Southern Cross Community Housing Limited v Wensley

Case •

[2023] NSWCATCD 35

•

08 May 2023

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Southern Cross Community Housing Limited v Wensley [2023] NSWCATCD 35
Hearing dates: 24 April 2023
Date of orders: 08 May 2023
Decision date: 08 May 2023
Jurisdiction:Consumer and Commercial Division
Before: J Rose, General Member
Decision:

(1) The residential tenancy agreement is terminated in accordance with s 87 of the Residential Tenancies Act 2010 (NSW), as the tenant has breached the residential tenancy agreement by failing to keep the residential premises in a reasonable state of cleanliness having regard to the condition of the premises at the commencement of the tenancy.

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

(3)   Subject to the tenant paying the occupation fee directed below, the order for possession is suspended for 28 days, until 5 June 2023. In the event occupation fee is not paid as ordered, the suspension will cease and the order for possession becomes effective immediately.

(4)   The tenant must pay the landlord a daily occupation fee, at a rate equal to one-seventh (1/7th) of the rebated weekly rent that was payable by the tenant under the residential tenancy agreement immediately before these orders were made, which is payable from the day following the date of termination, namely 9 May 2023, until the date vacant possession is given to the landlord. The tenant must pay that occupation fee weekly in advance in the same way that rent was previously payable under the tenancy agreement.

(5)   Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.

(6)   The registry is to send a copy of these orders and the reasons for decision to [redacted] of Supported Accommodation & Homelessness Services Shoalhaven Illawarra, by email to [redacted], in addition to sending them to the parties.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Social housing — Termination of social housing agreements — By landlord — termination for breach — tenant’s obligation to keep residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy — whether the breach is, in the circumstances of the case, sufficient to justify termination of the agreement — consideration of the circumstances of the case under ss 87(5), 154B and 154E

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Social housing — Termination of social housing agreements — suspension of the order for possession — consideration of the period of suspension of the order for possession under ss 83 and 154G

Legislation Cited:

Interpretation Act 1987 (NSW)

Residential Tenancies Act 1987 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies (Residential Premises) Regulation 1995 (NSW)

Cases Cited:

Adavale Realty Pty. Ltd. v Williams [1996] NSWRT 190

Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109

Mansfield v Sunman [2017] SACAT 1

Scicluna v NSW Land and Housing Corporation (2008) 72 NSWLR 674

Thomas v Slade [2023] NSWCATAP 56

Texts Cited:

Nil

Category:Principal judgment
Parties: Southern Cross Community Housing Limited (Applicant)
Germaine Sheridan Wensley (Respondent)
Representation: Julie Hadley, authorised officer (Applicant)
In-person (Respondent)
File Number(s): SH 22/56458
Publication restriction: Nil

REASONS FOR DECISION

Introduction

  1. These proceedings arise out of an application lodged by the applicant (which I will describe as the “landlord”), which seeks orders for:

  1. termination of a social housing residential tenancy agreement between the landlord and the respondent (the “tenant”; the “tenancy agreement”) in respect of a residential house at Nowra NSW (the “premises”); and

  2. vacant possession of those premises,

under s 87 of the Residential Tenancies Act 2010 (NSW) (the “RT Act”), on the ground that the tenant has breached the tenancy agreement by failing to keep the premises in a reasonably clean and tidy condition.

  1. I heard the dispute between the parties on 24 April 2023. I have carefully reflected on the circumstances of the circumstances of the case over the past 2 weeks since hearing the matter; particularly the tenant’s circumstances as presented to the Tribunal. Having done that, I am satisfied that it is appropriate to make the orders sought by the landlord, for the following reasons.

The procedural history

  1. The proceedings have a long history. As I will set out below, the landlord has obtained a series of orders from the Tribunal, directing the tenant to comply with the tenancy agreement by maintaining the premises in a reasonably clean and tidy condition. The landlord then lodged this application with the Tribunal on 21 December 2022.

  2. The application came before the Tribunal for conciliation and an initial hearing on 23 January 2023. Conciliation was not successful, so the Tribunal listed the proceedings for hearing as a special fixture. In doing so, the Tribunal made directions for the parties to provide to each other, and to the Tribunal, copies of the documents that they intended to rely on at the hearing. The Tribunal also referred the tenant to several tenants advisory services, for possible assistance.

  3. The proceedings were then listed for hearing on 15 March 2023. Both parties were present, however the hearing was adjourned at the request of the parties – partly because of issues that had occurred in the exchange of the parties documents and partly because the parties wanted to inspect the premises together. In adjourning the hearing, the Tribunal noted that (firstly) the tenant was not living at the premises; (secondly) the tenant had informed the Tribunal that she does not live at the premises because of unrepaired damage and a rat infestation, which she had not reported to the landlord; and (thirdly) the parties intended to have a meeting at the premises a few days later at which they would inspect the premises together, with the tenant’s case worker being present.

  4. The parties have since had that meeting and exchanged their evidence. Consequently, the hearing proceeded at the relisting on 24 April 2023. The landlord was represented at the hearing by its authorised officer, Ms Hadley. The tenant, who opposes the application, appeared in person. She was assisted at the hearing by Kate Brookes, her case manager at Supported Accommodation and Homelessness Services Shoalhaven and Illawarra.

Evidence

(a)   The landlord’s evidence

  1. The landlord relied on the updated bundle of evidence that it had provided to the tenant and handed up at the hearing, which I marked as Exhibit L1. The tenant did not object to any of those documents being used in evidence, which included copies of:

  1. completed hearing notes;

  2. the front page of the tenancy agreement – which was a residential tenancy agreement between NSW Land and Housing Corporation (NSWLHC) and the tenant, dated 7 February 2006;

  3. a termination notice dated 1 April 2022;

  4. written submissions on the discretionary factors set out in s 154E of the RT Act – which I have also taken to be the landlord’s neighbourhood impact statement under s 154F of the RT Act;

  5. the Tribunal’s orders in proceedings SH 22/15436 on 29 April 2022 and 25 August 2022;

  6. condition reports on the state of various parts of the premises, dated 24 June 2022, 13 October 2022, 24 November 2022, 9 February 2023, 23 February 2023 and 19 April 2023; and

  7. a bundle of photographs provided by NSWLHC from its records, date stamped as having been taken on various dates.

  1. As stated in its hearing notes, the landlord also relied on the termination notice dated 24 November 2022 that was included in its previous bundle of documents filed in the proceedings (lodged on 20 January 2023), which I marked as Exhibit L2.

