NSW Land and Housing Corporation v Romeyn

[2015] NSWCATCD 123

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NSW Land and Housing Corporation v Romeyn [2015] NSWCATCD 123
Hearing dates:	2 July 2015
Decision date:	15 October 2015
Jurisdiction:	Consumer and Commercial Division
Before:	R C Titterton, Senior Member
Decision:	1 The residential tenancy agreement between the parties dated 13 April 2005 is terminated immediately. 2 This order is suspended until 29 October 2015 3 The respondent is to give the applicant vacant possession of the premises on 29 October 2015. 4 The respondent is to pay the applicant an occupation fee of $14.11 from 29 October 2015 until the date that vacant possession is given
Catchwords:	Residential tenancy agreement – illegal use of premises – whether termination justified – discretionary factors
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Residential Tenancies Act 2010
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 330 Cain v NSW Land and Housing Corporation [2014] NSWCA 28 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) ALR 449 NSW Land and Housing Corporation v Charlton [2007] NSWCTTT 161 NSW Land and Housing Corporation v Fiti [2001] NSWCTTT 243 NSW Land and Housing v Raglione [2015] NSWCATAP 75 NSW Land and Housing Corporation v Smeal [2007] NSWCTTT 611
Category:	Principal judgment
Parties:	NSW Land and Housing Corporation (Applicant) Mr Christopher Romeyn (Respondent)
Representation:	Counsel: Ms B Anniwell (Applicant) Ms L Wilson (Respondent) Solicitors: Ms N Bradshaw, Redfern Legal Centre (Respondent)
File Number(s):	SH 14/56911
Publication restriction:	Nil

REASONS FOR DECISION

1. The applicant landlord, the NSW Land and Housing Corporation (the Corporation), seeks an order for termination of the residential tenancy agreement dated 13 April 2005 between it and the respondent tenant, Mr Christopher Romeyn. The Corporation also seeks vacant possession of the subject premises.

2. For the reasons that follow, the orders are granted.

Background

3. The parties entered into a residential tenancy agreement dated 13 April 2005 (the tenancy agreement). The premises are a two bedroom unit in XXXXX Street Redfern (the premises).

4. The Tribunal notes that:

1. Given the existence of the tenancy agreement it has jurisdiction to hear and determine this application.

2. This was not disputed by the parties.

5. Mr Romeyn has lived at the premises pursuant to the tenancy agreement since 2005. Prior to this, Mr Romeyn had been a tenant of the Corporation at other premises. Mr Romeyn has been a tenant of the Corporation for some 16 years.

6. Mr Romeyn suffers from a range of serious medical issues and drug dependency. He is 65 years old.

7. On 14 November 2014 the police executed a search warrant at the premises. Mr Romeyn was subsequently charged pursuant to s 36Y(1)(a) of the Drug Misuse and Trafficking Act 1985 (the DMT Act). That section provides that a person who is the owner or occupier of any premises and who knowingly allows the premises to be used as drug premises is guilty of an offence. The expression “drug premises” is defined in s 36TA of the DMT Act as any premises that are used for either or both the unlawful supply or manufacture of prohibited drugs or the unlawful commercial cultivation of prohibited plants by enhanced indoor means.

8. Mr Romeyn pleaded guilty to the offence on 4 June 2015, was convicted, sentenced to a 12 month good behaviour bond and fined $400.00.

The evidence of the Corporation

9. The Corporation filed more than 200 pages of materials in support of its application. These materials included the following:

1. The tenancy agreement.

2. Documents relating to the execution of the search warrant on 15 December 2014 including the court attendance notice dated 15 December 2015; a facts sheet dated 15 December 2014; a statement of Senior Constable Martini dated 20 November 2014; the search warrant dated 13 November 2014; a NSW Police Force property seizure exhibit form dated 14 November 2014; a certificate of presumptive analysis dated 25 November 2014; an independent observer field form dated 14 November 2014; approximately 60 pages of photographs taken during the execution of the search warrant; Mr Romeyn’s criminal history; statements of other police officers and under cover operatives.

3. A statement of Sebastien Barbe dated 24 February 2015. Mr Barbe is a Senior Service Officer employed by the Corporation.

4. “Housing Statement” forms of Mr Romeyn’s neighbours:

1. Mr Patrick (Tony) Spackman dated 12 December 2014 and 10 February 2015. In summary, Mr Spackman reports many visitors vising Mr Romeyn, sometimes up to 20 persons a day They disturb his peace and quiet by shouting out to Mr Romeyn, ring the intercom and damaging property;

2. Ms Seamorn Synott dated 7 July 201416 December 2014 10 February 2014, together with a statement dated 12 June 2015. Ms Synott’s statements are to similar effect; that is to say that there are constant noisy visitors to Mr Romeyn’s unit, calling out his name, running up and down the stairs and generally indulging in anti-social behaviour. She estimates that some days Mr Romeyn received more than 25 visitors;

3. Mr Gamil Saleh dated 7 July 2014 and March 2015. His has the same observations. He says that Mr Romeyn’s visitors “shout, swear and scream and act violently at all times of the day and night” and “exhibit strange and violent behaviours”.

5. A statutory declaration of Mr Horscroft sworn 10 June 2015. Mr Horscroft lives in a nearby apartment block to Mr Romeyn. He says he is representative of the local community who are fed up with Mr Romeyn’s conduct, his menacing presence, his intimidating dogs and his noisy visitors.

6. Records from the COPS database dated 7 February 2014, 9 April 2014 and 10 April 2014. This single document is stated to be a summary of relevant police reports in relation to the premises. The report of 7 February 2014 records Mr Romeyn being present when a person of interest to the police lost consciousness at the premises, having earlier injected heroin. The report of 9 April 2014 records a vehicle in which Mr Romeyn was travelling, along with two others, doing a U turn, and three occupants, all of whom were persons of interest the police being questioned by police. The report of 10 April 2014 records police being called to the premises after a woman was reported as screaming. Mr Romeyn allowed them to enter. Police observed a bong on a table, and a syringe and a spoon on a desk. A woman had a tourniquet attached to her arm. The police conducted checks. The report states that the police believed that she was there to purchase drugs.

