Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Land and Housing Corporation v Mahmud [2014] NSWCATCD 139 Hearing dates: 2 July 2014 Decision date: 23 July 2014 Before: CR Xuereb, General Member Decision: 1.The tenancy is terminated immediately in accordance with s 90 (1)(b) of the Residential Tenancy Act 2010. 2.The order for possession is suspended until 7 October 2014. 3.The respondent shall pay the applicant a daily occupation fee at the rate of $13.92 from the day after the date of these orders to the date possession is given. 4.Within 60 days of the date of obtaining possession, the applicant may request the relisting of the application to determine the amount of occupation fee owing. Catchwords: Serious injury by tenant, recklessness, adverse effects on neighbouring residents, landlord's responsibility to other tenants. Legislation Cited: Residential Tenancies Act 2010 Cases Cited: Cain v. New South Wales Land and Housing Corporation [2014] NSWCA 28 Category: Principal judgment Parties: NSW Land and Housing Corporation (applicant) Nader Mahmud (respondent) File Number(s): SH 14/26067 Publication restriction: Nil reasons for decision APPLICATION 1The applicant, NSW Land and Housing Corporation, lodged an application with the Tribunal on 20 May 2014 seeking orders under ss 90 and 187(1)(i) of the Residential Tenancies Act 2010 (the RTA). 2The application alleged that the respondent, Nader Mahmud, a tenant of premises in a residential flat building owned or controlled by the applicant had a dog which had attacked other tenants in the complex. 3The application was set down for hearing on 16 July 2014. However, as the applicant alleged that another dog attack occurred on 6 June 2014, the applicant sought expedition of the hearing. The matter was listed for directions on 17 June 2014. At the directions hearing, the proceedings were expedited and on 18 June 2014 the applicant and the respondent were notified that the matter had been allocated for hearing on 2 July 2014. At the directions hearing, an order was made that the respondent should provide his documents to the Tribunal and the respondent by 1 July 2014. The respondent complied with that order. The applicant informed the Tribunal at the directions hearing that all of its evidence had been filed and served. JURISDICTION 4The respondent is a tenant of the applicant. The premises are social housing premises within the meaning of s 136 of the RTA. The Tribunal has jurisdiction to hear and determine the proceedings. BACKGROUND 5The respondent has been a tenant of the landlord in respect of the premises at Whalan since 13 March 2000. The premises is a residential unit in a complex of 18 one bedroom units. 6Until early 2014, the respondent kept one dog as a pet - a female dog named Palo. In or about January 2014, the respondent brought another dog to the premises as an additional pet. The second dog is the male dog alleged to have been the source of the attacks on the other residents within the complex. A Notice of Seized Dog issued by Blacktown City Council on 16 May 2014 describes the dog as: "a male American Staffordshire Terrier type dog, brindle in colour, ... named "Tank"." 7Under the Residential Tenancy Agreement, the respondent is entitled to keep pets in the premises if the pets do not interfere with the reasonable peace, comfort and privacy of neighbours. The respondent agreed, under Clause 28.2 of the Residential Tenancy Agreement to remove any pet within 48 hours, where in the reasonable opinion of the applicant the pet is not suitable to be kept on the premises and the applicant gives the respondent written notice to that effect. 8The applicant was represented at the hearing by Ms Hook. The respondent appeared in person. 9The applicant's case was outlined by Ms Hook in her opening address. 10On 2 February 2014, a written complaint was made by Kerry Schwonberg on behalf of Kala Wati that sometime recently beforehand, the male dog kept by the respondent and identified as "Tank" had grabbed Ms Wati's hand, but had caused no physical injury. 11On 18 April 2014, "Tank" attacked Rhonda Stone, biting her in the abdomen region after knocking her down. 12On 23 April 2014, the respondent was served with a Notice to Remove Dogs From the Complex. That notice required the respondent to remove the dog (although it did not specify which dog) from the complex within 48 hours of the date of issue of the letter. The respondent did not comply with the notice by removing either or both his dogs. 13On 15 May 2014, Tank was loose in the complex and was approaching David Cox, a resident in Unit 4. As it approached Mr Cox, Mr Cox diverted the dog. The dog then moved to Mona Mourad and jumped towards her. Ms Mourad sustained no physical injury but was taken to hospital by ambulance for an anxiety reaction. 14Following the episode on 15 May 2014, the Police and the Council were called. "Tank" was seized by the Council but returned to the respondent a few days later. 