  2. Ms Hadley also gave sworn oral testimony to the Tribunal. In her testimony, Ms Hadley stated that the landlord took over the tenancy from NSWLHC in 2018. She also stated that the landlord has identified the tenant to have complex needs due to her hoarding at the premises and the squalor at the premises. The landlord has made repeated attempts to work with the tenant to resolve the cleanliness issues since 2020, including by referring the tenant to Auscare (an NDIS provider) and by repeatedly obtaining orders from the Tribunal for the tenant to comply with the terms of the tenancy agreement (in 2019, 2020 and 2022). She stated that the tenant had not complied with those orders. She stated that the landlord’s representatives could not get inside the premises through the front door at a previous inspection on 28 September 2020 because of articles that were immediately behind the front door. The landlord obtained a specific performance order in April 2022, but there was little change in the state of the premises when it was inspected in June 2022 so the landlord sought to relist the matter and obtained a further specific performance order in August 2022. She then stated that some articles had been removed from the grounds of the premises when it was inspected again on 13 October 2022, but not much had been done to make “inroads” into the lack of cleanliness as at 13 October 2022. She added that the photographs obtained from NSWLHC showed that the premises were in the same dirty state as early as 2013.

  3. Ms Hadley also stated that the landlord is a social housing provider, and that the premises cannot be used by a tenant in its current state; adding that the landlord cannot check the premises for repair work or safety issues because of its unclean state. She acknowledged that the tenant’s rent had been paid up to date, even though the tenant had admitted she was not living in the premises. She also stated that the tenant’s clack of care in keeping the premises clean was diminishing the value of the premises. Lastly, she spoke to and restated the landlord’s submissions under s 154E, as contained in Exhibit L1.

(b)   The tenant’s evidence

  1. The tenant relied on the updated bundle of evidence that it had provided to the tenant and handed up at the hearing, which I marked as Exhibit T1. The landlord did not object to any of those documents being used in evidence, which included copies of:

  1. a letter from Ms Brookes, dated 9 March 2023, seeking to explain the delay in providing the tenant’s documents to the Tribunal;

  2. the front page of the tenancy agreement, described above;

  3. the termination notice dated 23 November 2023, described above, with a covering letter from the landlord;

  4. an “Action Plan” progress report from Clutter Cat Professional Organising, dated 31 March 2023;

  5. the second page of an undated letter to an unknown recipient, which the tenant asserts contains a summary of the tenant’s medical history since 2015;

  6. the Tribunal’s orders in these proceedings, dated 23 January 2023.

  1. The tenant also handed up an updated copy of the Clutter Cat action plan, which I marked as exhibit T2. The landlord did not object to that document being used in evidence.

  2. The tenant also gave sworn oral testimony to the Tribunal. Ms Brookes also made verbal submissions on the tenant’s behalf.

  3. In her oral evidence, the tenant stated that she is suffering from disabilities, as set out in the extracted page from the medical letter in Exhibit T1. She said that she was not staying in the house for several reasons, including because the premises were not safe and that it was in a difficult neighbourhood. She said that the premises had been broken into (on a date that she did not specify), so she closed the front door and pushed stuff against it to make it difficult to get into the premises from the front door. She agreed that she did not report the break-in to the landlord or to the police.

  4. The tenant also said that she has tried to clean the property up over the past 3-4 months, as shown by the Clutter Cat progress reports in her evidence. The tenant added that she had funding for another 10 Clutter Cat visits, to continue the cleaning-up work. She said that it was likely that the cleaning work would be finished in a couple of months, although she was not able to identify a likely deadline for the completion of that work.

  5. On the s 154E factors, the tenant said that she had only received 1 complaint from 1 neighbour about the condition of the premises, although she had no idea of when that complaint was made. She added that she did not have the original condition report but conceded that all it said was that the premises had a bad paint job; it did not say anything about the state of the carpet or any other matters.

  6. In answer to questioning from Ms Hadley, the tenant agreed that the premises were vacant, empty and clean at the start of the tenancy agreement. She said that the only defect that was mentioned in the ingoing condition report (which was not in evidence before the Tribunal) was that the premises had a “bad paint job”.

Jurisdiction

  1. I am satisfied that there is a social housing residential tenancy agreement between the parties regulated by the RT Act and that the Tribunal has jurisdiction to hear and determine the landlord’s claim. I am satisfied that the termination date specified in the termination notice has now elapsed so that the Tribunal may consider the application: RT Act, s88(4).

The applicable law

  1. Section 51 of the RT Act sets out many of the tenant’s obligations in using residential premises under a residential tenancy agreement. Subsection 51(2) provides in particular that:

(2)    A tenant must do the following--

(a)    keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,

(b)    notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage.

This obligation is a term of every residential tenancy agreement: s 51(5).

  1. Section 3 of the RT Act defines "residential premises" to mean:

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

As a result, the obligation in s 51(2) covers the residential house let to a tenant, as well as and the yards forming part of the property surrounding that house. By subsection 51(4), "residential premises" also includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant.

  1. Section 87 of the RT Act provides a mechanism for a landlord to terminate a residential tenancy agreement because the tenant has breached the agreement. The section states (my underlining):

87   Breach of agreement

(1)   A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement.

(2)    The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given.

(3)    The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement.

(4)    The Tribunal may, on application by a landlord, make a termination order if it is satisfied that:

(a)    the tenant has breached the residential tenancy agreement, and

(b)    the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and

(c)    the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

(5)    In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following:

(a)    the nature of the breach,

(b)    any previous breaches,

(c)    any steps taken by the tenant to remedy the breach,

(d)    any steps taken by the landlord about the breach,

(e)    the previous history of the tenancy.

(6)    The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach.”

  1. Section 83(2) of the RT Act provides that a landlord may only make its application to the Tribunal by a landlord for a termination order:

  1. after the termination date specified in the relevant termination notice and within the period prescribed by the regulations (which is 30 days), and

  2. if vacant possession of the premises is not given as required by the notice.

  1. When considering whether to terminate a social housing tenancy on the ground of breach it is also necessary for the Tribunal to consider ss 154B and 154E of the RT Act. Section 154B states (my underlining):

154B    Tribunal must have regard to breaches of prior social housing tenancy agreements and to series of breaches

(1) In determining under section 87 whether to terminate a social housing tenancy agreement on the ground of a breach of the agreement by the tenant, the Tribunal must have regard to--

(a)    any breaches by the tenant of a prior social housing tenancy agreement with the same or a different landlord, and

(b)    whether a series of breaches by the tenant of the social housing tenancy agreement or any prior social housing tenancy agreement with the same or a different landlord justifies termination of the agreement even though, taken alone, the circumstances of each breach would not justify termination of an agreement.

(2)    This section does not limit any other matter that may be considered by the Tribunal under this Act.

  1. Section 154E states (my underlining):

154E    Exercise of discretion to make termination order

(1)    In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following--

(a)    the effect the tenancy has had on neighbouring residents or other persons,

(b)    the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated,

(c)    the landlord's responsibility to its other tenants,

(d)    the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord,

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

(2)    This section does not limit any other matter that may be considered by the Tribunal under this Act.