7. Emails of police officers reporting on operations or potential operations at the premises in 2009. The email of 17 June 2009 states that search warrants were executed at the premises on 6 October 2006, 2 September 2009 and 29 May 2009. The email states that in relation to the first warrant a number of charges were made against a number of persons within the premises for possession of prohibited drugs and outstanding warrants. The report does not state who was charged. During the execution of the second search warrant a large amount of yellow pills, believed to be restricted substances along with an amount of what was believed to be the drug ice. During the execution of the third search warrant 4 gms of cannabis and 0.4 of a white substance, believed to be cocaine, and 200 small plastic resealable bags containing white powder residue, were located.

10. The Corporation’s bundle of documents was tendered and admitted without objection.

11. Each of Mr Barbe, Ms Synott and Mr Horscroft were cross-examined.

12. It is not necessary to describe in any detail the documents described at par 8(2) above. This is because, as noted, following the issuing of the court attendance notice on 15 December 2014, on 4 June 2015 Mr Romeyn pleaded guilty to one offence of knowingly allowing his premises to be used as drug premises.

13. The facts sheet of 15 December 2014 sets out over four pages the following matters: the police executed the search warrant at the premises at 9.43am on 13 November 2014. Mr Romeyn was present, as were a Mr David Brown and a Ms Melody Van Haasteren. Various items were seized during the search, notably (small quantities) of drugs and drugs paraphernalia (such as scales, syringes and glass pipes and a “bong” and cash. During the execution of the warrant approximately 10 people attended the premises, for various reasons including purchasing paint and looking for a toilet. The police view was that each attended the premises to purchase prohibited drugs. The police had to use force to enter the premises, the external door had three locks, one of which was “retrofitted” to reinforce the door, and Mr Brown’s bedroom had five locks on the inside and outside.

14. Subsequent presumptive analysis indicated that two drugs were seized: 2.35gm of dimethyl sulfone and 0.01gm of methylamphetamine.

15. Mr Romeyn’s criminal history is extensive, and dates back to 1977. His history includes offences of possession, use and supply of prohibited drugs (heroin) (1983), armed robbery (1983), supplying prohibited drugs (1996), and possessing prohibited drugs (2011).

16. Mr Barbe states in his written statement that the market rent for the premises is $410.00 per week. Mr Romeyn’s rent is subsidised and is charged to him at $98.85 per week. Mr Romeyn is in receipt of a disability support pension for which he received $388.55 per week.

17. Mr Barbe states that a previous order was made by the Tribunal on 11 February 2011 in which the Tribunal ordered Mr Romeyn to comply with the terms of the then residential tenancy agreement and not use the premises, or allow them to be used, for an illegal purpose. That evidence is not correct. It is correct that the Tribunal made orders on that date in relation to the Corporation’s application for termination of the then tenancy agreement. However, it did not make a specific performance order: it noted that Mr Romeyn had entered into an agreement to be bound by the tem of his residential tenancy to not used the premises, or cause or permit the premises, to be used for an illegal purpose.

18. Mr Barbe states that Mr Romeyn has an assessed private rental affordability of $261.50 per week; that his present premises are located in the CS-1Inner City allocation zone; that there are no indicators of Mr Romeyn’s file that he has any medical conditions that would impact on his ability to look for or locate alternative accommodation, that he requires a specific type of accommodation of that he has a need to reside in the CS1-Inner City allocation zone. Mr Barbe also stated that the current waiting time for applicants in need of two bedroom social housing accommodation in the CS1-Inner City allocation zone is between five and ten years. In oral evidence he said that this was also the case for one bedroom units in that zone.

The evidence of Mr Romeyn

19. The materials filed by Mr Romeyn included medical evidence being:

1. A report of Dr Craig Rogers dated 8 April 2014. Dr Rogers states that:

1. Mr Romeyn has been attending his practice since February 2011 and is being treated for opoid dependence with Suboxone;

2. Mr Romeyn has a history of hepatitis C and recurrent pneumonia; and

3. It would be deleterious to Mr Romeyn’s health if he were to be homeless and it would further exacerbate his drug use. He would “advocate” that Mr Romeyn not be evicted from his current premises.

2. A report of Dr Stewart Summers dated 23 March 2015. Dr Summers has been treating Mr Romeyn since 1984. He says that:

1. Mr Romeyn problems over the years have mainly involved drug addiction, hepatitis A, B and C; lung problems (asthma and emphysema), chronic anxiety and stress;

2. If he were to lose his housing, his mental and physical well being would undoubtedly deteriorate;

3. Mr Romeyn has a dog companion Jagger which helps his mental outlook; he says it would be very difficult for him to find alternative accommodation which would accept a dog.

3. A discharge summary/referral of St Vincent’s Hospital dated 28 March 2015. In summary, this document notes a principal diagnosis of lower respiratory tract infection, and a past medical history including pneumonia, heroin and amphetamine use, liver disease and hepatitis.

4. An echocardiogram dated 31 March 2015, issued by St Vincent’s Hospital. Mr Romeyn has normal left ventricular size and systolic function, a sclerotic aortic valve with trivial aortic regurgitation.

5. A report of Ms Fiona McGee dated 25 June 2015. Ms McGee is a counsellor, Stimulant Services, at St Vincent’s Hospital. She states that Mr Romeyn first contacted her service on 29 April 2015, and completed a “S-Check” counselling appointment on 25 June 2015. S-Check offers a “self-reported assessment that examines the impact of stimulant use over a range of domains, including psychological and social wellbeing and physical health”. Mr Romeyn’s next appointment is will be a medical consultation with a stimulant specialist. She states that Mr Romeyn is interested in engaging in the Stimulant Treatment Program for ongoing counselling, and that there is potential for him to participate in a new clinical trial. She states that it would be optimal for Mr Romeyn to have stable housing during his treatment with Stimulant Services.

