NSW Land and Housing Corporation (applicant); Connie Brown (respondent) [2015] NSWCATCD 1

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Land and Housing Corporation (applicant); Connie Brown (respondent) [2015] NSWCATCD 1 Hearing dates: 17 December 2014 Decision date: 07 January 2015 Jurisdiction: Consumer and Commercial Division Before: M Eftimioiu, General Member Decision: The orders made on 11 September 2014 are varied as follows: The order for possession is suspended until 28 February 2015. Catchwords: Rental Arrears Legislation Cited: Residential Tenancies Act 2012 Cases Cited: None Texts Cited: None Category: Principal judgment Parties: NSW Land and Housing Corporation (applicant) Connie Brown (respondent) File Number(s): SH 14/41725 Publication restriction: Nil

reasons for decision 1. On 21 August 2014 the applicant sought orders pursuant to section 89(5) for termination of the residential tenancy agreement. 2. On 11 September 2014 the Tribunal made the following orders: 1. The Tribunal is satisfied in accordance with s 89(5) the tenant has frequently failed to pay rent owing for the residential premises. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 13 October 2014. 4. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of occupation fee owing. 5. The tenant is to pay a daily occupation fee of $18.78 a day from 12 September 2014 until vacant possession of the premises is provided to the landlord by the tenant. 6. The landlord's agent is to advise the tenant in writing by the delivery of a letter to the premises by 6pm on 11 September 2014 of the orders made today. 1. On 22 October the applicant sought a Warrant for Possession as the tenant had not complied with the Tribunal orders and had not given vacant possession of the property. The Warrant was issued by the Tribunal on 23 October 2014. 2. On 3 November the Greater Aboriginal Tenancy Service acting on behalf of the tenant lodged an application to set aside the orders made by the Tribunal on 11 September 2014. 3. On 4 November 2014 the operation of the orders for termination and possession made on 11 September 2014 were stayed until further order of the Tribunal. 4. On 4 December 2014 the Tribunal set aside order 3 (The order for possession is suspended until 13 October 2014) of the orders made on 1 September 2014. The matter was then remitted back to the Tribunal for determination 5. Procedural Directions were made by the Tribunal and the matter next came before the Tribunal on 17 December 2014. 6. The landlord was represented by Ms Crutchfield. The tenant was represented by Ms Simon. Both parties told the Tribunal that they were ready to proceed to hearing. 7. In making a decision in relation to the application, I have considered the material the parties provided in respect of the original application, the further material provided in response to directions made in the current application. 8. I find that the Tribunal has jurisdiction to deal with the application. 9. The background to these applications is that the tenant is a long term tenant of the landlord. She has been a tenant since 2008. 10. In this application, the landlord seeks orders for termination and possession pursuant to section 89(5) of the Act. It is not in dispute that the notice dated 20 August 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(2) and Reg 22 of the Residential Tenancies Regulation 2010. 11. The breach of the tenancy agreement relied on in the notice was a breach of section 88 and 89 of the Act for non-payment of rent. 12. It is not in dispute that the tenant had breached the terms of the residential tenancy agreement by failing to pay rent. And that she did not comply with the termination notice and that she remains living in the premises. 13. Sections 87 and 152 are relevant to the issue to be determined. 14. 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 considering this question, I have taken into account relevant factors in section 87(5). 15. That said, the circumstances leading up to the issuing of the termination notice and what has happened since then are relevant circumstances to consider in determining whether the breach of the agreement justifies termination of the tenancy. 16. The crux of the landlord's claim can be summarised as follows: * The tenant's rental account was last in credit on 19 October 2012. * The tenant has continued to ignore all attempts by the landlord to engage with services and to rectify the rental account. * Numerous warning letters have been sent to the tenant to encourage her to engage with the landlord and specialist support services to rectify the breach. * A Notice of Termination was issued on 26 January 2013 for rental arrears of $1,337.57. * On 18 February 2013 a Specific Performance Order was made by the Tribunal. The landlord sought a relist of those orders on 23 April 2013 as the tenant had failed to comply with the orders of the Tribunal. The application for a relist was withdrawn when the tenant rectified the breach. * The tenant has failed to attend numerous appointments with the landlord in relation to breach for non payment of rent. * A Notice of