  1. In the event that the Tribunal is satisfied that it is appropriate to make a termination order, then s 83 of the RT Act requires the Tribunal to also make an order for possession of the residential premises that specifies the day on which the order takes or took effect.

  2. Section 114 separately allows the Tribunal to suspend the operation of an order for possession of the premises for a specified period if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and the tenant by the suspension, and to impose an obligation on the tenant to pay an occupation fee for the period for which the order for possession is suspended. However, for social housing tenancies, the Tribunal’s discretion to specify or suspend the date for possession of the premises is limited by s 154G of the RT Act, which provides:

154G Order for possession

(1)    If an order is made for termination of a social housing tenancy agreement, the order for possession must not specify a day that the order for possession is to take effect that is later than 28 days after the day on which the termination order is made unless the Tribunal is satisfied that there are exceptional circumstances justifying a later day.

(2)    The order for possession cannot be suspended for a period that would result in it taking effect later than 28 days after the day on which the termination order was made unless the Tribunal is satisfied that there are exceptional circumstances justifying a longer period of suspension.

  1. Overlapping with the above provisions, s 187(1)(i) of the RT Act separately empowers the Tribunal to make a termination order or an order for the possession of premises”: s1 187(1)(i).

  2. I have considered the landlord’s claim and the tenant’s defence in accordance with these provisions.

Findings of fact

  1. Having weighed and considered the documentary and oral evidence provided by both parties, I am satisfied that the facts of the matter are as follows.

  2. The landlord is a social housing provider that operates in the Illawarra-Shoalhaven area of New South Wales. The premises is a brick-and-tile house contained within fenced yards. It backs onto a public reserve. The evidence provided by the parties does not enable me to determine the age of the house with any precision, but it appears to be in the order of 30 years old.

  3. The tenant entered into the tenancy agreement with NSWLHC on 7 February 2006. The tenancy agreement contained 3 parts – a 1-page statement of the particulars of the tenancy, the written terms of the tenancy agreement and a property condition report. Of these, only the first part (the particulars page, signed by the tenant) was in evidence before the Tribunal. Nevertheless, I am satisfied that the tenancy agreement contained the standard terms mandated for a social housing residential tenancy agreement by the relevant legislation at that time, including the Residential Tenancies Act 1987 (NSW) (the “1987 Act”) and the Residential Tenancies (Residential Premises) Regulation 1995 (NSW). The tenancy agreement is a social housing tenancy agreement for the purposes of the 1987 Act and the RT Act.

  4. I am satisfied from the oral evidence provided by the tenant that the premises were clean and empty at the start of the tenancy agreement and that the only potential issue with the premises at that time was that it may have had a bad paint job.

  5. According to the photographs provided by NSWLHC to the landlord (which I accept), a representative of NSWLHC photographed the premises on 24 and 25 September 2013. The front lawn of the premises was overgrown at that time and there were piles of rubbish or other goods in the yards around the house.

  6. On 19 November 2013, NSWLHC filed an application in the Tribunal against the tenant (in proceedings RT 13/59886), seeking orders under s 60 of the RT Act to allow it or some other person to enter the premises to service the smoke alarm. NSWLHC asserted in its application that 4 previous inspections had been unsuccessful. However that application was dismissed by the Tribunal on 17 December 2013 as neither party appeared at the hearing. The issue was not pressed further in the Tribunal after that. I therefore don’t consider that application to be a relevant matter for the purpose of the issues arising in this case.

  7. Of greater relevance is the bundle of photographs provided by NSWLHC to the landlord and produced in these proceedings. Those photographs (which I accept as accurate), show that the outside of the premises had become increasingly unclean and cluttered with rubbish or other goods by 29 May 2015. There were many scattered and piled items in the front yard, including a swing, Styrofoam boxes, plastic boxes and other goods. The front lawns had also not been kept mowed. There was also a pony or small horse grazing in the front yard when the photographs were taken.

  8. Other photographs provided by NSWLHC to the landlord (which I also accept) showed inside of the house to be in a poor state of cleanliness in February 2017. Those photographs – marked as having been taken in the lounge room and the hallway on 15 February 2017 showed hoarded goods and boxes piled high throughout those rooms, in no particular order – both on the floor and on the visible items of furniture in those rooms. Only a small part of the floor in the hallway was visible in those photographs. None of the floor in the loungeroom was visible – because of the sheer volume of goods that had accumulated in that room.

  9. Another photograph dated 19 April 2017 showed a greater volume of rubbish or other goods had accumulated in the yard around the house, through which and around which long grass or other vegetation was growing. The goods visible in that photograph included assorted tables, cardboard boxes and plastic containers, wire frames and kitchen pots, upturned plant pots, a tyre and assorted boots and shoes.

  10. In 2018 NSWLHC transferred the premises and the tenancy agreement to the applicant. For all intents and purposes the applicant took over the landlord’s rights under the tenancy agreement, including the right to enforce the terms of the tenancy agreement against the tenant.

  11. On 1 May 2019, the landlord brought an application against the tenant (in Tribunal proceedings SH 19/20243), seeking orders under ss 60 and 187(1)(h) of the RT Act, (firstly) enabling the landlord to enter the premises and (secondly) directing the tenant to comply with the RT Act and the tenancy agreement. The reasons for the application stated by the landlord at that time were:

“Tenant has failed to give the landlord access to the property on two separate occasions. 1) Thursday 31/01/2019 and 2) Thursday 28/02/2019. The landlord wishes to gain access to the property for a tenancy and asset inspection.”

With the consent of the tenant, the Tribunal made orders in those proceedings on 21 May 2019, authorising the landlord or its employee to enter the residential premises for the purpose of inspecting them for maintenance, repairs or health and safety as well as fitting or inspecting smoke alarms. The balance of that application (for directions that the tenant comply with the tenancy agreement) was not pursued.

  1. On 13 July 2020, the landlord filed a further application against the tenant in the Tribunal (in proceedings SH 20/30053), seeking another order under s 60 of the RT Act. That application asserted that the tenant had not allowed the landlord access to the premises on 2 occasions, for carrying out a routine inspection. With the consent of the tenant, the Tribunal made further orders permitting the landlord or its authorised contractor to enter the residential premises on 15 September 2020, for the purpose of inspecting them for maintenance, repairs or health and safety.

  2. On 16 March 2022, the landlord served a termination notice on the tenant (the first termination notice), asserting that the tenant had breached ss 87 and 51(2)(a) and (b) of the RT Act by failing to keep the premises in a reasonable state of cleanliness, and by failing to notify the landlord of damage to the premises. The notice required the tenant to give vacant possession of the premises by 1 April 2022.

  3. As the tenant had not vacated the premises by that date, the landlord then lodged an application with the Tribunal (in proceedings SH 22/15436 – the first termination application) on 7 April 2022, seeking an order to terminate the tenancy agreement under s 87 of the RT Act (the section that is relied on in these proceedings), asserting that the tenant had failed to keep the premises in a reasonable state of cleanliness and had not notified the landlord of damage to the premises (RT Act, ss 51(2)(a) and (b)).

