NSW Land and Housing Corporation v Terrisa Caldwell [2014] NSWCATCD 206

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Land and Housing Corporation v Terrisa Caldwell [2014] NSWCATCD 206 Hearing dates: 8 September 2014 Decision date: 06 November 2014 Jurisdiction: Consumer and Commercial Division Before: M Eftimiou, General Member Decision: The Residential Tenancy Agreement is terminated in accordance with section 87 of the Residential Tenancies Act 2010.

The Residential Tenancy Agreement is terminated on 31 January 2015 and possession is to be given to the landlord on the date of termination.

The tenant is to pay a daily occupation fee calculated at 1/7th of her weekly rent from 1 February 2015 until the date that possession is given to the landlord. Catchwords: Breach of Tenancy Agreement Legislation Cited: Residential Tenancies Act 2010 Category: Principal judgment Parties: NSW Land and Housing Corporation (applicant) Terrisa Caldwell (respondent) Representation: Mr Ford for the applicant Ms Caldwell for the respondent File Number(s): SH 14/27951 Publication restriction: Unrestricted

judgment 1. This is a rehearing of an application filed on 18 December 2013 in matter SH 13/65529. The orders made on that file were set aside on 29 May 2014. The Deputy President's delegate directed that the matter be reheard as the delegate was satisfied that the tenant may have suffered a substantial injustice as she did not have notice of the hearing and did not have an adequate opportunity to put her case before the Tribunal. 2. The parties entered into a residential tenancy agreement on 10 December 2009. The tenant resides at the premises together with her three children aged 14, 8 and 6 respectively. 3. On 13 October 2013 the landlord issued to the tenant a notice of termination on the basis of breach of the agreement. The landlord alleged that the tenant had breached term 13.1 of the Agreement and in particular that the tenant had used the residential premises or caused or permitted the premises to be used for an illegal purpose. 4. The Termination Notice provided the following particulars: 'On 9/7/13 NSW Police executed a search warrant at the subject premises. During execution of the search warrant police located over $50,000 of alleged stolen property including motor cycles, lawn mowers, power tools and whipper snipers. Those good were located in various parts of the premises. Police also located a prohibited weapon and a firearm. The tenant, Terrisa Caldwell has since been charged with various offences as has the tenants ex boyfriend, Phillip Jut.' 1. By application filed on 18 December 2013 the landlord sought termination and possession pursuant to section 87 of the Residential Tenancies Act 2010. 2. The Tribunal is satisfied and it is not in dispute that the notice dated 13 October 2014 complied with the requirements of section 82 of the Act, that the tenant was given sufficient time to comply with the notice, that it was served in accordance with section 223 of the Act and that the application to the Tribunal was lodged within 30 days of expiry of the notice, as required by section 83 a(2) and reg 22 of the Regulations. 3. The breach of the tenancy agreement relied on in the notice was a breach of clause 13.1 of the Agreement and was set out in the Notice as reading as follows: USE OF THE PREMISES 13 The tenant agrees: 13.1 not to use the residential premises, or cause or permit the premises to be used, for an illegal purpose. 1. The landlord sought to rely on the NSW Police Brief of Evidence. In summary on the 23 August 2013, the tenant was charged with a number of criminal offences after the NSW Police located a number of stolen items at the premises. On 1 September 2014 at the Campbelltown Local Court the tenant was convicted of two offences of; Goods Suspected stolen in/ on premises; and Possess or use of a prohibited weapon without permission. The tenant received a 2 year section 9 Bond for the offences. 2. The tenant denies that she has used or caused or permitted the premises to be used for any illegal purpose. The tenant denies the breach and the tenant denies all knowledge of the illegal use. The tenant stated that she pleaded guilty at the Local Court because she was encouraged by her Barrister to enter into plea negotiations with the prosecution. 3. The tenant provided an Affidavit sworn on 6 May 2014 where she states that she was away from the premises at the time that the Police located the stolen goods. The tenant had given her ex partner, Phillip Jutt, the keys to the premises to look after her dogs whilst she was away. At the time she was unaware that there was any stolen property contained within the premises 4. A letter provided by the tenant after the hearing from her Barrister Ms Carr, states as follows: "I confirm that I appeared on your behalf on Monday 1 September 2014 before Campbelltown Local Court. I understand you have received a Subpoena to give evidence for the Prosecution against Mr Jutt prior to attending court. On Monday I spoke with Sgt Pawsay and he indicated that Mr Jutt was admitting the items were his. It was understood that you were away for the school holidays when Police attended with the warrant and the Mr Jutt had access to the property during that time. I confirm that you advised me you would plead guilty to the offences, largely as you wished to spare your family and friends from having to give evidence about your travel during the relevant time. I then appeared on your sentence proceedings, in your presence, and submitted to the Court that in hindsight you should have made better checks of the property and asked more questions of what Mr Jutt was up to. I confirmed that the cross bow was Mr Jutt's but you accept you should have checked if it could be kept in your home. I confirm His Honour imposed a section 9 good behaviour bond for a period of 2 years in relation to each charge." 1. The Tribunal must find that the tenant has been convicted of two offences. The first being Goods Suspected Stolen in/on premises and Possess or Use a Prohibited Weapon without permission. The tenant has been convicted of these two offences at Campbelltown Local Court on 1 September 2014. 2. The fact sheet on the Police Brief relating to the two offences states: 'Campbelltown Detectives have been investigating an increase in Break and Enter offences which are being committed within the Campbelltown Local Area Command. The majority of these offences are being committed at night time whilst occupants are home and are targeting specific items of property including but not limited to Trail Bikes, mort bike riding gear, electronic items and gardening equipment. On Monday evening 8 July 2013, Campbelltown Detectives received information that there was a large number of stolen items being stored at 5 … Ambervale. (the tenant's property) Checks on the premises revealed that the accused Terrisa CALDWELL resides at the location with her three (3) children. About 8 am on Tuesday 9 July 2013, police attended the property and saw two males pushing two trail bikes out of the rear gate. Both males were wearing helmets, gloves and black hooded jumpers. Police have moved in to apprehend the offenders and at this time the offenders have dropped the two trail bikes and have re-entered the rear yard of the property before one offender jumped neighbouring fences in a southerly direction and the other offender decamped in an unknown direction. About 11am on Tuesday 9 July 2013, Campbelltown Local Court granted search warrant number 146.13 to search the premises. About 11.30am police gained entre through the front door of the premises which had been barricaded from the inside by a wall unit and other items of furniture. No persons were home……..'. 1. The fact sheets then goes on to list 4 pages of stolen goods found on the premises. Goods were found both in the premises and underneath the house. The Police estimated the value of the goods to be in excess of $34,000.00. 2. In the evidence, the NSW Police state that the house could only be described as an "Aladdin's Cave" where a large number of items that were identified as being stolen were located inside and underneath the house. The other items located and seized were with or within immediate vicinity of the stolen items. The tenant was interviewed by the Police in relation to the items found in the premises. The Police Facts state that during the interview the accused made admissions to Police that she remembers seeing some of the items shown to her but not all. The accused also did identify some of the property to be hers. These items identified by the accused were located with or in the immediate vicinity of the stolen items which were seized. The accused made admissions in owning the Cross bow and that it was located in the wall unit in the front lounge room of the house. The accused told police she did not know it was a prohibited weapon. Nine of the one hundred and thirty one items taken by the Police were identified as the property of the tenant and returned to her.