20. Mr Romeyn also filed:

1. A Centrelink income statement dated 21 April 2015. Mr Romeyn’s fortnightly income is a total of $860.20, including the aged pension, and energy and pension supplements.

2. A bundle of rental advertisements showing rents in Redfern for comparable premises in the range of $190.00 (being a boarding room) to $390.00 per week.

3. Extracts from the Corporation’s Tenancy Policy.

4. A statutory declaration of Ms Denise Hadley sworn 29 June 2015. Ms Hadley has known Mr Romeyn for over 20 years. She describes him as a good, kind and helpful friend, who is unfailingly polite and possessing a lovely and gentle nature. She fears that if Mr Romeyn is rendered homeless his life will be at risk.

5. A statutory declaration of Ms Leanne Woof sworn 29 June 2015. Ms Woof has known Mr Romeyn for approximately 6 years. She lives nearby. She says that Mr Romeyn is kind, generous and caring. He assists her regularly with shopping and other activities she finds challenging because of her disabilities. She says he has also assisted other elderly tenants in her building. She says that his recent hospital admission shocked him, and that he is now more focused on his health. She thinks that because of this “things have been much quieter recently”. She says that his dog Jagger plays a significant role in Mr Romeyn’s life.

6. A Shelter New South Wales document NSW Housing: a factsheet, dated February 2015.

21. These documents were tendered and admitted without objection.

Mr Romeyn’s statutory declaration dated 25 June 2015

22. Also included in Mr Romeyn’s documents was his statutory declaration dated 25 June 2015. In summary, his declaration states that he is a qualified architect and interior designer, but he has struggled with drug addiction for many years. In the 1980s he was an inpatient at the Langton Centre. In about 1994 he became very unwell due to Hepatitis C. It was at this point he commenced using “speed’ and “ice”. It got to the point were he could no longer work. He moved into social housing in 1999. In 2004 he started treatment for Hepatitis C, which had horrendous side effects. His ice use has continued over the years, and he is still being treated for opoid dependence.

23. He says that “the raid” (that is when the police executed the search warrant on the premises on 14 November 2014) “had little to do with me”. He blames Mr David Brown who was staying with him at the time. He says that when Mr Brown stayed with him lots of people would come to visit. He says that people calling out Mr Romeyn’s name were unknown to him.

24. He admits he entered a pleaded guilty to the charge of knowingly allowing the premises to be used as drug premises, but says he was unrepresented at the time, and had considered pleading not guilty.

25. He has applied to the Corporation for an exchange to leave his present premises. He has received offers for his property and is eager to leave. He has been sent a list of properties by the Corporation which he says would be suitable for him to move into. These properties are respectively located in Ashfield, Forest Lodge, Coogee, Maroubra (two) and Strathfield. However, he needs to live close to St Vincent’s in the event that he is referred to their outpatient’s program. He also needs to be near St Vincent’s for his other health issues, which include emphysema, liver disease, and a cardiac condition.

26. He says that losing his housing would put him in a severe depression. He fears that he would have to live on the street and does not know how he would survive. He would be devastated to lose his dog.

27. He says that he has tried to take positive steps to improve his life, such as by having David Brown removed, engaging with Stimulant Services at St Vincent’s hospital and making an appointment to see a psychiatrist on 30 June 2015.

28. Mr Romeyn gave brief oral evidence in chief at the hearing which was consistent with his statutory declaration. He said that he is addicted to amphetamines. He wants to leave Redfern, but he needs to be near his doctors at St Vincent’s Hospital. To be accepted into a treatment program, he must have accommodation. While his daughter lives in Brisbane, she does not to have enough room for him to live there. Besides, he wants to remain in Sydney near his doctors.

29. Mr Romeyn was cross-examined by the Corporation’s counsel, Ms Anniwell. He agreed that he had used drugs in the premises, but in the past. He agreed that he was a recreational drug user. He did not accept that when he pleaded guilty to the charge in June 2015 that he was accepting the facts in the statement of facts. He said that he did not have the version of the statement of facts that appeared in the Corporation’s bundle of documents.

30. He said that David Brown was only able to stay with him because Brown was “standing over” him. He denied that people would attend his premises to use drugs. He said that the drug paraphernalia found was for his own use. He agreed that many people do come to his premises and call out his name, and could be violent. He agreed that the premises had been used for illegal purposes since 2006, but only for himself. He agreed that since the Tribunal orders were made in 2010 he continued to allow the premises to be used as drug premises, but again, only for himself.

31. On medical issues, he accepted that he was not yet confirmed in the St Vincent’s stimulants program. He agreed that he could attend another doctor and another hospital if he had to move.

Findings

32. Many of the underlying facts, such as the existence of a tenancy agreement, that the premises were residential premises and that Mr Romeyn pleaded guilty to the charge of knowingly allowing his premises to be used as drug premises were not in dispute between the parties. Nevertheless, it is appropriate to set out the Tribunal’s formal findings based on the evidence.

33. Before doing so, it is appropriate to record the Corporation’s submission that Mr Romeyn was an unreliable and opportunistic witness. In this respect, it refers to par [12] of his statement in which he stated that the “incident” (meaning the execution of the search warrant) had “little to do with me”. Mr Romeyn conceded in cross examination, when shown the photographs of the premises at taken during the execution of the search warrant, that “obviously” it had something to do with him and that par [12] was incorrect. The Corporation notes that, by his own admission, Mr Romeyn has been a drug addict for a long time, is being treated for opoid dependence and is addicted to amphetamines. The Corporation submits that the courts have long recognised that people with a drug addiction, such as Mr Romeyn, are notoriously unreliable: see NSW Land and Housing v Raglione [2015] NSWCATAP 75 at [42].

