Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Marinellis v NSW Land and Housing Corporation [2022] NSWCATAP 204 Hearing dates: 3 May 2022 Date of orders: 22 June 2022 Decision date: 22 June 2022 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member C Mulvey, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed. 2. Order 3 of the Tribunal dated 17 February 2022 is varied by substituting the words "28 days after the date of this decision" for the words "17-Mar-2022". Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — social housing — termination of social housing agreements – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 12 Residential Tenancies Act 2010 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Nick Marinellis (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Solicitors: Appellant (self-represented) DCJ Legal (Respondent) File Number(s): 2022/00061897 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: 17 February 2022 Before: J Alder, General Member File Number(s): SH 22/03085 REASONS FOR DECISION 1. This is an appeal by a social housing tenant from a decision of the Tribunal ordering the termination of his residential tenancy agreement. 2. It is an understatement to describe Mr Marinellis's life circumstances as unfortunate, and it is not possible to do other than sympathise with his circumstances, but it is our unfortunate duty notwithstanding those circumstances to dismiss his appeal because no error has been demonstrated or is apparent to us in the Tribunal's decision. Background 1. The Tribunal set out a detailed background to the proceedings for which we are grateful, and what follows is substantially taken from the Tribunal's reasons. 2. On 23 December 2016, the parties entered into a residential tenancy agreement for social housing premises at Erskineville, NSW. 3. On 26 June 2020, the landlord served on Mr Marinellis a termination notice dated 25 June 2020 requiring him to give vacant possession. 4. On 30 July 2020, the landlord filed an application (SH 20/32424) (the "Original Termination Application") seeking a termination order based on a breach by Mr Marinellis of clauses 13, 25, 42 and 43 of the residential tenancy agreement which relate to causing a nuisance, interfering with the quiet enjoyment of neighbours, installing fixtures without consent, keeping objects out of the common area and not hoarding. 5. On 2 September 2020, consent orders were made whereby Mr Marinellis agreed not to keep goods or objects (most particularly certain plants he had planted there) in the common areas. Mr Marinellis agreed to remove his structures and plants from the common area within 60 days, with the exception of 10 plants which the landlord agreed Mr Marinellis could keep in the common area. The parties also agreed to meet to discuss the plants Mr Marinellis wished to retain (Consent Orders). 6. Mr Marinellis appealed the Consent Orders (AP 20/45705). 7. On 11 February 2021, the Appeal Panel allowed the appeal, set aside the Consent Orders and remitted the matter for re-hearing. The landlord's claim was remitted as SH 21/06364 (the "Remitted Termination Application"). 8. On 23 February 2021, Mr Marinellis filed an application (SH 21/08549) seeking, inter alia, an order that he be able to keep his garden on common property (the "Tenant's Claim"). 9. On 3 May 2021, both the Remitted Termination Application and the Tenant's Claim were listed together for a one-day hearing. 10. In the Remitted Termination Application, the Tribunal made a finding that Mr Marinellis had breached clause 13 of the residential tenancy agreement by creating a nuisance in relation to his downstairs neighbour. The Tribunal made the following specific performance order (SPO): "1. By 31 May 2021, the tenant must comply with the terms of the residential tenancy agreement by removing all plants, structures, pots, fencing, furniture and other personal possessions which the tenant has placed on the common area immediately below the tenant's unit. 2. If these orders are not complied with by the tenant, then at any time before 3 November 2021, the landlord may request the re-listing of this application to determine whether the tenancy should be terminated. 3. The balance of the application is dismissed." 1. In the Tenant's Claim, the Tribunal dismissed for want of jurisdiction the aspect of the Tenant's Claim concerning retaining Mr Marinellis's garden on common property. 2. On 5 May 2021, Mr Marinellis filed a Notice of Appeal, it seems in relation to both the Remitted Termination Application and the Tenant's Claim (AP 21/125441) seeking an order that "The garden ... not to be removed. Its malicious actions towards the applicant." This appeal was ultimately dismissed by reason of Mr Marinellis's non-appearance at the hearing of the appeal and the dismissal of his subsequent reinstatement application. 3. On 11 October 2021, the landlord applied to re-list the landlord's Remitted Termination Application pursuant to the leave granted by Order 2 of the SPO on the ground that Mr Marinellis had failed to comply with the terms of the SPO. 4. The matter was listed for hearing to determine whether the tenancy should be terminated. The landlord failed to appear, the matter was dismissed, and the landlord subsequently successfully applied for the matter to be reinstated. 