowing her to remain in the premises; that is, to allow her to work on getting her mental health and physical treatment (see Housing v Darren Charles Reid (1998) NSWRT 180).

c. The ability of the respondent to obtain housing in the private rental market

The respondent submits that private rental would be unaffordable and there is a real risk that the respondent will be homeless if the tenancy is terminated.

The respondent relies on the report of a financial planner that indicates that the she has $2.00 remaining at the end of each week and she is currently only paying $120.00 per week. The respondent submits that, whilst the applicant submits that no weight can be put on the report because primary documents were not provided, the respondent was not cross examined on that evidence and there was no submission that the figures were unreasonable.

The respondent states that the applicant’s calculations appear to be based on 100% of the rental assistance and 50% of all income going towards rent. On the applicant’s evidence the respondent would receive $455.65 per week in total; therefore the applicant’s affordable rent calculation of $332.00 per week represents 73% of the respondent’s gross income. The respondent submits that “Shelter Australia’s” webpage states that if a person spends over 30% of their gross income on rent then they are in “housing stress”. The respondent submits that she would not be able to meet her primary needs, including food, power, water, health services, medication, transport, household goods and debt repayments on the $123.65 per week that she would have left over after paying rent.

The respondent submits that she would not be able to afford the bond on a private rental. She submits that the applicant’s policy in the “Housing Pathways Fact Sheet” is that a person is eligible for a bond loan if “rent for the property you wish to rent is not more than 50% of your gross income”. Therefore, the respondent would not be eligible for a bond on the applicant’s calculation of “affordable housing”.

Further, if the respondent’s mental health deteriorates as a result of her tenancy being terminated, her ability to work may be affected and her ability to pay market rent would become more untenable. The respondent submits that without her work income she would be reliant on the Newstart allowance and her income (including the Commonwealth rent assistance) would be reduced to $334.05 per week.

Finally, the respondent submits that she has postponed her shoulder surgery due to the uncertainty about her housing future. She submits a letter from Dr Jansen, orthopaedic surgeon, which states the surgery will be between October and December 2016 and that she will be “unfit for work for up to 6 months. During this time she will have restricted use of her right arm and will also need assistance with her daily activities”. The respondent submits that this will impact on her income and therefore reduce her ability to afford the private rental market.

The respondent submits that to terminate the tenancy in light of all the circumstances of the case would lead to a result which is “absurd, unfair, harsh and oppressive”.
The respondent relies on the comments of Leeming JA in Cain, in which His Honour found that terminating a tenancy in circumstances where “if the relative’s spouse supplied a prohibited drug on the premises, even if the tenant is completely unaware and has no reason to suspect, then the landlord can… compel the Tribunal to make a termination order” then the outcome would be “absurd”, “irrational” and “unjust”.
The respondent submits that to terminate the tenancy would have a punitive effect and render the respondent homeless.

Consideration

The Tribunal finds the respondent to be a credible witness.
The respondent’s evidence, including in relation to whether drugs were found in the premises in 2013, is consistent. She says that no drugs were found in the premises. The police evidence refers to a number of items being seized in the search of the premises but does not identify the nature of the items seized. The applicant did not provide evidence to contradict the respondent’s evidence that drugs were not found during the 2013 search.
The Tribunal is not satisfied that it can reasonably conclude, from the manner in which the respondent gave evidence under cross examination, that she is not a credible witness. The respondent was very distressed as evidenced from her tears and manner of communication. She is from a culturally and linguistically diverse background and cross examination was undertaken with the assistance of an interpreter. These circumstances added to the usual difficulties in cross examination, including questions being put in a manner which lay persons are not familiar. The difficulties were compounded by there being two searches of the premises (in 2013 and 2015) and it may not have been clear to the respondent which incident was being addressed.
In determining whether to exercise its discretion the Tribunal considered the factors put to it by the parties. With regard to the section 152(1) factors the Tribunal finds as follows:

(a) any serious adverse effects the tenancy has had on neighbouring residents or other persons

The Tribunal is not satisfied that the tenancy has had an adverse effect on the neighbours. The Tribunal accepts that the conduct of the occupant had the potential to adversely impact on the residents in the complex; however, this factor requires a finding that the tenancy has, actually, had an adverse effect on the neighbours or other persons.

The applicant did not submit evidence from employee(s) or neighbour(s) as to any adverse effect that the tenancy has had within the complex or on other persons.

The Tribunal is satisfied that this factor weighs in favour of the Tribunal exercising its discretion not to terminate the tenancy.

The Tribunal is of the view that the nature of the breach the subject of these proceedings is very serious.

The Tribunal is satisfied that there is a risk that the respondent will allow the occupant to return to the premises. The residential tenancy agreement allows “no more than 4 persons” to occupy the premises at any one time. The Tribunal is not satisfied, on the evidence before it, that the applicant has the ability to prevent the respondent from allowing her son to live in the rented premises. There is no provision in the agreement or Act that requires the respondent to obtain approval for occupant(s) provided that the number of persons residing at the premises is in accordance with the agreement, in this case, four or fewer. It appears that the applicant’s policy regarding their discretion to allow (or not) an occupant applies when there is no term for additional occupant(s) under the tenancy agreement.