32. The Tribunal declines to find that, for this reason alone, Mr Romeyn’s evidence is unreliable or unacceptable. It considers that his evidence should be approached with care, and carefully evaluated on each particular issue. For instance, Mr Romeyn was challenged over his evidence that there were no drugs found on the premises at the time of the execution of the search warrant in December 2014. His evidence was not credible; Mr Romeyn admitted that his answer was not correct. On the other hand, the Tribunal has no reason to doubt, for instance, his evidence about his dependence on his dog.

33. The Tribunal finds that:

Rental premises

1. There is a residential tenancy agreement between the parties dated 13 April 2005 (the tenancy agreement).

2. Clause 7 of the tenancy agreement provides that Mr Romeyn agrees:

1. 7.1 not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose;

2. 7.2 not to cause or permit a nuisance; and

3. 7.3 not to interfere, or cause or permit interference with, the reasonable peace, comfort or privacy of neighbours.

3. The premises are a two bedroom unit in Redfern.

4. Market rent for the premises is $410 per week. The rent is subsidised and is charged to Mr Romeyn at $98.85 per week.

5. Mr Romeyn lives at the premises with his companion dog, Jagger, to which he is very attached.

6. Mr Romeyn has lived at the premises, pursuant to earlier residential tenancy agreements with the Corporation, since 2005.

7. Prior to this, Mr Romeyn had been a tenant of the Corporation at other premises. Mr Romeyn has been a tenant of the Corporation for some 16 years.

8. There are five other apartments in the block in which the premises are located.

Mr Romeyn’s criminal history

1. Mr Romeyn has a lengthy criminal history. His serious convictions include:

1. stealing (1982);

2. the possession, use and supply of heroin (1983);

3. forging and uttering (1983);

4. armed robbery (1983);

5. supplying a prohibited drug (1996), (2011)

6. together with his 2014 conviction for knowingly allowing the use of his premises as drug premises.

Mr Romeyn’s personal circumstances

1. Mr Romeyn is in receipt of a disability support pension for which he receives $860.20 per fortnight. Mr Romeyn may lose supplements of $78.00 per fortnight (representing an energy supplement of $14.10 and a pension supplement of $63.90) if he moves, which will reduce the pension he is paid.

2. The Tribunal finds that Mr Romeyn will be able to afford a weekly rent in amount between the $261.50 (as claimed by the Corporation) and the $117.00 (as claimed by him). Both figures seem to be respectively on the high and low sides. However, the figure claimed by Mr Romeyn was completely explained, in part, by a reference to the need avoid rental stress; a reference to the Shelter NSW pamphlet NSW Housing : a factsheet. That document asserts that:

Housing stress is experienced by lower-income households . . . who pay more than their 30% of their gross income on housing.

3. The Tribunal is not persuaded it is appropriate to base its assessment of Mr Romeyn’s rent affordability by the need to avoid “rental stress”. The Tribunal is satisfied that Mr Romeyn’s rental affordability to be at least $200 per week.

4. Mr Romeyn is 65 years old. He suffers from a range of serious medical issues and drug dependency. These include past history of hepatitis A, B and C and recurrent pneumonia; heroin and amphetamine use; liver disease and hepatitis.

5. Mr Romeyn describes himself as a recreational drug user, and has used drugs in the premises, He agreed that he was a recreational drug user.

6. Mr Romeyn is addicted to opiates and amphetamines, and is presently seeking treatment for both addictions.

7. Mr Romeyn’s treating doctors and specialist physicians are located in reasonable proximity to Redfern.

8. Mr Romeyn does not own a car, and relies on public transport. He cannot afford to take taxis regularly.

9. He would like to leave the Redfern area and live elsewhere.

Search warrant and subsequent events

1. On 13 April 2014 the police executed a search warrant at the premises. Mr Romeyn was subsequently charged pursuant to s 36Y(1)(a) of the DMT Act.

2. During the execution of the search warrant the police relevantly seized the following items from the premises:

1. drugs being:

1. 0.1gm of methylamphetamine;

2. 2.35gm of dimethyl sulfone;

2. drug paraphernalia being:

1. three sets of electronic scales;

2. numerous syringes and swabs;

3. sharps containers;

4. small resealable bags;

5. aluminium foil;

6. a pipe for smoking crystallised substances; and

7. a bong.

3. Mr Romeyn pleaded guilty to this one charge pursuant to s 36Y(1)(a) of the DMT Act, was convicted and fined $400.00.

4. Mr Romeyn has used drugs illegally on the premises;

5. Mr Romeyn allowed Mr David Brown to use drugs illegally on the premises.

6. The Tribunal does not find that Mr Romeyn has supplied drugs from the premises.

7. The Tribunal finds that, while Mr Romeyn has contacted Stimulant Services at St Vincent’s Hospital, completed a registration form, referred to The Stimulant Check-Up Clinic and completed a S-Check counselling appointment and is interested in engaging in the Stimulant Treatment Program offered, it does not find that he has yet commenced a course of counselling or treatment for his amphetamine addiction at St Vincent’s Hospital.

Previous matter before the Tribunal

1. The Tribunal does not find that the Tribunal has previously made specific performance orders requiring him to comply with the term of the tenancy agreement not to use the premises unlawfully. The Tribunal does find that on 11 February 2011 Mr Romeyn agreed with the Corporation that he would not use the premises, or cause or permit the premises, to be used for an illegal purpose, and that the Tribunal noted this agreement.

Submissions

36. Written submissions were received by from the Corporation on 30 July 2015, from Mr Romeyn on 14 August 2015 and in reply from the Corporation on 20 August 2015. The parties also helpfully provided the Tribunal with a transcript of the proceedings on 7 October 2015. The Tribunal acknowledges the detailed and careful submissions received from counsel for each party.

