NSW Land and Housing Corporation v O'Reilly

[2021] NSWCATCD 148

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NSW Land and Housing Corporation v O’Reilly [2021] NSWCATCD 148

Hearing dates:

2 November 2021

Date of orders:

1 December 2021

Decision date:

02 November 2021

Jurisdiction:

Consumer and Commercial Division

Before:

P French, General Member

Decision:

(1) The social housing tenancy agreement is terminated under section 91(1)(a) of the Residential Tenancies Act 2010 on 2 November 2021 and possession is given to the landlord on the date of termination.

(2) The order for possession is suspended until 30 November 2021.

(3) On and from 3 November 2021 the tenant must pay the landlord an occupation fee at the daily rate of $26.55.

(4) Within 60 days of 30 November 2021 the landlord may request the relisting of the application to determine the amount of the occupation fee owing.

Catchwords:

LAND LAW: Residential Tenancies Act 2010 – Use of premises for an illegal purpose – Sale and supply of a prohibited drug

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Crimes Act 1900 (NSW)

Poisons and Therapeutic Goods Act 1966 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

NSW Land and Housing Corporation (Applicant)
Kelly O’Reilly (Respondent)

Representation:

Kelly O’Reilly (Self-represented)

Solicitors:
Ms Hook (Applicant)

File Number(s):

SH 21/28329

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. These are reasons for a decision published to the parties at the end of a hearing conducted on 2 November 2021.

2. Before the Tribunal was an application made by the NSW Land and Housing Corporation (Housing NSW) for orders under section 91(1)(a) and (b) of the Residential Tenancies Act 2010 (RT Act) that would terminate the social housing tenancy agreement that subsisted between it and Kelly O’Reilly (the tenant) on the ground that a person jointly occupying the premises with the tenant had intentionally caused the social housing premises that is the subject of the agreement to be used for the sale and supply of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 (DMT Act), and for other unlawful purposes. This application was made to the Tribunal on 30 June 2021 (the application).

3. For the reasons set out following, the Tribunal was satisfied on the evidence before it that the grounds for the making of the order sought under section 91(1)(a) were made out, and it was therefore unnecessary to consider the application in so far as it concerned section 91(1)(b). As there was no section 154D(3) factor to enliven the discretion not to make a termination order, the Tribunal was required by the mandatory terms of section 154D(1)(b) to make a termination order. The only matter in the Tribunal’s discretion was if the order for possession ought to be suspended, and if so, by what period, in order to allow the tenant further time to move from the premises. Housing NSW proposed that the tenant be given 28 days to move, and in the absence of any exceptional circumstances that could enliven the Tribunal’s discretion to suspend the order for possession for any longer period, that submission was adopted.

Procedural history

4. The application was first listed before the Tribunal in a Group List for Conciliation and Hearing by telephone on 23 July 2021 in accordance with NCAT’s COVID-19 pandemic Revised Hearing Procedure. Mr Hook, Advocate, attended that listing of the application on behalf of Housing NSW. There was no appearance by the tenant. Prior to that listing of the application the Registrar had granted Housing NSW leave to issue a Summons on NSW Police for records related to the alleged offences that were the subject of the application which was due for return on 3 August 2021. That being the case, the Tribunal, differently constituted, concluded that the matter could not be progressed, and adjourned the hearing to a further Group List after the Return of Summons.

5. The application was next listed in a Group List for Conciliation and Hearing on 13 August 2021 but the Tribunal, differently constituted, determined it could not be progressed on that date either, because although the Summons had been returned there had been no opportunity for the parties to uplift documents due to COVID-19 pandemic related Registry procedures. The application was therefore again adjourned to a further Group List for Conciliation and Hearing.

6. The application was next listed for Conciliation and Hearing on 10 September 2021. Ms Hook, Advocate attended that listing of the application on behalf of Housing NSW. There was no appearance by the tenant. The Tribunal made directions for the filing and service of evidence by both parties and adjourned the application for a Special Fixture Hearing. The directions to the parties included the following directions to the tenant:

9. The tenant must clearly identify whether they are relying on s 154D(3)(b) of the Act if termination is sought under section 91. In the event that the Tribunal finds it may exercise a discretion in relation to termination the parties must address the factors in s 154E.

