Civil and Administrative Tribunal New South Wales Medium Neutral Citation: St George Community Housing Limited v Kapsalis [2022] NSWCATCD 28 Hearing dates: 8 February 2022 Date of orders: 16 February 2022 Decision date: 16 February 2022 Jurisdiction: Consumer and Commercial Division Before: M Eftimiou, General Member Decision: The application is dismissed. Catchwords: LEASES AND TENANCIES — Residential tenancy — Social Housing tenancy agreement — s154E Exercise of Discretion Legislation Cited: Residential Tenancies Act 2010 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: St George Community Housing Limited (Applicant) Christos Kapsalis (Respondent) Representation: Ms Soward (Applicant) Mr Ahern (Respondent) File Number(s): SH 21/46510 Publication restriction: Nil REASONS FOR DECISION Overview 1. By application filed with the Tribunal on 15 October 2019 the applicant landlord sought termination of the residential tenancy agreement pursuant to section 92 of the Residential Tenancies Act 2010 (RTA). 2. The matter has been delayed primarily due to the parties awaiting the outcome of criminal proceedings against the tenant. The application raises the question of whether a termination order should be made under section 92 of the (RTA), having regard to the matters set out in section 154E of that Act. The conduct upon which the landlord relies may be summarised as the tenant sending sexually explicit material to an employee of the landlord. 3. Having considered the evidence and the submissions of both parties, the Tribunal determined that in the exercise of discretion the residential tenancy should not be terminated. History of the proceedings 1. On 15 October 2019 the landlord lodged an application (SH 19/46382) which sought a termination order under section 92 of the RTA. At the first directions hearing on 29 October 2019 the landlord was granted leave to issue a summons to the NSW Police Service and to Canterbury Community Mental Health Services. 2. On 25 November 2019 this application was dismissed due to there being no attendance on behalf of the applicant. On 4 December 2019 the orders dismissing the proceedings on 25 November 2019 were set aside and the matter was reinstated. 3. On 20 December 2019 an access order was made in relation to documents produced by the NSW Police Service, an order which was amended on 30 December 2019. However, on 20 January 2020 the orders made in relation to the summons were set aside. 4. On 24 February 2020 directions were made for the provision of documents to the Tribunal and the other party: by 18 March 2020 in the case of the landlord and by 15 April 2020 in the cases of the tenant. 5. On 5 March 2020 the Tribunal received correspondence from the landlord seeking to amend the application to seek an order pursuant to section 92(1)(a) of the RT Act. 6. On 18 March 2020 the tenant sought a stay of the proceedings until the finalisation of the criminal proceedings. On 27 April 2020 the 18 May 2020 hearing was vacated by consent but it was indicated that "Any further requests for adjournment will only be granted in exceptional circumstances." 7. On 11 March 2020 the landlord lodged a second application, also seeking termination under section 92 of the RTA (SH 20/12284) and on 20 March 2020 that application was linked in that the applications were to be heard together and the evidence in one application was to be evidence in both applications. 8. On 26 June 2020, when the applications were listed for hearing, they were adjourned and the applications were stayed until 25 September 2020 by reason of contested criminal proceedings that were listed for hearing on 18 September 2020 in Sutherland Local Court. 9. On 25 September 2020, when the matters were again listed for hearing, they were again adjourned and the applications were again stayed, this time until 21 January 2021, by reason of contested criminal proceedings that were listed for hearing on that day in Sutherland Local Court. 10. On 29 January 2021, when the matters were listed for hearing, they were adjourned for the same reason and the applications were stayed until 31 October 2021 as there were criminal proceedings listed for hearing on 6 October 2021. However, on 13 October 2021, when the matters were again listed for conciliation and directions, there was no appearance by either party which resulted in the applications being dismissed. 11. On 18 October 2021 the landlord applied to have the original application (SH 19/46382) reinstated. On 11 November 2021 orders were made setting aside the orders to dismiss the application on 13 October 2021. The application was reinstated with the result that the original application (SH 19/46382) was re-registered with a new file reference number (SH 21/46510). 12. On 26 November 2021 directions were made for the provision of documents by the landlord and tenant by 24 December 2021 and 25 January 2022 respectively. The Tribunal noted that the tenant wished to rely on medical evidence placed before the Local Court and also sought to obtain additional medical evidence but that request was refused due to the lengthy history of the proceedings. 