New South Wales Land and Housing Corporation v Cain [2013] NSWDC 68

District Court New South Wales

Medium Neutral Citation: New South Wales Land and Housing Corporation v Cain [2013] NSWDC 68 Hearing dates: 22, 23 May 2013 Decision date: 23 May 2013 Before: Gibson DCJ Decision: (1) Appeal allowed. (2) Order of the Consumer Trader and Tenancy Tribunal dated 19 November 2012 set aside. (3) An order pursuant to s 91(1)(a) and (3) of the Residential Tenancies Act 2010 terminating the residential tenancy agreement between the plaintiff as landlord and the defendant as tenant in respect of the premises at 28/129 Bundock Street, Coogee with immediate effect. (4) An order in favour of the plaintiff pursuant to s 91(1)(a) and (3) of the Residential Tenancies Act 2010 for possession of the premises at 28/129 Bundock Street, Coogee with immediate effect. (5) Order (1) - (4) stayed for 28 days. (6) Exhibits returned. Catchwords: LANDLORD AND TENANT - appeal from CTTT - tenant pleads guilty to offences of drug supply under Drug Misuse and Trafficking Act 1985 (NSW) - landlord gives tenant termination notice under s 91(1)(a) Residential Tenancies Act 2010 (NSW) - CTTT refuses to terminate the tenancy as it may hinder the tenant from completing health and rehabilitation programmes which were part of her sentencing - whether s 91(1)(a) mandatory - whether Tribunal Member had a discretion to exercise - whether exercise of discretion erred Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Interpretation Act 1987 (NSW), s 9(1) Residential Tenancies Act 2010 (NSW), ss 82, 84, 85, 86, 87, 91, 115 and152 Residential Tenancies Bill 2010 (NSW) Cases Cited: Deputy Commissioner of Taxation v Lincoln Industrial Cleaners Pty Ltd (1975) 2 NSWLR 499 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 House v The King (1936) 55 CLR 499 Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 Howard v B Miles Womens Foundation Inc [2012] NSWSC 1173 Julius v Bishop of Oxford (1880) LR 5 AC 214 Leach v R (2007) 230 CLR 1 Lugg v Wright [1941] SASR 106 Lyford v Commonwealth Bank of Australia (1995) 130 ALR 267 Mitchell v R (1996) 184 CLR 333 Owens v Australian Building Construction Employees' and Builders Labourers' Federation (1978) 46 FLR 16 Ward v Williams (1955) 92 CLR 496 Texts Cited: DC Pearce & RS Geddes, Statutory Interpretation in Australia (7th ed.) Residential Tenancies Bill 2010 (NSW) (Second Reading Speech, 8 June 2010) Category: Principal judgment Parties: Plaintiff: New South Wales Land and Housing Corporation Defendant: Kerry Anne Cain Representation: Plaintiff: Mr R Ranken Defendant: Mr A K Flecknoe-Brown Plaintiff: Housing NSW Defendant: Tenants Union of NSW Co-op Ltd File Number(s): 2012/390440 Publication restriction: None