NSW Land and Housing Corporation v Lea

[2021] NSWCATCD 54

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NSW Land and Housing Corporation v Lea [2021] NSWCATCD 54

Hearing dates:

4 December 2020

Date of orders:

4 January 2021

Decision date:

04 January 2021

Jurisdiction:

Consumer and Commercial Division

Before:

M Eftimiou, General Member

Decision:

1. The residential tenancy agreement is termination in accordance with section 91(1)(a) of the Residential Tenancies Act 2010.

2. The residential tenancy agreement is terminated immediately and possession is to be given to the landlord on the date of termination.

3. The order for possession is suspended until 31 March 2021.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Social housing — Use of premises for an illegal purpose — Undue hardship — Suspension of the order for possession

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Anti Discrimination Act 1977 (NSW)

Cases Cited:

Rowland v NSWLH [2020] NSWCATP 139

Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237

NSW Land and Housing Corporation v Thurlow [2010] NSWCA 11

Category:

Principal judgment

Parties:

NSW Land and Housing Corporation (Applicant)
Jayne Lea (Respondent)

Representation:

NSW Land and Housing Corporation (Applicant)
Grace-Crawley Shaw (Respondent)

File Number(s):

SH20/38675

Publication restriction:

NIL

REASONS FOR DECISION

Reasons for Decision:

1. The applicant landlord sought an order for termination and possession of the premises based upon Section 91 (1) (a) of the Residential Tenancies Act 2010. The respondent tenant opposed the application. There was no dispute that there is a residential tenancy agreement between the parties, the application has arisen out of that tenancy agreement and the Tribunal has jurisdiction to hear and determine the matter.

2. The application for termination and possession was lodged by the landlord on 12 December 2019. On 12 May 2020 the Tribunal made orders terminating the tenancy and giving vacant possession to the landlord (SH19/55532). The tenant appealed the decision of the Tribunal to the Appeal Panel (AP20/28765). On 11 September 2020 by Consent of the parties the decision made in matter SH19/55532 on 12 May 2020 was set aside and remitted to the Tribunal for rehearing.

3. On 23 September 2020 the Tribunal made procedural directions for the filing and serving of documents. The landlord has complied with those directions. The tenant has failed to comply with the directions. The tenant sought leave to rely on additional material filed with the Tribunal at 9pm on 3 December 2020. The Tribunal granted a short adjournment to allow the landlord to consider the material. The landlord did not object to the material being tendered and the Tribunal granted leave to the tenant to file additional material.

4. The landlord sought to rely on a folder of documents numbered page 1- 127. The Tribunal has marked the folder Exhibit A. The tenant sought to rely on documents folioed 1-7 with additional documents filed today folioed 8-10. The Tribunal has marked the tenant’s documents Exhibit R.

Background

5. On 28 November 2019 the NSW Police executed a search warrant at the premises of the tenant. The tenant was subsequently charged with supplying a prohibited drug and possession of a prohibited drug under the Drug Misuse and Trafficking Act 1985. The tenant pleaded guilty to the charges on 3 June 2020 and received a (2) year community correction order and was fined $400.00.

Issues to be determined

6. In accordance with the decision in Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 the Tribunal considered that there are three elements to the landlord’s application:

(a). Are the elements of Section 91(1)(a) made out?

(b). If so, does Section 154D apply so as to give the Tribunal a discretion as to whether to terminate the tenancy agreement?

(c) If Section 154D applies, exercising proper discretion in relation to termination having regard to the legislation.

Has the tenant breached s91 (1) (a) of the Act?

7. The landlord’s position was based upon the facts, material and charges relevant to the police brief of evidence to establish that the tenant intentionally caused or permitted the use of her premises for the purposes of the sale or supply of a prohibited drug.

8. The tenant does not dispute the breach. The tenant gave evidence that she was supplying the cannabis to her then 15 year old daughter. The tenant states in her statement to the Tribunal dated 3 December 2020:

“It is on record in the (criminal matters) that the reasons for my giving my daughter cannabis were that I love her and wished to protect her from seeking it on the street or from strangers or from dealers who might harm her by offering her other dangerous substances or in other ways. It is not something I or she would do again, but my motives for doing it were pure and were any loving parent faced with the situation I was , I believe that they would have done similar.”