13. On 2 December 2021 a notice was issued to advise the parties that the application was listed for hearing on 8 February 2022. Hearing 1. Due to the pandemic, the hearing was conducted over the telephone. Ms Soward represented the landlord. The tenant was represented by Mr Ahern (tenant's advocate). The tenant was also present by telephone. 2. The landlord's evidence comprised pages numbered 1-66 and a USB drive, first lodged on 19 March 2020. A copy of the same documents, but with the pages numbered, was lodged on 29 October 2021. Those pages were admitted as Exhibit A and the USB drive became Exhibit B. 3. The tenant's evidence was pages numbered from 1 to 15, received by the Tribunal on 30 December 2021 and 07 January 2022. They were admitted as Exhibit R. Additional folios 16-18 were lodged on 4 February 2022 and added to Exhibit R. 4. That being the evidence, an opportunity was provided for oral submissions, first for the landlord, then for the tenant and then for the landlord, in reply. As a result, both parties had an opportunity to make submissions both in support of their own case and in response to the case of the other party. 5. Mr Francis Mathew NDIS Coordinator of Support One Door Mental Health provided a letter (Exhibit R ; Page 17) in support of the tenant. Mr Mathew was called to give evidence on behalf of the tenant and was cross examined by the applicant. Jurisdiction 1. The parties entered into a residential tenancy agreement on 13 March 2009. The Tribunal finds that there is a residential tenancy agreement between the parties with the result that the RTA applies, and the Tribunal has jurisdiction to consider and determine this application. Relevant law 1. Section 92 of the RTA is set out below: "(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). (2) The termination order may specify that the order for possession takes effect immediately. (3) A landlord may make an application under this section without giving the tenant a termination notice. (4) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement." 1. Section 154E of the RTA is in the following terms: "(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." Landlord's evidence 1. The chronology of events upon which the landlord relies is as follows: 8 May 15 Tenant charged: commit act of indecency re elderly neighbour 15 Jul 17 Tenant charged: use carriage service to menace/harass/offend 27 Dec 17 Tenant charged: exposing himself in shopping centre car park 13 Sep 19 The tenant sent a sexually explicit voice message and a sexually explicit video message to an employee of the landlord 16 Sep 19 The tenant likewise sent an inappropriate text message 17 Sep 19 The tenant likewise sent an inappropriate text message 19 Sep 19 The tenant was issued a Court Attendance Notice from NSW Police and was charged with two counts of Use Carriage Service to menace/harass/offence 14 Oct 19 The landlord sent a letter to the tenant (A11), advising that his conduct amounts to a breach of section 92 of the RTA 1. A statutory declaration was provided by an employee of the landlord, the contents of which may be summarised as follows: (1) She has been employed by the landlord since 2009. (2) In July 2019 she sent a letter to the tenant advising him of an intended property inspection on 30 August 2019. (3) On 15 August 2019 the tenant requested that the inspection occur between 1pm and 4 pm. (4) On 28 August 2019 that request was accepted by telephone. (5) On 30 August 2019 that inspection occurred. (6) On 18 September 2019 the employee made a statement to the Police 1. That statement to the Police (A16) included the following details: "8. On Friday the 13 September 2019, I was at work when I received a message on my mobile phone from mobile phone number [0451 *** ***]. The message was of video which depicts a penis and a message beneath the video which reads "swallow my cum". When I played the video, it shows someone masturbating and saying the words "suck my cock". 9. At the same time of receiving the video, I also received a voice mail message from a male who had a similar voice to the person in the video depicting the penis. The voice in the mail message makes explicit and rude comments where he informs me that he is masturbating and states that he wants to do certain things to me of a sexual nature. The voice mail message was received at 2;25pm on the same day. When I checked by recent call history I noticed that at 2:25pm I had a missed call from mobile phone number [0451 *** ***]." 1. The statement goes on to say that a check revealed that the tenant's mobile number, in the landlord's records, was the number used to send those messages. A Court Attendance Notice (A32) reveals that the tenant was charged with two offences and the Facts Sheet prepared by the Police (A33) sets out the basis for those charges. On 19 September 2019 a provisional apprehended violence order was made against the tenant, with the aim of protecting the respondent's employee. 