Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Land and Housing Corporation v Bradshaw [2020] NSWCATAP 172 Hearing dates: 11 August 2020 Date of orders: 21 August 2020 Decision date: 21 August 2020 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member M Gracie, Senior Member Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) Set aside the orders made by the Tribunal on 29 April 2020. (4) The residential tenancy agreement between the appellant and the respondent is terminated immediately. (5) On the date of these orders the respondent is to give up possession immediately of the residential premises the subject of these proceedings to the appellant. (6) The order for possession in Order (5) is suspended for 28 days from the date of these orders. Catchwords: LEASES - residential tenancy-termination of social housing tenancy-whether termination mandatory or discretionary-fresh evidence about whether a person was an occupant of the premises and whether that person would suffer hardship if order made to terminate tenancy Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW ) Civil and Administrative Tribunal Rules 2014 (NSW ) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: None cited Category: Principal judgment Parties: NSW Land and Housing Corporation (Appellant) Tracey Lea Bradshaw (Respondent) Representation: Solicitors: R Fester, Department of Communities and Justice (Appellant) Respondent (No Appearance) File Number(s): Ap 20 /21962 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial division Citation: N/A Date of Decision: 01 May 2020 Before: K Clark, General Member File Number(s): SH/19/52450 REASONS FOR DECISION 1. The appellant appeals against orders made on 29 April 2020 dismissing its application for termination and possession of a residential tenancy agreement with the respondent in respect of social housing premises in Bateau Bay. 2. There was no appearance by the respondent at hearings of the appeal on 7 July 2020 and 11 August 2020. On the former occasion, the hearing of the appeal was adjourned to 11 August 2020, as suggested by the appellant, in the circumstances outlined below. 3. The issues on the appeal concern the Tribunal's finding that the tenant's son, Aaron Reid, was an occupant of the premises who would suffer undue hardship if the tenancy agreement was terminated. 4. It followed from this finding that it was not mandatory for the Tribunal to make a termination order. Instead, it had a discretion whether to make the order under s 91 (1) of the Residential Tenancies Act 2010 (RTA), having regard to the matters set out in s154E of that legislation. In the exercise of that discretion the Tribunal decided not to make an order for termination. 5. Apart from its findings about Aaron Reid, the Tribunal found that all other conditions for the making of a mandatory order for termination had been satisfied. Those were the conditions set out in s154D(1)(c)(i). No challenge to that conclusion arose on the appeal. 6. Section 154D(1)(c)(i) states: 154D Tribunal required to make termination order in certain circumstances (1) subject to subsection (3), the Tribunal must make a termination order on the application of a landlord under a social housing tenancy agreement if— ….. (c) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used for the purposes of— (i) storing a firearm for which a licence or permit is not held under the firearms act 1996, …… And the tenant or other person has been charged with an offence relating to those circumstances (whether or not the person is or has been found guilty of the offence). 1. The Tribunal found that it was the conduct of the father of the tenant's two children, as an occupant of the premises, that satisfied these conditions. 2. The exception to this provision for the making of a mandatory order in s154D (3) (b) states: (b) subsections [154D] (1) and (2) do not apply if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made or a person suffering from a disability within the meaning of the anti-discrimination act 1977 who is occupying or jointly occupying the social housing premises, 1. The Tribunal found that it was Aaron Reid, as a person suffering from a relevant disability, who fell within the terms of this provision. It found that at the time of the hearing on 29 April 2020 he was occupying the social housing premises and the termination order would be likely to result in undue hardship to him. 2. As to Aaron's occupation of the premises, the Tribunal said (at [31]-[32]): 31 When asked the direct question as to whether her son was currently an occupant, Ms Bradshaw replied "I still consider him an occupant. I mean staying on your friend's lounge is not really moving in or having your own house". 32 I am satisfied that Aaron is an occupant of the property on the bases that: (a) he left the property only a few weeks ago and the reason for his departure was a fight with his mother; (b)he was (sic) no other permanent address; … (c) his current living conditions bear the hallmarks of transience in that he is staying with friends, sleeping on their sofa and returning home daily for showers and meals; (d) he still has a room at the property; (e) he remains an unnamed "household member" in the printout furnished by the landlord in evidence; (f) Ms Bradshaw is paying the extra required to the landlord to keep him listed as part of the household. 