Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Land and Housing v Johnson [2014] NSWCATCD 10 Hearing dates: 12 December 2013 Decision date: 09 January 2014 Jurisdiction: Consumer and Commercial Division Before: M Eftimou, General Member Decision: 1 The tenancy is terminated in accordance with section 87 of the Residential Tenancies Act 2010. The Tribunal is satisfied that the tenant has caused a nuisance and is interfering with the reasonable peace, comfort or privacy of a neighbour of the tenant. 2 The tenancy is terminated on 28 February 2014 and possession is to be given to the landlord on that date. Legislation Cited: Residential Tenancies Act 2010 Category: Principal judgment Parties: NSW Land and Housing (Applicant) Stanley Johnson (Respondent) File Number(s): SH 13/43413 reasons for decision APPLICATION 1On 16 August 2013 the applicant landlord sought an order for termination and possession of the premises in accordance with section 87 of the Act. 2The background to the application is that the tenant has been a tenant of the landlord since 2007. On 15 June 2013 the tenant assaulted a neighbour, Ms Lee. The tenant was charged by the police with Assault Occasioning Actual Bodily Harm. The tenant was convicted at the Local Court of Bankstown on 22 August 2013 and was placed on a 12 month Good Behaviour Bond pursuant to section 9(1) of the Crimes (Sentencing Procedure) Act 1999. 3On 9 July 2013 the applicant served upon the tenant a Notice of Termination for breach of the residential tenancy agreement. The date of vacant possession being 1 August 2013. 4The tenant failed to vacate and the landlord filed an application for termination and possession with the Tribunal on 16 August 2013. 5It is not in dispute that the notice dated 9 July 2013 complied with the requirements of section 82 of the Act, that the tenant was given sufficient time to comply with the notice, that it was served in accordance with section 223 of the Act and that the application to the Tribunal was lodged within 30 days of expiry of the notice, as required by section 83(2) and Reg 22 of the Residential Tenancies Regulation 2010. 6The breach of the tenancy agreement relied upon in the notice was a breach of Clause 13. The Tribunal notes that Clause 13 in the tenancy agreement refers to alternations and additions to the premises. The Tribunal finds that the breach should have read a breach of clause 7 of the agreement. The Tribunal amends the defect in the notice as it is clear from the particulars of the breach included in the notice that the breach related to the tenant not interfering with the reasonable comfort or privacy of neighbours, which is a breach of clause 7 of the Agreement. The inclusion of the number "13" instead of the number "7" is a typographical error. 7Clause 7 states as follows: "Use of the Premises The tenant agrees: ... Not to cause or permit a nuisance; and Not to interfere, or cause or permit interference with the reasonable peace, comfort of privacy of neighbours." 8It is not in dispute that the tenant breached the terms of the tenancy agreement. It is not in dispute that the tenant did not comply with the termination notice and that he remains living in the premises. 9The issue for the Tribunal to determine is whether the breach is, in the circumstances of the case, sufficient to justify termination of the agreement. Section 87 relevantly provides that: Section 87 Breach of Agreement ... (4) The Tribunal may on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement; and (c)The termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) in considering the circumstances of the case, the Tribunal may consider ( but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach; (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach. 10Section 152 sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement. 11Section 152 provides as follows: 152 Termination by Tribunal of social housing tenancy agreements for breach (1)In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a)Any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b)Whether any breach of the agreement was as serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk. (c)The landlord's responsibility to its other tenants, (d)Whether the tenant, wilfully or otherwise is or has been in breach of an order of the Tribunal, (e)The history of the tenancy concerned, including any prior tenancy for the tenant arising under a social housing tenancy agreement. (2)This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act. 12As stated above, the tenant concedes that he has breached the terms of the agreement as set out in the termination notice. 13The circumstances leading up to the issuing of the termination notice and what has happened since then are relevant circumstances to consider in determining whether the breach of the agreement justifies termination of the tenancy. 14The nature of the breach is a serious one. The tenant and the victim both live in Department of Housing complex. They are neighbours living across the hall from each other. It is not disputed that sometime during the evening of 15 June 2013 the tenant went to the victim's premises and they consumed alcohol. Sometime during the evening the tenant and the victim got into an argument and the tenant punched the victim to the face several times, causing the victim to have a cut to the upper right side of her lip, swelling and bruising to her left cheek and a black left eye. The victim called the police. The victim was taken by ambulance to hospital where she received further treatment. The tenant has no recollection of the incident. 15The tenant has previously been convicted of assault of a neighbour in 2011. On 20 August 2011 the tenant assaulted another neighbour. The tenant was convicted of assault and was placed on a good behaviour bond. The tenant was issued with a Notice of Termination and Possession. On 11 November 2013 the tenant entered into a Specific Performance Order with the landlord, agreeing amongst other things, not to assault harass threaten or intimidate any other neighbouring resident. 16The tenant has given evidence of the steps taken to remedy the breach. He has given evidence that he is remorseful and has stopped drinking. There is no medical or any other independent evidence to support his claim. 