Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Land and Housing Corporation v Stephen Kline [2014] NSWCATCD 210 Hearing dates: 20 October 2014 Decision date: 30 October 2014 Jurisdiction: Consumer and Commercial Division Before: K Rosser, Senior Member Decision: The application is dismissed. Catchwords: Seriously threatened or abused; discretion Legislation Cited: Residential Tenancies Act NSW 2010 Cases Cited: Cain v NSW Land and Housing Corporation [2014] NSWCA 28 (26 February 2014) NSW Land and Housing Corporation v Evangelos Rouvinetis [2014] NSWCAT Category: Principal judgment Parties: NSW Land and Housing Corporation (applicant) Stephen Kline (respondent) Representation: Solicitors: Mr Cureton for the applicant Legal Aid Commission of NSW for the respondent File Number(s): SH 14/18707 Publication restriction: Unrestricted Judgment Application 1. This is a rehearing of an application seeking termination of a social housing tenancy agreement pursuant to s 92 of the Residential Tenancies Act 2010 [the Act]. The application was lodged on 7 April 2014. It was originally heard and determined in the absence of the tenant on 22 April 2014. On that date, the Tribunal made orders terminating the tenancy agreement immediately and requiring Mr Kline [the tenant] to give vacant possession to NSW Land and Housing Corporation [the landlord] on the date of termination. 2. The tenant appealed the Tribunal's decision. On 24 July 2014, the Appeal Panel allowed the appeal and remitted the proceedings to the Consumer and Commercial Division for rehearing. The Appeal Panel's reasons for decision were published on 12 August 2014. 3. The matter came before the Tribunal for directions on 6 August 2014. Directions were made for the filing and serving of evidence and submissions. There was a failure to comply with these directions, with the landlord filing the bundle of documents on which it intended to rely at the hearing on 15 October 2014, rather than on 22 August 2014 as directed. The tenant filed and served documents on the same date, rather than on 30 September 2014. Contrary to the Tribunal's directions, neither party filed submissions prior to the hearing. 4. The parties nevertheless advised that they were ready to proceed with the hearing. Mr O'Connor appeared for the landlord and Ms McWilliam appeared for the tenant. Evidence and submissions 1. The landlord relied on a bundle of documents originally filed in connection with the tenant's successful appeal, which was provided to the Tribunal on 15 October 2014. The tenant also relied on documents filed in connection with the appeal (specifically the statutory declaration of Jamie Matthews and the statement of Jennifer Mitchell which have been marked as Exhibits R1 and R2 respectively) and Tabs 1-5 of a bundle of documents filed on 15 October 2014. This bundle of documents included reports dated 22 May 2014 and 2 July 2014 prepared by the tenant's treating medical practitioner Dr McKay, a psychological report dated 5 October 2014 prepared by Lorraine Simpson and a psychosocial report dated 10 October 2014 prepared by Danielle Castles. A video recording of the incident that gave rise to the application, taken from a surveillance camera installed by the tenant, was filed by the tenant and viewed during the hearing. 2. Mr O'Connor handed up written submissions at the beginning of the hearing. Ms McWilliam made oral submissions in response to the submissions made on behalf of the landlord. Jurisdiction 1. There is a social housing tenancy agreement between the parties dated 22 January 2001. I am satisfied that the Tribunal has jurisdiction to deal with the application under s 92 of the Act. Background 1. The background to this matter is set out in the evidence and submissions. The tenant is a fifty-year-old man of Aboriginal background. He lives in the premises with a number of dogs. He is functionally illiterate and suffers from a range of serious medical conditions, including uncontrolled diabetes, alcohol abuse and a schizoaffective order based on paranoid delusions, thought disorder, obsessive thoughts, depressed mood and anxiety. According to Dr McKay, the tenant has impaired concentration, insomnia, inability to focus, aggression and poor memory. 2. On 12 November 2013, the tenant signed a "General Consent to Exchange Information and Authority to Act on Client's Behalf". This document authorised WentWest – Close the Gap Team [WentWest] to act on his behalf in matters concerning his tenancy. The authority is stated to be for a period of two years. There is no evidence that WentWest's authority has been revoked in writing in accordance with s 221(3) of the Act. 3. On 7 April 2014, Mr Chris Routley, who is a client service officer employed by Housing NSW (which manages the premises on behalf of the landlord), attended the premises and took photographs of the front yard. He did not enter onto the premises. In the front yard of the premises there were, as at 7 April 2014, a number of motor vehicles and/or motor vehicle parts. Under cross-examination during the hearing, Mr Routley indicated that the purpose of attending the premises and taking photographs was to make a record of the state of the property with a view to taking proceedings against the tenant to enforce the tenant's obligations in respect of property care. Mr Routley conceded that the tenant was not advised that he would be attending the premises on 7 April. He also conceded that WentWest was not notified of the visit. 