9. The Tribunal is satisfied on the basis of the Police Brief of Evidence and the tenant’s own evidence that the tenant intentionally or recklessly caused or permitted the use of her premises for the purposes of the sale or supply of prohibited drugs within the meaning of the Drug Misuse and Trafficking Act 1985. The Tribunal finds that the provisions of Section 91 (1)(a) of the Residential Tenancies Act have been established.

Section 154D(3)(b) – Undue Hardship

10. NSW Land and Housing Corporation v Thurlow [2010] NSWCA 11 per Young JA at [15] identified that at the outset it must be recognised that the termination of a tenancy is a very serious matter as it results in the loss of a person’s home. The issue to consider is does the relevant parts of Section 154D as they relate to the matter apply so as to give the Tribunal a discretion as to whether to terminate the tenancy agreement. Section 154D of the Act relevantly states:

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

(b) an application for the order is made under section 91 and the Tribunal is satisfied of the matters set out in section 91 (1) (a)

(c) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing 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) to be used for the purposes of—

(i) storing a firearm for which a licence or permit is not held under the Firearms Act 1996,

and the tenant or other person has been charged with an offence relating to those circumstances (whether or not the person is or has been found guilty of the offence).

(3) However-

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

11. This approach to such applications was confirmed by the Court of Appeal in NSW Land and Housing Corporation v Orr [2019] NSWCA 231. At paragraph 80 the Court of Appeal stated:

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

12. The Appeal Panel in Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 had also confirmed the approach to such matters at paragraph 36 when they stated (this was not disturbed on Appeal):

"Terminating a social housing tenancy agreement under s 91(1)(a) therefore involves a three stage process:

(1) Determining whether the elements of s 91(1)(a) are made out.

(2) If the elements of s 91(1)(a) are made out, determining whether s 154D(3) applies so as to give the Tribunal a discretion as to whether to terminate the tenancy agreement.

(3) If s 154D(3) applies, exercising the discretion in relation to termination having regard to the factors listed in s 154E(1) and to any other factors relevant to the exercise of the discretion."

13. The tenant submits that any termination order made by the Tribunal would result in undue hardship:

1. Being suffered by a child, being her daughter Aja who is 16 years of age.

2. Being suffered by a person in whose favour an apprehended violence order could be made: there is an AVO in place naming the tenant as the protected person.

3. Being suffered by a person suffering from a Disability within the meaning of the Anti Discrimination Act 1977: the tenant argues she is suffering with depression.

Child

14. The Tribunal is satisfied that the tenant’s child Aja (16 years of age) resides in the premises with the tenant. The tenant gave evidence that one of her sons resides in Sweden and another son comes and goes to the property. The Tribunal is satisfied that the tenant’s two sons are over the age of 18 years and are not children.

15. The tenant gave little evidence of any undue hardship that the tenant or her child would experience if the tenancy were terminated. The tenant’s daughter wrote a statement to the Tribunal where she has said:

“the offence and court hearing referred to above have caused me to think long and hard about my priorities and what I do for recreation and I am planning to do Construction at NSW TAFE from January and to avoid having Cannabis and other drugs and avoid alcohol as I have seen first hand what damage it does to people and families due to it being prohibited. Neither TAFE nor sober, drug free living will be easy all the time but I am excited by the path I see so clearly for myself and my career and know that I can success in both.

The turmoil that will result if we are forced to leave our home will not only make life very difficult for my mother, it will seriously set me back in seeking to achieve these objectives and possible destroy my determination to success.

Please consider the positive impact that having a home and stability provides, versus the disruption turmoil and damage that would ensure if forcing someone out of the only home they have known which is the case for me..”

16. The Tribunal is satisfied that there is a child who resides at the premises.

Apprehend Violence Order

17. The tenant has given evidence that there is an Apprehended Violence Order in place between herself and her daughter where the tenant is the protected person.

18. The Tribunal is satisfied on the tenant’s own evidence that she is a person in whose favour an apprehended violence order has been made.

Disability within the meaning of the Anti Discrimination Act

19. The Tribunal must determine whether the tenant or an occupant is suffering from a disability within the meaning of the Anti-Discrimination Act 1977. The tenant has provided a Patient Health Summary from her General Practitioner Dr Haque. The Summary is dated 12 November 2020 and lists her “Active Past History” as including Moderate, Acute Anxiety/Depression on 18 March 2020. The tenant seeks to rely on this summary together with her own evidence to establish that she is suffering from a Disability within the meaning of the Anti Discrimination Act.