15On 6 June 2014, Tank attacked another resident, Ron Love. During this attack, Mr Love suffered multiple lacerations to the right leg. The injury necessitated skin grafts to repair the wound. During this attack, Ms Kerry Schwonberg also suffered an injury to her shoulder whilst attempting to restrain "Tank" by taking hold of the dog's collar. Both Mr Love and Ms Schwonberg were conveyed to hospital by ambulance following the attack. 16After the events of 6 June 2014, both dogs - Paolo and Tank - were removed from the respondent's control. Tank has been destroyed and it seems that Palo has been spared for re-homing. THE EVIDENCE 17The first witness called in the applicant's case was Rhonda Stone, a resident of Unit 15. Mrs Stone described the attack on her which occurred on 18 April 2014 - Good Friday. Whilst Mrs Stone was talking with neighbouring residents Kerry Schwonberg and Paul Colusso on the footpath outside the gate to the complex, Tank came through the gate and lunged at Mrs Stone and knocked her over. Whilst she was on the ground, she felt the dog's lead wrap around her leg. Kerry Schwonberg propped her back so she could sit up on the ground. Although she did not feel any bite, the ambulance officers who attended the scene following the incident told her that she had been bitten around the stomach area and she was conveyed by ambulance to hospital. 18Corroborative evidence was given by Kerry Schwonberg and Paul Colusso. 19Kerry Schwonberg also gave evidence about the incident which occurred on 15 May 2014. On that date, Tank knocked Mona Mourad down after David Cox, another resident, diverted the dog from himself. Mona Mourad was conveyed by ambulance to Mount Druitt Hospital following the incident. Mr Cox also provided evidence consistent with the evidence of Ms Schwonberg. Mr Colusso also provided testimony which was consistent. 20The most serious incident involving a dog attack occurred on 6 June 2014. Both Ms Schwonberg and Mr Colusso gave evidence about the incident involving an attack by Tank on Ronald Love. Mr Love and his wife are also residents in the complex. 21Mr Love was attacked by Tank. The dog grabbed Mr Love's right ankle and pulled him to the ground and then continued to drag Mr Love along the ground until Kerry Schwonberg came to Mr Love's assistance. Ms Schwonberg took hold of Tank by the collar and pulled the dog away from Mr Love. The dog resisted Ms Schwonberg's attempts to restrain him. As a result Ms Schwonberg suffered an aggravation of a pre-existing shoulder injury. 22Both Mr Love and Ms Schwonberg were required to be transported to hospital by ambulance for treatment. 23Mr Love's injuries to his lower right leg were such that a skin graft was necessary. Mr Love was re-admitted to Nepean Hospital on 20 June 2014 and discharged on 25 June 2014. The procedure was performed under general anaesthetic. 24The documents filed by the applicant in support of its case include a Hospital Discharge Summary for both Mr Love and Ms Schwonberg in respect of their treatment following the incident on 6 June 2014. 25Ms Schwonberg was released from hospital on 6 June 2014 having been diagnosed with a rotator cuff strain. Mr Love was not discharged until 11 June 2014. The Discharge Summary noted that Mr Love had suffered multiple lacerations with a deep puncture wound to the bone. 26The documents provided by the applicant also include a copy of a Provisional Apprehended Personal Violence Order made by the Police on 9 June 2014 for the protection of Mr Love's wife, Christine. The Police made the order in response to a complaint that the respondent had intimidated and threatened Mrs Love. The respondent apparently blamed Mr Love for the death of his dog, Tank. 27The respondent did not contradict any of the allegations concerning the dog attacks. He said that he was aged 38 and was in a complex for over 55s and was hoping that the applicant would transfer him to more suitable social housing accommodation. 28The respondent informed the Tribunal that he suffered from mental illness. The documents which the respondent provided in compliance with the procedure directions made by the Tribunal indicate that he suffers from Dysthymic Disorder with Major Depression Episodes. He also suffers from Panic Disorder. The medical evidence also shows that he has progressive gross kyphoscoliosis. 