Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Roberson v New South Wales Land and Housing Corporation [2021] NSWCATAP 94 Hearing dates: 24 March 2021 Date of orders: 16 April 2021 Decision date: 16 April 2021 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President J McAteer, Senior Member Decision: 1. Orders 1-4 inclusive made on 23 November 2020 in application SH 19/33771 are set aside. 2. In lieu thereof, the following orders are made: 1. The application for termination of the residential tenancy agreement is dismissed. 2. Julie Roberson is to perform the residential tenancy agreement dated 27 February 2019 in that: 1. she is not to use, cause or permit the residential premises to be used for any illegal purpose in relation to the supply or consumption of drugs; and 2. she is not to permit persons on the residential premises who might engage in such activities in or around the premises and thereby create a nuisance or interfere with the reasonable peace, comfort and privacy of other neighbours. Catchwords: LANDLORD AND TENANT – Residential Tenancies Agreement 2010 – termination under s 91(1)(a) – use of the premises for illegal purposes – operation of s 154D – mandatory termination unless undue hardship – application of s 154D(3)(b) – leave to appeal finding that no undue hardship – discretion to terminate – application of s 154E and consideration of other relevant factors in exercise of discretion Legislation Cited: Anti-Discrimination Act 1997 (Cth) Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; (2019) 100 NSWLR 578 Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 Texts Cited: Nil Category: Principal judgment Parties: Julie Roberson (Appellant) New South Wales Land and Housing Corporation (Respondent) Representation: Counsel: P Batley (Appellant) R Fester (Solicitor) (Respondent) Solicitors: Legal Aid NSW (Appellant) File Number(s): 2020/00371220 (AP 20/51140) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 23 November 2020 Before: S Hennings, General Member File Number(s): SH 19/33771 [THIS DECISION HAS BEEN AMNDED] REASONS FOR DECISION Introduction 1. This appeal concerns the making of a termination order by the Tribunal on 23 November 2020. 2. The Tribunal provided written reasons for decision (reasons). 3. The appellant (tenant) was a tenant under a residential tenancy agreement with the respondent (landlord) that is a social housing provider within the meaning of s 136 of the Residential Tenancies Act 2010 (NSW) (RT Act). 4. The termination order was made by the Tribunal pursuant to s 91(1)(a) of the RT Act. In this regard the tenant had been convicted in the Local Court of New South Wales for the offence of supplying a prohibited drug, namely methylamphetamine (commonly known as ice), and had been sentenced to a Community Correction Order for a period of 30 months commencing on 7 May 2020. That order contained the following conditions: 1. The [tenant] is subject to supervision by a Community Corrections Officer at Leichardt Community Corrections Office for the period of the Community Corrections Order. 2. The [tenant] is to participate in any program, treatment, intervention or related activity specified in this order or by a Community Corrections Officer for the period of the Community Correction Order. Must engage with Redfern Health Centre and accept all treatment. Must address supervision at page 3 of Community Correction report. 1. In consequence of s 154D(1) of the RT Act, the Tribunal determined it was mandatory for it to make a termination order. In doing so, while the Tribunal accepted that the tenant suffered from a disability within the meaning of the Anti-Discrimination Act 1997 (Cth) (AD Act), the Tribunal was not satisfied that the making of a termination order would likely result in undue hardship being suffered by the tenant. Consequently, there was no discretion to be exercised by the Tribunal concerning whether or not to make a termination order. 2. While s 154G of the RT Act prescribed a maximum period of 28 days for which an order for possession might be suspended, the Tribunal was satisfied that there were exceptional circumstances justifying a suspension of the possession date for a longer period. The reasons given were the COVID-19 pandemic (pandemic), the time of year and "the requirement to give the tenant some extra time to secure stable accommodation for her well-being. Notice of Appeal and history of appeal proceedings 1. The tenant filed a Notice of Appeal and sought a stay of the termination order. 2. There are three grounds of appeal: 1. That the Tribunal erred in its construction of s 154D(3) by failing to give the expression "undue hardship" its ordinary meaning in the context of the RT Act. 2. The Tribunal erred in failing to afford the tenant natural justice: 1. when informing itself as to the effect of the pandemic on the tenant's financial circumstances and capacity to secure alternative accommodation; and 2. in not informing itself of the limited nature of the pandemic financial support people on job keeper payments and the increase of unemployment caused by and consequent on the pandemic. 1. The decision of the Tribunal may have caused the appellant to suffer a substantial injustice because the decision was not fair and equitable and was against the weight of evidence. Leave to appeal was sought on this ground as required by Sch 4 cl 12(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 1. On 23 December 2020, the Appeal Panel made directions for the preparation of this appeal for hearing. The Appeal Panel also stayed the order for possession until the appeal was determined or finalised on condition that the tenant complies with the terms of the residential tenancy agreement. 2. The parties filed written submissions and the appellant provided a bundle of documents (Appeal Bundle (AB)), including a transcript of the hearing of the proceedings at first instance on 4 September 2020 before General Member Hennings. 