20. The landlord submits that there is insufficient evidence before the Tribunal to enable the Tribunal to determine that the tenant is suffering from a disability within the meaning of the Ant Discrimination Act. The landlord submits that there is only one reference in the Patient Summary to Depression on 18 March 2020 in relation to the tenant’s mental health. Further, Dr Hague is a General Practitioner and not an expert. There is no expert evidence or reports to establish that the tenant suffers from a disability.

21. The tenant relies on the decision of Rowland v NSWLH [2020] NSWCATP 139 to establish that a Patient Summary can be sufficient evidence of a Disability. At paragraph [59] the Appeal Panel found:

“on its face, the plain inference from the patient summary document was that it was a medical record concerning the tenant from a medical practice treating the tenant…….. It was important, objective evidence to be taken account of in arriving at a determination in respect of the claim of a disability.”

22. The only medical evidence presented was in respect of the tenant. No evidence was presented in respect of any occupant(s). The Tribunal is satisfied based on the tenant’s own evidence and the Patient Summary provided by Dr Hague that the tenant suffers from a disability within the meaning of the Anti Discrimination Act. The Tribunal is satisfied that as at 20 November 2020 the tenant was suffering from active Moderate Acute Anxiety/Depression. The Tribunal is satisfied that the tenant has been prescribed medication for this medical condition which she is currently taking. The Tribunal is satisfied that Moderate Acute Anxiety/Depression meets the definition of disability found in s4 of the Anti Discrimination Act.

Undue Hardship

23. Pursuant to Section 154D(3)(b) the issue to then be considered is whether the termination order would be likely to result in undue hardship being suffered by the tenant and or her child Aja.

24. Section 154D(3)(b) does not define "undue hardship". Nor is that expression defined anywhere else in the Residential Tenancies Act 2010. Both the Court of Appeal and the Appeal Panel in Orr concluded that undue hardship means hardship that is excessive in the circumstances. It is also clear from the judgements that fault and the circumstances of the offending behaviour are not relevant to the consideration of undue hardship at this stage of the analysis when considering s154D(3)(b).

25. The Tribunal considers that the nature of terminating a social housing tenancy by order may very well routinely result in the tenant experiencing significant stress, discomfort, disruption, inconvenience and even hardship to the tenant and a child of the tenant. However, it is clear that 154D(3)(b) is a gateway issue. The issue for consideration by the Tribunal in accordance with s154D(3)(b) in the matter is whether the termination order would be likely to result in undue hardship or hardship that is excessive for Ms Lea and Aja in all of the circumstances.

26. The landlord disputes that the tenant would suffer undue hardship if the tenancy were terminated. The landlord states that the tenant bares the onus of proof and has provided little supporting evidence in respect of undue hardship. The landlord submits that the tenant may suffer stress and inconvenience from having the residential tenancy terminated however this is something that most social housing tenant’s experience when their tenancy is terminated and is not something special to the tenant. The landlord further submitted that homelessness is not a consequence of termination but only a possible outcome. Further, there are a number of options in terms of support for the tenant from various government agencies if her tenancy were to be terminated. The landlord submitted that the tenant would be able to access private rental with government assistance.

27. The tenant submitted that she would suffer undue hardship if the tenancy were terminated. The tenant gave evidence that she acknowledges that she has done the wrong thing and has taken steps to turn her life around. This has included not taking any drugs; attending counselling and ensuring that none of her previous associates attend the property. If the tenancy is terminated the tenant and her daughter will have nowhere to go. The tenant has no family to offer support. Everything is starting to improve with her daughter and it would not be good for her to have to move to another location. The tenant has attended one narcotics anonymous meeting. She has attended 4 sessions of tele counselling arranged with her general practitioner. The tenant was not able to give any evidence of any steps her daughter has taken to deal with any personal issues. The tenant relies on the statement provided by her daughter, Aja.

28. Submissions were made on behalf of the tenant by the tenant’s advocate who argued that due to the tenant’s personal and medical issues she is less capable than other people to cope with her tenancy being terminated. The tenant’s advocate argued that the termination is “likely” to result in undue hardship and it does not need to be a “certainty” to meet the definition of undue. The tenant’s advocate argued that the consequences of termination on the tenant would be harsh. The tenant’s advocate further submitted that a termination may cause further stress on an already volatile relationship between the tenant and her daughter.