2. The Facts Sheet prepared by the Police in support of the 8 May 2015 charge of "Commit act of indecency" (A48) suggests the tenant had, on more than one occasion, walked outside a neighbour's residence, masturbated in front of her and left sexually explicit handwritten notes under her front door on four occasions. It is noted that the place this conduct is alleged to have occurred is a nearby unit at the same address as the tenant. 3. The Facts Sheet prepared by the Police in support of the 28 July 2017 charge of "Use carriage service to menace/harass/offend" (A62) suggests the tenant had sent sexually explicit messages to a nurse who had treated him at St George Public Hospital. 4. The Facts Sheet prepared by the Police in support of the 27 December 2017 charge of "Wilful and obscene exposure in/near public place/school" (A56) suggests the tenant masturbated in the car park at Roselands Shopping Centre in front of a lady and her two children, both aged under 5. Following the tenant's arrest, his phone's internet history was accessed and was found to contain searches, including "Girl 7, gang raped in Manila" and "Primary 3 school girl virgin hot", which had been accessed earlier that day. 5. Exhibit B contained an audio message of almost 90 seconds' duration and a video message of between 5 and 10 seconds' duration. Both were sexually explicit, the first suggesting the person speaking was masturbating and the second being a video consistent with such conduct. Tenant's evidence 1. The evidence of the tenant did not include any witness statement, statutory declaration or affidavit. Documents provided in support of the tenant's case may be summarised, in chronological order, as follows: 2. On 10 October 2019 a clinical psychologist indicated that he sees the tenant monthly. This letter (R2) recorded that the tenant had maintained that he was developing a friendship with a woman and that he mistook the Housing Manager for that person. As a result, it was suggested there had been a mistaken identity for which the tenant apologised. 3. On 23 October 2019 a registered nurse wrote (R1) the tenant regularly attends appointments with the Canterbury Community Mental Health Team. It was said he was on medication but his symptoms appeared to be exacerbated when he uses illegal substances. Attempts to refer him to the Drug Health Service had been declined. This letter contained a suggestion that a relocation of the tenant would set back in his progress and increase the chance of a relapse. 4. On 13 November 2019 a doctor indicated (R3) that the tenant has been a patient since October 2017, suffers from a mental health condition, and is having an injection of Haldol (a common abbreviation of haloperidol) fortnightly, that being a substance which is used to treat a number of mental health conditions, including schizophrenia, by rebalancing dopamine to improve thinking, mood, and behaviour. This letter also set out the tenant's medication regime at that time. 5. On 19 February 2020 a joint report of a nurse and psychiatrist (R4) provided a letter which outlined the services the tenant uses and suggested his relocation would set him back in his progress. 6. On 21 February 2020 the tenant's NDIS Support Coordinator said (R7) the tenant is a 51 year-old male who has a diagnosis of schizophrenia. This letter (R5) suggests the tenant has clinical supports, an employment provider and friends in his local area which is why he does not wish to lose his current tenancy. It was noted that the tenant was under the financial management of NSW Trustee and Guardian, is a low-income earner who is in receipt of a disability pension. The author suggests the tenant does not have alternative accommodation options and could not maintain a private rental market tenancy. It was also suggested that terminating his current tenancy would have a detrimental effect on his mental health. 7. On 12 June 2020 Indo Services provided a reference (R8) for the tenant who was said to have behaved appropriately over the previous two years. This letter suggests the tenant has a chronic mental health condition and that safe, stable accommodation was a factor which aided his recovery process. 8. On 5 November 2021 the tenant's treating doctor and nurse at the Canterbury Community and Adult Mental Health Services provide a letter (R8) which was in the same terms as the earlier letter dated 23 October 2019 (R1). 9. On 2 February 2022 the tenant's NDIS Support Coordinator provided a letter (R16) which reiterates earlier material confirming the tenant's medical condition, that he is well engaged in services and there is a strong recommended that he be given another opportunity to remain in the tenancy with all of the supports he currently receives. 10. On 31 January 2022 the tenants Occupational Therapist provided a letter (R18) providing an opinion that any termination of the tenancy would result in an "detrimental impact on his mental health and well being." 11. On 25 November 2021 there was an Apprehended Violence Order (R9) made applied for by a police officer was made against the tenant. That order, which has a duration of one year and is broadly expressed, is plainly intended to protect the employee of the landlord who provided a statutory declaration in these proceedings. 