3. We should briefly explain that the reasons record hearings on 5 March, 7 August and 25 August 2020. We were not provided with a transcript of all the hearings on these days. These hearings were conducted before a different Member who subsequently withdrew from the proceedings or disqualified themselves. The fact General Member Hennings heard this case despite the earlier days hearing is not the subject of any relevant dispute. However, we note the parties had agreed in the proceedings at first instance that a transcript of evidence given at the earlier hearings would be made available to the Tribunal rather than recalling earlier witnesses to give their evidence again. Consideration 1. The following matters were not in dispute in this appeal: 1. There were circumstances to enliven a power of the Tribunal to make an order for termination under s 91(1)(a) of the RT Act. 2. The tenant suffered from a disability within the meaning of the AD Act. 3. That the expression "undue hardship" in s 154D(3) means "hardship that is excessive in the circumstances": New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr); (2019) 100 NSWLR 578 per Bell P at [32], citing with approval the decision of the Appeal Panel in Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 at [49], [52]-[54]. 1. The tenant applied for leave to adduce fresh evidence. In relation to this application, there were discussions during the hearing of the appeal in which the Appeal Panel explained that we were not proposing to conduct a new hearing as might be permitted s 80(2) of the NCAT Act. Rather, we explained the appeal would be dealt with under s 80(2)(b) of the NCAT Act and that we would exercise the powers available to the Appeal Panel under s 81 of the NCAT Act in determining the appeal. 2. Consequently, leave would be required to introduce new evidence as provided in Sch 4 cl 12(1)(c) of the NCAT Act. As noted in the Notice of Appeal, leave to appeal was not sought on this basis. 3. On the other hand, the landlord agreed that fresh evidence found in the Agreed Bundle at Tab E should be admitted in the event we found s 154D(3)(b) applied to give to the Tribunal a discretion concerning whether or not a termination order should be made. This evidence may be relevant to the Appeal Panel exercising such discretion, the Tribunal at first instance not dealing with this issue by reason of its conclusion that the termination order would not cause undue hardship to the tenant. 4. We will return to this matter below. 5. We will deal with the grounds of appeal under the following headings: 1. That the Tribunal erred in its construction of s 154D(3) by failing to give the expression "undue hardship" its ordinary meaning in the context of the RT Act. 2. The Tribunal erred in failing to afford the tenant natural justice: 3. The decision of the Tribunal may have caused the appellant to suffer a substantial injustice because the decision was not fair and equitable and was against the weight of evidence. That the Tribunal erred in its construction of s 154D(3) by failing to give the expression "undue hardship" its ordinary meaning in the context of the RT Act. 1. The tenant submitted that the Tribunal "raised the bar of undue hardship to high". It did so by "its emphasis on the fact that termination of social housing tenancy will inevitably cause hardship to the residents affected, while failing to give effect to the ameliorative of purpose of s 154D". 2. Having referred to various authorities quoted by the Tribunal in its reasons, the tenant then said in her written submissions at para 11: The Appellant submits that by emphasising the traumatic effect on all social housing tenants of the termination of the tenancy, the Tribunal lost sight of the essential feature of consideration of undue hardship – the extent to which the tenant's disability impacts on the tenant's capacity to deal with the hardship that ordinarily arise from the termination of a social housing tenancy. 1. Reference was then made to the evidence of Dr Martin, a psychiatrist who provided opinions concerning various medical conditions suffered by the tenant and the potential medical effect upon her of losing stable accommodation. In this regard the tenant made the following submission: While the Tribunal accepted Dr Martin's opinion that Ms Roberson had a disability it paid scant attention to Dr Martin's opinion about the potential catastrophic effect on Ms Roberson of losing stable accommodation. Rather, the Tribunal simply observe that Ms Roberson could have stable accommodation elsewhere (Reasons [67]) without reflecting on the difficulty that Ms Roberson would have in achieving obtaining stable accommodation somewhere else, given her disabilities as disclosed in Dr Martin's report. 1. The tenant submitted that the Tribunal thereby misdirected itself as to the meaning of undue hardship "by giving too much emphasis to the experience of hardship (including stress, anxiety, discomfort, and inconvenience) faced by all tenants undergoing termination and insufficient emphasis to the impact of disability on the ability to cope with those circumstances". Consequently, the tenant submitted: if stress and anxiety are seen as mere temporary lifestyle impacts, attention is taken away from chronic conditions characterised by stress, anxiety and depression which undermine a person's ability to cope with the challenges of life. 1. In our view, the reasons do not reveal legal error in the test to be applied. 2. Section 154D relevantly provides: 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— … (b) an application for the order is made under section 91 and the Tribunal is satisfied of the matters set out in section 91(1)(a), or … (3) However— … (b) subsections (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, and … 1. Subsection 154D(3)(b) operates to relieve against mandatory termination under subs (1) where the tenant is suffering from a disability within the meaning of the AD Act and "the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered". That is, the making of the termination order will cause hardship and that the hardship will be undue. 2. In this regard, undue hardship means "hardship that is excessive in the circumstances" as stated in Orr above. 