St George Community Housing Limited v Dali [2023] NSWCATCD 130

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: St George Community Housing Limited v Dali [2023] NSWCATCD 130 Hearing dates: 22 June 2023 Date of orders: 25 September 2023 [amended 20 November 2023] Decision date: 25 September 2023 Jurisdiction: Consumer and Commercial Division Before: C Campbell, General Member Decision: Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, orders published on 25 September 2023 are amended as follows: 1. The application is dismissed. Catchwords: Termination- breach s90(1)(a) -evidence - expert opinion – onus - intent - mental illness Legislation Cited: Residential Tenancies Act (2010) Cases Cited: Vidler v Compass Housing Services Co NSWCATAP 284; NSW Land & Housing Corporation v Orr [2019] NSWCA 231; R v Lawrence [1981]1 All ER 974; Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128; Westpac General Insurance v Cooper [2006] ACTSC 91; Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121; Yacoub v Pilkington (Australia) Pty Ltd [2007] NSWCA 290; Category: Principal judgment Parties: Applicant: St George Community Housing Limited

Respondent: Idaho Dali Representation: Counsel: (Applicant) Mr Wilson

Solicitors: (Respondent) Mr Abi-Daher File Number(s): SH 22/51560 Publication restriction: N/A

REASONS FOR DECISION 1. This is an application for an order for termination and possession on the grounds the tenant intentionally or recklessly caused or permitted serious damage to the residential premises. in accordance with s 90(1)(a) of the Residential Tenancies Act 2010 ("the Act"). 2. Mr Wilson of counsel appeared for the applicant and Mr Abi-Daher solicitor, appeared on behalf of the tenant. 3. By way of background the parties entered into a residential tenancy agreement for the current premises on the 18 December 2020, although he had a previous tenancy agreement with the applicant for approximately five years. 4. On the 09 November 2022 the tenant lit multiple fires within his own premises. There are twenty apartments in the complex. The fire brigade attended and the tenant was taken by police to the Concord Hospital Mental Health Manning Unit and was admitted as an involuntary patient. He remained there until discharge on the 27 January 2023, at which time he returned to his premises. The tenant was charged by police with damage to property by fire. On the 16 June 2023 the charge was dismissed with the tenant subject to a twelve month Community Treatment Order ("CTO"), with leave to extend for a further 12 months. 5. The tenancy has been unremarkable both before and after the incident with rent being paid on time and no other disturbances reported. 6. Both parties filed and served documentary evidence. 7. The tenant was available at the hearing but was not required for cross-examination and the matter proceeded with submissions being made by both parties. 8. The applicant relies on the following documentary materials: * Residential tenancy agreement * Ingoing condition report * Rent statement * Report from NSW Fire and Rescue * Photographs of the premises dated 22 November 2022 * Petition from six neighbouring tenants dated 28.01.23 * Respondent's eligibility policy for social housing 1. The respondent relies on the following documents * Medical reports, social and support worker reports * Comparable properties for rent * Housing-DCJ Housing: Tenancy Policy Supplement * Submissions from Pride Foundation Australia to Federal Parliament Inquiry into Homelessness 2020 * Papers, submissions and reports on homelessness and the effect on the mental health on trans and gender diverse people in Australia * Affidavit of the Respondent sworn 19 December 2022 * Photographs of the tenant's apartment dated 20 December 2022 * An undated article from an unidentified source by an unidentified author titled "Psychosis". 1. The landlord acknowledged the tenant has mental health issues, but it claims the tenant has failed to provide evidence that he did not understand the nature or quality of his actions at the time he lit the fires. 2. The tenant submits the Tribunal should decline to make the orders sought on the following grounds: 1. The tenant did not act "recklessly or intentionally" as a result of his mental state at the time he lit the fires; 2. The fires did not cause serious damage to the premises; 3. A termination order is not mandatory; 4. The Tribunal should exercise its discretion in favour of the tenant.