St George Community Housing Limited v Griffin

[2021] NSWCATCD 32

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

St George Community Housing Limited v Griffin [2021] NSWCATCD 32

Hearing dates:

14 April 2021

Date of orders:

11 June 2021

Decision date:

11 June 2021

Jurisdiction:

Consumer and Commercial Division

Before:

G Blake AM SC, Senior Member

Decision:

(1)   The proceedings are dismissed.

Catchwords:

LEASES AND TENANCIES – Residential tenancies – Termination order of a residential tenancy agreement on account of the persistent threats or abuse of the tenant

Legislation Cited:

Residential Tenancies Act 2010 (NSW), ss 92, 154E

Supreme Court Act 1970 (NSW), s 84

Cases Cited:

Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481

Texts Cited:

The Macquarie Dictionary 2020

Category:

Principal judgment

Parties:

St George Community Housing Limited (Applicant)
Conniesha Griffin (Respondent)

Representation:

E Reynolds (Applicant)
G Crowley-Shaw (Respondent)

File Number(s):

SH 20/44557

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. In these proceedings the applicant, St George Community Housing Limited, which is a social housing provider and the landlord, seeks against the respondent, Conniesha Griffin, who is the tenant of premises at Randwick (the premises) under a residential tenancy agreement between them, a termination order pursuant to s 92(1) of the Residential Tenancies Act 2010 (NSW) (RT Act) arising out of her conduct.

2. I have decided to make an order dismissing the proceedings.

The background

3. On 25 September 2020, the applicant as the landlord and the respondent as the tenant entered into a residential tenancy agreement for 26 weeks commencing on that date in respect of the premises (the residential tenancy agreement).

The procedural history

4. On 22 October 2020, the applicant commenced proceedings SH 20/44557 against the respondent by filing an application in which it:

1. seeks the following order:

“Section 92 - A termination order where the tenant or occupant has threatened, abused, intimidated or harassed the landlord, the landlord's agent, an employee or contractor”

2. relevantly provides the following reasons for this order:

“The tenant has repeatedly threatened, abused and thrown objects at the landlord's agent.”

5. On 2 November 2020, the Tribunal made procedural directions for the filing of evidence by each of the applicant and the respondent.

6. On 1 February 2021, the Tribunal relevantly made the following procedural direction:

“Leave is granted to the landlord to amend the claim to seek the following:

(a) Termination and Possession pursuant to section 92 of the Residential Tenancies Act.

(b) Termination and Possession pursuant to section 87 of the Residential Tenancies Act. The landlord is to note section 83(2)(a) of the Residential Tenancies Act. The termination notice is dated 23 October 2020, the application was filed on 22 October 2020.”

The hearing

7. On 14 April 2021, the hearing was held by telephone. Ms E Reynolds (Ms Reynolds) represented the applicant. Ms G Crowley-Shaw (Ms Crowley-Shaw) represented the respondent.

8. At the commencement of the hearing Ms Reynolds indicated that the applicant’s claim for a termination order was limited to termination pursuant to s 92(1) of the RT Act.

9. During the hearing the respondent applied for an adjournment to adduce evidence. I dismissed the application and provided oral reasons for my decision.

10. The applicant relies on a bundle of documents which was provided to the Tribunal on 16 November 2020 and was admitted into evidence without objection (exhibit A1).

11. The respondent did not adduce any evidence.

12. There was no oral evidence.

13. Ms Reynolds and Ms Crowley-Shaw made oral submissions which were both limited to whether the conditions in s 92(1)(a) of the RT Act were satisfied.

14. On 24 May 2021, I made the following procedural direction:

“The related proceedings RT 20/49224 Rutland v St George Community Housing Limited have been dismissed because the applicant withdrew the application as "the tenancy has been finalised and occupancy has been handed back."

As it appears that the tenancy has been terminated, the Tribunal requests advice from the parties by 4.00pm on Wednesday 26 May 2021 whether the applicant is withdrawing the application and the proceedings are to be dismissed.”

15. No advice to the Registry was provided by either party in response to the procedural direction made on 24 May 2021.

The issues

16. The issue arising for determination is whether a termination order should be made under s 92(1)(a) or s 92(1)(b) of the RT Act.