Notwithstanding her assertions to the contrary, the Tribunal is satisfied that there is a risk, albeit slight, that the respondent will again allow her son to return to live in the rented premises at the conclusion of the court proceedings and/or, if convicted, any term of imprisonment. The Tribunal is of the view that if the son was to return to live at the premises, given his involvement with unlawful drugs in 2013 and 2015, there is a real risk that he would resume his involvement with unlawful drugs.

Although, the applicant did not provide evidence on point, the Tribunal is of the view that there is an inherent risk to neighbours and other persons when drugs are stored (there is no evidence that the occupant was selling the drugs) within the complex.

In this case, two adult neighbours found the backpack full of drugs at the front of the complex; it could just as easily been young children or teenagers who found that backpack. In the latter scenario the outcome could have been different (with the potential for tragic consequences) to the neighbours’ call to the police. In the view of the Tribunal, the very presence of the prohibited drugs subjects neighbours and other persons to unreasonable risk.

Given the slight risk that the respondent will allow her son to return to the premises and the real risk that if he were to return he would continue his involvement with unlawful drugs, the Tribunal is satisfied that if the tenancy is not terminated then neighbours and persons would be subject to an unreasonable risk if the occupant were to return to the premises.

The Tribunal is satisfied that this factor weighs, slightly, in favour of the Tribunal exercising its discretion to terminate the tenancy.

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

For the reasons stated above, the Tribunal is satisfied that this factor weighs, slightly, in favour of the Tribunal exercising its discretion to terminate the tenancy.

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

The respondent has never been in breach of a Tribunal order.

The Tribunal is satisfied that this factor weighs in favour of the Tribunal exercising its discretion to not terminate the tenancy.

(e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement

The history of this nineteen year tenancy (bar a brief period of rental arrears) is excellent. The Tribunal is not satisfied that the occupant’s 2013 conviction was as a result of the occupant “using” the premises for an unlawful purpose because there is no evidence that drugs were located in the rented premises.

The Tribunal is satisfied that this factor weighs in favour of the Tribunal exercising its discretion to not terminate the tenancy.

With regard to the additional factors put by the parties, the Tribunal finds as follows:

a. The respondent’s knowledge of the occupant’s illegal behaviour

The Tribunal is satisfied that the respondent was not aware, and there was no reason for her to have been aware, of the occupant’s involvement with drugs prior to the search on 24 November 2015.

The Tribunal is satisfied that this factor weighs in favour of the Tribunal exercising its discretion to not terminate the tenancy.

b. The ability of the respondent to obtain housing in the private rental market

The Tribunal is satisfied that the respondent has established that it will be considerably more difficult for her to manage financially in the private market compared to social housing.

The Tribunal is not satisfied that the respondent is at a serious risk of homelessness should the tenancy be terminated. She is entitled to the Newstart allowance, rent assistance and is in paid employment. The Tribunal accepts the respondent’s evidence that there is a chance that she will not be entitled to rental bond assistance (because of the percentage of her income that she will be paying on rent).

The Tribunal accepts that the respondent’s financial circumstances will be more strained in the private rental market; particularly in the short term, saving for a rental bond and not working for up to six months after her shoulder surgery. However, the respondent’s adult children live in the local area. The respondent has not provided evidence that she is unable to reside with her family in the short or long term. Indeed, given that the respondent will require assistance with daily chores for up to six months after the shoulder operation, she may well be better off staying with her family which would also give her a chance to save for bond monies.

Considering the position of the respondent, her income earning ability and family support the Tribunal is satisfied that the respondent’s risk of homelessness is unlikely; however, she will be under considerably greater financial stress in the private rental market.

The Tribunal is satisfied that this factor is neutral or weighs slightly in favour of the Tribunal exercising its discretion to terminate the tenancy.

c. The seriousness of the respondent’s medical conditions

The evidence of Drs Wahaib and Iqbal relates to the respondent’s fear of ending up “on the street”. For the reasons stated above, the Tribunal is not satisfied that the respondent will end up homeless.

The Tribunal is satisfied that weight should be placed on the evidence of Drs Wighton and Stoyes that respondent’s requires a safe and secure living environment for the benefit of her mental health. The Tribunal is satisfied that remaining in her social housing premises, given its subsidised rent and stability of tenure, would be the most conducive to maintaining her mental health. On the basis of their reports, the Tribunal is satisfied that termination of the tenancy would have adverse consequences for the respondent’s psychological health.

The Tribunal is satisfied that this factor weighs in favour of the Tribunal exercising its discretion to not terminate the tenancy.

d. The length of the tenancy

The respondent has been in these rented premises for nineteen years. The Tribunal accepts that she is part of the local community and within the complex.

The Tribunal is satisfied that this factor weighs in favour of the Tribunal exercising its discretion not to terminate the tenancy.