29He informed the Tribunal that he had lived in the complex since 2000. He stated that the dog episodes this year were just one mistake over a lengthy tenancy term. RELEVANT LEGISLATION 30In its application, the applicant sought orders under s 90 and under s 187(1)(i) of the Residential Tenancies Act. 31Section 90 provides: 90 Serious damage or injury by tenant or other occupant (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) serious damage to the residential premises or any neighbouring property (including any property available for use by the tenant in common with others), or (b) injury to the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent, or an occupier or person on neighbouring property or premises used in common with the tenant. (2) The termination order may specify that the order for possession takes effect immediately. (3) A landlord may make an application under this section without giving the tenant a termination notice. (4) 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. (5) In this section: neighbouring property means: (a) property adjoining or adjacent to the residential premises, or (b) property owned by the landlord in the general locality of the residential premises. 32Section 187(1)(i) of the RTA provides: 187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders: ... (i) a termination order or an order for the possession of premises, ,... 33The Tribunal will also have regard to s 152 of the RTA which provides: 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 a 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 of 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. DETERMINATION 34A consideration of the tenant's conduct with regard to the provisions of s 90 of the RTA is the necessary starting point in determining whether or not grounds have been established by the applicant to enliven the Tribunal's jurisdiction to terminate the tenancy. 35The Tribunal has to be satisfied that the tenant has intentionally or recklessly caused or permitted injury to an occupier or person on neighbouring property or premises used in common with the tenant. Neighbouring property is defined to include property adjoining or adjacent to the residential premises. 36The tenant's dog Tank was involved in four incidents which affected persons who were persons referred to in S 90(1)(b) of the RTA. Apart from possibly the first incident occurring on 2 February 2014 affecting Kala Wati, each of the incidents resulted in an injury to the subjects of the dog attacks. The attacks on Rhonda Stone and Ronald Love have left both of them with physical injuries which required hospitalisation. The attack on Mona Mourad resulted in an anxiety reaction which also required hospitalisation. In her courageous attempt to restrain Tank from continuing the attack on Ronald Love, Kerry Schwonberg suffered a shoulder injury which also required hospitalisation. 37The injuries to Mr Love were by far the most serious, requiring him to have a total of 10 days in hospital - from 6 June 2014 to 11 June 2014 and again from 20 June 2014 to 25 June 2014 when the skin graft operations were performed. 38The conduct of the tenant in keeping the dog was reckless, at least from 18 April 2014. Mrs Stone was attacked on that day and it should have been abundantly clear to the respondent immediately that if he were to retain the dog, he would have to exercise more supervision and control over the animal. 39The Notice to the respondent dated 23 April 2014 requiring the respondent to remove the dog from the complex within 48 hours should have reinforced the seriousness of the situation. The respondent did not comply with the Notice, nor did he take any preventative measures to ensure that the dog did not make any further attacks. 40Although not a pre-requisite to the making of an applicant to the Tribunal for termination of the Residential Tenancy Agreement under s 90 of the RTA, the applicant gave a Notice of Termination to the respondent. This Notice was dated 28 April 2014 and service was deemed to have been effected on 2 May 2014. The Notice requires the respondent to vacate the premises by 16 May 2014. The Notice gave the following particulars of the respondent's breach of the Residential Tenancy Agreement: "On 18 April 2014 at [ ] Whalan you where [sic] the owner of a dog which attached [sic] and seriously mauled a tenant, it also terrified other tenants from [sic] the complex. Housing NSW believes that your dogs are not suitable to be kept on the premises. You have been given 48 hours to remove the dogs but have not done so. For these reasons, you are required by the landlord to give vacant possession on 16th May 2014 being a date not earlier than 14 days after the service of this notice". 41The respondent did not take any action to remove the dogs upon receipt of the Notice of Termination. 42On 15 May 2014, Mona Mourad was attacked by Tank. Despite this further attack, the respondent again took no steps to remove the dog as had been demanded by the applicant, nor did he take any steps to ensure that the dog did not make any further attacks on persons. 43The applicant lodged the application for termination of the Residential Tenancy Agreement on 20 May 2014. A Notice of Conciliation and Hearing (Group List) was forwarded to the respondent by the Tribunal Registry on 22 May 2014. The matter was listed before the Tribunal on 5 June 2014 for conciliation. On that day procedural directions were made and the matter was adjourned to a date to be fixed by the Registrar for hearing. 