12. On 25 November 2021 in the Local Court at Sutherland (R12) the tenant being convicted of two charges of "Use carriage service to menace/harass/offend", being charges based on his September 2019 conduct in relation to the landlord's employee. The sentence imposed on that occasion was a Community Correction Order for 18 months, commencing from that date. 13. Submissions were made by the tenant's advocate conceding a breach of s92 of the RTA. Submissions were made from the bar table that the tenant accepts that his actions resulted in the employee of the landlord feeing intimidated or harassed; and that he acted recklessly and sent the text and the video message to the employee of the landlord by mistake. Further that he meant to send the text and messages to another person with whom he was in a consensual sexual relationship. This submission was supported by a letter from his psychologist (R2) where the tenant on 10 October 2019 advised her that there had been a mistaken identity. Consideration 1. The tenant concedes the breach of section 92(1)(b) of the Residential Tenancies Act. The tenant states that he "recklessly" engaged in conduct in relation to the landlord's employee that would be reasonably likely to cause the person to be intimated or harassed. Notwithstanding that the tenant believed he acted recklessly, the tenant accepts that his actions would be reasonably likely to cause the person to be intimidated or harassed. 2. Further the tenant was convicted in Sutherland Local Court on 25 November 2021 of two offences of Use Carriage Service to menace/harass/offend. The tenant was directed to enter into a Community Correction Order for 18 months pursuant to section 8 of the Crimes (Sentencing Procedure) Act 1999 to commence on 25 November 2021. 3. The breach of section 92(1)(b) of the Residential Tenancies Act is made out. 4. Section 92 of the RT Act provides that the Tribunal may on application by a landlord make a termination order if it is satisfied that the tenant has breached s92(1)(b). 5. In determining whether to exercise discretion to terminate the tenancy the Tribunal must have regard to the factors set out in s154E of the R T Act. 6. The landlord made submissions as to each of the matters specified in s 154E of the RT Act. (a) The effect the tenancy has had on neighbouring residents or other persons: The landlord seeks to rely on a copy of a Court Attendance Notice and Fact sheets which relate to a charge of committing an act of indecency towards another one of the landlord's tenants in May 2015. The landlord submits that the conduct of the tenant towards its employee and the incidents towards his elderly neighbour are evidence of the factors that must be considered by the Tribunal under s 154E ( 1)(a) of the RT Act. (b) The likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated. The landlord states "the evidence shows that there is a 'likelihood that neighbouring persons or other persons will suffer serious adverse effects in the future if the tenancy is not terminated'. … The landlord submits that the tenant's conduct towards its employee and his elderly neighbour are not isolated incidents. "Documents produced under Summons from NSW Police (A pages 55-66) show that the tenant has a history of exposing himself to people and using his phone to harass people. The landlord is also aware of at least one other occasion where the tenant has acted inappropriately towards its employees. However, the employees in question do not feel comfortable providing a statement in relation to the incident to the Tribunal." (c) The landlord's responsibility to its other tenants. The landlord submits that it has a responsibility to its other tenants and that if the tenancy is not terminated, the safety and well-being on its other tenants and other persons is at risk. The landlord fears that this or similar conduct will reoccur if the tenancy is not terminated. (d) The history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or different landlord. The landlord submits that: "Mr Kapsalis' conduct towards it employee and his elderly neighbour are not isolated incidents. Documents produced under Summons from NSW Police ( A :pages 55-56) show that the tenant has a history of exposing himself to people and using his phone to harass people. (e) Whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. No evidence was provided by the landlord to indicate that this factor is relevant in the present circumstances. 1. In addressing s 154E (2) the tenant's representative relies predominately on the medical and other supporting documents provided by the tenant. The tenant submits the following: 1. The tenant suffers from a mental illness. 2. The tenant is supported by Canterbury Community Mental Health Team and is currently on a Community Treatment Order to which he has been compliant. 3. He was sentenced in November 2021 to a Community Corrections Order for 18 months. If the tenant commits any offence during the 18 months he would be required to appear before the Court. 4. There is a Final Apprehended Personal Violence Order naming the employee of the landlord as the protected person. These orders are in place until 24 November 2022. 