Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Land and Housing Corporation v Barber [2022] NSWCATCD 188 Hearing dates: 13 September 2022 Date of orders: 29 September 2022 Decision date: 29 September 2022 Jurisdiction: Consumer and Commercial Division Before: S Sutherland, Tribunal Member Decision: 1. The application for termination of the tenancy and possession of the property to the landlord is dismissed. 2. The tenant must comply with the terms of the residential tenancy agreement by complying with clause 13.1 of the agreement and not use the residential premises, or cause, or permit the premises to be used, for any illegal purpose. 3. If these orders are not complied with by the tenant, at any time before 28 September 2023, the landlord may request the re-listing of this application to determine whether the tenancy should be terminated Catchwords: LEASES AND TENANCIES – Termination and possession – breach of residential tenancy agreement - conviction for drug supply – small quantity – personal circumstances – Section 87 -whether the breach in the circumstances - is sufficient to justify termination – Discretion to terminate – Section 154E Legislation Cited: Residential Tenancies Act, 2010; ss 87, 154E Cases Cited: NSW Land and Housing Corporation v Traynor [2021] NSWCATAP 383 NSW Land and Housing Corporation v Raglione [2015] NSWCATAP 75 Kelly v NSW Land & Housing Corporation [2018] NSWCATAP 151 Texts Cited: Nil Category: Principal judgment Parties: NSW Land and Housing Corporation (applicant) April Barber (respondent) Representation: Suzanne Hook, advocate for the respondent Respondent (self-represented) File Number(s): SH 22/08427 Publication restriction: Nil REASONS FOR DECISION 1. This is a claim for termination and possession for a breach of the residential tenancy agreement pursuant to Section 87 of the Residential Tenancies Act 2010. In the alternate, that if the Tribunal the applicant as an alternative if the Tribunal was not satisfied that the breach of the residential tenancy agreement is sufficient to terminate the tenancy then an order that the tenant comply with clause 13.1 of the residential tenancy agreement and that the tenant not use the premises or cause or permit for any illegal purpose. 2. I will refer the applicant as "the landlord" and the respondent as "the tenant." Procedural issues 1. On the day of the hearing an application was made orally for leave for the tenant to be legally represented in the contested hearing. The application for leave to be legally represented was opposed by NSW Land and Housing Corporation. An adjournment was also sought by the to provide further documents however, the respondent was unable to inform the Tribunal what additional documents that she intended to provide. 2. Leave was refused and the adjournment was refused oral reasons were given for that decision. 3. The legal representative for the tenant sat beside her during the proceedings and provided her with assistance during the hearing and further the Tribunal allowed a short adjournment after the evidence of the landlord for the tenant and her legal representative to conference before the tenant gave her evidence. 4. The documents of the applicant is marked Exhibit A1 and the respondent's evidence being the psychological report is marked Exhibit R1. 5. The claim by the applicant is that the respondent has breached the terms of the residential tenancy agreement by causing or permitting the premises to be used for an illegal purpose. Jurisdiction 1. The written residential tenancy agreement between the parties was made on 5 January 2017. I find that I have jurisdiction to hear the claim pursuant to Section 6 of the Residential Tenancies Act 2010. Relevant clause of the residential tenancy agreement 1. The clause relied upon by the applicant is Clause 13.1 in the residential tenancy agreement which provides the following: 13.1 not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose, Evidence of the landlord 1. In May 2021 the police were investigating the involvement of Amin Zraika in the sale of drugs, heroin and methylamphetamine from the property. The police obtained a telephone interception warrant and between 2 August 2021 and 12 October 2021 the police intercepted hundreds to thousands of calls and text messages facilitating the sale of prohibited drugs. On 13 October 2021, Ms Barber was using one of Mr Zraika's mobile services to take calls in connection with the supply of drugs. 2. On 13 October 2021 the police executed a search warrant and Ms Barber was apprehended in the bedroom holding $255.00 in cash, in his jacket were a number of empty clear resealable bags. Next to the front door on a tv cabinet was three small bags of heroin and $300.00 in cash. She was arrested and charged by the police with Supply Prohibited Drug – small quantity - heroin and other drug related offences. 3. On 8 March 2022 Ms Barber was convicted of Supply Prohibited Drug – Small quantity - heroin. She was sentenced to 9 months imprisonment. The other occupant, Amin Zraika was also convicted and sentenced to a longer period of imprisonment and remains in prison at the time of this hearing. 4. The issue in dispute is whether the breach is sufficient in the circumstances to justify the termination of the tenancy, Section 87 (4) (b) of the Residential Tenancies Act 2010 and whether the Tribunal should exercise its discretion to terminate the tenancy pursuant to Section 154E of the Residential Tenancies Act 2010. Evidence of the tenant 1. The tenant told the Tribunal that she pleaded guilty to the charges at court and was sentenced to 9 months imprisonment. The tenant provided a document from Bridges Psychology Clinic dated 8 January 2022 written by Chafic Awit, psychologist, that was prepared for the tenant's court appearance. The psychologist diagnosed the tenant as suffering generalized anxiety disorder, major depressive disorder, and substance use disorder. 2. The tenant was released from custody on 7 May 2022, and she told the Tribunal that she has been attending regular appointment for treatment of her substance use disorder and other psychological conditions. 3. The tenant told the Tribunal that she has four children and that live with her mother and herself. That Amin Zraika, an occupier of the property at the time she was arrested and is serving a sentence in custody, and she will not permit him to return as an occupier of the property. 4. She told the Tribunal that she is getting on with her life, she wants to complete a Responsible Service of Alcohol (RSA) course, will continue with the treatment plan and meet regularly with her psychologist, and comply with her parole conditions. She told the Tribunal that she has great neighbours and gets along well with them. 5. If her tenancy was terminated that she would be homeless, however, she did concede that she had not looked for another property. Although she was aware that there was about a 10-year waitlist for social housing. 