44Despite the application having been brought before the Tribunal on 5 June 2014, the respondent still had taken no steps to remove the dog or to take any action to ensure that no further attacks on persons occurred. 45The following day, 6 June 2014, Tank made the most serious attack when he severely mauled Mr Love. 46Common sense should have indicated to the respondent that Tank was a dog prone to attacking persons. To take no action to restrain the continual attacks on the respondent's neighbours after the respondent had been aware since at least 18 April 2014 of Tank's propensity to viciousness and despite the fact that the applicant had given him every indication that the dog was causing him to be in breach of the Residential Tenancy Agreement can be classified as nothing less than reckless. 47The respondent took no responsibility whatsoever to ensure that Tank was adequately restrained at any material time. The respondent ignored the requirements of the applicant. The respondent had no regard for the welfare of his neighbours. 48The Tribunal is satisfied that the respondent's failure to restrain or remove Tank from the premises after the attack on Mrs Stone was reckless. The Tribunal is also satisfied that the respondent's recklessness caused or permitted the injuries to Ms Mourad, Mr Love and Ms Schwonberg. 49The Tribunal is unable to find that the attack on Mrs Stone on 18 April 2014 was caused by the respondent's recklessness because there is no evidence that the respondent was made aware of the incident which occurred on or about 2 February 2014 involving Kala Wati. 50Having reached the conclusion that the respondent's conduct after at least 18 April 2014 was reckless, and the recklessness caused or permitted injury to neighbours, it is open to the Tribunal to make a termination order. 51The application was also brought under s 187(1)(i) of the RTA. This section permits the Tribunal to make a termination order or an order for possession of premises. The power is a general power. The provisions of s 90 of the RTA give the Tribunal the specific power to make a termination order if the elements of that section are satisfied. An application under s 90 does not require the service of a termination notice as a pre-requisite to bringing the application. 52The Tribunal has to have regard to the matters mentioned in S 152(1) of the RTA, so far as they are relevant in its determination of an application to terminate a social housing tenancy agreement on the ground of a breach by the tenant. 53Section 152 is, however, relevant only if the application to terminate a social housing agreement is based on the ground of a breach by the tenant. 54The application before the Tribunal is brought under s 90 of the RTA. The elements of S 90 do not require the Tribunal to make any finding about any breach of the Residential Tenancy Agreement by the tenant. 55In Cain v. New South Wales Land and Housing Corporation [2014] NSWCA 28, Basten JA said at 31: It is not necessary to determine whether s 152 operated in the present case: it is expressed to impose an obligation on the Tribunal when considering whether to terminate "a social housing tenancy agreement", "on the ground of a breach by the tenant". The Housing Corporation is a "social housing provider" and the tenancy agreement in the present case was, therefore, a "social housing tenancy agreement", as defined in s 136. However, it is at least arguable that s 152 only applies where the landlord relies upon the conduct of the tenant as constituting a breach of the agreement (under, for example, s 87) as opposed to an application under s 91, which relies on conduct falling within the scope of that section which would be, but is not specified as, a breach of a tenancy agreement. The reason it is not necessary to determine the question is twofold. First, although the Tribunal recorded an agreement between the parties that the tenant "has breached the residential tenancy agreement" and that both advocates had referred to s 152, it is not clear that the Tribunal purported to apply the provisions of s 152. Secondly, if the Tribunal did apply s 152, there is no complaint that it failed to have regard to the mandatory considerations set out in sub-s (1) and, as sub-s (2) makes clear, the section imposes no constraint on the factors at which the Tribunal may look. 56Like the provisions of s 91 of the Act, referred to in the Court of Appeal judgment, s 90 relies on conduct falling within the scope of that section. 57Nevertheless, as the Court of Appeal has put the need to consider the provisions of s 152 in applications for termination based on conduct within the terms of s 91(and, by inference, s 90) as being only "at least arguable", the Tribunal will consider the provisions of s 152 in making its deliberations. 