3. Hardship might arise by reason of a person being made homeless, their being removed from social housing facilities, financial consequences because of the need to fund alternative accommodation, disconnection with family, friends and social and medical support groups and/or from the consequences the termination order might have on the physical and mental well-being of the person affected. Determining whether hardship suffered is undue within the meaning of 154D(3) can therefore involve both a comparative analysis of the circumstances confronting all tenants who might be evicted with those of a person suffering a disability to determine if the hardship is undue and the particular impact upon the affected tenant by reason of circumstances peculiar to that tenant, including the effect on that person's physical and mental well-being. 4. Seen in this way, a wide range of evidence might be called which the Tribunal is required to weigh in determining whether or not to make a termination order. 5. Leaving aside for one moment the manner in which the Tribunal dealt with the circumstance of the pandemic, it was not suggested that the Tribunal was in error in considering the various financial, housing, relocation and health consequences being the circumstances with which the tenant would be confronted if a termination order was made. Indeed, the reasons reveal that the Tribunal considered evidence of each of these aspects in turn. While it accepted that hardship might arise by reason of a termination order being made, in respect of each of these matters it was not satisfied that the hardship would be undue. 6. In doing so, the Tribunal made the following findings: 1. the fact of termination and the need to move will cause hardship: reasons at [53]; 2. one of her children being an adult and the fact the tenant had no custodial rights over her younger child. Consequently, the loss of a two-bedroom unit would not result in undue hardship. In this regard the Tribunal also found there was no evidence to establish that the tenant's disability management or ongoing treatment required that her children actually stay with her have a separate bedroom. The need to move to "more restrictive accommodation" which only permitted her children to visit but not stay, would not result in undue hardship, particularly as neither of her children currently live with her: reasons [55]. 3. Having considered the various support centres and counselling programs the tenant had been attending in the inner-city area, the Tribunal found that the tenant would not suffer undue hardship if she lived elsewhere and was required to travel to these locations to continue with the programs in which he was engaged: reasons at [56]-[62]. 4. The Tribunal rejected the submission concerning affordability of public transport to attend those inner-city locations to engage in the identified services. Rather, the Tribunal concluded that "the programs appear to be somewhat general in nature and primarily focused upon improving the tenant's quality of life" and that there was "nothing to suggest that there is a level of significant therapeutic treatment or any other significant relationship which has been established". The Tribunal continued that such services were available at other locations across the Sydney metropolitan area and without evidence was not satisfied undue hardship would arise as a result of the tenant having to engage in alternative local services: reasons at [62]-[63]; 5. In the absence of "detailed evidence of the tenant's financial affairs" the Tribunal was not satisfied that the tenant could not obtain and potentially afford alternative accommodation. Again, the Tribunal found any hardship would not be undue and that the report from Opportunity Pathways Program suggested she had reasonable prospects of employment which might "positively impact her financial circumstances": reasons at [64]- [65]. 6. As to the report of Dr Martin, the Tribunal said at [67]: There is nothing in Dr Martin's report that identifies that the (sic) Ms Roberson's stable accommodation has to be in her current premises or location. 1. Finally, at [68] and following the Tribunal noted that the evidence provided was pre-pandemic and had not been updated. Consequently weight of that evidence was "reduced in light of such changes in circumstances, especially as the amount the tenant receives may have increased and with a higher income she may be in a better position to be able to afford another rental option than she was before". Here the Tribunal was referring to the increase in government benefits which have been paid during the pandemic. Having regard to what the Tribunal found was limited evidence provided from witnesses including Ms Felicity Reynolds and Mr George Lambrou, each of whom provided expert evidence concerning availability and affordability of rental housing, and the tenant's previous history in obtaining and maintaining rental accommodation outside social housing services, the Tribunal was not satisfied undue hardship would arise. 1. Consequently, the Tribunal found that s 154D(3)(b) did not operate to confer upon the Tribunal a discretion concerning whether or not a termination order should be made. 2. The matters evaluated by the Tribunal were all circumstances relevant to the question of hardship having regard to the various ways in which hardship might manifest itself. The Tribunal was required to make a factual determination about whether the identified hardship would be undue. This the Tribunal did by evaluating the particular evidence provided by the tenant. 3. We are not satisfied that there is any error of law in the Tribunal identifying the test to be applied and the matters to be considered in respect of that test. Rather, the matters about which the tenant complains are properly to be seen as challenges to findings of fact. 4. It follows that this ground, being an asserted error of law, is not made out. The Tribunal erred in failing to afford the tenant natural justice. 1. As is evident, these proceedings had a long history between when they were commenced and when they were finally determined by the Tribunal. Evidence had been prepared and submitted to the Tribunal prior to the pandemic. A hearing had commenced before another Tribunal Member at or shortly before the pandemic took hold in Australia. 