King v NSW Land and Housing Corporation [2022] NSWCATAP 165

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: King v NSW Land and Housing Corporation [2022] NSWCATAP 165 Hearing dates: 1 March 2022 Date of orders: 17 May 2022 Decision date: 17 May 2022 Jurisdiction: Appeal Panel Before: A D Suthers, Principal Member J S Currie, Senior Member Decision: 1. The appeal is allowed 2. The Tribunal's decision is set aside. 3. The application is remitted to the Consumer and Commercial Division, differently constituted, for determination according to law. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) -Social housing tenancy - Application for termination order- breach of conditions - cause or permit nuisance, interfere or permit interference with reasonable peace, comfort, privacy of neighbours - where Tribunal applied section 87 to make termination order – question of law – mandatory considerations – personal circumstances of and effect of order on tenant- where potential effects of eviction included destabilisation of tenant's physical and mental health, relapse of diagnosed psychotic symptoms Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW); section 80 (2), Sch 4 cl 12 (1) Residential Tenancies Act 1987 (NSW) s 63 Residential Tenancies Act 2010 (NSW); ss 87(4) & (5), 154E Cases Cited: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 BHP Billiton Ltd v Dunning [2013] NSWCA 421 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 Collector of Customs v Pozzolonic Enterprises Pty Ltd (1992) 43 FCR 20 Collins v Urban [2014] NSWCATAP 17 Director General, Department of Finance and Services v Porter [2014] NSWCATAP 6 Kelly v NSW Land and Housing Corporation [2018] NSWCATAP 154 Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 NSW Land and Housing Corporation v Orr [2019] NSWCA 231 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Roads and Traffic Authority v Swain & Ors (1997) 41 NSWLR 452 Scicluna v NSW Land and Housing Corporation (2008) 72 NSWLR 764; [2008] NSWCA 277 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Swain v Residential Tenancies Tribunal of NSW (Unreported, Supreme Court of NSW, 22 March 1995) Taylor v Peslak [2018] NSWCATAP 57 Texts Cited: Aronson, Groves and Weeks "Judicial Review of Administrative Action and Government Liability" 7th edition 2022. Howard and Westmore "Crime and Mental Health New South Wales" 2nd edition 2010 Robinson and Lucy: "NCAT Practice and Procedure", 2nd edition 2020 Category: Principal judgment Parties: Vanessa King (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Solicitors: Legal Aid (Appellant) Department of Communities and Justice (Legal) (Respondent) File Number(s): 2021/00346178 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 19 November 2021 Before: D. Ash, General Member File Number(s): SH 21/31500