NSW Land and Housing Corporation v Nihangun Ozen [2014] NSWCATCD 27

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Land and Housing Corporation v Nihangun Ozen [2014] NSWCATCD 27 Hearing dates: 7 March 2014 Decision date: 19 March 2014 Jurisdiction: Consumer and Commercial Division Before: P Boyce, Senior Member Decision: 1. The application for termination of residential tenancy agreement pursuant to S 91 of the Residential Tenancies Act 2010 is dismissed. Catchwords: Other unlawful purpose Legislation Cited: Residential Tenancies Act 2010; Section 91 Category: Principal judgment Parties: NSW Land and Housing Corporation (applicant) Nihangun Ozen (respondent Representation: Mr Gardiner, Barrister Ms McDonald, Solicitor File Number(s): SH 13/39361

reasons for decisioN

APPLICATION 1The applicant and the respondent are parties to a residential tenancy agreement dated 23 November 1995. 2The provisions of the Residential Tenancies Act 2010 apply to the agreement and the Tribunal has jurisdiction to hear and determine the application before it. 3The applicant seeks an order to terminate the residential tenancy agreement pursuant to S 91 (1) (b) of the Act and to obtain possession of the premises. In the application the applicant states its reasons for seeking the order are:- "On 17 July 2013-Police executed a search warrant at the premises. During the search Police located the following:- 3 x vials of steroids 6 x vials of growth hormone 30 x tablets believed to be steroids 1 x blackberry mobile phone" 4Section 91 of the Act provides: (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted: (a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 , or (b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination. (2) In considering whether to make a termination order on the ground specified in subsection (1) (b), the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the unlawful use, (b) any previous unlawful uses, (c) the previous history of the tenancy. (3) The termination order may specify that the order for possession takes effect immediately. (4) A landlord may make an application under this section without giving the tenant a termination notice. (5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. 5Clause 7.1 of the residential tenancy agreement provides: 7.The tenant agrees: 7.1 not to use the residential premises, or cause or permit the premises to be used for any illegal purpose; 6The applicant submits that the respondent intentionally or recklessly caused or permitted her residential premises to be used for an unlawful purpose to sufficiently justify the termination of her tenancy by allowing her son to possess on the premises illegal substances. 7For the applicant to be successful in its application for termination order of the residential tenancy agreement it must establish that the tenant (respondent) has intentionally or recklessly caused of permitted the residential premises to be used for an unlawful purpose that justifies termination of the residential tenancy agreement. 8In consideration of making a termination order under s 91(10(b) the Tribunal may consider the elements of the grounds for termination contained in s 91(2).