Sara McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sara McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98 Hearing dates: 21 October 2014 Decision date: 04 December 2014 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member J Smith, Senior Member Decision: 1.Leave to appeal be granted in respect of the ground of appeal relating to the impact on the Tenant of the Landlord's policy about future ineligibility for social housing. 2.The appeal be allowed. 3.The orders made by the Tribunal at first instance terminating the tenancy and entitling the Landlord to possession of the premises effective immediately be set aside. 4.The whole of the case be reconsidered by the Tribunal constituted differently from the Tribunal at first instance. Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) - meaning of use of premises for unlawful purposes within s 91(1)(b) of the Residential Tenancies Act 2010 - whether presence or storage of items at premises enough - divergent Tribunal decisions in Marshall and Robertson - findings not open on the evidence - impact of policy about ineligibility for social housing. Legislation Cited: Crimes Act 1900 (NSW) Residential Tenancies Act, 1987 Residential Tenancies Act, 2010 Cases Cited: Abrahams v Wilson [1971] 2 WLR Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Baldwin (Social Housing) [2013] NSWCTTT 281 (19 June 2013) Briginshaw v Briginshaw (1938) 60 CLR 330 Bruce v Cole (1998) 45 NSWLR 163 Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 Director of Housing v TP (Residential Tenancies) [2008] VCAT 1275 (24 June 2008) Director of Housing v TK (Residential Tenancies) [2010] VCAT 1839 (16 November 2010) House v The King (1936) 55 CLR 499 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 NSW Land and Housing Corporation v Marshall (Tenancy) [2007] NSWCTTT 575 (4 October 2007) NSW Land and Housing Corporation v Robertson (Tenancy) [2008] NSWCTTT 1197 (5 August 2008) NSW Land and Housing Corporation v NSW Land and Housing Corporation v Nihangun Ozen (19 March 2014) NSW Land and Housing Corporation v Davis (13 October 2014) R v Hadad (1989) 16 NSWLR 476 R v Rintel (1990) 3 WAR 527 R v Ward (1987) 33A CrimR 60 S Schneiders and Sons Ltd v Abrahams [1925] 1 KB 301 Southern Junction Youth Services Inc v Cottle [1996] SARTT 10 (22 April 1996) Category: Principal judgment Parties: Sara McGuiness (Appellant) NSW Land and Housing Corporation (Respondent) Representation: L Wilson (Appellant) V McWilliam (Respondent) ISTAAS Redfern Legal Centre (Appellant) Housing NSW (Respondent) File Number(s): AP 14/46489 Decision under appeal Citation: [2014] NSWCAT Date of Decision: 2014-07-24 00:00:00 Before: General Member A McMurran File Number(s): SH 13/39360