5. The reinstated matter (SH 22/03085) was heard and determined by the Tribunal and the decision in that matter is the decision from which this appeal is brought. The Tribunal's Decision 1. The Tribunal said that the landlord relied on documents filed in the Original Termination Application and in the Remitted Termination Application, together with photos of Mr Marinellis's garden which were taken the day before the hearing, copies of which had been provided to Mr Marinellis. 2. The Tribunal said that Mr Marinellis had filed voluminous folders of documents in the Tenant's Claim (folders A-U) which appeared to relate to alleged criminal matters over which, the Tribunal rightly said, the Tribunal had no jurisdiction. 3. The Tribunal said: "I asked the tenant if he wished to direct me to any of his documents as he was giving his oral evidence and he said that he did not." 1. The Tribunal then referred to ss 87, 154B(1), 154E and 154G of the Residential Tenancies Act 2010 (NSW) (the "RTA") and highlighted the relevant sub-sections. 2. The Tribunal then summarised the landlord's evidence which established that Mr Marinellis had not complied with the SPO, the garden had become more overgrown, a tarpaulin erected by Mr Marinellis had graffiti on it, that the landlord had been served with an order from Sydney City Council on 9 June 2021 requiring it to remove and dispose of overgrown vegetation from the premises which was creating unsafe and unhealthy conditions, including rat harbourage, and that neighbours had complained about the smell and unruliness of the garden. 3. The Tribunal had before it photographs taken before Mr Marinellis had commenced planting his garden, and the photos taken of that garden the day before the hearing. 4. The Tribunal said that a number of community services had been engaged in an attempt to resolve the matter. 5. The Tribunal said that since 2018 Mr Marinellis had ignored clean up notices served on him. It said that since May 2020 notices had been issued by the landlord to Mr Marinellis to remove all plants and structures from the common area all of which had been ignored. 6. The Tribunal said that Mr Marinellis had breached numerous Tribunal orders, such as those made on 8 January 2019 (SH 18/53041) and on 19 February 2019 (SH 18/53041) regarding property care, removing objects that prevented the premises being used for a residential purpose and engaging with expert support persons to facilitate this. 7. The Tribunal said that a previous termination notice had been served on Mr Marinellis in November 2018 for hoarding, ignoring clean up notices and failure to keep premises clean and noted that the landlord would not erect a Colourbond fence on the common property, as Mr Marinellis had requested, as it did not have this consent. 8. The Tribunal then summarised Mr Marinellis's evidence and submissions. 9. The Tribunal said that Mr Marinellis admitted that he had not complied with the SPO, he believing it to merely a "suggestive order". Mr Marinellis told the Tribunal he had no intention of complying with the SPO and wanted to challenge "the Government". 10. Mr Marinellis submitted that he had created the garden five years ago and spent all his time caring for it and it would not be fair to dismantle it. He submitted that the garden provided a positive benefit to him personally from a mental health perspective and to the wider community, who derived pleasure from it. He said that Bunnings supplied the compost he needed for the garden and the garden created employment. 11. Mr Marinellis submitted that the previous tenant in the unit below who had complained about the garden had now moved out and the new tenant had no problem with the garden. 12. Mr Marinellis submitted that other residents had gardens and he felt he was being targeted. He submitted that the landlord should not have let him develop the garden if it did not consent to it. 13. Mr Marinellis submitted that he had erected a tarpaulin to provide shade for the plants, the landlord was at liberty to camouflage the garden with a Colourbond fence, should it so wish, he was 56 years old, the sole occupant of his premises and that he suffered from mental illness. 14. Mr Marinellis acknowledged he had received the Termination Notice but said he was filing an application with the Tribunal for compensation, he was a good tenant, he paid his rent and did not engage in anti-social activity. He submitted that he did not wish to be terminated as the area is convenient for him and he would otherwise be homeless. 15. Having summarised the parties' submissions and evidence the Tribunal said: "52. I find the Termination Notice to be valid in that the required 14 days has been given: s 87(2). Service is not disputed. I find the application was made within the required 30 days after the vacate date: s 83(2)(a) and Regulation 39(2) of the Residential Tenancies Regulation 2019. 53. In considering the circumstances of the case, I have had regard to the matters in section 87(5) of the Act. 54. There have already been findings of breach of clause 13 of the RTA which were made on 3 May 2021, namely that the garden on common property was causing a nuisance and interfering with the neighbours. Those findings which have not been overturned on appeal and thus still stand. 