Termination was issued on 26 August 2013. * On 15 October 2013, a specific performance order was made by the Tribunal to repay rent and water usage. * On 30 December 2013 the landlord sought a relist of the orders as the tenant had not complied. * A further Specific Performance Order was made by the Tribunal on 20 January 2014. The tenant complied with the orders of the Tribunal until 30 June 2014 when she cancelled her Rental Deduction Scheme arrangements. * On 14 July 2014 a referral was made to the Senior Client Service Officer Specialist Aboriginal for assistance, however, the tenant failed to engage. * A further Specific Performance Order was granted by the Tribunal on 24 July 2014 for the repayment of rent and water. * A new Notice of Termination was issued to the tenant on 20 August 2014. * The tenant was contacted and advised on 4 September 2014 to make urgent contact with the landlord regarding her arrears. No contact was made. * Orders were made by the Tribunal on 11 September 2014 for termination and possession. * No rent has been paid by the tenant since 17 October 2014. The tenant is currently 137 days in arrears in rent. No plan has been presented by the tenant as to when and how these arrears will be paid. 1. The tenant's advocate submitted the following: * The tenant has been diagnosed with Depression and Cluster B personality traits. * Cluster B personality traits are defined in the Mental Health Association NSW Personality Disorders as: "consistent irresponsibility ie repeated failure to sustain consistent work behaviour or honour financial obligations." * Contact has been made with NEAMI National, which is a community based recovery and rehabilitation service supporting people living with mental illness and psychiatric disability to improve their health, live independently and pursue a life based on their own strengths, values and goals. Although the referral has been made, NEAMI will not engage with the tenant until they know that her housing is secure. 1. The tenant was not able to put forward any plan for paying the arrears or evidence of her ability to sustain her tenancy in the future. 2. The Tribunal asked the tenant's advocate what steps the tenant has taken to ensure that she engage with services at this time as she has failed to engage in services that have offered to assist her in the past. The tenant undertook to engage. 3. It was suggested by the tenant's advocate that the tenant's mother could seek a Financial Guardianship Order for the tenant in the future. However, no reasonable explanation was provided as to why this Order had not been previously sought, particular since these proceedings have been on foot since August 2014. 4. The seriousness of the situation leading up to the issuing of the termination notice and the subsequent continuing breach of that notice together with the scant evidence of concrete measures taken to ensure that the arrears are paid and that rent is paid in accordance with the tenancy agreement outweighs, in my view, the tenant's undertaking that she will engage with support services in the future. 5. The Tribunal is satisfied that the breach is, in the circumstances of the case, sufficient to justify termination of the agreement. 6. 7. The breach is a significant breach. At the time that the Tribunal terminated the tenancy in September 2014, the tenant was 86 days in arrears of rent. The tenant is currently 137 days in arrears of rent. 8. The tenant has previously breached the terms of the tenancy agreement in relation to rental arrears. The landlord has issued to the tenant two previous termination notices. The tenant has also failed to comply with Specific Performance Orders made by the Tribunal. 9. The tenant has taken no steps to remedy the breach. 10. The landlord has attempted unsuccessful to engage the tenant with specialised support services. 11. The Tribunal has also considered the matters relevant to section 152 of the Act. The tenant has had a poor rental history. The Tribunal accepts the sworn evidence of the landlord that numerous attempts have been made to assist the tenant to engage with specialist services to ensure that she complies with her obligations under the residential tenancy agreement. These attempts made by the landlord which have been unsuccessful, outweigh any undertakings that the tenant now makes that she will engage in the future. The Tribunal accepts that the tenant suffers from a medical condition that makes it difficult for her to honour financial obligations. There are a number of specialist services that have been in place by the landlord to assist the tenant to meet her financial obligations to pay her rent. The tenant has chosen not to engage in those services. 12. The Tribunal finds that the breach is, in the circumstance of the case, sufficient to justify termination of the agreement. 13. Pursuant to section 188 of the Residential Tenancies Act the Tribunal varies the orders made by the Tribunal on 11 September 2014. The order for possession is suspended until 28 February 2015. M Eftimiou General Member Civil and Administrative Tribunal of New South Wales 7 January 2015