10. It is recommended that the tenant contact the Western Area Tenancy Advocacy Service for assistance and legal advice in relation to the landlord’s application.

Evidence

7. The landlord filed a complete bundle of documents on 21 September 2021 which replaced documents filed at earlier stages of the proceedings. It was marked Exhibit A1. On 23 July 2021 the tenant sent an email to the Registrar which included a handwritten letter written and signed by Susan O’Reilly and a Statutory Declaration made Kelly O’Reilly dated 22 July 2021. This was marked Exhibit R1.

8. The Special Fixture Hearing was conducted by telephone in accordance with NCAT’s COVID-19 Revised Hearing procedure. Ms Hook attended the Special Fixture Hearing as advocate for Housing NSW. Ms O’Reilly also attended the hearing and gave oral evidence under a solemn promise to tell the truth. The parties had the opportunity to present their respective cases, to ask each other questions, and to make final submissions to the Tribunal.

Material facts

9. I make the following factual findings which are not in issue:

10. Housing NSW is a social housing provider within the meaning of section 136 of the RT Act.

11. There is a social housing tenancy agreement within the meaning of section 136 of the RT Act subsisting between Housing NSW and the tenant. The agreement was initially a fixed term agreement of 6 months duration which was made on 9 June 2017, and commenced on 12 June 2017. On the lapse of the initial fixed term the agreement was extended by 5 years from 11 December 2017 to 11 December 2022 by a notice issued to the tenant by Housing NSW under section 142 of the RT Act.

12. Under the social housing agreement Housing NSW gave approval for the tenant to occupy the premises with 1 other person. At all material times for this dispute the tenant occupied the premises with her mother, Susan O’Reilly, with the approval of Housing NSW.

13. The residential premises a two bedroom town house/terrace located in a social housing residential estate in Seven Hills owned by Housing NSW.

14. On 4 June 2021 NSW Police executed a search warrant at the social housing premises, and at the conclusion of their search, charged Susan O’Reilly with 4 offences: 1 count of supply of a prohibited drug in an indictable and commercial quantity contrary to section 25(1) of the DMT Act; 1 count of supply prohibited drug in a small and indictable quantity contrary to section 25(1) of the DMT Act; possess prescribed restricted substance contrary to section 16(1) of the Poisons and Therapeutic Goods Act 1966; and, deal with property proceeds of crime less than $100,000 contrary to section 193c(1) of the Crimes Act 1900. Ms O’Reilly was arrested, taken into custody, and subsequently released on Bail in relation to these charges

15. The details of these of offences are set out in the NSW Police Brief of Evidence tendered before the Local Court at Blacktown on 5 August 2021, which Housing NSW has submitted into evidence. It is only necessary for present purposes to note that the Brief firmly establishes in relation to the first and second offences that Ms Susan O’Reilly was supplying and selling methylamphetamine and cannabis from the residential premises. In these proceedings the tenant has not sought to challenge the facts alleged in relation to Susan O’Reilly in the Police Brief of Evidence.

Applicable law

16. Section 91(1)(a) of the RT Act relevantly provides that the Tribunal may, on the application of a landlord, make a termination order if it is satisfied that a person jointly occupying the premises with the tenant has intentionally caused the use of the residential premises for the purposes of the sale or supply of a prohibited drug within the meaning of the DMT Act.

17. The discretion conferred by the word “may” in section 91(1)(a) is negatived with respect to an application for a termination order under that section if the grounds for the order are made out and that application is made by a landlord under a social housing tenancy agreement: section 154D(1)(b) of the RT Act. Subject to limited exceptions which operate to preserve the discretion, the Tribunal must make a termination order in these circumstances. In this case the tenant has not sought to argue that her circumstances, or those of any other relevant person, fall within any of the exceptions.