33 There is no continuity or permanence in Aaron's current living arrangements. I find them to be a brief refuge with friends which is not sufficient to read link which is right to be considered an occupant at the property. 1. As to undue hardship, the Tribunal concluded that Aaron Reid needed a stable home because of his behavioural issues and that his literacy issues would make it exceedingly difficult for him to find alternative permanent accommodation. 2. These findings about Aaron Reid were based entirely upon oral evidence given by the respondent, for the first time, at the hearing at first instance in response to questions from the Tribunal. No prior notice of such evidence had been given to the appellant before the hearing, despite case management directions for the parties to provide the material to be relied upon in advance of the hearing,including witness statements or affidavits about any issue to be raised by the respondent under the exception in s 154D (3) (see the directions made on 29 January 2020 and 18 March 2020). 3. The respondent's evidence included that Aaron had moved out and moved in with a friend (T15), he was staying with friends because they were fighting so much (T15), she didn't know how long he was going to last there and she was his carer (T16), the premises was his base (T16), he was just staying with a friend at the moment, he still had his room at the premises, he still came there, she was still paying rent for him, she was his carer, it was only a few weeks ago that he went to stay with his friends, and her neighbours wouldn't even know he had moved because he is in there every day getting a feed and having a shower and to eat (T31). The fresh evidence 1. Following the decision at first instance issued on 1 May 2020, the appellant obtained an affidavit from Senior Constable Stewart sworn on 4 May 2020. 2. Senior Constable Stewart deposed that: 1. He was the officer in charge of an investigation into the supply of prohibited drugs. 2. As a result of that investigation he was familiar with Aaron Reid. Aaron Reid was charged on 20 December 2019 with a six supply of drug offences alleged to been committed at the residential premises in issue in these proceedings. 3. On 21 December 2019 he was granted bail by the Wyong Local Court. One of the conditions of bail was that he was to reside at a particular unit in The Entrance. Since that time, there had been six further appearances in respect of this matter and on each of those occasions this condition of bail was continued. 4. Whilst he was in contact with the appellant during the course of the Tribunal proceedings he did not provide the appellant with any information relating to Aaron Reid or where he was required to live until an email which he sent the appellant on 4 May 2020. Grounds of appeal 1. A number of grounds of appeal were raised in the Notice of Appeal lodged by the appellant on 14 May 2020. These included an application for leave to appeal on the ground that significant new evidence was now available that was not reasonably available at the time of the hearing. In that regard, reference was made to the evidence the appellant was now aware of concerning Aaron Reid's bail condition. 2. The appellant came to rely upon three grounds of appeal as set out in its written submissions provided on 16 June 2020. Ground 3 was the significant new evidence ground. 3. Ground 1 was that there had been a denial of procedural fairness on the basis that the appellant had been effectively "ambushed" at the hearing by the respondent's evidence concerning Aaron Reid. Ground 2 was that the decision that Aaron suffered from a relevant disability, was an occupant and would suffer undue hardship was legally unreasonable. 4. In these written submissions the appellant contended that on the basis of the fresh evidence the Appeal Panel should proceed to find that termination of the tenancy agreement was mandatory and should order that it be terminated. Alternatively, the Appeal Panel should set aside the orders made by the Tribunal at first instance and remit the matter to a differently constituted Tribunal for redetermination. No responsive material or appearance from the respondent 1. As we have already mentioned, there was no appearance by the respondent at the hearings of the appeal on 7 July 2020 and on 11 August 2020. The respondent never provided any written material in opposition to the appeal nor any written communication to the Tribunal setting out any opposition to the appeal. Accordingly, the Appeal Panel is not aware of any grounds that the respondent may believe she has to oppose the appeal and to resist the making of the termination order sought by the appellant. 