4. It is not in dispute that when the tenant saw Mr Routley taking photographs, he went into the front yard, took photographs of Mr Routley and said the following words "What are you doing, cunt? You're fucking dead". It is also not in dispute that the tenant threw a number of objects in the direction of Mr Routley, although the video record of the incident shows that Mr Routley was not within range of the surveillance camera at the time these objects were thrown. 5. This incident [the 7 April 2014 incident] is the basis for the application for termination and possession. Issues 1. Section 92 of the Act states: (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: (a) seriously or persistently threatened or abused the landlord, the landlord's agent or any employee or contractor of the landlord or landlord's agent, or caused or permitted any such threats, abuse or conduct, or (b) intentionally engaged, or intentionally caused or permitted another person to engage, in conduct in relation to any such person that would be reasonably likely to cause the person to be intimidated or harassed (whether or not any abusive language or threat has been directed towards the person). (2) The termination order may specify that the order for possession takes effect immediately. (3) A landlord may make an application under this section without giving the tenant a termination notice. (4) 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. 1. At the beginning of the hearing, Mr O'Connor confirmed that the landlord relies on a breach of s 92(1)(a) only. I am satisfied that Mr Routley, as an employee of Housing NSW, is the landlord's agent for the purposes of s 92. It is not in dispute that the Tribunal has discretion not to terminate the tenancy agreement, even if a breach of s 92 is established. Therefore, the issues for the Tribunal to determine are: 2. (a) Did the tenant breach s 92(1)(a) by seriously or persistently threatening or abusing Mr Routley? (b) If so, should the Tribunal exercise its discretion to terminate the tenancy agreement? (c) If the Tribunal does not terminate the tenancy agreement, should any other orders be made? Consideration of the issues 1. I have considered each of the issues in turn. Did the tenant seriously or persistently threaten or abuse Mr Routley? 1. I find that when Mr Routley attended the premises and took photographs on 7 April 2014, the tenant said "What are you doing, cunt?" and "You're fucking dead". 2. I have considered whether the tenant's conduct on 7 April 2014 can be characterised as threatening or abusive. There are two elements to the tenant's conduct on the relevant date, namely his words and his actions. In relation to these words, I accept that the word "cunt" is not necessarily a term of abuse. However, I find that in the context of the 7 April 2014 incident, the tenant's use of the word was intended to be abusive. This is supported by a viewing of the video, which shows that the tenant's advance from the premises towards Mr Routley was aggressive. 3. I find that the words "You're fucking dead" constitute a threat. At the time he directed these words at Mr Routley, the tenant was armed with a camera, which makes the words less objectively threatening than they would have been had the tenant been carrying a weapon. However, in the circumstances of the incident, it is difficult to characterise the words as intended to be anything other than a threat. I therefore find that the tenant both threatened and abused Mr Routley. 4. In relation to the tenant's actions, it is not in dispute that the tenant threw a number of objects from the front yard in Mr Routley's direction. While Mr Routley was out of range of the tenant's video surveillance camera by the time the objects were thrown, I am satisfied that the tenant intended to throw the objects at Mr Routley and/or his car. I am satisfied that the tenant's actions and words, when considered together, constitute threatening and abusive conduct towards Mr Routley. 5. Threats and/or abuse on their own are insufficient to establish the criteria of s 92(1)(a). The threat and/or abuse must be serious or persistent. In relation to whether the tenant persistently threatened or abused Mr Routley, the application is based on the 7 April 2014 incident only. There is no evidence that the tenant has threatened or abused Mr Routley or any other Housing NSW employee on any other occasion. 6. "Persistent" is relevantly defined in the Shorter Oxford Dictionary as "continuous, constantly repeated". I am not satisfied that there was anything "continuous" or "constantly repeated" in the conduct complained of. Accordingly, I am not satisfied that the tenant "persistently" threatened or abused Mr Routley. 