17. Before considering this issue, it is convenient to set out the applicable provisions of the RT Act.

The applicable provisions of the RT Act

18. Part 1 (ss 1-4) contains provisions dealing with preliminary matters. Section 3 contains definitions, and relevantly provides:

3 Definitions

(1) In this Act—

…

landlord means—

(a)    the person who grants the right to occupy residential premises under a residential tenancy agreement, or

(b)   a successor in title to the residential premises whose interest is subject to the interest of the tenant, or

(c)   a tenant who has granted the right to occupy residential premises to a sub-tenant,

and includes a prospective landlord.

landlord’s agent means a person who acts as the agent of a landlord and who (whether or not the person carries on any other business) carries on business as an agent for—

(a)   the letting of residential premises, or

(b)   the collection of rents payable for any tenancy of residential premises.

19. Part 5 Division 2 (ss 84-95) contains provisions dealing with the termination of a residential tenancy agreement by the landlord, and includes s 92 which deals with termination for threat, abuse, intimidation or harassment and relevantly provides:

92   Tribunal may terminate residential tenancy agreement for threat, abuse, intimidation or harassment

(1)   The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has—

(a)   seriously or persistently threatened or abused the landlord, the landlord’s agent or any employee or contractor of the landlord or landlord’s agent, or caused or permitted any such threats, abuse or conduct, or

(b)   intentionally engaged, or intentionally caused or permitted another person to engage, in conduct in relation to any such person that would be reasonably likely to cause the person to be intimidated or harassed (whether or not any abusive language or threat has been directed towards the person).

…

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

…

20. Part 7 Division 5 Subdivision 4 (ss 154A-154F) contains provisions dealing with the termination of social housing tenancy agreements for breach of the agreement, and includes s 154E which deals with the exercise of the discretion to make termination order and provides:

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.

Whether a termination order should be made

Introduction

21. In the absence of any response by the parties to the procedural direction made on 24 May 2021, I have assumed that the residential tenancy agreement has continued in existence.

22. Before considering whether a termination order should be made, it is convenient to summarise the evidence of the applicant and the submissions of the parties.

The evidence of the applicant

23. The evidence of the applicant included the statutory declaration of Jennifer Grossemy (Ms Grossemy), a staff member of Richardson & Wrench Bondi Junction (R&W Bondi Junction) with responsibility for residential sales and management, made on 11 November 2020 (the Grossemy declaration) and email correspondence.

24. In the Grossemy declaration Ms Grossemy relevantly states:

“ … the occupant, Conniesha Griffin of [address omitted], Randwick, came into our office on the 20/10/2020 & 22/10/2020 where she was verbally abusive & aggressive not only to me but to a number of our staff that were at the reception area at the time of her being here.

She came into the office to provide her bail documentation as this was the only evidence she had of residing at the property in order to borrow a set of keys for the unit as she had lost hers. At the same time she became agitated and verbally abusive when we provided her some feedback around her behaviour at the property.

…

We had to ask Conneisha to leave the office because of the vulgar language and abusive nature and call the police on several occasions.”

25. Ms Grossemy in her email sent on 20 October 2020 at 9.54am to the applicant (the 20 October 2020 at 9.54am email) relevantly states:

“Also -please be advised your tenant has not stopped calling and harassing our reception team today as they have once again locked themselves out.”

26. Ms Grossemy in her email sent on 20 October 2020 at 10.03am to the respondent (the 20 October 2020 at 10.03am email) relevantly states:

“URGENT - the tenant and her boyfriend are coming into our office and have threatened us and calling us Liars!!! This cannot go on, my staff are at risk.”

27. Eddie Doherty, Team Leader, Support Coordination, Customers & Communites of the applicant in his email sent on 20 October 2020 at 10.59am to Alice Keegan, the case manager of the respondent (the 20 October 2020 at 10.59am email), relevantly states:

“We have had another email from the real estate agent this morning alleging that Conneisha and another person visited their office this morning asking for spare keys as they have locked themselves out, they also allege that they were also verbally abusive to them.”

28. Ms Grossemy in her email sent on 21 October 2020 at 4.42pm to the applicant (the 21 October 2020 at 4.42pm email) relevantly states:

“You have put our agency, staff & all the residents at [address omitted] at risk.”

29. Ms Grossemy in her email sent on 22 October 2020 at 1.31pm to the applicant (the 22 October 2020 at 1.31pm email) relevantly states:

“… the tenant came into our office today and threw the keys at the reception staff and was swearing and threatening.”

The submissions of the applicant

30. Ms Reynolds, while conceding that the applicant’s case was not strong, submitted that the Grossemy declaration as well as the 20 October 2020 at 9.54am email, the 20 October 2020 at 10.59am email, the 21 October 2020 at 4.42pm email and the 22 October 2020 at 1.31pm email establishes that the respondent had persistently threatened or abused the landlord’s agent.