The Corporations submissions

37. The Corporation submits that, Mr Romeyn having conceded at the hearing that he had used the premises for an unlawful purpose, the questions for the Tribunal to determine were:

1. Whether the use of the premises by Mr Romeyn was sufficient to justify termination of the tenancy.

2. Whether the Tribunal should exercise its discretion to terminate the tenancy.

38. The Corporation’s primary submission is that the offence for which Mr Romeyn was convicted, knowingly allowing his premises to be used as drug premises, is a serious one. It submits that allowing the use of the premises as a drug premises is sufficiently serious as to justify termination of the tenancy agreement. In this respect it relies on the recent remarks of the Appeal Panel in Raglione at [51]. It submits that drug related activity, including the use of premises as a drug premises, has been treated as serious breaches of a residential tenancy agreement sufficient to justify termination: Raglione; NSW Land and Housing Corporation v Smeal [2007] NSWCTTT 611; NSW Land and Housing Corporation v Charlton [2007] NSWCTTT 161; NSW Land and Housing Corporation v Fiti [2001] NSWCTTT 243.

39. The Corporation submits that in considering whether or not to make a termination order pursuant to s 91(1)(b) of the Residential Tenancies Act 2010 (the RT Act), the Tribunal may consider, but is not limited to considering the matters set out in s 91(2), namely:

1. the nature of the unlawful use of the premises (s 91 (2)(a)).

2. any previous unlawful uses of the premises (s 91 (2)(b)).

3. the previous history of the tenancy (s 91 (2)(c)).

40. The Corporation also suggests that it is appropriate to consider the matters set out in s 152 of the RT Act which sets out a non-exhaustive list of factors for the Tribunal to consider in determining whether to terminate a social housing tenancy agreement on the ground of breach by a tenant. The Corporation submits that while s 91(1)(b) of the RT Act does not require the Tribunal to make any finding about whether there has been a breach of the tenancy agreement, it may be appropriate, given the comments of Basten JA in Cain v NSW Land and Housing Corporation [2014] NSWCA 28, to do so. Accordingly, it is submitted that it is appropriate to address the discretionary factors set out in s 152. These are:

1. The serious adverse effects the tenancy has had on neighbouring residents or other persons (s 152(1)(a)).

2. 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 (s 152(1)(a)).

3. The landlord’s responsibility to its other tenants (s 152(1)(c)).

4. Whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal (s 152(1)(d)).

5. The history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement (s 152(1)(e)).

41. Accordingly, the Corporation submits that each of the factors set out in s 91(2) and s 152 warrant the Tribunal exercising its discretion to terminate Mr Romeyn’s tenancy.

42. The Corporation also submits that, in addition to the list of factors in ss 91(2) and 152(1), the Tribunal should take into account the following relevant considerations.

1. The objectives set out in s 5 of the Housing Act 2001.

2. Research which indicates that the presence of drug trade in a social housing complex undermines the provision of affordable, well-located public housing and, once embedded diminished collective resources available for others.

43. Finally, the Corporation submits that, given that the circumstances of the unlawful use of the premises in this matter are grave, the impact on Mr Romeyn of termination of his tenancy should be given very little weight: see McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98 at [77].

Mr Romeyn’s submissions

44. Mr Romeyn submits that the Tribunal should apply the Briginshaw standard of proof when considering the evidence produced by the Corporation. This is a reference to the decision of the High Court of Australia in Briginshaw v Bringinshaw (1938) 60 CLR 330, in particular, the well-known passage of Dixon J where his Honour stated:

“. . . 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.”

45. Mr Romeyn submits, correctly in the view of the Tribunal, that Briginshaw does not alter the standard of proof in civil proceedings: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) ALR 449. Briginshaw does, however, require the Tribunal to consider the strength of the evidence when the allegation is serious and a finding is likely to produce grave consequences.

46. It is submitted (submissions par [30]) that when Mr Romeyn pleaded guilty to the charge, he did so without legal advice, and on the basis that what he was admitting his premises were premises where drugs were kept. (The Tribunal notes that Mr Romeyn stated in evidence that initially he was going to plead not guilty.) It is further submitted (submissions par [40]), that “[i]t is clear” that Mr Romeyn pleaded guilty “on the basis that he and David Brown were using drugs at the premises, not that he was supplying drugs to anyone”.

47. Mr Romeyn submits that the facts sheet should be treated as “merely the outline” of the allegations raised by the police, that it is not evidence and should not be treated as such. He points to inconsistencies between what is recorded in the facts sheet and the report of the Presumptive Drug Testing Team (Ex A22-23) in the weights of the drugs seized. He also submits that one of drugs seized, dimethyl sulfone, is not a prohibited drug listed in Sch 1 to the DMT Act.

48. Mr Romeyn submits that his unlawful use of the premises is not sufficient to justify termination of the tenancy agreement. In summary, he submits that the only unlawful use which has been established was his and David Brown’s use of the premises for personal drug use. This use was not a serious offence, given the sentence and fine imposed by the Local Court.

49. He submits that his evidence should be evaluated independently and not treated as unreliable simply because he has an addiction.

50. He submits that even if the Tribunal determines that the use of the premises is sufficient to justify termination of the tenancy agreement, the Tribunal should, in the exercise of its discretion make orders requiring him to comply with cl 7 of the tenancy agreement, namely not to use the premises for any illegal purpose, not to cause or permit a nuisance or to interfere with the reasonable peace, comfort and privacy of his neighbours. Mr Romeyn says that he will agree to those orders.

51. Mr Romeyn relies on the following factors to warrant the Tribunal not making a termination order:

1. The prospect of securing housing near his doctors, that accepts his dog and costs less than $117.00 per week, in circumstances where he has neither rental or work references, is so low as to justify the submission that he would likely be homeless if a termination order is made.