7. In relation to whether the tenant seriously threatened or abused Mr Routley, "serious" is relevantly defined in the Shorter Oxford Dictionary as "having, involving, expressing or arising from earnest purpose or thought; of grave or solemn disposition or intention; not light or superficial ….. not jesting, trifling or playful; in earnest". In my view, there was nothing light, superficial, jesting, trifling or playful about the tenant's conduct on 7 April 2014. I am satisfied that the tenant's threat was serious. I also consider that calling a person a "cunt" in the context of such an incident constitutes serious abuse. 8. It is not to the point that the tenant's behaviour could have been even more threatening or abusive. In the course of their employment, client services officers such as Mr Routley have to deal with difficult and/or disturbed tenants on a regular basis and they should be relatively robust in dealing with the behaviour of such tenants. However, this does not mean that it acceptable for them to be subjected to death threats or to be otherwise seriously threatened or abused. 9. The landlord has established that the tenant seriously threatened and abused Mr Routley on 7 April 2014. The criteria of s 92(1)(a) have therefore been established. Should the Tribunal exercise its discretion to terminate the tenancy agreement? 1. When considering an application to terminate a tenancy agreement under s 92 of the Act, the Tribunal has a discretion as to whether to make the order sought. Section 92 does not specify the factors for the Tribunal to consider in exercising that discretion. 2. The Court of Appeal's decision in Cain v NSW Land and Housing Corporation [2014] NSWCA 28 (26 February 2014) left open the question of whether the considerations listed in s 152 of the Act need to be taken into account. Section 152 is arguably only relevant when the Tribunal is considering terminating a social housing tenancy agreement on the basis of a breach of the tenancy agreement by the tenant. 3. In the context of whether the Tribunal should make a specific performance order if it was not satisfied that the tenancy agreement should be terminated, Mr O'Connor submitted that the tenant had breached clause 7.2 of the tenancy agreement by causing a nuisance. However, this was not argued in any detail. In the same context, Mr O'Connor also suggested that the tenant had breached an implied term of the tenancy agreement. This point was also not taken further. 4. Overall, I am not satisfied that the Tribunal is required to consider the factors listed in s 152 when determining an application under s 92 of the Act, unless the application for termination and possession is also based on a breach of the tenancy agreement by the tenant. 5. Therefore, as the application for termination and possession is not based on breach of the tenancy agreement by the tenant, I have not specifically considered the factors listed in s 152. However, any s 152 factors relevant to this application have been covered in the submissions made by Mr O'Connor and Ms McWilliam and have been considered in that context. Specifically these factors are the seriousness of the tenant's behaviour, the risk of the behaviour being repeated, the effect of the behaviour on Mr Routley and the history of the tenancy. Submissions made on behalf of the landlord 1. Mr O'Connor submitted that the Tribunal should exercise its discretion and end the tenancy agreement because of: * The seriousness of the tenant's behaviour. * The history of the tenancy which had involved other applications to the Tribunal mainly in relation to a failure to pay rent. * The seriousness of the tenant's medical conditions which make him unstable and aggressive and which mean that he should live in a property where he can be more closely managed by health care professionals. * The fact that the tenancy requires constant and repeated intervention. * The effect of the 7 April 2014 incident on Mr Routley. Submissions made on behalf of the tenant 1. The factors raised by Ms McWilliam as warranting an exercise of the Tribunal's discretion in favour of not ending the tenancy agreement are: * The fact that the tenant was not on notice of an inspection on 7 April 2014. * The fact that Mr Routley should only have been accessing the premises in accordance with clause 8 of the tenancy agreement. * The fact that Mr Routley took photographs of the premises without identifying himself and left the premises as soon as the tenant emerged from the house. * The fact that the objects thrown by the tenant were objects that he picked up from the ground and that he had not done this before. * The lack of further incidents since April 2014. * The tenant's obvious mental illness which was known to the landlord and which feeds into paranoia and has an impact on how he will react. * The length of the tenancy. * The real risk that the tenant will be homeless if the tenancy agreement is terminated, because he has no family and friends to turn to for support. * The difficulty the tenant will face in rehousing his pets. 1. Ms McWilliam also submitted that there is no evidence that the tenant is unable to live in the premises. Consideration of the submissions Landlord's submissions 1. Dealing with Mr O'Connor's submissions first, I have found that the tenant seriously abused and threatened Mr Routley. However, I am not satisfied that the tenant's conduct of itself warrants termination of the tenancy. Further, although I accept that, as set out in Mr Routley's affidavit in the proceedings, the tenant's behaviour frightened him and that he was shaken and unsteady for several hours afterwards, there is no evidence that the incident had any long-term adverse effect on Mr Routley. 