  4. The first termination application came before the Tribunal on 29 April 2022 but the tenant did not appear on that occasion. The Tribunal made orders in the tenant’s absence, that:

1.   The tenant must comply with the terms of [the] residential tenancy agreement by keeping the residential premises in a reasonable state of cleanliness both inside and out.

2.   The tenant must comply with the terms of [the] residential tenancy agreement by cleaning the property, inside and out, to a reasonable state of cleanliness on or before 10.6.22

3.   If these orders are not complied with by the tenant then: at any time before 28-Oct-22 the landlord may request the re-listing of this application to determine whether the tenancy should be terminated.

4.   The Tribunal is satisfied that the notice of the hearing has been duly served on the respondent, and the Tribunal considers that justice requires the matter be dealt with in the absence of the party.

  1. On 17 May 2022, the landlord lodged a further application with the Tribunal (in proceedings SH 22/21683), seeking an order under s 60 of the RT Act to allow the landlord or another person to enter the premises. In seeking the order, the landlord asserted that

“The tenant had failed to allow access to the landlord for the purpose of inspecting the premises for maintenance, repairs, health and safety.”

The Tribunal heard that application on 9 June 2022, at which time it made orders authorising the landlord to enter the premises on 24 June 2022 for the purpose of inspecting the premises for maintenance, repairs or health and safety.

  1. A representative of the landlord attempted to inspect the premises on 24 June 2022, in accordance with that order. The representative prepared an 8-page report covering the attempt, which included 22 photographs that were taken of the premises on the day – mostly of the grounds outside the house. According to the representative’s report (which I accept as true and correct in the absence of evidence to the contrary) it was necessary to engage a locksmith to open the premises for the inspection on that occasion, however it was not possible to inspect the inside of the premises once that had occurred because of the volume of goods inside the house, with the representative noting:

Unable to access property even after front door was eventually opened by locksmith due to extreme amount of hoarding and staff safety.

The photographs included in the report (which I again accept as accurate in the absence of evidence to the contrary) showed:

  • a silver vehicle (in an apparently poor condition) parked in very long grass on the nature strip out the front of the property, beside the driveway;

  • very long grass growing in the front yard of the property, with large amounts of accumulated rubbish apparent in the long grass;

  • plastics and papers lying on the concrete driveway;

  • very long grass growing onto the driveway from the surrounding area and through the bulbar of a second vehicle that was parked on the driveway, in front of the house;

  • garden beds that were overgrown and over-run by grass;

  • a third vehicle parked in the long grass, beside a swing set;

  • a very large and untidy pile of assorted goods or rubbish stacked from floor to ceiling on the front veranda of the house; and

  • through the open door of the house, similar large and untidy piles of assorted goods or rubbish stacked from floor to ceiling in the visible parts of the house.

  1. The landlord exercised the right to relist the first tenancy application just over 3 months later, on 4 August 2022, asserting that those orders had not been complied with. As a result, the first termination application was listed for further hearing by the Tribunal on 25 August 2022 - however the tenant did not appear on that occasion, either.

  2. At the relisted hearing of the first termination application on 25 August 2022 – which was again conducted in the tenant’s absence – the Tribunal made further orders directing the tenant to clean the property to a reasonable state of cleanliness. The orders made on that occasion were:

1.    By consent, the Tenant must comply with the terms of residential tenancy agreement by keeping the residential premises in a reasonable state of cleanliness both inside and out.

2.    By consent, the Tenant must comply with the terms of residential tenancy agreement by cleaning the property, inside and out, to a reasonable state of cleanliness.

3.    If these orders are not complied with by the tenant then: at any time before 28-Nov-2022 the landlord may request the re-listing of this application to determine whether the tenancy should be terminated.

  1. Another representative of the landlord again sought to inspect the premises on 13 October 2022. The representative prepared a 5-page report covering the attempt, which included 9 photographs that were taken of the premises on the day. According to the representative’s report (which I accept as true and correct in the absence of evidence to the contrary) it was again not possible for the representative to inspect the premises “due to extreme amount of hoarding and staff safety”. The photographs included in the report (which I again accept as accurate in the absence of evidence to the contrary) showed:

  • a driveway that had been cleared of the overgrown grass that had been photographed 4 months earlier, on 24 June;

  • larger amounts of accumulated rubbish in the front lawn area of the property, which was still overgrown with very long grass;

  • very overgrown and unkempt garden beds; and

  • a large amount of accumulated rubbish or goods spilling out from what appears to be a curtained-off section of the front veranda of the house, near a chained and locked gate that was attached to the house.

  1. On 23 November 2022, the landlord served a second termination notice on the tenant (the second termination notice). The notice, which Ms Hadley had signed on behalf of the landlord, stated in part (the bolding was in the original):

TERMINATION FOR BREACH OF AGREEMENT

The Landlord requires you to give vacant possession of the premises on 20th December 2022 being a date not earlier than 14 days after the date on which this notice is given. This is in accordance with the Residential Tenancies Act 2010 for breach of Sections 87 & 51(2) (a) & (b) in that you have not kept the premises in a reasonable state of cleanliness, and you have not notified the Landlord of damage to the premises.

  1. The notice was duly served on the tenant in accordance with the provisions of s223 of the RT Act, by sending it by post to the tenant’s residential address, namely the premises, on 23 November 2022. Pursuant to s 76(1)(b) of the Interpretation Act 1987 (NSW), the notice was deemed to be delivered to the premises on the 7th working day after the letter was posted – namely, on Friday, 2 December 2022.

  2. The notice also complied with the formal requirements of ss 82 and 87 of the RT Act for a termination notice asserting a non-monetary breach of the tenancy agreement. The notice set out:

  1. the residential premises concerned,

  2. the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given,

  3. the ground for the notice.

Further, the termination date specified in the notice (20 December 2022) was not earlier than 14 days after the day on which the notice was deemed to have been given (2 December 2022).

  1. Another representative of the landlord sought to inspect the premises on 24 November 2022 – the day after the termination notice had been posted to the tenant. The representative prepared a 4-page report covering the attempt, which included 6 photographs that were taken of the outside of the premises on the day. According to the representative’s report (which I accept as true and correct in the absence of evidence to the contrary) the representative did not get access to the premises – again “due to extreme amount of hoarding and staff safety”. The photographs included in the report (which I again accept as accurate in the absence of evidence to the contrary) showed:

  • large amounts of accumulated rubbish in the front lawn area of the property, which was still overgrown with very long grass;

  • accumulated rubbish lying on the driveway; and

  • the curtained-off section of the front veranda of the house that was still in place near the chained and locked gate attached to the house, from which accumulated goods still appeared to be spilling.