2. He cannot afford $261.50 per week rent as claimed by the Corporation.

3. He is not in a position to find alternative accommodation in the private rental market.

4. He has been diagnosed with a number of serious health issues for which he receives treatment at St Vincent’s Hospital; it would be difficult for him to travel to appointments there over long distances on public transport.

5. While he does not need to remain close to his treating doctors, it is not fair or reasonable for the Corporation to insist that he change those doctors, in circumstances where some have been treating him for over 31 years.

6. It is essential that he be able to keep his companion dog.

7. Upon termination he will be ineligible for future social housing; even if he were eligible to reapply; the wait list is acknowledged by the Corporation to be 5 to 10 years.

Consideration

52. The application was filed on 26 November 2014. Relevantly the application states:

“The [Corporation] seeks an order of termination and possession under s 91 of the [Residential Tenancies Act] 2010 in relation to a breach of the Residential Tenancy agreement by Mr Romeyn.

PARTICULARS: Following an investigation into the sale of [a] prohibited drug, NSW Police executed a search warrant at the residential premises on 14/11/2014, which resulted in the respondent being arrested and charged with owner/occupier knowingly allow premises to be used as drug premises”.

53. Section 91 of the Residential Tenancies Act 2010 (the RT Act) relevantly states:

91   Use of premises for illegal purposes

(1)  The Tribunal may, on application by a Corporation, make a termination order if it is satisfied that Mr Romeyn, 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 Mr Romeyn 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.

54. The Corporation states, correctly, (submissions at [6]) that s 91(1)(a) deals with the use of the premises or any property for illegal drug activity, being the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the DMT Act.

55. The Corporation then states that s 91(1)(b) (still at submissions [6]), “which the (Corporation) relies on in this case, deals with the use of premises for any form of illegal activity” (emphasis added).

56. That submission is incorrect. Section 91(1)(b) deals with the use of the premises for “any other unlawful purpose” (emphasis added). Section 91 of the RT Act draws a distinction, in terms, between the use of the premises for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the DMT Act on the one hand (that is s 91(1)(a)), and the use of the premises for any other unlawful purpose, on the other hand (s 91(1)(b)) (again, emphasis added). Accordingly, the plain meaning of the two sub-sections is to differentiate between the use of premises for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug (within the meaning of the DMT Act) and “any other unlawful purpose” (not within the meaning of the DMT Act).

57. The notice of termination does not state whether or not orders for termination and possession were sought pursuant to s 91(1)(a) or s 91(1)(b), or both. However, the submissions of the Corporation make plain that what is sought are orders pursuant to s 91(1)(b). That raises the question of what is the use of the premises, being a use for “any other unlawful purpose”, on which the Corporation relies.

58. The Corporation submits that the unlawful use of the premises is established, Mr Romeyn having made this concession at the hearing. In her written submissions of filed 30 July 2015, the Corporation’s counsel Ms Anniwell submits at [11] that:

At the commencement of the hearing of the Application, [Mr Romeyn] conceded that, for the purposes of s.91(1)(b), [he] had used the Premises for an unlawful purpose (Transcript (T), p.7).

59. The Corporation understands this submission to be a submission that Mr Romeyn knowingly allowed the premises to be used as drug premises, a matter consistent with his guilty plea.

60. Mr Romeyn disagrees. He submits that his concession was limited to his and David Brown’s illegal use of drugs on the premises. His counsel, Ms Wilson, submits, in her written submissions at [41], that:

The “use” for “unlawful purpose” which is conceded by [Mr Romeyn] is the personal use of illegal drugs by [Mr Romeyn] and his associate David Brown. The [Corporation] is not relying on supply in s.91(1)(a) as a basis to terminate the tenancy agreement nor does [Mr Romeyn] admit any drugs were supplied to him from his Premises.

61. It is convenient to set out what the transcript records:

MEMBER: All right. I suspect what Ms Anniwell is wondering is what the attitude of your client is to - whether there is any contest as to the unlawful use of the premises, I suspect.

MS WILSON: No, we are at one about that. It is conceded that the premises were used for other unlawful purposes, if I can use that terminology. As Ms Anniwell said, it is a Section 91(1)(b) application so it's (indistinct), so the sufficiency (indistinct) justify the termination and in subsection (2), consideration will be the main issues today as far as the respondent is concerned.

MEMBER: Do I understand you to say that there is no contest as to essentially jurisdiction, but there will be an active debate about how I should exercise my discretion?

MS WILSON: Yes.

62. It is to be noted that the written submission of Mr Romeyn’s counsel is not the same as the submission made orally. The oral submission was, in a sense, unparticularised or unrestricted, whereas the written submission is particularised as to the unlawful use of the premises. The significance of the difference is that Mr Romeyn submits that the Tribunal should proceed on the basis that the (admitted) unlawful use of the premises is the personal use of Mr Romeyn and Mr Brown of illegal drugs; and that the Tribunal should not proceed on the basis that Mr Romeyn has allowed the premises to be used as drug premises.

62. On the other hand the Corporation submits that the unlawful use was Mr Romeyn knowingly allowing the premises to be used as drug premises.

63. Mr Romeyn’s submission may be based on the distinction drawn in s 91 between the use of the premises for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the DMT Act (on the one hand), s 91(1)(a)), and the use of the premises for any other unlawful purpose (on the other hand), s 91(1)(b)). As the Corporation brings the application pursuant to s 91(1)(b) of the RT Act, the unlawful use therefore must be use other than use falling within the DMT Act. While Mr Romeyn concedes that he and his associate consumed illegal or prohibited drugs on the premises, he does not concede that he manufactured, sold, cultivated or supplied any prohibited drug within the meaning of the DMT Act.