2. The Tribunal noted that no updated evidence was provided by the parties at the time the proceedings were heard on 4 September 2020. In response to our questions during the hearing of the appeal it was suggested that no evidence was provided by either of the parties concerning the pandemic or financial or other circumstances that might have changed by reason of the pandemic. 3. Having read the transcript, it is clear the tenant was cross-examined about "the Covid supplement" she was receiving and her present financial circumstances: see eg AB 53 tspt line 6 and following. 4. In written submissions, the tenant said that the Tribunal's "findings about the impact of COVID-19 were not the subject of submissions by the parties". In oral submissions the tenant said the Tribunal used its knowledge of the pandemic to form a view regarding the private housing market, reference being made to the reasons at [64] and [68], and inappropriately reduce the weight given to the evidence provided in writing. At [68] the Tribunal said: The Tribunal considered the tenant's supporting evidence submitted from Felicity Reynolds, George Lambrou and the Anglicare Rental Affordability Snapshot National Report. It is clear that all that evidence was prepared and related to pre-COVID-19 pandemic situation. Due to that fact, clearly the government's increased benefits that the tenant now receives and the effect on the rental market under the COVID-19 pandemic have not been taken into consideration in any of that evidence. The tenant was legally represented but the tenant did not provide any updated evidence to the Tribunal in respect of her income and/or these issues from any of those sources. The Tribunal considered that the weight that could be given to this evidence is now reduced in light of such changes in circumstances, especially as the amount the tenant receives may have increased and with a higher income she may be in a better position to be able to afford other rental options than she was before. 1. In reply, the landlord noted there was evidence concerning payments made to the tenant under the pandemic arrangements, that the tenant was able to make whatever submissions it considered appropriate and that the Tribunal was "not required to forewarn parties as to its view of any evidence or what it might or might not regard as important in relation to its subsequent deliberations or determinations". 2. It seems to us that while the Tribunal might have been in error in its evaluation of the evidence before it, there was no relevant denial of procedural fairness. 3. The parties had provided evidence, which had been prepared at a time prior to the pandemic. There was also oral evidence from the tenant concerning government benefits she was receiving during the pandemic which, based on her oral evidence, where an increase over the pre-pandemic position. The Tribunal had to evaluate this evidence in considering whether a termination order was likely to result in undue hardship being suffered. In doing so it was entitled to consider the absence of relevant corroborative documentary evidence and give weight to this fact in determining whether or not an order made at or after the hearing on 4 September 2020 would likely result in undue hardship being suffered. 4. In our view, procedural fairness in the present case did not require the Tribunal to indicate to the parties how it might evaluate this evidence or how it might weight particular evidence in determining whether the fact of undue hardship was established. 5. This ground is not made out. The decision of the Tribunal may have caused the appellant to suffer a substantial injustice because the decision was not fair and equitable and was against the weight of evidence. 1. The final matter to consider in relation to the question of undue hardship is the application for leave to appeal and whether the tenant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or was against the weight of evidence. 2. The principles in Collins v Urban [2014] NSWCATAP 17 are relevant in determining this matter. At [76] and following the Appeal Panel said: 76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. 1. In seeking leave and in challenging the Tribunal's conclusion that the tenant would not suffer undue hardship, the tenant relied on the following evidence. 1. It was a condition of her Community Correction Order that she "engage with Redfern Health Centre and accept all treatment": AB 486; 2. If an order for possession was made she would likely be made homeless, the tenant being unable to afford any private housing. Expert evidence was before the Tribunal on this issue which included: 1. a report dated 19 February 2020 from Ms Reynolds (AB341 and following), previously the chief executive officer of Mercy Foundation Ltd, who had a significant experience in issues of homelessness and housing and gave the following evidence: 1. the tenant would, if evicted, not be able to afford rent in the private market anywhere in Sydney: AB 348; 2. the tenant, unemployed and with a criminal history, would likely be precluded from obtaining private rental housing: AB 352; 3. having regard to her history of trauma, night terrors and substance abuse and mental health problems, the tenant was less likely to be able to find people with whom she might share housing: AB 352; 4. due to her limited financial capacity she would not be able to find nor sustain private rental housing: AB 352-3 1. a statutory declaration made 21 February 2020 by Mr Lambrou, a licensed real estate agent, who said by reference to the tenant's government support payments and her circumstances that "the most likely responses from landlord would be to reject her application": AB 369 at AB 370 para 6. 1. A letter dated 22 April 2020 (AB 476) from a social worker (Ms Shanahan) at the New South Wales Government Sydney Local Health District who said: If Ms Roberson lost her current housing tenancy this would have a huge impact on her ability to engage with current services and continue her recovery in the community. Due to Ms Roberson's history of incarceration, mental health and drug use she is an unlikely candidate for the private rental market. She will find this extremely difficult to navigate and will place her at greater risk of relapse, homelessness and abuse. Further, Ms Roberson is on the Newstart Allowance and would find renting financially prohibitive. 