  1. I accept the tenant’s evidence that she does not reside in the premises at the current time, although she continues to pay rent for the premises. The parties agree that the tenant’s rent for the premises is paid up to date, demonstrating that the tenant continues to treat the property as let to her. I also find that the tenant is continuing to exercise dominion over the premises, to the exclusion of the landlord. Consequently, I am satisfied on the evidence that the tenant has not vacated the premises, despite the landlord giving the tenant the second termination notice.

  2. The landlord’s application in these proceedings (the second termination application) – which was filed on 21 December 2022, the day after the second termination notice had expired – was brought within 30 days of the termination date specified in the termination notice. It is therefore within time under the RT Act.

  3. On the evidence before the Tribunal, I am satisfied that it was only upon the filing of that second termination application that the tenant has taken any tangible steps to clean up the premises. The tenant has produced 2 action plans prepared by Clutter Cat – a “professional organising” service that has assisted her to clean up part of the premises between 12 January and 31 March 2023. The work undertaken by Clutter Cat in the early stages of that scope included:

  1. On 17 January 2023 – removing a large amount of goods from the front yard of the premises (but leaving the overgrown lawns in place).

  2. On 1 February 2023 – removing and/or tidying up some of the large amount of goods occupying the front veranda of the house (leaving many goods stored on shelves or stacked in containers where they were once heaped).

  1. A representative of the landlord again sought to inspect the premises on 9 February 2023. The representative prepared another 4-page report covering the attempt, which included 7 photographs that were taken of the outside of the premises on the day. The photographs included in the report (which I again accept as accurate in the absence of evidence to the contrary) showed:

  • large amounts of accumulated rubbish in the front lawn area of the property, which was still overgrown with very long grass;

  • the driveway was again overrun by long grass, and had a shopping trolley on it, near the same car that was again parked there;

  • there was a large pink plastic bag on the driveway near the street, which appeared to contain accumulated rubbish including a chair (which I infer was evidence of someone making recent attempts to clear the premises);

  • there was a large pile of accumulated rubbish or other assorted goods on the driveway, between the car and the garage door; and

  • the curtained-off section of the front veranda of the house was still visible, as was the chained and locked gate.

  1. According to the Clutter Cat scope of works, further work was undertaken on 14 February 2023, following that inspection, to remove and/or tidy up more of the goods occupying the front veranda of the house.

  2. Another representative of the landlord again sought to inspect the premises on 23 February 2023. The representative prepared a 6-page report covering the attempt, which included 11 photographs that were taken of the outside of the premises on the day. The photographs included in the report (which I again accept as accurate in the absence of evidence to the contrary) showed:

  • large amounts of accumulated rubbish continuing to be in the front lawn area of the property, which was again overgrown with very long grass;

  • garden beds that were overgrown and overrun with long grass;

  • the silver car still (or again) parked in long grass on the nature strip outside the front fence of the property;

  • the driveway still (or again) had a shopping trolley left on it, near the same car as before;

  • another pile of accumulated rubbish or other assorted goods on the driveway, between the car and the garage door; and

  • the same chained and locked gate, with various goods placed around it.

  1. According to the Clutter Cat scope of works, further work was undertaken in March 2023, including:

  1. Further clearing and mowing of the yards around the house.

  2. Further tidying of the goods located on the front veranda, including further stacking of goods on shelf units and in stacks of plastic crates.

  1. Removal of rubbish from the property (at the tenant’s expense).

  2. Entry into a new service agreement with the tenant, for 10 weekly visits to the premises.

  3. Tidying of the internal hallway of the house.

Some of these works had originally been scheduled for completion in February but they were cancelled on 2 occasions – one by Clutter Cat and one by the tenant because of illness.

  1. As referred to at the start of these reasons, representatives of the landlord inspected the premises in company with the tenant on 22 March 2023. The landlord’s evidence (which I accept) was that the representatives present on that date could only walk about 1.5 metres into the house due to the volume of goods that were stored inside the property.

  2. One representative of the landlord prepared an 18-page report of their findings, which included 57 photographs that were taken on the day. The comments and findings set out on the front page of the report (which I accept) were:

General comments: Upon inspection it appears that the tenant is not taking care of the property up to our standards. Please see comments in the report to follow.

Overall Standard: Extremely poor condition throughout.

Work to be carried out by Tenant: Rubbish removal and thorough cleaning throughout property and yards.

The report described many rooms in the house as “Area extremely cluttered with rubbish and dirty throughout”, including the hallway, the loungeroom, one bedroom, the kitchen and the dining room. Other rooms were described as “Unable to access”, including 2 other bedrooms, the bathroom, the toilet room and the laundry. The exterior was described to show “Rubbish throughout yards and lawn maintenance required”.

  1. The photographs included in the report (which I accept as accurate) substantiated those conclusions. They showed a large amount of accumulated goods covering the floor and furniture in each of the rooms just described. The goods appeared in the photographs to be stacked over 1.5 metres high in some places. In most rooms, it was difficult to see the floor because of the amount of goods piled into the room. The photographs of the outside showed very large amounts of accumulated goods stacked through most of the yards and on the outside staircases and verandas around the house. However there were some signs that recent attempts had been taken to clean up some parts of the yard. An area of the back yard near one of the cars and the swing set described above looks to have been cleared and mowed a short time before the inspection. Other areas remained in a very poor and dishevelled state.

  2. I am satisfied that the house was in the condition described in that report, and as shown in those photographs, on 23 March 2023.

  3. In a separate report of that inspection dated 19 April 2023, Jonathan Vidamour, an Asset Officer with the landlord, described the condition of the property as follows:

The property is in a severe state of disrepair, the hoarding is so extreme that we were only able to view the entry way, we could not gain access to the Kitchen, Living or any Bedrooms.

There is evidence of a rodent infestation throughout the property as rodent faeces were visible on all furniture items. The property is also in extreme fire risk as it is currently

There has been a very small inroad made to the front yard only when we attended on the 22/03/23. However it is still not to an acceptable standard and the rear yards are still very messy and overgrown. There is large amounts of rubbish throughout the rear yard, including an abandoned car. Given this property backs on to a reserve and with the amount of rubbish and items in the yards this again creates not only a rodent/ pest issue but potential for snakes which will also affect neighbouring properties

I believe we were advised that the tenant has services engaged to assist in cleaning and removing items from the property. From memory I believe they were to attend 5 hours per week to assist the tenant. Unfortunately this is not sufficient as given the state of the property and the sheer amount of items throughout the property and yards, coupled with the pest issue and potential unforeseen issues, it is my professional opinion that this property requires far more extensive work than what is allocated. To address the rubbish removal it would require a team of employees working on site all day for approx. 1-2 weeks. They would require access of a tipper truck, otherwise skip bins would be required and it is impossible to know how many skip bins would be required as the property in its current condition cannot be properly assessed. Regardless the clean up of rubbish alone will likely enter the tens of thousands of dollars should a trade service be engaged. This is not including any repairs or cleaning that would also be required. Given the current condition I would also expect upgrades to existing components to be required

In order to get the property back up to a habitable standard, professional trades must be engaged to complete the rubbish removal. Once those works completed the property would then need to be scoped and trades engaged for maintenance cleaning etc. No person would be able to reside at the property for the duration of the works and given the size of the job I would estimate the works to take anywhere from 1-3 months (we will only have a more accurate time frame once rubbish removed and property can be scoped)”

  1. While Mr Vidamour’s report departs from the previous report in various small ways, I am satisfied that his report corroborates the findings in the previous report and provides some evidence of the nature and extent of the work that would be required to return the premises to a reasonably clean state.