5. The tenant is well engaged with services in his local area. His mental health may deteriorate if the tenancy is terminated. He is at risk of becoming homeless if his tenancy his terminated. 6. The actions which give rise to the termination application occurred in September 2019 and there have been no further incidents reported. 7. The material provided by the landlord in relation to incidents that occurred din 2015 and 2017 are tendency evidence and should not be considered by the Tribunal in making its decision. The tenant states that there is little evidence of the outcome of the charges against him in 2015 and 2017, he is compliant on his medication and is engaged with support services to ensure he does not commit further offences in the future. 1. Having considered the submissions made as to each of the s154E factors, the Tribunal agrees with the landlord that the seriousness of the offences for which the tenant has been convicted and the need to ensure that the employees of the landlord are free from harassment or abuse and the landlord's responsibility to its other tenants weigh extremely heavily in the circumstances of this case. 2. However the Tribunal has considered that the offences for which the tenant has been convicted occurred in September 2019. There have been no further incidents reported against an employee of the landlord since that time. In addition there are a number of protective factors in place to ensure that no further incidents occur including the Section 8 Community Correction Order, the Apprehended Personal Violence Order and the fact that the tenant is complying with his Community Treatment Plan. 3. There is little probative evidence of the effect the tenancy has had on neighbouring residents. The Tribunal has considered the fact sheets and court attendance notice submitted by the landlord in relation to a charge of indecent assault against a neighbour that occurred in 2015. However, there is no evidence of the outcome of those charges and whether the tenant was convicted of an offence. No reasonable explanation has been provided by the landlord as to why no action was taken by it to terminate the tenancy of the tenant in relation to these serious charges. Further there is little evidence of any other offences or actions of the tenant that resulted in any other tenant of the landlord suffering serious adverse effects since 2015. During the hearing the landlord referred to an incident that occurred between the tenant and a neighbour on 6 February 2022, however, there was no statement from the neighbour and no details in regards to what had occurred. The landlord's representative told the Tribunal that she had been informed by another employee of the landlord that there had been an incident. The Tribunal places little weight on this statement without any supporting documentation. 4. In exercising discretion not to terminate the tenancy the Tribunal has considered the following factors in favour of the tenant: 1. The tenant has resided in the premises since 13 March 2009. 2. There are a number of protective measures in place to ensure the safety of the employee of the landlord. 3. There has been no evidence since 2015 of any incidents in relation to neighbouring tenants suffering any serious adverse effect in the future if the tenancy is not terminated. 4. The tenant is supported by the Canterbury Community Mental Health Team for his illness and he regularly attends for appointments and reviews on his mental state. 5. The tenant is subject to a Community Treatment Order in which he is obligated to engage with Mental Health Services and treatment for his illness. 1. The offences committed by the tenant are on the serious scale of offences. An employee of a social housing provider should never ever feel threatened, abused, intimidated or harassed in carrying out their employment. 2. The medical and other supporting evidence provided by the tenant strongly urge the Tribunal not to terminate the tenancy. The medical and other professionals opinions is that the tenancy not be terminated due to the adverse effect a termination would have on the tenant's mental health and the real risk of homelessness if the tenancy were terminated. 3. In weighing up the circumstances of the landlord and the tenant, the Tribunal determines that whilst the nature of the breach is significant, there is little evidence of any further breaches of the RT Act since 2019. The evidence of the tenant's conduct prior to 2019 indicates that the tenant has a tendency because of his mental illness to act in a particular way; however, there have been no incidents since 2019. The tenant is taking clear steps to ensure that he complies with his obligations under the RT Act including engaging in mental health services, and being compliant with his Community Treatment Order. Further, there are significant protective measure in place to ensure the protection of the employee of the landlord and other tenants. 4. The Tribunal in exercising discretion finds that the tenancy should not be terminated and the application of the landlord is 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 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 March 2022