1. A letter dated 13 February 2020 from Mr Young, a program case manager with Opportunity Pathways Program, (AB 340) who said: The Opportunity Pathways program can continue to support Julie to maintain suitable employment throughout 2020. Stable housing would greatly assist Julie to achieve this goal. If Julie's accommodation became unstable or if she was evicted and became homeless, her chances of gaining stable employment would be severely impacted. 1. A report from Dr Martin,, a forensic psychiatrist dated 5 February 2020: AB 327 and following. At AB 333 Dr Martin said: The effect on [the tenant] losing stable accommodation will be potentially catastrophic for her in significantly increasing the chances of future relapse of substance use with this likely to obviously increase the chances of homelessness and all the risks that this entails. What she requires is stability of accommodation so that she can be safe, maintain contact with mental health or drug and alcohol services, look after her physical health and have regular physical check ups, obtain regular stable employment and this would hopefully optimise the chances of reconnecting with her family in a meaningful manner and maintaining some dignity. 1. There was also evidence before the Tribunal that: 1. the tenant had been on a ten year waiting list for social housing, having secured the current premises in 2019; and 2. the government policy document concerning the provision of social housing premises provided that a person may be ineligible to be placed on the New South Wales Housing Register if they had a history of committing registrable offences and it was likely that the presence of that person in social housing will cause antisocial behaviour or present an unacceptable risk of harm to that person or other social housing occupants or neighbours: AB 372 at 380. However, in these circumstances the Department or a community housing provider had available to them a discretion including providing other housing assistance or private rental assistance: AB 381. 1. Of this evidence the tenant submitted that the Tribunal: 1. "paid scant attention to Dr Martin's [medical] opinion about the potential catastrophic affect on Ms Roberson losing stable accommodation … without reflecting on the difficulty Ms Roberson would have in achieving stable accommodation somewhere else, given her disabilities as disclosed in Dr Martin's report"; 2. gave little or no weight to her affidavit and oral evidence concerning her financial circumstances and had no basis to reject her evidence; 3. was selective in its reference to the evidence concerning the effect of eviction on her employment prospects; and 4. should have found she was at serious risk of homelessness and that the Tribunal's decision was against the weight of evidence. 1. The landlord submitted the Tribunal considered the relevant evidence and made findings about the tenant's financial position. It did so in circumstances "supporting evidence" had not been provided concerning these financial matters. Otherwise, the Tribunal considered the history of the tenant in obtaining accommodation and her likely ability to secure alternative accommodation and her ability travel to access relevant support services from alternative accommodation if the tenancy was terminated. In doing so the Tribunal took account of the evidence of Ms Reynolds and Mr Lambrou as recorded in the reasons at [70] and following. 2. Consequently, the landlord submitted there was no substantial miscarriage of justice. 3. In Orr, the Court of Appeal accepted the test for undue hardship in s 154D(3)(b) is whether the "hardship was excessive in the circumstances" as stated by the Appeal Panel in its earlier decision. 4. The Tribunal in its reasons considered each of the matters raised by the tenant, including her accommodation needs and the availability of alternative housing, financial and health considerations. In respect of each issue the Tribunal concluded that termination would not cause undue hardship. In doing so, the Tribunal reduced the weight given to some financial evidence because of the absence of supporting documentary evidence. 5. In doing so the Tribunal accepted the tenant "would not be eligible for social housing" if evicted (at [69]), may have alternative support services available to her if she was required to relocate in Sydney (at [63]) and that her current therapeutic services have only recently been engaged and that no "significant relationship has been established" in relation to these services (at [62]). 6. At [72], the Tribunal correctly stated the test to be applied. 7. However, in our view the Tribunal did not properly analyse the uncontested evidence of the tenant, gave insufficient weight to some evidence and did not consider the evidence as a whole in determining whether there would be undue hardship on the tenant if a termination order was made. The evidence to which we refer is recorded in paras 45-46 above. 8. The tenant's Community Correction Order conditions require her to engage with the Redfern Health Centre and accept all treatment. Otherwise, it is clear from the evidence that a continuing treatment plan was required in light of her medical and personal history and that the loss of her current housing would have a significant impact on her ability to engage with relevant service providers. The financial and accommodation availability evidence established that she would not be eligible for social housing if evicted and would not be able to secure separate or shared accommodation. 9. Taken as a whole, this evidence establishes hardship on the tenant in consequence of a termination order being made that would be excessive in the circumstance because of its impact on her and her ability to engage with medical and support services and the likely significant consequences to her physical and mental wellbeing. 