Consideration – should a termination order be made?

  1. The structure of the legislation requires the Tribunal to consider:

  1. firstly, whether the tenant has breached the tenancy agreement;

  2. secondly, whether the termination notice was given in accordance with s 87;

  3. thirdly, whether the tenant has vacated the premises as required by the notice; and

  4. fourthly, whether the breach relied on by the landlord is sufficient to justify termination of the agreement in the circumstances of the case.

  1. As noted by the Court of Appeal in Scicluna v NSW Land and Housing Corporation (2008) 72 NSWLR 674, [62]-[63]:

[62] … The “circumstances of the case” encompass all aspects of the particular case that is before the Tribunal.

[63] If the Tribunal is satisfied that the landlord has established the ground [relied on], and is also satisfied that the breach, in the circumstances of the case, is such as to justify termination of the agreement, then the Tribunal is required to make an order terminating the agreement.

The circumstances to be considered can include the particular circumstances referred to ss 87(5). In the case of a social housing tenancy agreement the circumstances described in ss 154B and 154E must also be considered.

Failure to keep the premises reasonably clean

  1. Section 51(2)(a) places an obligation on the tenant to keep the state of cleanliness throughout the tenancy, and not just to return the premises in that state at the end of the tenancy (which is required by s 51(3)(c)). The required state of cleanliness is referable to its state at the commencement of the tenancy.

  2. The Appeal Panel recently noted in Thomas v Slade [2023] NSWCATAP 56, [45], when considering the related provision in s 51(3)(c):

“Reasonable” does not mean perfect. What is required is a level of cleanliness that is fair and sensible having regard to the state of cleanliness when the tenancy commenced. In this instance, there was cogent evidence that at least parts of the premises were not clean at the beginning of the tenancy. This was relevant to assessing whether the premises as a whole were left in a reasonable state of cleanliness at the end of the tenancy. Thus, even if the evidence established that some areas of the premises were less clean at the end of the tenancy than at the beginning, it was nonetheless open to the Tribunal to conclude that the premises as a whole were left in a reasonable state of cleanliness having regard to their condition at the start of the tenancy.

The same observations apply when assessing the state of cleanliness during the course of a tenancy agreement under s 51(2)(a). The standard for assessing the state of cleanliness is a fair, reasonable and objective one; not the subjective standard of a fastidious or obsessive landlord.

  1. As the South Australian Civil and Administrative Tribunal noted in Mansfield v Sunman [2017] SACAT 1, [12], there is a distinction between tidiness and cleanliness. While the Tribunal in that case noted that there is no obligation in a residential tenancy agreement to keep premises tidy:

“… a very serious case of untidiness may breach the obligation to maintain the property in a reasonable condition, eg where the tenant is a “hoarder” and has accumulated massive amounts of junk at the property.”

This is such a case.

  1. The evidence provided by the parties about the state of cleanliness of the premises at the start of the tenancy agreement is light. The Tribunal does not have the benefit of a completed condition report or photographs taken at the start of the tenancy agreement, in 2006. Nevertheless, the overwhelming agreement of the parties at the hearing was that the premises were reasonably clean and empty at the start of the tenancy agreement.

  2. By comparison, the evidence establishes that the premises are not reasonably clean in their current condition, and that they have not been kept reasonably clean for quite some time. The Tribunal ordered in April and August 2022 that the tenant must comply with the tenancy agreement by cleaning the premises to a reasonable standard of cleanliness. The evidence marshalled since that date shows that the premises have not been cleaned to a reasonable state of cleanliness, notwithstanding those orders. The reports produced by the landlord point to evidence of rodent infestation and rodent faeces throughout the property. The level of untidiness at the premises brought about by the collection and storage of so many goods at the premises, both inside and outside the house, is extreme. The yards around the house are very messy and overgrown, notwithstanding recent attempts that have been made to fix those yards in some places.

  3. In my view, the premises are not in an objectively reasonable state of cleanliness because of these issues – particularly when regard is had to the state of cleanliness they were in at the start of the tenancy agreement. Consequently, I am satisfied on the evidence and the facts that I have found that the tenant has breached the obligation in s 51(2)(a) to keep the premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy.

Failure to notify the landlord of damage to the premises

  1. The landlord relies on s 51(2)(b) of the RT Act as the second arm of its claim. It asserts that the tenant failed to notify the landlord of damage to the premises as soon as practicable after the tenant became aware of the damage.

  2. Because of the finding I have just made about the claim under s 51(2)(a), it is not necessary for me to consider this alternate claim. However it is worth noting that the provision concerned requires the landlord to identify particular damage to the premises and satisfy the Tribunal that (i) the tenant became aware of it at a certain time, or by a certain time; and (ii) that the tenant did not notify the landlord of that damage “as soon as practicable” after the tenant became aware of it.

  3. The evidence produced by the landlord did not address those two elements in any particular detail. Consequently – and without making any findings on the point – if it was necessary for me to have considered this arm in any significant way, I would have had difficulty in finding that this particular claim had been made out.

The formal requirements for establishing a breach of the tenancy agreement and the giving of a termination notice

  1. Having considered the relevant facts, I am satisfied on the evidence and the facts that I have found that:

  1. The tenant has breached the agreement by failing to keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy: ss 51(2)(a) and 87(4)(a).

  2. The second termination notice was given in accordance with s 87 of the RT Act: s 87(4)(c).

  3. The tenant has not vacated the premises as required by the notice: s 87(4)(c).

  4. The tenant has not remedied the breach – while some work has been done to clean the premises, the premises remains in a less-than reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy: s 87(6).

  1. As described above, the legislation requires me to consider 2 further matters in order to decide whether a termination order should be made in this case:

  1. the particular matters required by ss 154B and 154E; and

  2. whether the breach is sufficient to justify termination of the agreement in the circumstances of the case: s 87(4)(b).

I now turn to those questions.

The matters required by ss 154B and 154E

  1. Sections 154B and 154E overlap with s 87(5) to some extent. Nevertheless, I have had regard to the requirements of ss 154B and 154E separately.