55. The photos relied upon at the hearing indicate to me that the plants on the common property have grown higher and more unwieldy since the SPO was made and graffiti is obvious on the tarpaulin. I am also satisfied that the tenant has breached clause 42.2 of the RTA by failing to keep objects out of the common area. 56. The tenant has not made any attempt to rectify the breach. It is continuing and the Council Order indicates to me the tenant's breach is seriously and adversely affecting the health and safety of neighbouring tenants. 57. After considering all the circumstances of the case, I find that the breaches are sufficient to justify the termination of the RTA. 58. For the purposes of section 154B(1)(b), I have considered the Iong history of this matter at the Tribunal and the tenant's breach of the SPO and other specific performance orders made in 2019 and 2018. 59. In determining whether to terminate the RTA I have also had regard to the matters in section 154E of the Act. I am not persuaded that I should exercise my discretion not to terminate the tenancy agreement. 60. The landlord has a responsibility to ensure the safety of neighbouring tenants and their peace, comfort and privacy. The tenant's use of the common area for his own garden prevents this. I accept the adverse effect this tenancy has on neighbouring residents. I consider that neighbours and others will suffer serious adverse effects, including health effects in the future if the tenancy is not terminated 61. I do not see any evidence of retaliatory conduct by the landlord. Conversely, countless attempts by the landlord to negotiate with the tenant to limit the size of the garden or to have him engage with professionals, have failed. 62. When coupled with the history of non-compliance during this tenancy and the tenant's wilful refusal to comply with the SPO and the issuing to the landlord of the Council Order, I am satisfied that it is appropriate to make the above termination and possession orders. 63. Whilst I accept that maintaining a garden has a positive effect on the tenant, the tenant is at liberty to have a garden of his own on his own premises, just not on common property. I have taken into account as a relevant consideration that the applicant is a social housing provider and the objects of the provision of social housing. The applicant is the provider of low cost housing to those most in need. It is only fair that the tenant complies with the terms of the (residential tenancy agreement), including respect for the common property which is for the benefit of others and respect for his neighbours. In the Tribunal's opinion, this is a relevant consideration deciding whether it is appropriate to make a termination order." 1. The Tribunal then ordered that Mr Marinellis's residential tenancy agreement be terminated immediately, that possession was to be given to the landlord that day, but the order for possession was suspended for 28 days until 17 March 2022. The Appeal 1. Mr Marinellis is not legally trained and was not legally represented. 2. He is mentally ill. He tendered evidence on the appeal (it is unclear whether this material was before the Tribunal) to the effect that he was diagnosed with a severe personality disorder in 2009. At that time, he was receiving antipsychotic medication and a forensic psychiatrist opined that Mr Marinellis would have difficulties dealing with the legal system. A general practitioner diagnosed Mr Marinellis with "acute on (sic) chronic psychotic disorder" in June 2020, September 2021 and January 2022. 3. The Notice of Appeal, Mr Marinellis's submissions and the material he provided for this appeal reflect those facts and diagnoses. 4. The grounds of appeal set out in the Notice of Appeal said that the Tribunal erred: 1. because Mr Marinellis has a case for compensation against the landlord (precisely what for was not clear to us) and the landlord was trying to avoid that case; 2. because clauses 13, 25, 42 and 43 of the residential tenancy agreement did not apply to him; and 3. (there was then listed a number of sections from the Civil and Administrative Tribunal Act 2013 (NSW)). 1. Mr Marinellis sought an adjournment of the hearing of the appeal on the basis that he had applied for the sound recording of the hearing before the Tribunal and had only received it the day before the hearing of the appeal. He said he needed time to listen to that sound recording to "see the real reason for the Tribunal's decision" and to "see the error". 2. We refused that application at the commencement of the hearing of the appeal for three reasons. First, because it was not apparent to us that the contents of the sound recording would be relevant to this appeal. Second, it is the Tribunal's written reasons that are to be examined for error, not what may be said during a Tribunal hearing with the possible exception of a case where some type of procedural unfairness is alleged in relation to the hearing of the matter (which was not this case). Third, there was no apparent attack by Mr Marinellis on the relevant facts found by the Tribunal and the law the Tribunal applied which justified termination of the tenancy. 