10. To paraphrase the words in Collins at [77]-[78], the evidence in its totality preponderates strongly against the decision that was made and, in our view there is a significant possibility or a chance fairly open that a more favourable result could be achieved. It follows that we should grant leave to appeal. Further, for the reasons above, we conclude that the tenant would suffer undue hardship if a termination order was made. Should the tenancy be terminated? 1. Having reached this conclusion, termination under s 91(1)(a) is not mandatory. Rather, there is a discretion to be exercised. In this regard, s 154E requires the Tribunal to have regard to the matters set out in subs 154E(1)(a)-(e) although it is not limited to those considerations. The s 154E(1) factors are: (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. 1. Factors of the type in s 87(5) of the RT Act may also be relevant, it being noted that the present application is brought under s 91(1)(a), for which no notice is required, rather than for breach of the residential tenancy agreement. 2. As the Tribunal made no decision concerning the exercise of discretion (having rejected the claim of undue hardship) this issue was not considered in the proceedings at first instance. While the tenant, in her notice of appeal, sought remittal of the proceedings, we do not think this is an appropriate course to follow, particularly having regard to the length of time that the dispute has been before the Tribunal. Rather, the parties were afforded on opportunity to make submissions on this topic with a view to us exercising the powers of the Tribunal to finalise this dispute. 3. As indicated above, we have been provided with further evidence from the tenant, the landlord not objecting to its admission on the question of the exercise of discretion. The landlord did not seek to tender any further evidence. We also have the benefit of the written submission of the parties on this topic made in the proceedings at first instance. For the purpose of this appeal, those submissions were adopted and short oral submissions were made by the parties. 4. The tenant's position was to point to the consequence of the termination order upon her. In effect, the matters relating to her personal circumstances and hardship were relied upon to support the contention the tenancy should not be terminated. The tenant pointed to the fact she had been convicted and sentenced after the termination application had been lodged, that she had sought and secured support services and that her circumstances had evolved. 5. The new evidence included a more emphatic opinion from Dr Martin, dated 16 February 2021, concerning the "likely" outcome if a termination order was made. Here Dr Martin said: … it would not be surprising to see a relapse of substance use or depressive and anxious symptoms. [The tenant] would be highly vulnerable to being homeless as a result of not previously having been able to sustain private rental for many years. She would obviously be vulnerable to exploitation and misadventure if homeless and in my view, it is likely that she would come to harm in some capacity. 1. This report was based on an interview with the tenant on 4 February 2021, Dr Martin noting "ongoing problems with mood instability and anxiety. 2. The new evidence also included a statement from the tenant concerning her personal circumstances and history as well as correspondence and documents from third parties concerning her current financial circumstances. 3. In reply, the landlord addressed the factors under s 154E(1). These submissions included: 1. In respect of subs (a)-(b): 1. that the tenant accepted in cross examination that the supply of drugs adversely affected the community; 2. that her activities had attracted threatening and violent people, the tenant herself having been assaulted; 3. the tenant would not seek assistance of the Police in respect of these matter as she was scared, this failure likely to continue to attract threatening and violent people. 1. In respect of subs (c) the landlord owed duties to other tenants in the surrounding units and what had occurred made it difficult to ensure the quiet enjoyment of those tenants; 2. In respect of subs(d): 1. the tenancy was entered into on 27 February 2019, the tenant having been waitlisted since 2010 or 2011; 2. despite the waiting period "it took the [tenant] only 2 months before she breached her residential tenancy agreement by supplying drugs on four separate occasions". 1. In respect of subs (e): 1. Despite pleading guilty her statement refers to 'alleged breach" of the tenancy agreement. We interpolate here that the statement referred to was made on 21 February 2020, prior to the criminal proceedings being dealt with in May 2020; 2. The acceptance of responsibility for supply was significantly qualified, the tenant exhibiting "little or no insight into the effect of her behaviour" when she was cross-examined and her continuing to blame others for the supply of drugs for which she was convicted. 1. These matters are all relevant to the exercise of a discretion as to whether the tenancy should be terminated. 2. Also relevant is the seriousness of the tenant's criminal activities. In this regard we note: 1. There were four offences relating to the supply of methylamphetamine for which the tenant was convicted. 2. The supply occurred on or about the residential premises. 3. Having regard to the evidence of conversations at the time of supply between those who purchased the drugs and the tenant it is probable and we would infer the drugs as supplied by the tenant as part of an organised supply process in concert with others: see AB 152-3, AB 164-5, AB 177-8 and the photographs and AP to 112 and following. 1. This is not a case where others at the residential premises supplied the drugs and it is not a case of recklessly causing or permitting the supply by others. Rather, the tenant was directly involved in the illegal activities. 2. In addition to the evidence which we have referred to above, we should briefly deal with the evidence provided at the original hearing not referred to by the Tribunal in its reasons as well as the new evidence which has been admitted by consent in the appeal. 