Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Land and Housing Corporation v Rebecca Greig [2014] NSWCATCD 151 Hearing dates: 8 July 2014 Decision date: 07 August 2014 Before: M McCue, General Member Decision: 1.The Tribunal makes an order pursuant to s 187 (1) (b) for the specific performance of the terms of the residential tenancy agreement: more specifically, clause 7, that the tenant shall not use the premises for illegal purposes. 2.The application for termination of the lease pursuant to s 91 (1) (a) Residential Tenancies Act 2010 is dismissed. Catchwords: Termination of lease - s 91(1)(a) Residential Tenancies Act 2010 Legislation Cited: Part 5, Schedule 4, Civil and Administration Act, 2013 Residential Tenancies Act 2010 Cases Cited: Cain v NSW Land v Housing Corporation [2014] NSWCA 28 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 [June 1938] Texts Cited: Nil Category: Principal judgment Parties: NSW Land and Housing Corporation (applicant) File Number(s): SH 14/06030 Publication restriction: Nil reasons for decision Application 1The applicant seeks an order for termination of a residential tenancy agreement pursuant to s 91(1)(a) Residential Tenancies Act 2010 ["RT Act"]. 2The section comes within the general division of the RT Act being Part 5 Division 2 relating to the termination of residential tenancy agreements. 3On application by a landlord, the Tribunal may 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: 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 purpose of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985. 4S 91(4) provides that a landlord may make an application under this section without giving the tenant a termination notice. This is in contrast to the landlord's obligations to serve a termination notice in other sections of Part 5. 5The relevant provisions for the application are set out at s 91(1)(a). The section is set out fully below: 91 Use of premises for illegal purposes (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. Appearances 6Mr O'Connor of counsel appeared for the applicant instructed by Ms Hook. 7Mr Freer appeared for the respondent, instructed by an officer from Legal Aid. Jurisdiction 8On the establishment date, 1 January 2014, the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 amended certain statutes which previously conferred jurisdiction on now "abolished" tribunals. NCAT has jurisdiction to hear and determine relevant matters in place of the "abolished" tribunals. 9From 1 January 2014, the Residential Tenancies Act 2010 ["RT Act"] was amended. The definition of "Tribunal" was changed in that Act from the CTTT to NCAT - see cl 4.34 item [2] in Schedule 4 to the Civil and Administrative Legislation (Repeal and Amendment) Act. 10As a result of the amendments, from 1 January 2014, I am satisfied that NCAT has jurisdiction to hear the application made pursuant to the provisions of the RT Act. The Evidence 11Mr O'Connor of counsel called no oral evidence but relied upon some submissions and tendered a bundle of documents numbered page 1 through to 24 set out below. Applicant's Exhibits - marked "A" indexed as follows: * the residential tenancy agreement Part 1 and 2; * the NSW Civil and Administration Tribunal application form; * e-mail from NSW Police confirming outcome of execution of search warrant of 16 Minneapolis Crescent, Maroubra including charge and outcome of court attendance; * NSW Police facts sheet; * current household income; * payment rates for Commonwealth rent assistance and private rental listings within affordability (the tenant). 12Mr Freer called Ms Greig to give evidence and tendered a bundle of documents marked Exhibit "1" that included: * the pre-sentence report; * the local court documents; * letter from Corrective Services; * community service work instructions; * medical report for Rebecca Greig; * supporting letters from her general practitioner, the manager of her current workplace; * a neighbour; * her paternal grandparent and Ms Greig's sister; * supporting documents for Ms Greig's children, Jesse and Alyssa. 13S 91(1) has been the subject of recent judicial review in Cain v NSW Land and Housing Corporation [2014] NSWCA 28. As a matter of construction, s 91(1), the word may is given its ordinary meaning pursuant to s 9 of the Interpretation Act 1987 (NSW). It is plain that may where used in precisely the same context as in s 91(5) bears its ordinary meaning connoting a discretion. There is nothing to discern any contrary intention from the text of the section. Cain v NSW Land and Housing Corporation. 14If there is a finding to satisfy the prescriptive provisions of s 91(1), then the Tribunal may have regard to more general considerations in the exercise of its discretion whether to make a termination order pursuant to that provision. 15The NSW Court of Appeal said that the application for the termination order relies on conduct that is fully within the scope of s 91(1); the provisions of s 152 of the RT Act imposing an obligation on the tribunal when considering whether to terminate a social housing tenancy agreement "on the ground of a breach" by the tenant do not apply. However, at paragraph 39 Basten J says: .... there is no basis for concluding that the Tribunal must disregard future events unless satisfied on the balance of probabilities that they will occur. ..... Assuming that the tribunal had power to decline to make an order for termination, there is no basis for reading the statute as excluding either the personal history of the respondent, the nature of the offending, the sentencing of the District Court for the offence, the possibility of repetition in the future or the likely effect of the termination order on the tenant's health and medical treatment. 