29. The tenant sought to rely on a letter from the Benevolent Society, evidence of her Centerlink Income Statement and evidence of private rental properties available in the local area to support her claim that she would suffer undue hardship if the tenancy were terminated. As stated elsewhere Aja provided a statement to the Tribunal.

30. The letter from Belevolvent Society is dated 12 November 2020 and states in part:

“Jayne and her children were referred to our Child, Youth and Family (CYF) Program on June 20 2020 mainly due to concerns for the family’s risk of homelessness posted by Housing NSW’s Decision to evict the family. Janye and I have had several conversations where she has expressed stress and worry over being evicted as it would mean that her and her children would have nowhere to live. I am concerned that if the eviction goes through, this would not only mean Jayne would be homeless but it would ultimately impact on her metal health and that of her children ( Aja 16 and Aries 20).

Jayne has voiced that the above address has been her family home for over 10 years and she has made it a place where her children know they can always return to if needed. IN the time Jayne and her children have lived in Matraville, they have been thorough difficulty circumstances and linked in with services that have supported them. Jayne still continued to have these social connections and I would be concerned that if the eviction goes through, she would lose these valuable supports.

I strongly feel that Jayne should be able to continue to live in the home, as it is her right to have a safe and secure base to live in and for her children to access as well….”

31. The tenant’s income statement from Centerlink dated 12 November 2020 shows that she is receiving Job Seeker payment, Energy Supplement, Coronavirus Supplement and Family Tax Benefit A and B. The tenant receives fortnightly payments of $1230.60 from Centerlink.

32. The tenant has provided evidence of six rental properties in the Maroubra area. All of the properties provided are three bedroom apartments which range from $500.00 to $650.00 a week. The tenant gave evidence that she was unable to find any other properties in the area for rent and the cheapest property she could find was $490.00 a week.

33. The tenant has also provided a letter of support from her neighbour who has expressed her concern for the tenant’s mental health if she was to lose her home.

Consideration on Undue Hardship

34. The tenant bares the onus to establish that undue hardship applies in consideration of the Section 154D(3)(b). Whilst the tenant would undoubtedly experience some hardship if the tenancy is terminated and she has to move, for the reasons explained below, the Tribunal does not accept that the outcome of terminating the tenancy is likely to cause undue hardship to the tenant and or her daughter.

35. It is contended that the tenant will suffer undue hardship if the tenancy is terminated due to her current and future mental health conditions. It is contended that she would not be able to afford private housing and she would lose support of all local services.

34. The tenant’s daughter has stated in her statement that losing the tenancy would “destroy her determination to succeed”. There is little independent evidence before the Tribunal as to why moving to another property would prevent Aja from continuing on her goals of remaining drug free and attending TAFE in 2021.

35. There is no evidence before the Tribunal as to the tenant’s future mental health prognosis. The Tribunal is satisfied that the tenant was diagnosed with moderate anxiety/depression in March 2020 and she is currently on medication for her medical condition and she has also attended some counselling sessions organised by her general practitioner. There is no medical evidence to support a finding that the tenant’s mental health will deteriorate if her tenancy is terminated or that she is likely to suffer any hardship if her tenancy is terminated in relation to her mental health. The tenant has not established on the medical evidence provided that she would suffer undue hardship if the tenancy were terminated based upon any mental health conditions she may have.

36. There is little evidence that the Benevolent Society would not be able to continue to support the tenant and her child if the tenancy were terminated. There is also little evidence to indicate that any support services that she currently receives in the local area are not available in another area where rental accommodation may be more affordable. There is also little evidence that the social connections that the tenant now currently enjoys would cease if the tenancy were terminated and if she had to move out of Matraville.

37. The Apprehended Violence Order has been issued by the NSW Local Court naming the tenant as the person in need of protection from her daughter. The tenant’s advocate submitted that if the tenancy were to be terminated this would cause difficulties on an already strained relationship. There is little evidence from any professional to support this statement.

38. The Tribunal accepts that there may be hardship in finding alternate accommodation and possibly moving out of the area where the tenant currently resides. However, the Tribunal is not satisfied that the hardship that the tenant may experience is undue.