2. In addition, although I am satisfied that the tenant's medical conditions are serious and that they lead to paranoia and aggressive behaviour if the tenant feels under threat, there is no evidence that the 7 April 2014 incident is part of a pattern of behaviour. In particular, there is no evidence that similar incidents have occurred either before or since that time. 3. In relation to Mr O'Connor's submission that the tenant's medical conditions make it inappropriate for him to live in the premises, I am not satisfied that the medical evidence justifies such a conclusion. The tenant's treating medical practitioner Dr McKay expresses the opinion that "the risks of moving him are far greater [than the tenant remaining in the premises] and could have dire consequences" and that "moving Steven away from his familiar surroundings, away from a medical team and Aboriginal support workers with whom he is engaging on a regular basis, and the possibility of moving him somewhere where he may be able to take his precious animals, will put him at significant risk of physical and psychological harm". 4. I am satisfied that weight should be placed on Dr McKay's opinion about the probable effect of eviction on the tenant, given her knowledge of the tenant and her role in treating his medical conditions. Dr McKay's opinion is echoed by Ms Simpson who states in her report: "Were Mr Kline to lose his home due to termination of his tenancy, the consequences would be extreme. Mr Kline's psychological status would decline and his paranoia and defensiveness worsen, leading either to complete social and psychological withdrawal or otherwise aggression. His home represents a constant in his life, which he can currently live in a fairly reclusive way but still maintain certain elements of mainstream life". Neither Dr McKay nor Ms Simpson suggest that the tenant's medical conditions require him to live in supervised accommodation. 5. As far as the history of the tenancy is concerned, I accept that there have been previous applications to the Tribunal in relation to matters such as rent arrears. I also accept that aspects of the tenancy have required and will continue to require intervention. However, the tenancy is a long standing one and by virtue of the authority given to WentWest, I am satisfied that procedures are in place to deal with difficulties that arise, including property inspections and possible future applications to the Tribunal. 6. It is clear that this tenancy is not easy for the landlord to manage. However, that is true of many other social housing tenancies. I am not satisfied that the history of the tenancy with regards to past applications to the Tribunal or the possible need for future intervention, either by itself or in conjunction with other factors put forward on behalf of the landlord, is a significant factor warranting termination of the tenancy agreement. Tenant's submissions 1. In relation to Ms McWilliam's submissions, I find that Mr Routley's attendance at the premises on 7 April 2014 was for the purpose of conducting an inspection of the exterior of the premises. This is supported by Mr Routley's evidence that he wanted to make a record of the state of the property with a view to commencing proceedings. In my view, the fact that Mr Routley did not enter the premises but instead took photographs from outside does not make his attendance at the property something other than an inspection. I consider that a landlord or a landlord's representative taking photographs of the premises for the purpose articulated by Mr Routley during the hearing otherwise than in the context of a property inspection or with the tenant's consent may constitute a breach of the tenant's reasonable peace, comfort and privacy in using the premises. I make no finding that this is what occurred on 7 April 2014, as there is no application from the tenant before the Tribunal and a finding of breach by the landlord is not required for the determination of this application. 2. Landlords are empowered to inspect the premises up to four times in any period of twelve months. Their right to do so is set out in the tenancy agreement (at clause 8.4 of the agreement with the tenant) and in s 55(2)(a) of the Act. However, pursuant to this subsection a landlord must give the tenant seven days notice of an inspection being carried out. I find that the tenant knew that Mr Routley was from Housing NSW on the basis of the transcript of a television conversation between the tenant and another Housing NSW officer that is contained in the landlord's documents. However, Mr Routley's evidence confirmed that the tenant was not given notice that he would attend the premises on 7 April 2014, either directly or through WentWest. In these circumstances, I consider that Mr Routley's presence at the premises on 7 April 2014 was not authorised by the tenancy agreement or by the Act. 3. This does not in any way excuse the tenant's behaviour. However, had notice been given of a property inspection to be conducted on 7 April to WentWest as the tenant's authorised agent, it is possible that the incident could have been avoided altogether. In relation to this, I am satisfied that at all relevant times WentWest remained the tenant's agent, the authorisation not having been terminated in writing accordance with s 221 of the Act. I am satisfied that Mr Routley's attendance at the premises without notice to the tenant via his agent WentWest is a factor warranting the exercise of the discretion in the tenant's favour. 