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. GOODS SUSPECTED STOLEN IN ON PREMISES 1. The Tribunal is satisfied on the evidence before it that the tenant has used or caused or permitted the premises to be used for an illegal purpose. The tenant has denied the breach. However, the Tribunal is satisfied on the evidence before it that: (1) The tenant has been convicted of an offence of Goods Suspected Stolen in/on Premises. (2) The tenant made admissions to the police that she remembers seeing some of the items shown to her, but not all. (3) The tenants own goods were located in the immediate vicinity of the stolen items found by the Police. POSSESS OR USE A PROHBITED WEAPON WITHOUT PERMISSION 1. The tenant has been charged and convicted of the offence of Possess or Use a Prohibited Weapon Without Permission. The tenant has given conflicting evidence in relation to this matter. In the tenant's Affidavit to the Tribunal the tenant stated that the cross bow belonged to her. Her grandfather as a war hero and she has been collecting war memorabilia over the years, including the cross bow. She was not aware that the weapon was illegal. Ms Carr's letter states that she confirmed to the Court that the cross bow was Mr Jutt's, but that the tenant accepts she should have checked if it could be kept in her home. 2. The Tribunal is satisfied on balance that the tenant has used or caused or permitted the premises to be used for an illegal purpose. The tenant has denied the breach. However the Tribunal is satisfied that: 1. The tenant has been convicted of an offence of Possess or Use a Prohibited Weapon without Permission. 2. The tenant has sworn an Affidavit stating that the weapon belonged to her and was kept in her home. 1. The Tribunal finds on the evidence before it that the breach has been established. The Tribunal is satisfied that the tenant has used or caused or permitted the premises to be used for an illegal purpose. 2. The central issue in respect of section 87 is whether the breach is, in the circumstances of the case, sufficient to justify termination of the agreement (see section 87(4)(b)). In addition section 152 sets out the matters that the Tribunal is to have regard to in termination of a social housing tenancy agreement. The issue for the Tribunal now to determine is whether the beach is, in the circumstances of the case, sufficient to justify termination of the agreement. Nature of the Breach? 1. The breach is significant. The tenant has been convicted of two criminal offences that relate to use the premises for an illegal purpose. The first offence is one of Goods Suspected of Stolen on the Premises. The Police Facts describe the premises as an "Aladdin's Cave", where a large number of items were found in and under the house. The Tribunal accepts the tenant's evidence that Mr Jutt has taken responsibility for the stolen goods. The Tribunal is satisfied that the tenant was aware or should have been aware of the nature of the stolen goods and that she allowed the premises to be used for an illegal purpose. The tenant has given contradictory evidence in relation to whether the cross bow belongs to her. The tenant has been convicted of the two offences and this is a serious and significant breach. The totally of the charges and the convictions satisfies the Tribunal that the breach is significant. Any previous breaches? 1. There is no evidence before the Tribunal of any previous breaches. Any steps taken by the tenant to remedy the breach? 1. The tenant has given evidence that she does not allow Mr Jutt to attend the premises. The landlord submitted that the tenant was charged with the offences on 23 August 2013, and did not plead guilty until 1 September 2014. Any steps taken by the landlord about the breach? 1. The landlord has issued to the tenant a termination notice. Any serious adverse effects the tenancy has had on neighbouring residents or other persons? 1. The Tribunal is satisfied that the goods that were stolen and found on the premises were goods that were stolen from neighbouring residents and other persons. The Police Brief indicates that the goods that were found on the premises were as a result of recent aggravated break and enter offences which have occurred within the Campbelltown Local Area Command in the last few months. The Tribunal is satisfied that by causing or permitting the goods to be stored in the premises this has had a serious adverse effect on neighbouring residents and or other persons. 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 person or property to unreasonable risk? 1. The tenant has given evidence that she no longer allows Mr Jutt to attend the premises. Arrangements are made through his mother for him to see the children. The landlord's responsibility to its other tenants? 1. There are no submissions made by the landlord in respect to this issue. Whether the tenant, wilfully or otherwise is or has been in breach of an order of the Tribunal? 1. There is no evidence that the tenant has been in breach of an order of the Tribunal. The history of the tenancy concerned, including any prior tenancy of the tenant arsing under a social housing tenancy agreement? 1. There is nothing adverse known to the Tribunal regarding the prior history of this tenancy or any other social housing tenancy. 