2. At a directions hearing in respect of the appeal on 26 May 2020, which the respondent attended by telephone , the appeal was listed for hearing by telephone on 7 July 2020. At this directions hearing, leave was given to each party to be legally represented and directions were made for the respondent to provide a reply and for the parties to provide, amongst other material, any fresh evidence sought to be relied upon, along with written submissions. Written notice of these directions, in the form of a letter from the Tribunal dated 27 May 2020, was sent to the parties, including by post addressed to the respondent at the residential premises. That notice included the standard notification that at the hearing of the appeal the Appeal Panel may proceed to deal with the appeal by way of a new hearing and that the parties should be prepared to put before the Appeal Panel any fresh evidence as well as any evidence that was before the Tribunal at first instance and make any submissions in relation to the original application that they want to make. 3. The appellant lodged with the Tribunal and served by post sent to the respondent at the residential premises some material in support of its appeal under cover of a letter dated 16 June 2020. This did not include any fresh evidence concerning Aaron Reid's occupancy of the residential premises, nor did it include any written submissions. None of this material came to be relied upon by the appellant in support of its appeal. 4. In addition, the appellant sent to the Tribunal by email on 16 June 2020 a copy of the sworn affidavit from Senior Constable Stewart, along with its written submissions and a transcript of the proceedings at first instance. 5. At the hearing of the appeal on 7 July 2020, and confirmed by him at the hearing on 11 August 2020, we were informed by Mr Fester, who appeared for the appellant, that the above material sent to the Tribunal by email on 16 June 2020 had been hand-delivered to the respondent on 30 June 2020. Mr Fester told us that this information was contained in an email from a Ms Davies of the process servers used by the appellant. 6. At the hearing on 7 July 2020 there was no appearance from the respondent by telephone or otherwise. We were informed by Mr Fester that he had spoken to the respondent on the telephone on 23 June 2020 (he was calling her about the delivery to her of the material the appellant wished to rely upon) and that he had tried to speak to her on the telephone again on 26 and 30 June 2020 but without success.At the commencement of the hearing on 7 July 2020 the Appeal Panel attempted to contact the respondent by telephone also without success. 7. In view of the late delivery to the respondent on 30 June 2020 of the additional material the appellant wish to rely upon (under the directions made on 26 May 2020 it was due to be served by 16 June 2020), at the hearing on 7 July 2020 Mr Fester suggested that the hearing of the appeal be adjourned in order to give the respondent more time in which to consider and respond to the additional material. 8. We agreed with Mr Fester and adjourned the hearing of the appeal to 11 August 2020 at 2:15 p.m. We also made directions for a new date for the respondent to provide her Reply because this had not been lodged with the Tribunal (it was due by 5 June 2020) and for the provision by the respondent of any fresh evidence she wished to rely upon and for the supply of her written submissions in advance of the hearing on 11 August 2020. 9. Written notice, in the form of a letter from the Tribunal dated 8 July 2020, of the new date for the hearing of the appeal and the directions we made on 7 July 2020 was sent to the parties by the Tribunal, including by registered post addressed to the respondent at the residential premises. An advice receipt from Australia Post, signed by a delivery officer, giving a date of delivery of this post on 8 July 2020 was provided to the Tribunal. 10. In these circumstances, we are satisfied that: 1. At the directions hearing on 26 May 2020 the respondent was made aware that the appeal was fixed to be heard on 7 July 2020 ; 2. The letter from the Tribunal dated 27 May 2020 was duly served upon the respondent before the hearing on 7 July 2020; 3. The appellant's additional material sent to the Tribunal by email on 16 June 2020, in particular, the new evidence in the form of the affidavit from Senior Constable Stewart and the appellant's written submissions were duly served upon the respondent before the hearing on 7 July 2020; 4. The letter from the Tribunal dated 8 July 2000 was duly served upon the respondent before the hearing of the appeal on 11 August 2020. 1. In this regard, we note and rely upon the provisions for service of documents and notices set out in Rules 13 (2) (a), (b) and (c) and (4) of the Civil and Administrative Tribunal Rules 2014 concerning service by means of personal service and sending by post. The fresh evidence ground of appeal is upheld/new hearing to determine occupancy issues 1. In the case of an appeal from the Consumer and Commercial Division of the Tribunal, which this is, one of the grounds upon which leave to appeal may be granted, as provided for in cl 12 of Schedule 4 of the NCAT Act, is that: …..the appellant may have suffered a substantial miscarriage of justice because: ……. (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. Clearly, the affidavit from Senior Constable Stewart provided significant new evidence in respect of the appellant's application for a termination order. His evidence that Aaron Reid had been required by a condition of bail to reside at specific premises that were not the residential premises since late December 2019, including at the time of the hearing at first instance in April 2020 when the respondent gave her evidence about Aaron's occupancy, was evidence of considerable weight against conclusions that Aaron Reid was an occupant of the residential premises at the relevant time and that he would suffer undue hardship if the tenancy agreement was terminated. It was also evidence that was capable of undermining the credibility of the respondent's account about Aaron's occupancy if the inconsistency with her evidence was not satisfactorily explained. This was in circumstances where the respondent bore the onus of proving that the exception to the making of a mandatory order for termination in s154D (3) was applicable. 