3. This evidence included from the original hearing an application for transfer made by the tenant to Family & Community services on 3 February 2020: AB 276 and following. The application was made after the date of the offences but before the tenant was convicted and sentenced. The application was signed by the tenant and dated 31 January 2020. At para 24 of the application (AB 290) the application records the tenant was applying for transfer. At para 25 of the application (AB 291) the reason for transfer from the existing residential premises was stated as "it is unsafe and not good for my mental health". 4. In relation to new evidence, this included: 1. A further report of Dr Martin dated 16 February 2021. He opines: 1. In terms of her "problematic, heavy and dependent drug use", that "this appears to have been in relative remission more recently in the context of legal obligations and drug and alcohol intervention, including attending Narcotics Anonymous etc": AB 572. 2. The tenant is having "difficulty obtaining work more recently and this probably reflects ongoing psychiatric symptoms such as depressive and anxious symptoms as well as legal issues of having been found guilty of drug supply and legal obligations: AB 573. 3. In view of the tenant's mental health leading up to offending "it is highly likely that she would have had enduring impairment as a result of drug addiction on a background of depressive and anxious systems" and that she should be seen as highly vulnerable: AB 574. 4. "To a large extent, [the tenant] has more recently been able to manage her substance addiction which properly reflects maturity and therapeutic interventions": AB 574. 5. Losing her tenancy would be highly destabilising, it not being surprising to see a relapse of substance use and depressive and ancient symptoms if this was to occur. It is foreseeable that if she loses her accommodation she would be at risk of homelessness in which case "it would seem obvious that she would be at very high risk of relapse of substance use and of psychiatric problems around depression and anxiety": AB 575. 1. A letter from a Legal Aid financial counsellor, Ms Weston, dated 16 February 2021 which notes the day-to-day financial difficulties of the tenant that letter states at AB 573: Trying to have an appointment with [the tenant] was difficult as her life is badly affected by the chaos associated with poverty-that is unreliable communications/mobile phone either broken or out of credit. Dependence on public transport and not being able to afford to use it. Not having food in the house. Virtually no family or social support. 1. The letter from New South Wales Health Sydney Local Health District dated 30 July 2020 indicating the tenant attended "the Harm Reduction Program" on 6 April, 1 June, 9 June and 16 June 2020: AB 557. 2. A further report of Ms Shanahan, social worker, dated 4 February 2021 noting the ongoing attendance of the tenant in the NSW Health Department's "Harm Reduction Program: AB 577-8. Ms Shanahan states: (a) the tenant continues to engage in the program and other support groups; (b) the tenant's focus on remaining abstinent from drug use, including the challenges she faces and that the tenant "identifies stable accommodation as a positive influence on her long-term recovery" and the fact that the stable housing has provided her with "the foundations to continue to engage with services and remain connected to community support"; (c) the tenant has been managing her mental health effectively although still reports low moods and depressive symptoms; (d) the tenant would be adversely affected both in terms of her mental health and housing arrangements, particularly having regard to her criminal history; Ms Shanahan then continues: Due to the location of Ms Roberson's services and supports it is paramount she remain in the inner city of Sydney. If Ms Roberson moved out of the area she would not be eligible to engage with certain services due to falling out of our catchment area. Drug health services are limited across Sydney. Ms Roberson and has also built healthy relationships with services in the area and starting again could be detrimental to her recovery and even be re-traumatising completing intake and physiosocial assessments again. 1. A "budget planner" indicating a deficiency of income over expenses of $170 per fortnight and a statement from Centre Link concerning JobKeeper payments dated 2 February 2021: AB 585-589. 1. Otherwise, there was no up-to-date evidence provided directly by the tenant in the form of a statement concerning her present circumstances. 2. On the other hand, the landlord provided no evidence to suggest the tenant had breached her obligations under the residential tenancy agreement or had engaged in conduct of the type prescribed in s 91 of the RT Act since the proceedings at first instance were heard on 4 September last year. Further, there was no evidence that the tenant's continuing occupation of the premises since that time has had any adverse effect on surrounding tenants and neighbours. 3. There can be no doubt that the offences with which the tenant was charged and convicted of are serious matters. There is also no doubt that such conduct can have an adverse effect on other residents in and around the residential premises, the subject of this tenancy. Indeed, the tenant's own evidence concerning fear and threats she received is indicative of the effect the tenancy has had on the neighbouring residents and other people and the likelihood those people may suffer serious adverse effects if the tenancy continues. These factors count strongly in favour of making a termination order. 4. The short length of the tenancy is also a matter which would suggest a termination order should be made, there being no long-term history to demonstrate the tenant's compliance with obligations under the residential tenancy agreement. 5. Despite these indicators, we have found undue hardship would be caused if a termination order was made. 6. In our view the evidence, including the new evidence, establishes the following matters: 1. The tenant will likely become homeless because she is unable to afford private accommodation, single or shared, and will not qualify for alternative social housing accommodation. In this regard she had applied to move to alternative social housing accommodation however no alternative has been provided. 