Southern Cross Community Housing Limited v Wensley [2023] NSWCATCD 35

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Southern Cross Community Housing Limited v Wensley [2023] NSWCATCD 35 Hearing dates: 24 April 2023 Date of orders: 08 May 2023 Decision date: 08 May 2023 Jurisdiction: Consumer and Commercial Division Before: J Rose, General Member Decision: (1) The residential tenancy agreement is terminated in accordance with s 87 of the Residential Tenancies Act 2010 (NSW), as the tenant has breached the residential tenancy agreement by failing to keep the residential premises in a reasonable state of cleanliness having regard to the condition of the premises at the commencement of the tenancy. (2) The residential tenancy agreement is terminated immediately and possession is to be given to the landlord on the date of termination. (3) Subject to the tenant paying the occupation fee directed below, the order for possession is suspended for 28 days, until 5 June 2023. In the event occupation fee is not paid as ordered, the suspension will cease and the order for possession becomes effective immediately. (4) The tenant must pay the landlord a daily occupation fee, at a rate equal to one-seventh (1/7th) of the rebated weekly rent that was payable by the tenant under the residential tenancy agreement immediately before these orders were made, which is payable from the day following the date of termination, namely 9 May 2023, until the date vacant possession is given to the landlord. The tenant must pay that occupation fee weekly in advance in the same way that rent was previously payable under the tenancy agreement. (5) Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. (6) The registry is to send a copy of these orders and the reasons for decision to [redacted] of Supported Accommodation & Homelessness Services Shoalhaven Illawarra, by email to [redacted], in addition to sending them to the parties. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Social housing — Termination of social housing agreements — By landlord — termination for breach — tenant's obligation to keep residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy — whether the breach is, in the circumstances of the case, sufficient to justify termination of the agreement — consideration of the circumstances of the case under ss 87(5), 154B and 154E LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Social housing — Termination of social housing agreements — suspension of the order for possession — consideration of the period of suspension of the order for possession under ss 83 and 154G Legislation Cited: Interpretation Act 1987 (NSW) Residential Tenancies Act 1987 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies (Residential Premises) Regulation 1995 (NSW) Cases Cited: Adavale Realty Pty. Ltd. v Williams [1996] NSWRT 190 Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109 Mansfield v Sunman [2017] SACAT 1 Scicluna v NSW Land and Housing Corporation (2008) 72 NSWLR 674 Thomas v Slade [2023] NSWCATAP 56 Texts Cited: Nil Category: Principal judgment Parties: Southern Cross Community Housing Limited (Applicant) Germaine Sheridan Wensley (Respondent) Representation: Julie Hadley, authorised officer (Applicant) In-person (Respondent) File Number(s): SH 22/56458 Publication restriction: Nil