64. The Tribunal considers that Mr Romeyn has not been charged with offences concerning the manufacture, sale, cultivation or supply of a prohibited drug under the DMT Act. He has been charged and convicted (following a plea of guilty) to a charge of knowingly allowing his premises to be used as drug premises. In this respect the Tribunal notes that the Appeal Panel recently stated in Raglione that:

4.   Paragraph 91(1)(a) relates to use of the unit for activities of manufacture, sale, cultivation or supply of prohibited drugs.

5.   Paragraph 91(1)(b) relates to use of the unit for another unlawful purpose and would include use as a place where people use a prohibited drug or prohibited drugs (which in these reasons are referred to as a “drug house”).

66. The Appeal Panel also held at [71] that, as it was comfortably satisfied on the balance of probabilities that the tenant had intentionally used, and intentionally permitted others to use, the apartment as a drug house, and therefore “offended” s 91(1)(b).

67. Accordingly, the Tribunal is satisfied, and finds, that Mr Romeyn, intentionally or recklessly caused or permitted the use of the residential premises for an unlawful purpose other than the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the DMT Act: s 91(1)(b).

68. The Tribunal notes Mr Romeyn’s concession that he and Mr David Brown used illegal drugs on the premises. The Tribunal is also satisfied, and accepts, that Mr Romeyn, by using illegal drugs on the premises, and permitting Mr Brown to do so, intentionally or recklessly caused or permitted the use of the residential premises for another unlawful purpose, other than the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the DMT Act: s 91(1)(b).

69. The Tribunal is further satisfied that, in the circumstances of this application, that this use of the premises is sufficient to justify the termination. In this respect, the Tribunal accepts the submissions of the Corporation that knowingly allowing the premises to be used as drugs premises is a serious offence, and that drug-related activity, including use of the premises as drug premises, has been treated as sufficiently serious to warrant termination of a residential tenancy agreement. The recent decision of the Appeal Panel in Raglione directly on point. The Tribunal below had dismissed an application by the Corporation for termination of the tenant’s tenancy agreement pursuant to s 91(1)(a) and (b) of the RT Act. The Appeal Panel allowed the Corporation’s appeal and ordered that the tenancy agreement be terminated immediately.

Exercise of discretion to order termination

70. It is clear on the very words of s 91(1)(b) that the power to terminate is a discretionary one: see the discussion about this issue in Cain by Basten JA (with whom Gleeson and Leeming JJA agreed), particularly at [19]; see too Leeming JA at [47], where his Honour stated:

A natural meaning of s 91(1)(b) is that the Tribunal must be first satisfied that there has been sufficiently unlawful use to engage power to make a termination order without first giving a termination notice. If so, then the Tribunal may then have regard to more general considerations in the exercise of the discretion to make the termination order. That accords with the terms of s 91(2), as Basten JA observes.

71. For the reasons set out above, the Tribunal is satisfied that there has been a sufficiently unlawful use of the premises so as to engage the power to make a termination order.

Matters relied on by the Corporation

72. In considering the Corporation’s to terminate the tenancy agreement the Tribunal will consider the factors set out in both s 91(2) and s 152 of the Act set out above.

Unlawful use/nature of the unlawful use of the premises: ss 91(2)(a), 91(2)b) and 152s

73. The Tribunal has found that:

1. Mr Romeyn has been convicted of knowingly allowing the premises to be used as drug premises. This followed the execution of a search warrant during which the police found the drugs and drug paraphernalia set out at par [34(18)] above.

2. Mr Romeyn has used the premises for the illegal drug use since 2006.

3. Mr Romeyn has allowed Mr Brown to consume illegal drugs on the premises.

74. The Tribunal considers that these matters favour the exercise of its discretion to terminate the tenancy.

Any previous unlawful uses; previous history of the tenancy: ss 91(2)(b)(c) and 152(e)

75. The Corporation relied on records from the COPS database and the internal police emails referred to above. Mr Romeyn submits that this information is circumstantial and uncorroborated and that no charges were laid as a result of any of the incidents depicted. He submits that the statements in the report are prejudicial and of no probative value, particularly in the light of the lack of scientific analysis of the suspected drugs.

76. The Tribunal accepts this submission, and places no weight on this evidence.

77. In addition, the Corporation relies on the fact that the previous proceedings before the Tribunal. In 2010 proceedings were commenced by the Corporation seeking for orders terminating Mr Romeyn’s then tenancy agreement with the Corporation and for vacant possession of the premises. On 11 February 2010 the parties reached an agreement and consent orders were made by the Tribunal. The formal order was simply an order adjourning the proceedings, but the Tribunal noted that the parties had entered into an agreement whereby Mr Romeyn agreed to abide by the terms of the tenancy agreement and to not use the premises, or cause or permit the premises, to be used for an illegal purpose.

78. The Corporation submits that the Tribunal made specific performance orders in 2010 following the agreement. That is not correct. The Tribunal noted the agreement of the Mr Romeyn as noted. Mr Romeyn submits that, as there was no finding of a breach of the tenancy agreement in 2010, this evidence is of no weight, and could not support a finding by the Tribunal in these proceedings that Mr Romeyn has previously used the premises unlawfully.

79. The Tribunal accepts this submission. The orders were made by consent and without any admissions of the use of the premises for an illegal purpose.

80. However, the Tribunal can take into account Mr Romeyn’s own evidence in relation to the history of the tenancy. Mr Romeyn stated in cross-examination that he had used drugs in the premises in the past. He agreed that someone was rendered unconscious at the premises in 2014, and that agreed that the incident described by the police as involving the screaming woman, the woman with the tourniquet on her arm, and the bong, syringe and spoon, occurred. He further agreed that there was a history of illegal activity (by him) at the premises, as early as 2006. The Tribunal understands this to refer to his own drug use, and that of David Brown.

81. The Tribunal considers that these matters favour the exercise of its discretion to terminate the tenancy agreement.

Any serious adverse effects the tenancy has had on neighbouring residents or other persons: s 152(a).