16If I am to exercise my discretion some comfort is had from paragraph 39 of Cain v NSW Land and Housing Corporation: certain matters may be taken into consideration in the exercise of a discretion pursuant to s 91(1) if there is a finding that the grounds of the breach set out therein are satisfied. There is no basis for concluding that the Tribunal must disregard future events unless satisfied on the balance of probability that they will occur. Cain v NSW Land and Housing Corporation Background Facts 17Mrs Greig entered into a residential tenancy agreement with the applicant on 29 October 2002. 18Clause 7 under the heading of Use of the Premises, provides that: The tenant agrees at 7.1 not to use the residential premises, or cause or permit the premises to be used for any illegal purposes. 19The NSW Police facts sheet sets out that Rebecca Louise Greig, the offender, of 16 Minneapolis Crescent, Maroubra supplied a prohibited drug pursuant to the Drug Misuse and Trafficking Act 1985, s 25(1). 20There are some additional charges relating to assault offences. 21During the months July 2013 through to September 2013, the police lawfully intercepted the telephone services of a young person, Galea. During that period there were three intercepts of the telephone calls made between Ms Greig and the young person. The young person was identified as the respondent's son. 2216 Minneapolis Crescent, Maroubra ("the residential premises") was the subject of a search on 20 September 2013. Amounts of cannabis were located throughout the premises totalling 15.8 grams. 23The facts sheet further says that the cannabis was found in locations described by the accused in lawfully intercepted phone calls between her and the young person, Galea. 24In submissions, the respondent's counsel conceded that the elements of the offence pursuant to s 91(1) (a) were satisfied. For the purpose of exercising my discretion, I should consider that the amount of cannabis found on the premises to enliven the provision was limited to 15.8 grams. 25Ms Greig pleaded guilty to the charge of a supply of a prohibited drug at the Local Court and entered into a community service order pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999. Ms Greig was directed to report in person to the Probation and Parole Service at the city office within seven (7) days of the date of a notice for the purpose of enabling the administration of the order. 26There is no evidence that there has been any departure from the order made. 27The respondent's counsel submitted that as a benchmark of the seriousness of the offence that Schedule 1 of the Drug Misuse and Trafficking Act 1985 should provide me with certain guidance to support the contention that the amount located following the search of the premises [15.8 grams] is a "small quantity". 28Accordingly, I am satisfied that there has been a breach of the use of the premises for illegal purposes that satisfies s 91(1)(a) of the RT Act: the tenant has intentionally caused or permitted the use of the residential premises for the supply of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985. 29Having made that finding, it is now a matter for me to consider whether the nature of the offence is such to warrant the making of a termination order under the section. The respondent's counsel urged me to apply the test in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 [June 1938] to persuade me, on the balance of probabilities, that the quantum of the substance should be limited to the amount found by the police during the search of the premises on 20 September 2013. 30In contrast, the applicant's counsel urged me to take into account the conversation of 21 July 2013, wherein there is some reference to "two ounces" and this should persuade me that the reference to that quantity would accord with a more serious offence. I will come back to this particular matter after giving an overview of the respondent's evidence. The evidence 31Ms Greig was called to give evidence in the matter. I must say that I was very impressed with the manner in which she gave her evidence and the credibility of her testimony. 32Ms Greig has been a long term public housing tenant and has occupied the three bedroom apartment at Maroubra with her children, Jesse and Alyssa, aged 15 and 16 years, since 2002. Ms Greig currently pays $240.00 per week. 33Ms Greig separated from her husband when the children were young. Her affidavit evidence is that her husband was aggressive and abusive. She was given sole custody of her children. 34Jesse, her son, has been somewhat troublesome over the years. She is hopeful that with the intervention of support services provided by Juvenile Justice and Shack Youth Service, Jesse will be able to commence an apprenticeship with a local floor sanding company. 35Alyssa is making good progress with a current internship and attends the Randwick TAFE part time. 36Ms Greig is currently employed locally for approximately 20 hours per week and mainly does the late shift. Usually, she is called in at short notice for relief work though the nature of her engagement with her employer is on a casual basis. 37Although Ms Greig lived in private accommodation prior to becoming a tenant of the applicant, she and her children have been settled at the premises in Minneapolis Crescent, Maroubra, since 2002. 38Her evidence is that she is familiar with the Matraville/Maroubra area having spent a greater part of her life living in the region. 39Ms Greig has no car and relies upon public transport, as do her children. It was put to her in cross examination that she could just as easily travel outside the Maroubra area by public transport though she indicated that the bus service did not necessarily lend itself to cross suburban travel in the east. Ms Greig said that she cannot afford to have a car. 40It was put to Ms Greig that with her current earnings, as well as the availability of rental assistance from the Australian Government whilst her children remained dependant, may well provide her with some advantage to access the private rental market in the surrounding suburbs of Hillsdale or Randwick. 