6. The tenant agreed to comply with a specific performance order as the alternative submitted by NSW Land and Housing. Consideration 1. The parties entered a written residential tenancy agreement on 5 January 2017. The tenant was issued with a termination notice on 18 January 2022 for the tenant to give possession to the landlord on 20 February 2022. 2. There appears that there is little doubt that the tenant has breached the residential tenancy agreement, "not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose." 3. Section 87 of the Residential Tenancies Act 2010 provides for the termination of the tenancy and in particular: Section 87 (4) (b) of the Residential Tenancies Act, 2010 provides that ".the breach is, in the circumstances of the case, sufficient to justify termination of the agreement.." 1. In NSW Land and Housing Corporation v Traynor [2021] NSWCATAP 383 the Appeal Panel observed the following at paras 52 and 53, "The Tribunal was correct not to conflate the test in s 91(1)(a) with that in s 91(1)(b). They are distinct considerations: one dealing with the use of premises for specific types of unlawful activity (manufacture, sale, cultivation or supply of prohibited drugs); and the other with any other unlawful purpose. The use of word "other" in s 91(1)(b) demonstrates the type of unlawful activity to be considered excludes that already covered by s 91(1)(a). That the Tribunal did not consider the supply of the cannabis as part of the storage was not an error of law. While we agree that the legislature clearly had in mind mandatory termination in the circumstances provided for in the Act, the landlord's submissions are premised on an incorrect assumption that any unlawful use of premises must automatically mean termination is required. That is not what the Residential Tenancies Act provides. Rather, a plain reading of s 91(1)(b) demonstrates the legislative intention is that the unlawful use must also be "sufficient" to "justify" termination. This calls for the exercise of the Tribunal's discretion." 1. The decision in NSW Land and Housing Corporation v Raglione [2015] NSWCATAP 75 was a further claim pursuant Section 91 of the Residential Tenancies Act 2010 where the tenant was addicted to Methamphetamine for more than 8 years. The panel found that the Tenant supplied Methamphetamine to others and that he sells it and that Methamphetamine is an addictive drug and its users sometimes demonstrate extreme behaviour, particularly violence. "The breaches of the prohibitions in section 91 are serious and have resulted from the Tenant's involvement with Methamphetamine for more than 14 years. The continued occupation of the apartment by the Tenant, given his addiction, renders further such breaches likely and involves a very real risk to users, persons to whom the Tenant may supply the drug, persons he may permit to use drugs in the apartment, innocent occupants of the building and visitors to it (including children)." 1. However, this is not a claim pursuant to Section 91 of the Residential Tenancies Act, 2010 where the Tribunal is required to consider mandatory termination of the tenancy pursuant Section 154D of the Residential Tenancies Act 2010. That does not take away the objective seriousness of the supply of an illegal drug in a social housing premises. The tenant was sentenced to 9 months imprisonment for these offences which supports the seriousness of these matters. 2. There had been one anonymous complaint concerning the tenant on 24 February 2020 and that people were coming and going from the property all through the night. The claim was that the tenants appeared from the boats and cars in their front yard to have a lot of money for people on Centrelink. 3. There is an anonymous complaint and the conviction for supply drug – small quantity – heroin and the other drug related charges. I have considered Kelly v NSW Land & Housing Corporation [2018] NSWCATAP 151 and Section 87 (5) of the Residential Tenancies Act 2010. I accept that the tenant was frank, forthright, and honest in her oral evidence. She is undergoing psychological treatment for generalized anxiety disorder, major depressive disorder and substance use disorder. I have considered the hardship the tenant would face if the tenancy was terminated. The tenant has insight into her offending behaviour, reflected in her continuing treatment, plea of guilty to the drug charges and her agreement to comply with a specific performance order. 4. I have considered Section 154E of the Residential Tenancies and the effect that the breach of the tenancy has on the neighbouring residents or other persons, the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated. The tenant has told the Tribunal that she got along well with the neighbours. There are no recent complaints by the neighbours concerning the tenant. I have taken into account the landlord's responsibility to the other tenants, the history of the tenancy, and that there is no evidence of any breach of any previous Tribunal orders. 5. Taking those matters into and the matters in Section 87 (5) of the Residential Tenancies Act 2010, I do not intend to terminate the tenancy. In my view, taking into account the objective seriousness of the supply prohibited drug – small quantity – heroin, and balancing the circumstances, against Section 87 (5) and Section 154E of the Residential Tenancies Act 2010 including the tenant's personal circumstances; the lack of further social housing accommodation, there are no previous breaches of the Tribunal orders, lack of current complaints from neighbours. On balance, I am not satisfied that the circumstances of the breach of the residential tenancy are sufficient to terminate the tenancy. 6. The application for termination of the tenancy and possession of the property to the landlord is dismissed. 7. Alternatively, I make a specific performance order pursuant to Section 187 (1) (a) of the Residential Tenancies Act, 2010: 8. The tenant must comply with the terms of the residential tenancy agreement by complying with clause 13.1 of the agreement and not use the residential premises, or cause, or permit the premises to be used, for any illegal purpose. 9. If these orders are not complied with by the tenant, at any time before 28 September 2023, the landlord may request the re-listing of this application to determine whether the tenancy should be terminated. ********** 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. 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