  2. On the s 154E factors:

  1. The effect the tenancy has had on neighbouring residents or other persons – The landlord submits on this factor that:

“Poor property care [is] evident with the tenant. Landlord has received complaints regarding the poor state of the property and the rodent problems it has caused them”.

I agree that poor property care is evident, but there was no substantive evidence before the Tribunal of any complaints about the state of the property beyond the assertion in the landlord’s statement. Similarly, while Mr Vidamour reported on rodent faeces in the premises as evidence of a rodent infestation at the premises and a potential for snakes that, in his opinion, “will also affect neighbouring properties”, there was no evidence of any other properties being actually affected by rodents or snakes from these premises. I therefore give this factor no weight in my decision.

  1. The likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated – The landlord submits on this factor:

“Neighbours are concerned by the tenants neglect to the property internally and externally.”

Again, there is no evidence of those concerns before the Tribunal beyond the assertion in the landlord’s statement. However on this factor I agree with Mr Vidamour’s observation that there is a likelihood that neighbouring residents will suffer adverse effects from rodents coming from the property in the future if the tenancy is not terminated. I give this factor moderate weight in the landlord’s favour in my decision.

  1. The landlord's responsibility to its other tenants – The tenants of the landlord’s other properties in the street have a right under s 50 of the RT Act to quiet enjoyment of their premises without interruption by the landlord or any other person claiming by, through or under the landlord. he landlord has a duty under s 50 of the RT Act. Supporting that, s 50(3) and clause 15.4 of the standard tenancy agreement require each landlord to take all reasonable steps to ensure that their other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of their tenants in using those other residential premises. Bringing termination proceedings of this nature is one of those reasonable steps that the other tenants have the right to expect that the landlord will take to remove the cause of the interference in appropriate cases. I give this factor moderate weight in the landlord’s favour in my decision.

  2. The history of the tenancy and any prior social housing tenancy – The landlord submits:

“Previously managed by NSW Housing with a pattern of poor property care had been recorded.”

I have addressed this factor below, both under ss 87(5) and 154B. As noted there, I give it high weight in the landlord’s favour in my decision.

  1. Whether the tenant is/has been in breach of an order of the Tribunal – The landlord points to the orders made in April and August 2022, requiring the tenant to comply with the tenancy agreement and clean the property to a reasonable standard of cleanliness. As I address below in more detail under ss 87(5), I agree that the tenant has breached previous orders made by the Tribunal, including the orders made in April and August 2022 that the tenant clean-up the property so that it is restored to a reasonable standard of cleanliness, and that the tenant comply with the tenancy agreement in that regard. As I describe below, I give the tenant’s failure to comply with those orders high weight in the landlord’s favour in my decision.

  1. On the factors referred to in s 154B, I am satisfied that:

  1. There is no evidence of any prior social housing tenancy agreement with the same or a different landlord. Nevertheless, I am satisfied that there have been multiple breaches by the tenant of this social housing tenancy agreement, both with this landlord and with the previous landlord, NSWLHC.

  2. The series of breaches by the tenant of the tenancy agreement with this landlord and with that previous landlord justifies termination of the agreement even though, taken alone, the circumstances of each breach might not have justified termination of the agreement when they first occurred. I give this factor high weight in the landlord’s favour in my decision.

The factors listed in s 87(5)

  1. I have also considered the 5 factors set out in s 87(5) of the RT Act (described above), and have reached the following conclusions on those factors:

  1. The nature of the breach – In letting a property to a tenant, the landlord entrusts the property to the tenant on the condition that the tenant will maintain the property in a reasonable state of cleanliness. A serious breach of that condition can put the condition of the property and the safety of the property at significant risk. In turn, that serious breach can devalue the asset in the hands of the landlord and prevent the landlord from letting the property to the tenant, or to another tenant. It can also put the landlord to considerable expense in restoring the property to a lettable condition. The evidence before the Tribunal demonstrates that the tenant’s breach of her obligation to maintain the premises in a reasonable state of cleanliness in this particular case is a serious and significant breach of that obligation. I give this factor high weight in the landlord’s favour my decision.

  2. Any previous breaches – The background facts that I have set out above show that there has been a series of previous breaches by this tenant of the same obligation. Because of those previous breaches, the Tribunal has made several orders over the past 3 years, directing the tenant to restore the premises to a reasonable state of cleanliness and/or to comply with her obligation to maintain the premises in a reasonable state of cleanliness. Those orders have not been complied with. I give this factor high weight in the landlord’s favour in my decision.

  3. Any steps taken by the tenant to remedy the breach – There is no evidence to suggest that the tenant took any steps to remedy her breaches of the tenancy agreement or the previous orders made by the Tribunal before the start of this year. However there is clear evidence that the tenant has taken steps since January 2023 to begin cleaning up the mess in the yards around the house and on the front veranda. Only a small amount of cleaning-up work has begun inside the house (although the evidence discloses that the tenant now has funding for another 10 cleaning-up visits from Clutter Cat). The evidence does not disclose if the tenant is making any steps of her own to clean up the premises between the Clutter Cat visits. What is clear, however, is that the tenant has not at this time rectified the breach that the landlord relies on (cf s 87(6)). I nevertheless give this factor moderate weight in the tenant’s favour in my decision.

  1. Steps taken by the landlord about the breach – The landlord has taken several steps about the tenant’s failure to keep the premises in a reasonable state of cleanliness. As disclosed by the evidence, the landlord brought previous proceedings in 2019 for access to the premises and for orders that the tenant comply with the RT Act and the tenancy agreement. The landlord issued the first termination notice and filed the first termination application in March 2022, seeking to terminate the tenancy agreement because of the tenant’s failure to keep the premises reasonably clean. Those proceedings were ultimately disposed of by the Tribunal making specific performance orders in April and August 2022, requiring the tenant to comply with the tenancy agreement and to restore the premises to a reasonable state of cleanliness, however the tenant did not comply with those orders. The landlord lodged this second termination application in the face of that non-compliance. I give this factor high weight in the landlord’s favour in my decision.

  2. The previous history of the tenancy – I have set out above the history of the tenancy, as far as it is disclosed on the evidence. In summary, while the tenant has paid the rent owing for the tenancy agreement, it is clear on the evidence that the tenant has failed to keep the premises reasonably clean for many years – since at least 2013, some 10 years ago. The evidence also discloses that the tenant is not living in the premises, although she says that is because the premises are in need of repair. I don’t accept that reasoning. I therefore give this factor high weight in the landlord’s favour in my decision.

Other circumstances to be considered

  1. The landlord has also identified for consideration the fact that the landlord is a social housing provider who has a valuable asset – namely the premises – which is not being cared for by the tenant. The landlord argues that if the tenancy agreement is terminated the landlord can restore the premises to a fit state and let it out to another social housing tenant – one who would presumably comply with the tenancy agreement and keep the premises in a reasonable state of cleanliness. I agree that this factor should be considered, and I give it low weight in coming to my decision.