82. The evidence of each of Mr Spackman, Ms Synott, Mr Salkeh and Mr Horscroft is compelling, persuasive and consistent. They referred to Mr Romeyn’s menacing presence, his intimidating dog, and his constant noisy visitors who exhibit anti-social behaviour and some whom exhibit strange and violent behaviours.

83. The Tribunal considers that their evidence, summarised above and essentially uncontradicted, favours the Tribunal exercising its discretion to make an order terminating the tenancy agreement.

Whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of Mr Romeyn, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk: s 152(b)

84. Clearly, the breach of the agreement that is the use of the premises for illegal purposes is a serious one. However, the evidence does not establish, given the departure of Mr Brown, whether a failure to terminate the tenancy agreement would continue to subject Mr Romeyn’s neighbours to unreasonable risk. There is some evidence that matters have improved since Mr Brown’s departure.

85. The Tribunal considers that this factor does not favour the Tribunal exercising its discretion to make an order terminating the tenancy agreement.

The Corporation’s responsibility to its other tenants: s 152(c).

86. The Corporation submits that it has responsibilities to the other six social housing tenants living in Mr Romeyn’s block of units, and to those living in Mr Horscroft block of units across the road.

87. In the absence of the Corporation articulating precisely what these responsibilities are, the Tribunal considers that these responsibilities neither favour nor not favour the Tribunal exercising its discretion to make an order terminating the tenancy agreement.

Whether Mr Romeyn, wilfully or otherwise, is or has been in breach of an order of the Tribunal: s 152(d)Z

88. The Tribunal is not satisfied and does not find that Mr Romeyn has been in breach of any other order of the Tribunal.

Conclusion

89. The Tribunal concludes that the unlawful use/nature of the unlawful use of the premises, the previous use of history of the tenancy, the serious adverse effects the tenancy has had on neighbouring residents and others favours the Tribunal exercising its discretion to make an order terminating the tenancy agreement.

Matters relied on by Mr Romeyn

90. The Tribunal accepts Mr Romeyn’s submission that there is no error if the Tribunal takes into account significant matters in his personal history and the likely effect of termination of the tenancy agreement on his health and medical treatment.

91. Set out above at [51] are various matters relating to Mr Romeyn’s personal circumstances which he submits should be taken into account. There are four principal matters which he says the Tribunal should consider. These are:

1. He would likely be homeless if a termination order is made.

2. He has been diagnosed with a number of serious health issues for which he receives treatment at St Vincent’s Hospital; it would be difficult for him to travel to appointments there over long distances on public transport.

3. It is essential that he be able to keep his companion dog.

4. Upon termination he will be ineligible for future social housing.

92. As to the prospect of homelessness, the Tribunal is not satisfied that Mr Romeyn would “most likely” be homeless if an order for termination of the tenancy agreement is made. Even Mr Romeyn’s own documents suggest that boarding house accommodation and even single rooms can be rented in Surry Hills and Woollahra for $200 per week.

93. As to Mr Romeyn’s health, Mr Romeyn agreed in cross-examination that he could find alternative doctors and have his files transferred to them. Accordingly, the Tribunal considers that he would be able to access doctors and medical services in locations other than close to Redfern/Darlinghurst.

94. The Tribunal accepts that landlords might not accept Mr Romeyn’s companion dog Jagger, and this may pose greater relocational difficulties for Mr Romeyn.

95. As to ineligibility for future social housing upon termination, the Tribunal notes that exchange houses have been offered to Mr Romeyn at various locations around Sydney. The Tribunal did not understand the Corporation to be stating that it would refuse to allow Mr Romeyn to move to those premises should the tenancy agreement be terminated.

96. The Tribunal considers that the matters relied on by Mr Romeyn, neither individually or collectively, are so compelling as to warrant the Tribunal not exercising its discretion to terminate the tenancy agreement. It accepts that there is some force in the Corporation’s submission that, given the circumstances of the unlawful use of the premises are grave, the impact on Mr Romeyn of the termination of his tenancy should be given little weight: McGuiness at [77].

Conclusion

97. Section 91(1)(b) provides that the Tribunal may, on application by a Corporation, make a termination order if it is satisfied that Mr Romeyn has intentionally or recklessly caused or permitted the use of the residential premises for any other unlawful purpose other than the manufacture, sale, cultivation and supply of any prohibited drug within the meaning of the DMT Act.

98. For the reasons appearing above, the Tribunal is satisfied that:

1. Mr Romeyn’s use of the premises satisfied s 91(1)(b) of the RT Act in that he:

1. knowingly permitted the premises to be used as drug premises; and

2. he unlawfully used illegal drugs on the premises; and

3. he allowed Mr David Brown to use drugs on the premises.

2. The circumstances of the unlawful use of the premises as such as to warrant the tenancy agreement being terminated.

99. The Corporation submits that Mr Romeyn be given 7 days in which to provide vacant possession of the premises; Mr Romeyn submits three months. The Tribunal notes that in Raglione the Appeal Panel ordered that the tenancy agreement be terminated immediately. Given the difficulties that Mr Romeyn will face finding suitable alternative accommodation, the Tribunal will allow him a slightly longer period than that sought by the Corporation, and require him to give vacant possession of the premises within 14 days of the publication of these orders and reasons.

Orders

100. The Tribunal makes the following orders:

1. The residential tenancy agreement between the parties dated 13 April 2005 is terminated immediately.

2. This order is suspended until 29 October 2015.

3. The respondent is to give the applicant vacant possession of the premises on 29 October 2015.

4. The respondent is to pay the applicant an occupation fee of $14.11 from 29 October 2015 until the date that vacant possession is given.

R C Titterton

Senior Member

Civil and Administrative Tribunal of New South Wales

15 October 2015

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: 16 December 2015