3. However, we invited Mr Marinellis to renew his application during or at the conclusion of the hearing of the appeal against the event that something might be said during the appeal which might cause us to reconsider the application. Mr Marinellis did (in substance) renew his application for an adjournment several times but nothing transpired during the hearing of the appeal which led us to believe that the interests of justice favoured an adjournment. 4. We should note that the landlord did not lodge or serve any submissions on the appeal, or evidence from the hearing, due to an administrative oversight. As it transpired, that oversight did not disadvantage the tenant. 5. In his oral submissions Mr Marinellis advanced the following grounds of appeal: 1. He has a case for compensation against the landlord (precisely what for was not clear to us) and the landlord was trying to avoid that case. 2. The Tribunal wrongly refused his application for an adjournment. 3. The landlord showed favouritism to other tenants. 4. He had been victimised by the landlord. 5. Clauses 13, 25, 42 and 43 of the residential tenancy agreement did not apply to him. 6. He suffers from a mental illness. 7. The landlord is always legally represented, and he is not (and he should be given legal representation). 1. None of those grounds, with the exception of ground 2, raise a question of law and therefore require leave to appeal. 2. Ground 2 is dismissed for the reasons given below. 3. We refuse leave to appeal in relation to grounds 1 and 3 – 7 for the reasons given below as Mr Marinellis has not persuaded us that he may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable per cl 12(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), or that he may have suffered a substantial miscarriage of justice on any other ground referred to in cl 12. Ground 1 1. As we explained, or attempted to explain to Mr Marinellis, whether he has a case for compensation against the landlord is not relevant to whether he breached the terms of his residential tenancy agreement and whether those breaches justified the termination of his tenancy. 2. If he has a case for compensation against the landlord, then that case (which has been commenced in the Tribunal according to Mr Marinellis) will be determined in due course, but it does not provide a defence to the landlord's case for termination. Ground 2 1. The Tribunal did not record in its reasons that Mr Marinellis made any application for an adjournment, and so we doubt one was made. 2. Having said that, what was to be gained by adjourning the hearing below? Mr Marinellis said that he had wanted to gather more evidence, but what that new evidence would have been was not identified, none of it was produced on the appeal (to prove that there was substance to his application) and we were not persuaded that the absence of an adjournment (assuming an application had been made) visited any practical injustice on Mr Marinellis. If there was other evidence that Mr Marinellis said he would have gathered had the Tribunal granted him an adjournment then he was obliged to provide it to us to demonstrate that there had been a practical injustice in refusing him an adjournment. He did not do so. Given the history of this matter another adjournment would not be just. 3. The material which Mr Marinellis did provide us with on appeal was, with no disrespect to Mr Marinellis, repetitive, discursive, unstructured and irrelevant to the facts and the law relevant to termination. Grounds 3, 4, 6 and 7 1. Grounds 3 and 4 are not grounds for an appeal and are not relevant to a case where the landlord claims the right to terminate a tenancy. 2. We sympathise with Mr Marinellis in relation to his mental illness, but again, this is not relevant to the termination of his tenancy. As the history of the matter shows, the landlord has expended much time and effort in attempting to remedy the situation so that Mr Marinellis could remain living at his present premises whilst at the same time taking into account the needs of adjoining tenants and complying with orders of the Sydney City Council. 3. It is not a ground of appeal that one party is legally represented, and the other is not. Having said that, we did broadly examine the material filed on the appeal in a non-partisan way to see whether there was a ground of appeal which existed but which had been overlooked by Mr Marinellis. Our examination of the material did not reveal any such ground of appeal. Ground 5 1. Mr Marinellis submitted that clauses 13, 25, 42 and 43 of the residential tenancy agreement did not apply to him. 2. He submitted that they did not apply to him because those clauses were unfair, unjust and because other tenants were exempt from their operation. 3. The clauses are not unfair or unjust, and Mr Marinellis agreed to comply with them when he signed the residential tenancy agreement. 4. As to the other tenants, it is not relevant whether other tenants do not comply with the same clauses in their residential tenancy agreements. The law does not provide a defence to Mr Marinellis for his non-compliance with the SOP even if what he alleged was true. In addition, there was no evidence of that non-compliance by other tenants. Orders 1. We make the following orders: 1. Leave to appeal refused. 2. Appeal dismissed. 3. Order 3 of the Tribunal dated 17 February 2022 is varied by substituting the words "28 days after the date of this decision" for the words "17-Mar-2022". ********** 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: 22 June 2022