2. The Tribunal has considered the evidence provided by the tenant. The Tribunal is satisfied that the tenant has resided in the premises since 2009. She has three children aged 14, 8 and 6. The tenant has given evidence that she would find it difficult in the private rental market as a single parent. The tenant has provided evidence that she receives a weekly income of $795.24. 3. In the Tribunal's view the seriousness of the breach outweighs the tenant's otherwise good record as a tenant and her personal circumstances, including her children's established relationships in the area, her own personal circumstances and the submissions made in relation to her financial circumstances. The tenant has continued to deny any knowledge of the serious breach, despite having pleaded guilty to two offences, the large amount of stolen items found on the premises and the fact that she made some admissions to the Police that she had seen the stolen goods on the property. The Tribunal is satisfied that the tenant has shown little remorse in relation to this matter. The Tribunal has considered the impact that the termination may have on the children of the tenant. A number of statements have been provided to indicate that the children are involved in community sporting events in the area and that the family has established strong relationships within the community. This must be weighted up against the seriousness of the breach. 4. The Tribunal is satisfied that the breach has had serious adverse effects on neighbouring residents or other persons. The stolen goods that were found on the premises were stolen during aggravated break and enters in the Campbelltown Locality. The tenant has told the Tribunal that she no longer allows Mr Jutt to attend the premises; however, there is no evidence to suggest that this arrangement will continue in the future. 5. The Tribunal finds on balance that the seriousness of the breach, the lack of remorse shown by the tenant in continuing to deny knowledge of the stolen items, even after having pleaded guilty to two offences, the effect that the crimes have had on neighbouring tenants and other persons justify termination of the tenancy. PROCEDURAL MATTERS 1. At the commencement of the hearing the tenant sought an adjournment of the proceedings. The tenant stated that she needed to obtain legal advice in relation to the dispute. She told the Tribunal that "she had other things going on" and had not had time to seek legal assistance in relation to the matter. The tenant told the Tribunal that she had been concerned about the criminal matter, she has three children and she was stressed and unable to seek legal assistance. The applicant did not consent to the matter being adjourned. The Tribunal considered the adjournment request and refused it. The Tribunal found that the matter has been on foot since October 2013. The brief of evidence was served upon the tenant on 29 July 2014. The tenant had sought the assistance of the South West Sydney Tenants Advice and Advocacy Service who gave her tenancy advice and assistance in preparing her matter. South West Sydney Tenants Advice and Advocacy advised that they would make representations on behalf of the tenant; however, they were not seeking leave to represent the tenant. The Tenant's Advice Service assisted the tenant in the preparation and submission of her evidence. In all of the circumstances the Tribunal found that the matter has been ongoing since October 2013. The tenant has had ample time to obtain legal assistance and representation and the application for an adjournment was refused. Section 113 1. The Tribunal notes that clause 13.1 of the tenant's agreement relates to Alterations and Additions to the Premises and the correct number of the clause that relates to illegal use of the premises is Clause 7. Section 113 of the Act allows the Tribunal to make a termination order even though there is a defect in the relevant termination notice if the Tribunal thinks it appropriate to do so in the circumstances of the case and it is satisfied that person to whom the notice was given has not suffered any disadvantage because of the defect in the notice or service or that any disadvantage has been overcome by the order and any associated order. The Tribunal is satisfied that the termination order should be made notwithstanding the defect in the notice. The Tribunal determines that it is appropriate to do so in the circumstances. The Tribunal is satisfied that the tenant has not suffered any disadvantage because of the defect in the notice. The particulars of the breach were clearly set out in the notice and the fact that the clause number of the agreement was incorrect, did not affect the substance of the notice. ORDER 1. The tenancy agreement is terminated pursuant to section 87 of the Residential Tenancy Act for breach of the agreement. The date for termination and possession is 31 January 2015. 2. The tenant is to pay a daily occupation fee calculated at 1/7th of her weekly subsidised rent from 1 February 2015 until the date that possession is given to the landlord. M Eftimiou General Member Civil and Administrative Tribunal of New South Wales 6 November 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: 05 February 2015