  2. Lastly, the tenant has identified one further circumstance for consideration in her favour – namely, her health or (as she termed it) her disabilities. The extract of the medical letter she has provided provides a list of some of the tenant’s medical experiences without providing any substantial detail on any of them. The more severe diagnoses on that list included cardiac arrest (in June 2015), elevated white blood cell and lymphocyte levels (in July 2021) and PTDS, psychosis, generalised anxiety disorder and panic disorder (also July 2021).

  3. As recently noted by the Appeal Panel in Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109, [142], many persons who live in social housing have medical conditions and disabilities. The evidence does not satisfy me that the tenant’s medical conditions as identified in the letter she has produced explain her breach of the tenancy agreement or provide a reason why the Tribunal should refrain from making a termination order in the circumstances of this case. I therefore give the tenant’s medical history low weight in coming to my decision.

  4. Lastly, I have considered the following circumstances insofar as they have been identified by the evidence before the Tribunal (including factors that I have adopted from the list set out in Adavale Realty Pty. Ltd. v Williams [1996] NSWRT 190):

  1. the tenancy agreement in this case is a social housing tenancy agreement;

  2. the duration of the tenancy agreement to date – which is about 17 years;

  3. the tenant’s rent is paid up to date;

  4. the tenant does not personally occupy the premises at the present time;

  5. the likely ability of the tenant, as a social housing tenant, to find other suitable accommodation if the tenancy agreement is terminated – which may require the tenant to join a waiting list for suitable social housing;

  6. there is no substantive evidence of any children living in the premises with the tenant;

  7. there is no substantive evidence of the tenant having any particular family connections to the local area;

  8. there is no substantive evidence of the tenant’s particular financial circumstances for the Tribunal to consider, save that she is a social housing tenant;

  9. the unsightly state of the premises, as a blight on the amenity of its local area;

  10. in its current state, the premises is not fit to be used to house a tenant because of the overgrown grass, overgrown gardens and the amount of goods stored in the house and its surrounding yards;

  11. the landlord’s representatives are unable to inspect the premises for maintenance or safety issues because of the volume of goods stored in the house and its surrounding yards, and because of the overgrown grass and gardens around the house;

  12. the tenant’s stated plan to continue cleaning up the premises with the assistance of Clutter Cat;

  13. the tenant has already been given multiple opportunities to clean up the premises instead of making a termination order on previous occasions;

  14. the fact that the tenant will not commit to a date by which the premises will be cleaned up, despite being pressed at the hearing to do so;

  15. the tenant has not adduced sufficient evidence to demonstrate that the landlord has failed to carry out repairs to the premises, as she has alleged;

  16. there is no substantive evidence of any unfair prejudice that the tenant might suffer from termination of the tenancy agreement;

  17. the tenant’s lack of care for the premises is likely to be diminishing the value of the premises, and diminishing its potential to be used to house social housing tenants; and

  18. there is no substantive evidence of any bad attitude or bad faith on the landlord’s part.

Conclusion - is the breach sufficient to justify termination of the agreement in the circumstances of the case?

  1. Having weighted and considered all of the above circumstances, and the circumstances of the case more generally, I am satisfied that the breach is sufficient to justify termination of the agreement. Accordingly, I am satisfied that it is appropriate to make a termination order and an order for the possession of the premises pursuant to s187(1)(i) of the RT Act.

Consideration – suspending the order for possession

  1. As described above, s83 of the RT Act requires the Tribunal, in making a termination order, to also make an order for possession of the premises that specifies the day on which the order takes or took effect. By s 154G, that date cannot be later than 28 days after the day on which the termination order is made unless the Tribunal is satisfied that there are “exceptional” circumstances justifying a later date.

  2. Through Ms Hadley, the landlord has stated that it does not oppose suspending the order for possession for the full 28 days. The tenant has asked for a longer period, citing the circumstances of the case generally, which I have described above, including her medical history.

  3. I am not satisfied that the circumstances of the case are “exceptional”. I accept that the tenant has produced some evidence of past medical diagnoses, including panic disorder, generalised anxiety disorder and psychosis. However, notwithstanding her medical history, the tenant’s documents do not contain any detailed evidence regarding her medical conditions from a suitable medical specialist, setting out the extent of the tenant’s disabilities and their impact on the question of suspending the order for possession. Further, the tenant has not lived in the premises for quite some time.

  4. Consideration of the tenant’s position should also take into consideration that many persons who live in social housing have medical conditions and disabilities; and have minimal financial means.

  5. Having considered the circumstances of the case, I am not satisfied that the tenant’s circumstances are “exceptional circumstances” within the meaning used in s 154G. I am therefore satisfied that it is appropriate to suspend the date of vacant possession for the maximum period of 28 days allowed under s 154G of the RT Act to allow the tenant to move from the residential premises in an orderly way. In doing this, I am satisfied that it is also appropriate to impose an obligation on the tenant to pay an occupation fee for the period of the suspension, at a daily rate equal to the rate of rent currently payable by the tenant.

  6. In my view, the suspension of the order for possession should be made conditional on the tenant paying an occupation fee that is equivalent to the rebated rent that she currently pays under the tenancy agreement. That rent should be paid weekly in advance while the tenant continues to occupy the premises. The suspension should cease to operate if the tenant does not pay the occupation fee in accordance with these conditions.

CONCLUSION AND ORDERS

  1. The landlord’s claim in the proceedings must succeed for these reasons. As a result, the Tribunal makes the following orders:

  1. The residential tenancy agreement is terminated in accordance with s 87 of the Residential Tenancies Act 2010 (NSW), as the tenant has breached the residential tenancy agreement by failing to keep the residential premises in a reasonable state of cleanliness having regard to the condition of the premises at the commencement of the tenancy.

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

  3. Subject to the tenant paying the occupation fee directed below, the order for possession is suspended for 28 days, until 5 June 2023. In the event occupation fee is not paid as ordered, the suspension will cease and the order for possession becomes effective immediately.

  4. The tenant must pay the landlord a daily occupation fee, at a rate equal to one-seventh (1/7th) of the rebated weekly rent that was payable by the tenant under the residential tenancy agreement immediately before these orders were made, which is payable from the day following the date of termination, namely 9 May 2023, until the date vacant possession is given to the landlord. The tenant must pay that occupation fee weekly in advance in the same way that rent was previously payable under the tenancy agreement.

  5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.

  6. The registry is to send a copy of these orders and the reasons for decision to [redacted] of Supported Accommodation & Homelessness Services Shoalhaven Illawarra, by email to [redacted], in addition to sending them to the parties.

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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

Amendments

16 August 2023 - Formatting amendments.

16 August 2023 - Officer name and email address redacted.

Decision last updated: 16 August 2023

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Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312
Scicluna v NSW Land and Housing Corp [2008] NSWSC 607