The submissions of the respondent

31. Ms Crowley-Shaw made the following submissions:

1. there was no evidence that R&W Bondi Junction was the applicant’s agent;

2. if R&W Bondi Junction was the applicant’s agent, then the evidence relied upon by the applicant did not establish that the respondent had persistently threatened or abused the landlord’s agent.

Consideration

32. I am not satisfied that R&W Bondi Junction was the landlord’s agent within the meaning of that expression in s 3(1) of the RT Act. There is no evidence that R&W Bondi Junction was acting as the agent of the applicant.

33. As far as I am aware there has been no judicial consideration of the meaning of the word “persistently” s 92(1)(a) of the RT Act.

34. The word “persistent” is relevantly defined in The Macquarie Dictionary 2020 in the following terms:

“1. persisting, especially in spite of opposition, etc.; persevering.

2. lasting or enduring.

3. continued; constantly repeated.”

35. The word “persistently” in the expression “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings” in s 84(1) of the Supreme Court Act 1970 (NSW) has been held to suggest “determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness”: Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 at 492. The different context of vexatious proceedings and the juxtaposition of the word “persistently” in the expression “habitually and persistently” suggests that the meaning of “persistently” in this provision is not a helpful guide to its meaning in s 92(1)(a) of the RT Act.

36. I consider that the word “persistently” in s 92(1)(a) of the RT Act means constantly repeated.

37. If, contrary to my finding, the evidence establishes that R&W Bondi Junction was the applicant’s agent, then I am not satisfied that the evidence relied upon by the applicant establishes that the respondent had persistently threatened or abused the landlord’s agent. Even if the evidence of Ms Grossemy in the Grossemy declaration (“verbally abusive & aggressive”: “agitated and verbally abusive”; “vulgar language and abusive nature”), the 20 October 2020 at 9.54am email (“calling and harassing”), the 20 October 2020 at 10.03am email (“threatened us and calling us Liars”), the 20 October 2020 at 10.59am email (“verbally abusive”), the 21 October 2020 at 4.42pm email (“threw the keys at the reception staff and was swearing and threatening”), notwithstanding its conclusory nature, is sufficient to sustain a finding that the respondent “threatened or abused the landlord’s agent” within s 92(1)(a) of the RT Act, it does not meet the requirement of “persistently”. The conduct complained of was not constantly repeated, but only occurred on two occasions, being 20 October 2020 and 22 October 2020.

38. In view of the terms of the application which seeks an order for because the respondent “has repeatedly threatened, abused and thrown objects at the landlord's agent” it is necessary to consider whether the conditions in s 92(1)(b) of the RT Act have been satisfied. It is clear from the application that the respondent’s conduct in question was limited to her dealings with staff of R&W Bondi Junction. While the evidence relied upon by the applicant included the respondent’s conduct toward residents in the building in which the premises are located, the applicant did not seek leave to amend its application to seek an order under s 92(1)(b) of the RT Act in relation to these residents.

39. While I am satisfied from the evidence relied upon by the applicant set out in paragraph 34 above establishes that the respondent had abused Ms Grossemy and the reception staff of R&W Bondi Junction and thrown keys at them, I am not satisfied that the respondent had intentionally engaged in that conduct in relation to Ms Grossemy and the reception staff of R&W Bondi Junction that would be reasonably likely to cause them to be intimidated or harassed. It is significant that Ms Grossemy in the Grossemy declaration does not give any evidence of being intimidated or harassed by the conduct of the respondent. In the absence of evidence of the language used by the respondent other than the word “Liars” referred to in the 20 October 2020 at 10.03am email, it is not possible to determine whether her words would be reasonably likely to cause them to be intimidated or harassed. I am not satisfied that being called a liar would likely to cause them to be intimidated or harassed. Again, in the absence of evidence of the details of the respondent throwing keys and the events which preceded this incident, it is not possible to determine whether this conduct of the respondent would be reasonably likely to cause them to be intimidated or harassed.

40. As the conditions for making a termination order under either s 92(1)(a) or s 92(1)(b) of the RT Act have not been satisfied, it is unnecessary to exercise the discretion under this subsection whether to make a termination order and in so doing to have regard to the factors in s 154E of the RT Act.

41. If, contrary to my finding, the conditions for making a termination order under either s 92(1)(a) or s 92(1)(b) of the RT Act had been satisfied, then I would not have made a termination order because there is no evidence that the respondent has repeated conduct of the same or a similar nature since 22 October 2021.

42. Accordingly, the proceedings should be dismissed.

Order

43. I make the following order:

1. the proceedings are dismissed.

**********

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 August 2021