17The landlord has been forced to relocate the victim to alternate premises as she has been advised by the NSW Police not to return to the premises. 18The only information before the Tribunal in relation to the previous history of the tenancy is the breach outlined in paragraph 15 above. 19The Tribunal is not satisfied on the evidence that the tenant has remedied the breach. The tenant has given evidence that he has stopped drinking. This is not supported by any independent evidence. 20The Tribunal has considered the serious adverse effect the tenancy has had on neighbouring residents. The tenant was convicted in 2011 of assaulting a neighbouring resident. The tenant was convicted in 2013 with Assault Occasioning Actual Bodily Harm of a neighbouring resident. 21The Tribunal has found that the breach is a serious breach. The Tribunal has considered given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject or continue to subject neighbouring residents or any other persons to unreasonable risks. Medical Evidence has been provided by the tenant to indicate that he is under the care of two general practitioners. Dr Hakim provided a letter in support dated 7 August 2013 stating that the tenant suffers from forgetfulness and sometimes lack of concentration. The doctor believes that he could have symptoms of early dementia and that he would benefit from further review by the ACAT team and possibly seeing a geriatrician regarding assessment for dementia. Dr Weeks has referred the tenant to the ACAT team and an appointment has been arranged for him in February 2014. The referral form dated 4 November 2013 completed by Dr Weeks indicates that the tenant is a binge drinker. The referral indicates the tenants personal level of risk appears to be highly changeable; he has indicated a significant past history of risk in relation to violence, there is significant uncertainty in the assessment of the level of risk. Most relevantly that the tenant has a current problem with alcohol or substance misuse. The doctor has indicated that there is significant uncertainty in the assessment of the level of risk. 22The Tribunal finds on the medical evidence before it that there is a significant uncertainty in the assessment of the level of risk and this may subject neighbouring residents to unreasonable risk. 23There is no dispute that the landlord, being a Social Housing provider has a responsibility to its other tenants. 24The Tribunal is not satisfied that the tenant has wilfully or otherwise has been in breach of an order of the Tribunal. The tenant has previously complied with a Specific Performance Order made by the Tribunal in 2011. 25The Tribunal has taken into consideration the history of the tenancy concerned and as stated elsewhere the previous incident of assault involving the tenant. 26Section 152 does not limit any other matters that may be considered by the Tribunal in determining whether to terminate the tenancy. The Tribunal has considered the personal circumstances of the tenant in making its decision. The Tribunal has considered that the tenant is a 72 year old man who is suffering a multitude of medical conditions including possible early dementia. His general practitioner has referred him to the ACAT team for assessment and possibly seeing a geriatrician regarding assessment for dementia. The results of these assessments will not be known until sometime in February 2014. The tenant has also considered the character reference given by Mr Paul Burgess solicitor. Mr Burgess urges the Tribunal to consider the tenant's continuing disabilities and his remorse and to give him a further chance to demonstrate that he has overcome the difficulties which led to this incident occurring. 27Consideration should also be given to the fact that the learned magistrate at the Local Court did not impose a custodial sentence. The tenant's advocate has made submissions that the second incident of assault should be distinguished from the first incident as it involved a mixture of alcohol and medication. This resulted in the tenant blacking out and not recalling the incident. The advocate does not excuse the tenant's behaviour but submits consideration should be given to the effect that termination would have on a man of the age and mental condition of the tenant. Further, there is a real risk of homelessness if the tenancy is terminated. 28The Tribunal has considered all of the circumstances of this matter. The seriousness of the breach and the scant evidence of measures taken to ensure that any further breaches would not occur in the future outweigh in the Tribunal's view the tenant's personal circumstances. 29This is particularly so when the factors listed in section 152 are taken into account. There is no doubt that the incident has had a serious adverse effect on the victim. The Tribunal accepts the tenant's remorse. The Tribunal also accepts the tenant's best intentions to refrain from drinking alcohol. However, the medical evidence indicates a number of serious medical issues and that there is a significant uncertainty as to the level of risk that the tenant poses. The landlord has a responsibility to other tenants, this is the second time that the tenant has seriously assaulted another tenant and there is an uncertain risk that this may occur again. 30The Tribunal is satisfied that the breach in the circumstances justifies termination of the tenancy. The Tribunal has taken into consideration the personal circumstances of the tenant and the fact that the ACAT assessment will occur sometime in February 2014 and makes a date for possession that reflects a date after the medical assessment. ORDERS 31The tenancy is terminated in accordance with section 87 of the Residential Tenancies Act 2010. The Tribunal is satisfied that the tenant has caused a nuisance and is interfering with the reasonable peace, comfort or privacy of a neighbour of the tenant. 32The tenancy is terminated on 28 February 2014 and possession is to be given to the landlord on that date. M Eftimiou Tribunal Member Civil and Administrative Tribunal of New South Wales 9 January 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 03 April 2014