58In its consideration of s 152, the Tribunal finds that there have been serious adverse effects which the tenancy has had on neighbouring residents. Three neighbours have sustained physical injury from or as a consequence of the attacks made by Tank on Mrs Stone and Mr Love. One neighbour has suffered an anxiety reaction as a result of the attack on her. All four neighbours were taken to hospital by ambulance to have their injuries or medical state assessed. The attack on Mr Love was so serious that he was hospitalised for two periods of five days each and a skin graft operation was necessary to repair the lacerations caused by Tank. 59The breach by the respondent of the Residential Tenancy Agreement by failing to comply with the Notice to Remove Dogs from the complex dated 23 April 2014 was a serious breach of Clause 28.2 of the Residential Tenancy Agreement. The complete disregard by the respondent to acknowledge any responsibility to control or supervise Tank from at least 18 April 2014 to the date on which Mr Love was savaged is a factor which the Tribunal takes into account in determining whether a failure to terminate the agreement would continue to subject the neighbouring residents to unacceptable risk. The respondent ignored the Notice to Remove the Dogs and he took no action comply with the requirements imposed on him by Clause 28.2 of the Residential Tenancy Agreement even after he was served with the application now before the Tribunal. The tensions created by the respondent's conduct, especially after the attack on Mr Love, between the respondent and the other tenants are such that continuing this tenancy will subject the neighbours to unacceptable risks. In this context, the Tribunal notes that on 9 June 2014 a Provisional Apprehended Personal Violence Order was issued against the respondent by the Police for the protection of Mrs Christine Love. 60Section 50(3) of the RTA requires a landlord to ensure that the landlord's tenants do not interfere with the reasonable peace, comfort or privacy of other tenants. Thus, the landlord has the responsibility to ensure that the respondent's tenancy does not interfere with the quiet enjoyment of the other tenants. The Tribunal is not satisfied that the quiet enjoyment of the other tenants can be secured unless the respondent's tenancy is terminated. 61The tenancy had been on foot for some 14 years. There were some issues of concern with the respondent's behaviour over the term of the Residential Tenancy until January 2014 but these issues were tolerated, it seems, by the applicant and by the adjoining owner. However, when Tank was brought on to the complex in January 2014, the totality of the respondent's behaviour became so overwhelming that 15 residents signed a letter addressed to the Shadow Minister for Housing, which was forwarded by the Shadow Minister to the Minister for Family and Community Services on 17 February 2014. The Honourable Minister for Family and Community Services without delay forwarded the letter to her department. 62The respondent submitted that the Tribunal should take account of his 14 year tenancy before any serious issues arose by his "one mistake". 63The Tribunal does not accept that the respondent's actions since January 2014 constitute only one mistake. 64The respondent continued to disregard his obligations under the Residential Tenancy Agreement despite having received a Notice to remove the dogs from the complex and despite his awareness of the injuries which his dog Tank continued to inflict. The respondent took no steps to correct his mistakes until the dogs were removed forcibly following the most serious attack on Mr Love on 6 June 2014. By that stage, these proceedings had been on foot in the Tribunal for some two and a half weeks. 65The fact that Tank has been destroyed and Palo is no longer on the premises is insufficient in all the circumstances to afford the respondent an exercise of discretion in his favour to dismiss the application. 66The Tribunal will order that the Residential Tenancy Agreement will be terminated due to the respondent's conduct which has invoked the operation of s 90 of the RTA. 67However, a liberal period will be afforded to the respondent to relocate himself. The applicant is encouraged to provide all reasonable assistance to the respondent to secure alternate accommodation, especially in view of the respondent's medical status concerning both his mental and physical conditions. ORDERS 68The tenancy is terminated immediately in accordance with s 90 (1)(b) of the Residential Tenancy Act 2010. 69The order for possession is suspended until 7 October 2014. 70The respondent shall pay the applicant a daily occupation fee at the rate of $13.92 from the day after the date of these orders to the date possession is given. 71Within 60 days of the date of obtaining possession, the applicant may request the relisting of the application to determine the amount of occupation fee owing. C R Xuereb General Member Civil and Administrative Tribunal of New South Wales 23 July 2014 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: 11 September 2014