NSW Land and Housing Corporation v Nihangun Ozen

[2014] NSWCATCD 27

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NSW Land and Housing Corporation v Nihangun Ozen [2014] NSWCATCD 27
Hearing dates:	7 March 2014
Decision date:	19 March 2014
Jurisdiction:	Consumer and Commercial Division
Before:	P Boyce, Senior Member
Decision:	1. The application for termination of residential tenancy agreement pursuant to S 91 of the Residential Tenancies Act 2010 is dismissed.
Catchwords:	Other unlawful purpose
Legislation Cited:	Residential Tenancies Act 2010; Section 91
Category:	Principal judgment
Parties:	NSW Land and Housing Corporation (applicant) Nihangun Ozen (respondent
Representation:	Mr Gardiner, Barrister Ms McDonald, Solicitor
File Number(s):	SH 13/39361

reasons for decisioN

APPLICATION

1. The applicant and the respondent are parties to a residential tenancy agreement dated 23 November 1995.

1. The provisions of the Residential Tenancies Act 2010 apply to the agreement and the Tribunal has jurisdiction to hear and determine the application before it.

1. The applicant seeks an order to terminate the residential tenancy agreement pursuant to S 91 (1) (b) of the Act and to obtain possession of the premises. In the application the applicant states its reasons for seeking the order are:-

"On 17 July 2013-Police executed a search warrant at the premises. During the search Police located the following:-

3 x vials of steroids

6 x vials of growth hormone

30 x tablets believed to be steroids

1 x blackberry mobile phone"

1. Section 91 of the Act provides:

(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.

(2) In considering whether to make a termination order on the ground specified in subsection (1) (b), the Tribunal may consider (but is not limited to considering) the following:

(a) the nature of the unlawful use,

(b) any previous unlawful uses,

(c) the previous history of the tenancy.

(3) The termination order may specify that the order for possession takes effect immediately.

(4) A landlord may make an application under this section without giving the tenant a termination notice.

(5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.

1. Clause 7.1 of the residential tenancy agreement provides:

7.The tenant agrees:

7.1 not to use the residential premises, or cause or permit the premises to be used for any illegal purpose;

1. The applicant submits that the respondent intentionally or recklessly caused or permitted her residential premises to be used for an unlawful purpose to sufficiently justify the termination of her tenancy by allowing her son to possess on the premises illegal substances.

1. For the applicant to be successful in its application for termination order of the residential tenancy agreement it must establish that the tenant (respondent) has intentionally or recklessly caused of permitted the residential premises to be used for an unlawful purpose that justifies termination of the residential tenancy agreement.

1. In consideration of making a termination order under s 91(10(b) the Tribunal may consider the elements of the grounds for termination contained in s 91(2).

The nature of the unlawful use

1. The respondent's son lives with the respondent.

1. Following the execution of a search warrant by NSW Police at the premises on 17 July 2013, the respondent's son was charged with offences, of possession of restricted substances, Nandrolene Decanoate and Testosterone under the Poisons and Therapeutic Goods Act 1966. Both offences carrying a maximum fine of $2,200.00 and/or imprisonment for up to 2 years.

1. The respondent's son was convicted of both offences and fined $740.00 on 17 September 2013 in the Local Court at Waverley.

1. The applicant called no witnesses, but relied on bundle of documents including the fact sheet, statements of police, search warrant and photographs of the vials of prohibited substances of which the respondent's son was convicted for possession, amongst other material for which the son was not charged.

1. The respondent submits that;

(a)   she has not used the premises for an unlawful purpose; and,

(b)   her son did not use the premises for an unlawful purpose, but rather the premises were the site of a "minor offence"; and,

(c)   the mere possession of a small quantity of illegal substance is incidental to the premises and not connected to the criminal offence.

1. The respondent's evidence is that she migrated to Australia from Turkey in about 1987. Despite the length of time in Australia her command of the English language is limited. She gave evidence through an interpreter. She was cross-examined by counsel for the applicant.

1. Her son lives with her so that he can assist her with day to day chores and help her manage in the community.

1. The respondent says that she found the bottles containing the substances for which her son was subsequently convicted appeared and that they were marked and packaged in a manner similar to lawful substances.

1. The applicant submits that there was no evidence before the date of the hearing that the respondent had many any enquiries about the substances that she found.

1. The respondent's evidence is that she had found the substances on her property and made inquiries about the legality of the substances with other people and asked her son about what they were. She says she was told by her son that the substances were drugs and "yes, sports people use it".

1. The respondent says she was satisfied with the explanation that she received from her son and from other people about the substances.

1. It is the applicant's submission that by allowing the respondent's son's possession of prohibited substances to take place within the premises showed a sufficient recklessness on the part of the respondent to warrant the Tribunal making an order for termination of the residential tenancy agreement.

1. This submission is not supported by the evidence. There is no evidence of the respondent intentionally permitting or recklessly allowing her son to possess the prohibited substance. On her evidence, she properly made inquiries about the vials when she found them, and was satisfied (wrongly) that they were not illegal substances. Since her sons conviction it is submitted that she has prohibited him from bringing such substances into the premises.

1. The Tribunal accepts the submission of the respondent that the respondent's son did not use the premises for an unlawful purpose, but rather the premises were the site of an offence. This is consistent with the findings in NSW Land and Housing v Baldwin [2013] NSWCTTT 281 where Housing NSW asserted that "the use of the premises to store the firearms was not incidental to the premises but connected to it" and NSW Land and Housing v Baldwin v Marshall [2007] NSWCTTT 575 where it was found that "the mere presence of the [stolen] goods in the house...is not sufficient to come within the relevant use or is incidental to the use of the premises".

1. The Tribunal is not satisfied that the mere possession of an unlawful substance by the respondent's son, given the quantity involved, is of such a serious nature on its own to be sufficient to establish that the applicant is entitled to the order it seeks.

Any Previous Unlawful Use

1. There is no evidence before the Tribunal of any other unlawful use by the respondent of the residential premises.

Previous History of the Tenancy

1. The respondent has been a tenant of the applicant for more than 23 years.

1. The respondent has been the tenant in these residential premises since 27 November 1995.

1. There is no evidence before the Tribunal that the respondent has been other than a good tenancy history with the applicant.

General Discretion

1. The Tribunal has a general discretion under s 91(1) to make a termination order in the circumstances outlined in s 91(1) (b).

1. That discretion of the Tribunal in relation to s 91 has been recently affirmed by the NSW Court of Appeal in Cain v NSW Land and Housing Corporation [2014] NSWCA 28.

1. In this matter, the Tribunal finds that there is no evidence of previous unlawful uses, and that the respondent had an unblemished record as a tenant of the applicant. The nature of the use of the premises complained of by the applicant is not such that either warrants a finding that the use is unlawful because it was merely the location of where an offence occurred or of such a minor matter as to not justify a finding of it being an unlawful use.

1. As such, the Tribunal is entitled to and does dismiss the application for termination.

(signed)

P Boyce

Senior Member

Civil and Administrative Tribunal of New South Wales

19 March 2014

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

Registrar