2. We are also satisfied that this evidence from Senior Constable Stewart was not reasonably available to the appellant at the time when the proceedings at first instance were dealt with. The appellant only became aware of the facts concerning Aaron's condition of bail after the hearing at first instance, following the respondent's oral evidence at the hearing, previously undisclosed to the appellant, about Aaron's situation concerning the applicability of s154D (3). We admit this new evidence on the hearing of the appeal. 3. For these reasons, we conclude that the appellant may have suffered a substantial miscarriage of justice, as required by cl 12 (c) above, in that the Tribunal was unaware of important evidence, which, if true, favoured the necessity to make an order for termination of the tenancy rather than dismiss the appellant's case. 4. Accordingly, leave to appeal is granted. 5. Because of the new evidence and the absence of any responsive evidence from the respondent, which may have, for example, raised disputed or new questions of fact about termination of the tenancy agreement, we also consider that we should proceed to deal with the appeal by way of a new hearing concerning the occupancy issues arising in respect of Aaron Reid and the application of s 154D (3). We do so in accordance with s 80 (3) of the NCAT Act. 6. As we have already mentioned, the respondent bore the onus of establishing that the exception to the making of a mandatory order for termination in s154D (3) of the RTA was applicable. There was no challenge from the respondent to any of the other findings of the Tribunal at first instance from which it followed that a mandatory order for termination was to be made. 7. However, in our opinion, in the light of the new evidence from Senior Constable Stewart about Aaron Reid's bail condition, which we accept, the respondent has failed to establish that the exception in s154D (3) is applicable by reason of the circumstances concerning Aaron Reid. 8. Plainly, the bail condition is, strikingly, at odds with the respondent's evidence that Aaron Reid was an occupant of the residential premises on the basis that he had only recently left the residential premises, he had left because of a fight with the respondent, the residential premises was his base and he continued to visit the residential premises on an almost daily basis in order to shower and eat. 9. Despite the opportunity to do so, the respondent has not sought to provide any evidence explaining this inconsistency. 10. Furthermore, the requirement under the bail condition for Aaron Reid to reside at premises other than the residential premises is, strongly, at odds with the contention that he would suffer undue hardship (within the meaning of s 154D (3)) should the tenancy agreement be terminated. 11. Despite the opportunity to do so, the respondent has not sought to present any evidence or submissions, in light of the new evidence establishing the bail condition, against a conclusion that he would not suffer undue hardship. 12. In these circumstances, in our opinion, there is no credible material to support a conclusion that Aaron is, currently, an occupant of the residential premises or that, if he is, he will suffer undue hardship in the event that the tenancy agreement is now terminated. 13. Accordingly, in our opinion, the making of a termination order under s 91 (1) of the RTA is mandatory, by reason of the application of s 154D (1) (c) (i) of the RTA. Such order should now be made. In these circumstances, by reason of s 83 (1) of the RTA, we must also make an order for possession of the residential premises specifying the date on which the order takes effect. 14. At the hearing of the appeal on 11 August 2020, we raised with Mr Fester the question of suspending the order for possession for a period of time. Mr Fester submitted that an appropriate period of suspension would be 28 days. We agree that this is an appropriate period in order to give the respondent both a reasonable time in which to seek alternative accommodation, as well is to pursue any further appeal. 15. Because we have disposed of this appeal on the basis of the fresh evidence ground of appeal, it is unnecessary for us to deal with the other two grounds of appeal. Orders 1. For the above reasons, we make the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. Set aside the orders made by the Tribunal on 29 April 2020. 4. The residential tenancy agreement between the appellant and the respondent is terminated immediately. 5. On the date of these orders the respondent is to give up possession immediately of the residential premises the subject of these proceedings to the appellant. 6. The order for possession in Order (5) is suspended for 28 days from the date of these orders. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2020