4. Of the other discretionary factors argued by Ms McWilliam, the strongest is the tenant's very serious medical conditions. I accept the uncontested opinions of Dr McKay and Ms Simpson concerning the tenant's health status. On the basis of their reports, as well as the report prepared by Ms Castles, I am satisfied that eviction from the premises would have extremely adverse consequences for the tenant's physical and psychological health. I am satisfied that the tenant's medical conditions and the uncontested evidence in relation to the impact eviction would have on those conditions is a strong factor supporting the exercise of the Tribunal's discretion in favour of the tenant, particularly when the tenant's social isolation and lack of family support is taken into account. 5. The other strong factor in the tenant's favour is the lack of evidence of any similar incidents either before or since 7 April 2014, notwithstanding other problems associated with the tenancy. Less strong factors in the tenant's favour are the length of the tenancy and the difficulty he would have finding alternative premises that would accommodate his pet dogs. A factor that does not weigh in the tenant's favour in the exercise of the discretion is that the objects he threw up were picked up from the ground. At most, this indicates that that aspect of the tenant's conduct during the 7 April 2014 incident was impulsive rather than pre-meditated. 6. Overall, I am satisfied that in the circumstances of this case, the weight of the discretionary factors is slightly in the tenant's favour. While acknowledging that the tenancy is difficult to manage, the tenant's health situation and the lack of repetition of the incident in particular lead me to conclude that the tenant should be given an opportunity to save his tenancy. I have therefore determined not to terminate the tenancy agreement. Should any other orders be made? 1. The only order sought in the application is an order for termination and possession under s 92 of the Act. At the hearing, Mr O'Connor submitted that if the Tribunal were not minded to terminate the tenancy, a specific performance order should be made. That application was withdrawn during the hearing, but re-agitated at the end of the hearing. For the sake of completeness, I have therefore addressed the issue. 2. Pursuant to s 187(1) of the Act, the Tribunal may make an order an order that restrains any action in breach of a residential tenancy agreement or an order that requires an action in performance of a residential tenancy agreement. It is not clear that the tenant's actions in this case, while they fulfil the criteria in s 92(1)(a), amount to a breach of a term of the residential tenancy agreement. On the basis of the limited submissions made during the hearing, I am not satisfied that the tenant caused a nuisance in breach of clause 7.2. Further, while it is arguable that not threatening or abusing a landlord or a landlord's representative is an implied term of a residential tenancy agreement, the issue was not argued in sufficient depth for me to make a finding in that regard. 3. Notwithstanding the Tribunal's decision in NSW Land and Housing Corporation v Evangelos Rouvinetis [2014] NSWCAT, which Mr O'Connor cited during in support of the proposition that the Tribunal could make a specific performance order in an application under s 92, I am not satisfied in the circumstances of this case that it is appropriate to make an order under s 187(1). This is because such an order was not sought in the application, because there was no application to amend the application and because I am not satisfied that a breach of the tenancy agreement has been established. 4. In my view, there is no prejudice to the landlord in not making a specific performance order. If the tenant's behaviour is repeated or if he engages in similar behaviour in the future, the landlord will be able to bring a further application under s 92 of the Act. If that occurs, the 7 April 2014 incident and the findings made in this matter would presumably be relevant to the exercise of the Tribunal's discretion. Conclusion 1. Although I have found that the tenant seriously threatened and abused Mr Routley, I am satisfied that the Tribunal's discretion should be exercised in his favour. I therefore decline to terminate the tenancy agreement. As I am not satisfied that a specific performance order should be made, I have dismissed the application. K Rosser Senior Member Civil and Administrative Tribunal of New South Wales 30 October 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