2. Since that application was made, the tenant has been sentenced for the offences being the conduct giving rise to the application for termination and is the subject of a Community Corrections Order that requires her to "engage with Redfern Health Centre and acceptable treatment". 3. The medical evidence from Dr Martin and the other evidence from social workers and the Local Health District Service demonstrates the tenant suffers from significant medical conditions arising from abuse, drug use and other matters. These conditions are the subject of ongoing treatment from the various service providers referred to above. 4. The tenant has been regularly attending the services and has accepted counselling and therapeutic treatment. While her engagement in these services was relatively recent when the proceedings were heard at first instance on 4 September 2020, the evidence establishes that the tenant has continued to engage in these services and has abstained from illicit drug use. 1. While her medical condition is far from resolved, we conclude on the evidence available that the continuation of this tenancy is fundamental to Ms Roberson's recovery. 2. The application for termination was originally made on 24 July 2019. It has taken a long time to resolve, in part due to the first Member conducting the original hearing withdrawing from the proceedings and that the matter was only listed for final hearing before General Member Hennings on 4 September 2020. No doubt, the impact of the pandemic on the work of the Tribunal has also delayed the resolution of this residential tenancy dispute. 3. The illegal conduct on which the application was based occurred between 14 May 2019 and 21 May 2019. At that time, the tenant was arrested and charged with supplying methylamphetamine. The criminal proceedings were not resolved until one year later. Since May 2019, there is no evidence of any breach by the tenant of the residential tenancy agreement. Further, since 4 September 2020, there is no evidence to suggest there is a continuing impact on residents or other persons arising from the conduct of the tenant nor that by reason of the landlord's responsibility to its other tenants that a termination order should be made. 4. The tenancy commenced on 27 February 2019. It has now been in existence for a little over 2 years, the tenant having previously been on a waitlist for nearly 10 years. There is no evidence to suggest there has been any wilful or other breach of an order of the Tribunal in respect of the tenancy. 5. In the absence of evidence of continuing detriment to residents or other persons, having regard to: 1. the medical evidence concerning the tenants needs and likely significant adverse effect on her health and well-being; 2. the fact the tenant has not since engaged in illegal conduct or conduct that might constitute a breach of the residential tenancy agreement; 3. the fact the tenant has complied with the Community Corrections Order and actively participates in in programs; 4. the fact that the tenant has now established relationship with service providers that might not otherwise be available if she was relocated; and 5. her financial circumstances and the likelihood she will become homeless if evicted, in our view the present circumstances warrant the exercise of our discretion in favour of the tenant to not terminate the residential tenancy agreement. 1. This decision is finely balanced. The seriousness of the conduct of the tenant, even in circumstances of undue hardship, might often lead to a termination order being made. However, for the reasons outlined above, we conclude it is appropriate to dismiss the application for termination in the present case. 2. In doing so, we have formed the view that an order in the nature of specific performance should be made as permitted by s 187 of the RT Act. In this regard, the residential tenancy agreement (AB 82 and following) contains the following terms: The tenant agrees: 13.1 not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose, and 13.2 not to cause or permit a nuisance, and 13.3 not to interfere, or cause or permit interference with the reasonable peace, comfort or privacy of neighbours … 1. We will make an order in the following terms: Julie Roberson is to perform the residential tenancy agreement dated 27 February 2019 in that: (a) she is not to use, cause or permit the residential premises to be used for any illegal purpose in relation to the supply or consumption of drugs; and (b) she is not to permit persons on the residential premises who might engage in such activities in or around the premises and thereby create a nuisance or interfere with the reasonable peace, comfort and privacy of other neighbours. Orders 1. The Appeal Panel makes the following orders: 1. Orders 1-4 inclusive made on 23 November 2020 in application SH 19/33771 are set aside. 2. In lieu thereof, the following orders are made: 1. The application for termination of the residential tenancy agreement is dismissed. 2. Julie Roberson is to perform the residential tenancy agreement dated 27 February 2019 in that: 1. she is not to use, cause or permit the residential premises to be used for any illegal purpose in relation to the supply or consumption of drugs; and 2. she is not to permit persons on the residential premises who might engage in such activities in or around the premises and thereby create a nuisance or interfere with the reasonable peace, comfort and privacy of other neighbours. ********** 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 17 November 2022 - Para 75 – 'of' inserted – "Indeed, the tenant's own evidence concerning fear and threats she received is indicative <of> the effect …" Para 82 - . "It is now been in existence…" changed to, "It has now been in existence..." Para 83/84 - "in our view..." after part (5) of paragraph 83, continues on; paragraph 85, now paragraph 84. 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: 17 November 2022