Wolford v. NSW Land and Housing Corporation [2014] NSWCATAP 56

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wolford v. NSW Land and Housing Corporation [2014] NSWCATAP 56 Hearing dates: 10 September 2014 Decision date: 30 September 2014 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy PresidentD Patten, Principal Member Decision: 1.Order 3 made on the 26th February 2014 in proceedings SH 13/63220 is set aside and in its place order 3 now is: The order for possession is suspended until 21st October 2014. 2.Otherwise the decision and orders made on the 26th February 2014 are affirmed. 3.Appeal dismissed. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - appeal - denial of opportunity to be heard. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014]NSWTAP 17 Category: Principal judgment Parties: Loretta Wolford (Appellant) File Number(s): AP 14/46308 (AP 14/0031) Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-02-24 00:00:00 Before: G Meadows, Senior Member File Number(s): SH13/63220

reasons for decision

First instance decision 1This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 26 February 2014 as follows: The Residential Tenancy Agreement is terminated in accordance with: ·s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. ·failure to pay rent in accordance with agreement. ·s 92 (a) of the Residential Tenancies Act 2010 as the tenant/occupant has caused or permitted serious or persistent threat or abuse to the landlord/agent/employee/contractor. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 12 March 2014 4. The tenant shall pay the landlord a daily occupation fee at the rate of $33.40 per day from the day after the date of termination, namely 27 February 2014 until the date vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 6. The landlord is to advise the tenant in writing by the delivery of a letter to the premises by 6:00pm on 26 February 2014 of the orders made today. REASONS There is no appearance by the respondent today. No correspondence has been received from the respondent to explain her non-appearance or to request an adjournment. The respondent has also failed to comply with previous directions of the Tribunal to serve any evidence to support her defence of this application. Information on the Tribunal file provided by the applicant suggests the tenant has been advised of the hearing, in addition to the Notice of Hearing sent by the Registry to the tenant's address, and that the tenant has also failed to appear in previous matters. The applicant is represented by Mr Fensom today who appears together with two witnesses, employed by the applicant, who provided written statements previously served in relation to the allegation of breach of s92 of the Residential Tenancies Act 2010. In these circumstances I am satisfied the tenant has received the Notice of Hearing (which has not been returned to sender) and in the interests of fairness and justice the hearing should proceed in the absence of the respondent. This tenancy commenced in mid May 2010. In recent times, the tenant has been unable or unwilling to comply with the terms of her residential tenancy agreement, particularly in relation to payment of rent. The evidence provided by the applicant demonstrates several crucial items. First, the tenant is still significantly in arrears of rent, in excess of $2,000.00, bearing in mind the weekly subsidised rent is $233.75. Second, the tenant has not complied with a previous Tribunal Special Performance Order in relation to reducing the rental arrears. Third, on two occasions the tenant has breached s92 of the Act in abusing, intimidating and harassing staff of the respondent. The evidence includes a letter from the tenant suggesting a different version of these events but I am satisfied the applicant has proved their case on the balance of probabilities in that regard. In any event, the tenant has not appeared today to argue her case. I regard these incidents as serious, involving actual threats and aggressive behaviour towards staff. I also find that the applicant landlord has made proper attempts over a lengthy period to work with the tenant in order to "save" her tenancy, but the tenant has failed to take advantage of these attempts, instead tending to regard them as threats. There is also a letter on the Tribunal file from the tenant, received prior to the previous hearing (which the tenant did not attend) requesting the hearing on that occasion be listed between 10:30 and 11:30AM. This hearing was listed between 9:15AM and 12:15PM but the tenant has not advised the Tribunal that she will or will not attend, as noted above. If the tenant could not appear until 10:30AM that could easily have been arranged by request. I also note that this letter demonstrates the tenant was well aware of how she could contact the Tribunal. In these circumstances, I am satisfied it is appropriate that the tenancy be terminated as ordered above.