39. There is little evidence of any attempts by the tenant to apply for alternate housing for herself and her daughter. The six advertisements for private rental for 3 bedroom properties in Maroubra do not satisfy the Tribunal that there are no two bedroom properties in other areas in the Local Council area which the tenant may be able to afford on her Centerlink income with other government support. The tenant’s subsidised rent with the landlord appears to be $269.10 a fortnight. The tenant has paid no rent to the landlord since June 2020 due to an ongoing rental subsidy dispute. The tenant currently has a rental debt of $25,839.00.The tenant did not provide any evidence to the Tribunal of her assets and liabilities and how much rent she was able to afford to pay in the private market. However as set out elsewhere the tenant is receiving $1230.60 per fortnight from Centerlink.

40. Other than the tenant’s evidence that she is on Centrelink payments, the tenant did not present any documentary evidence in respect of her financial circumstances to the Tribunal. There has been no supporting evidence in relation to income, her debts and/or budgeting in respect of what money the tenant receives and how she spends her money provided to the Tribunal. The tenant did not submit any evidence on her affordability relating to the private rental market or any other alternative housing options. The Tribunal does not consider that it is unreasonable for the tenant to live in other types of rental accommodation. The tenant submitted little evidence to establish that she had seriously investigated any other alternative accommodation apart from six advertisements downloaded from the internet showing 3 bedroom apartments in Maroubra.

41. On that basis, the Tribunal is not satisfied on the evidence provided that the tenant would suffer undue hardship if the tenancy was terminated because she could not afford to rent in the private rental market or in any other alternative housing options. Without any detailed evidence of both the tenant’s financial affairs and all other possible housing options for proper consideration the Tribunal simply could not be satisfied what alternative accommodation the tenant could or could not potentially afford or whether she is or is not susceptible to becoming homelessness.

42. The Tribunal accepts that the tenant has been in social housing for over 20 years and this property for 14 years. The Tribunal accepts that stable accommodation for the tenant and her daughter Aja is important but there is nothing that identifies that her stable accommodation has to be in her current premises or location. The Tribunal accepts that having to now move and find alternative accommodations will most likely cause the tenant inconvenience as would be expected for a person in her situation but this does not establish undue hardship.

43. While there may well be hardship in locating and securing such accommodation, the Tribunal is not satisfied that the tenant will suffer undue hardship. The tenant has provided an internet download of DCJ Tenancy Policy setting out the landlord’s policy on ineligible former housing tenants. The Tribunal is not satisfied that the fact that the tenant may be ineligible for social housing in the future due to the landlord’s Policy establishes undue hardship. The landlord has listed a number of government supports that the tenant may be able to access in the private rental market.

44. For the reasons above, the Tribunal is not satisfied that the tenant has established that she would suffer undue hardship in consideration of the s154D(3)(b). The tenant may suffer various factors such as stress, discomfort, disruption and inconvenience as a result of a termination order being made but the Tribunal is not persuaded that the tenant would suffer undue hardship in the circumstances.

45. Accordingly, while the Tribunal is satisfied that the tenant is suffering from a disability within the meaning of the Anti-Discrimination Act 1977, she is a person in whose favour an apprehended violence order has been made and there is a child living in the premises, the Tribunal is not persuaded that the tenant comes within the provisions of Section 154D(3)(b) of the Act because the termination would not result in undue hardship. Based upon that determination, the discretionary provisions are not enlivened. There is no reason for the Tribunal to consider the discretionary third element of the process as set out in Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237.The Tribunal is satisfied that s154D(1)(b) of the Act makes termination mandatory and therefore that it must make the termination and possession order that the landlord sought pursuant to s91 (1)(a) of the Act.

46. In making the mandatory termination order, the Tribunal has then considered Section 154G of the Residential Tenancies Act 2010. The Tribunal has considered that the tenant has resided in the premises for 14 years. The tenant has a 16 year old child who resides with her, the current COVID 19 Pandemic and the time of the year. The Tribunal has also considered the tenant’s medical record. The Tribunal is satisfied that additional time should be given for the tenant to secure stable accommodation. The Tribunal is satisfied that there are exceptional circumstances before the Tribunal justifying a later day or justifying or a longer period of suspension of the order than 28 days. The Tribunal suspends the possession date in the order to 31 March 2021.

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

Registrar

Decision last updated: 20 August 2021