41There was some suggestion that perhaps Kingsford or Kensington could also provide her and the family with private rental accommodation. 42Ms Greig was resistant to that proposal. Clearly, there is no evidence that Ms Greig does not come within the economic parameters entitling her to remain a tenant of the applicant; she is in a better position with a public landlord rather than a private landlord. As I understand the evidence, the respondent's obligation to pay rent to a public landlord varies dependent upon the assessment of household income. If her financial circumstances changed, then Ms Greig would be in a position to have the amount of rent she currently pays, reviewed. In contrast, a private landlord is entitled to the benefit of the bargain notwithstanding any change in personal financial circumstances. 43Ms Greig's current employment situation is subject to her being available at short notice for relief work. She receives nearly $ 500.00 per week for 20 hours of work. Ms Greig's current employer provided evidence that she was a hard working, valuable employee. She has always been able to help out and cover a shift, being on call and living so close (to her current employment). If she were to lose her stable rental property so close to her employment, her employer says: I would have no choice regrettably but to terminate her employment. 44The Shack Youth Services' report dated 19 March 2014 concludes that it can be argued that the impact of eviction and/or resettlement poses a significant risk to the emotional and psychological wellbeing of young Jesse. The Service is located close by the Minneapolis Crescent premises. 45Ms Greig gave evidence that she has suffered (and continues to suffer) from some mental health issues over a period of time and has experienced symptoms of depression and anxiety. 46She commenced using cannabis after her father's death in 2012. Her evidence was that she has ceased using the substance. 47Her social worker, Jennifer Brown, in her report of 9 April 2014 states that Ms Greig has strong links to the Maroubra area. She has been raised in the district and has friends, work and mental health support for herself and her son in the local area. Her daughter has access to a traineeship and her son has been offered an apprenticeship. Should Ms Greig have to locate, it is probable that she would have to resign from work and her children will have to relinquish their traineeships and apprenticeships as they will no longer be accessible. 48Ms Brown further says that Ms Greig's mental health is likely to deteriorate in the event of her tenancy being terminated. 49Ms Brown suggested that the family would face homelessness, unemployment and dislocation if evicted. Ms Brown does not believe that Ms Greig would be able to sustain rental costs in the private rental market should she be evicted given her particular vulnerabilities. 50Given the evidence, I share that particular view. The charges 51Just in relation to the charges and Ms Greig's plea of guilty, the evidence is that she was represented by Legal Aid at the time. The respondent's representative did not wish to necessarily go behind the facts sheet setting out the nature of the offence. However, Ms Greig in her evidence remarked that only part of the conversation between her and Jesse is set out in the facts sheet. Ms Greig remarked that Jesse often rang her at a most inopportune moment when she was either at work or while she was out shopping. 52There were significant parts of the conversation (absent from the facts sheet) that did not disclose Ms Greig's attempts to placate Jesse during his fairly unpredictable moods. She was somewhat concerned that if she did not go along with the conversations, he would damage the residential premises in her absence. I accept that this was probably more the case in relation to the first intercepted phone call on 21 July 2013. 53As to the seriousness of the offence, the applicant's counsel urged me to accept his submission that the proposed supply of "two ounces" of a substance would equate to 56 or so grams. In contrast, Mr Freer urged me to limit any findings regarding the seriousness of the offence to the quantity of cannabis found upon the search of the premises on 20 September 2013, being 15.8 grams as set out in the facts sheet. Mr Freer asked me to apply Briginshaw v Briginshaw. In doing so, I am not persuaded to the reasonable satisfaction of the Tribunal that a more serious offence is made out and I limit any findings to the small amount of cannabis located at the house during the search on 20 September 2013. The orders 54Counsel for the applicant submits that, in the alternative, if I am not persuaded to make the termination order, I should be persuaded to make an order for an action in performance of a residential tenancy agreement. 55In the circumstances, I exercise my discretion not to terminate the residential tenancy agreement founded upon a breach of s 91(1)(a) RT Act. 56Taking into account matters set out above, I make the following orders: (1)An order for the specific performance of a residential tenancy agreement pursuant to s 187(1)(b) of the Residential Tenancy Act that the tenant shall perform her obligations under the terms of the residential tenancy agreement and, more specifically, pursuant to cl.7 shall not use the premises for illegal purposes. (2)The application for termination of the residential tenancy agreement is dismissed. M McCue General Member Civil and Administrative Tribunal of New South Wales 7 August 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: 14 October 2014