In weighing up the above factors the Tribunal does not simply tally the numbers for and against the exercise of its discretion. The Tribunal is of the view that the factors do not each have equal weight.
The Tribunal is of the view that the strongest factors in the tenant’s favour is that she did not know (nor, on the evidence, ought she have known) that the occupant was involved with prohibited drugs prior to the search on 24 November 2015; there has been no adverse consequences on the neighbours or other persons and she has a virtually unblemished tenancy of 19 years.
Less strong factors in the respondent’s favour are the impact on her mental health and financial security in a private rental market. The Tribunal in coming to this conclusion has considered the family support available to the tenant and her ability to earn an income. The medical evidence relates to the impact that the uncertainty of these proceedings and the possibility of homelessness is having on the respondent’s mental health. As determined above, the Tribunal is not satisfied that the respondent is facing a real likelihood of homelessness.
The strongest factors in favour of termination are the seriousness of the breach and the possibility that the tenant may allow her son to return as an occupant. Whilst the Tribunal is satisfied that there is a slight risk that the respondent will allow her son to return to the premises, the Tribunal has regard to the respondent’s repeated assertions, under oath, that she will not allow her son to return to live at the premises. The Tribunal trusts that the respondent will hold good to her word.
The Tribunal is satisfied, after weighing up all the factors in consideration, that its discretion ought to be exercised in favour of the respondent; that is, not to terminate the tenancy.

Specific performance order

The issue then is whether the Tribunal should make a specific performance order in circumstances were it found a contravention of the Act but that the tenancy agreement should not be terminated. A contravention of section 91 of the Act also gives rise to a breach of clause 7.1 of the tenancy agreement; namely, not to cause or permit the premises to be used for any unlawful purpose. Clause 19 of the agreement makes the respondent liable for the acts of any person she allows on the premises.
The application seeks an order pursuant to section 187(1) of the Act, which provides that the Tribunal may make an order that restrains any action in breach of a residential tenancy agreement or an order that requires an action in performance of a residential tenancy agreement.
The Tribunal is satisfied, in the circumstances of this case (namely, that there is a possibility that the respondent will allow the occupant to return to the premise), that it is appropriate to make a specific performance order under section 187(1) of the Act.

The Tribunal is further satisfied that the applicant is granted a six month period in which to seek that the application for termination be re-listed in the event that the respondent does not comply with the specific performance order.

ORDERS

The Tribunal makes the following orders:

The application for termination is dismissed.

The respondent is to comply with the terms of her agreement, namely, not cause or permit the use of the residential premises to be used for an unlawful purpose.

If the respondent does not comply with the above order, the applicant may request this application to be re-listed on or before 27 April 2017 and request that the tenancy be terminated and the respondent to vacate the premises.

D Harvey

General Member

Civil and Administrative Tribunal of New South Wales

4 November 2016

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: 05 January 2017

Medium Neutral Citation:	NSW Land and Housing Corporation v Ibrahim [2016] NSWCATCD 91
Hearing dates:	10 June 2016 and 16 September 2016
Decision date:	04 November 2016
Jurisdiction:	Consumer and Commercial Division
Before:	D Harvey, General Member
Decision:	1. The application for termination is dismissed. 2. The respondent is to comply with the terms of her agreement, namely, not cause or permit the use of the residential premises to be used for an unlawful purpose. 3. If the respondent does not comply with the above order, the applicant may request this application to be re-listed on or before 27 April 2017 and request that the tenancy be terminated and the respondent to vacate the premises.
Catchwords:	Section 91, illegal use, residential complex, discretion to terminate
Legislation Cited:	Residential Tenancies Act 2010 Drug Misuse and Trafficking Act 1985
Cases Cited:	Cain v NSW Land & Housing Corporation [2014] NSWCA 28 NSW Land and Housing Corporation v Nihangun Ozen [2014] NSWCATCD 27 McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98 New South Wales Land and Housing Corporation v Lesniewski [2015] NSWCATAP Davis v NSW Land and Housing Corporation [2015] NSWCATAP 271 Briginshaw v Briginshaw (1938) 60 CLR 330 NSW Land and Housing Corporation v Romeyn [2015] NSWCATCD 123 NSW Land and Housing Corporation v John Raglione [2015] NSWCATAP 75 NSW Land and Housing Corporation v Kline [2014] NSWCATCD 210 Stiff v NSW Land and Housing Corporation [2014] NSWCATCD 123 R v Knight, Brian, and Knight Kevin [2008] NSWDC 135
Category:	Principal judgment
Parties:	NSW Land and Housing Corporation (applicant) Fatme Ibrahim (respondent)
Representation:	On 10 June 2016: Mr O’Connor, counsel, Ms Hooke, legal advocate (applicant) Mr Turner, solicitor (respondent) On 16 September 2016: Ms Madgwick, counsel, Ms Hooke, legal advocate (applicant) Ms Hehir, solicitor (respondent)
File Number(s):	SH 16/07184