18. If the Tribunal makes an order terminating a residential (including social housing) tenancy agreement it must also make an order for possession of the premises specifying the day on which the order takes effect: section 83(1). The Tribunal has discretion to suspend the order for possession: section 114 of the RT Act. In the exercise of that discretion the Tribunal is to have regard to the relative hardship to the landlord and tenant from the order being suspended. Section 154G of the RT Act provides, with respect to social housing tenancy agreements, that the Tribunal may only suspend an order for possession by a period of up to 28 days, unless there are exceptional circumstances that justify a longer period of suspension.

Submissions

19. In her letter dated 23 July 2021 Susan O’Reilly states that she “understands the Department’s position and fully accept[s] responsibility”. She states that Kelly O’Reilly “had no knowledge of what was going on” and asks that she and Kelly be allowed to stay in the premises because of its connection with Kelly O’Reilly’s late partner and because of Susan O’Reilly’s age. Susan O’Reilly states an intention to be an exemplary tenant and also states that she would pay more rent if she is allowed to stay.

20. In her Statutory Declaration and oral evidence the tenant recounted a traumatic past, and expressed regret at sometimes having made poor choices leading her to associate with people whose relationships were not beneficial. She conceded that she used substances which she said helped her cope with trauma. When asked, the tenant advised that she had never sought treatment for nor had she been diagnosed with a mental health condition or any other form of impairment or disability.

21. The tenant also stated in her oral evidence that Susan O’Reilly had now moved out of the premises and had no present intention of returning. She also stated that she, the tenant, wanted an opportunity to change her life and to be given a second chance to do this. She said she would be vigilant to prevent any further offences being committed at the premises.

22. Housing NSW submitted that the section 91(1)(a) matters are made out on the evidence that the tenant has failed to raise any issue capable of enlivening the limited discretion conferred by section 154D(3) not to make a termination order. It was submitted that the Tribunal is bound by the mandatory terms of section 154D(1)(b) to make an order terminating the social housing tenancy agreement.

Consideration

23. There is no issue in this case that Susan O’Reilly was jointly occupying the premises with the tenant. Having regard to the matters set out in the Police Brief of Evidence I do not accept that Kelly O’Reilly had no knowledge of Susan O’Reilly’s offending behaviour at the premises. But it would make no difference to the relevant element of section 91(1)(a) if she did not have that knowledge because Susan O’Reilly was a joint occupant. The issue of whether Kelly O’Reilly knew about Susan O’Reilly’s offending behaviour may be relevant in the exercise of discretion, if such discretion was enlivened by other relevant factors, but it is not.

24. There is also no issue as to whether Susan O’Reilly used the premises for an illegal purpose within the meaning of section 91(1)(a). There can be no doubt that the Police Brief of Evidence establishes this to the civil standard of proof, Susan O’Reilly appears to admit to her conduct in her letter dated 23 July 2021, and the tenant does not challenge Housing NSW case in relation to Susan O’Reilly’ use of the premises for an illegal purpose.

25. None of the considerations the tenant contends for are capable of enlivening the discretion not to terminate the tenancy. They do not establish that a termination order would result in undue hardship to a child, a person in whose favour an apprehended violence order could be made, or to a person with disability within the meaning of the Anti-Discrimination Act 1977. The Tribunal is therefore bound by the mandatory terms of section 154D(1)(b). It must make a termination order on the basis that the section 91(1)(a) matters are established.

26. The only matter in the Tribunal’s discretion is whether the order for possession ought to be suspended, and if so, by what period of time, to give the tenant further time to move out. Ms Hook submitted that there are no exceptional circumstances in this case that would permit the Tribunal to suspend the order for possession by more than 28 days. That submission must be accepted. However, Ms Hook did not resist the order being suspended by 28 days to allow the tenant that period of time to move. I therefore determined to make an order to this effect. Until possession is returned the tenant will be required to pay a daily occupation fee equivalent to one/seventh of her weekly rent, which is $26.55.

Conclusion

27. For the foregoing reasons, the social tenancy agreement was terminated under section 91(1)(a) of the RT Act on 2 November 2021 and possession of the premises is given to Housing NSW on that date . However, the order for possession was suspended to 30 November 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: 14 March 2022