Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Land and Housing Corporation v Keshishian [2015] NSWCATCD 69 Hearing dates: 16 March 2015, 18 May 2015 Decision date: 23 June 2015 Jurisdiction: Consumer and Commercial Division Before: C R Xuereb, General Member Decision: 1. The tenancy is terminated immediately by reason of the respondent's breaches of s 33 (1), s 51(b), s 51(c), s 51(d), s 90 (1)(a) and s 90 (1)(b) of the Residential Tenancy Act 2010. 2. The order for possession is suspended until 13 July 2015. 3. The respondent shall pay the applicant a daily occupation fee at the rate of $0.71 from the day after the date of these orders to the date possession is given. 4. Within 60 days of the date of obtaining possession, the applicant may request the relisting of the application to determine the amount of occupation fee owing. 5. The respondent must pay to the applicant $893.75 for rent owed from 14 December 2014 to 18 May 2015 on or before 13 July 2015. Catchwords: Serious damage by tenant, serious injury by tenant, interference with peace and comfort of neighbours, adverse effects on neighbouring residents, landlord's responsibility to other tenants, breach by failure to pay rent Legislation Cited: Residential Tenancies Act 2010 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Category: Principal judgment Parties: NSW Land and Housing Corporation (applicant) Hrair Keshishian (respondent) Representation: Applicant – Mr Spackman & Mr Dauth Respondent – Mr Amini File Number(s): SH 14/59946, SH 15/10771, SH 15/11579 Publication restriction: Nil REASONS FOR DECISION Applications 1. The applicant filed three applications – SH 14/59946 on 16 December 2014, SH 15/10771 on 3 March 2015 and SH 15/11579 on 6 March 2015. 2. In application SH 14/59946 ("the first application"), the applicant sought the following orders: * an order that restrains any action in breach of a residential tenancy agreement (section 187 (1) (a) of the Residential Tenancies Act 2010 ("the RTA")) * a termination order where the tenant has breached the residential tenancy agreement (section 87 of the RTA) * a termination order or an order for the possession of premises (section 187 (1) (i) of the RTA) 1. In application SH 15/10771 ("the second application"), the applicant sought the following orders: * a termination order where the tenant or occupant is causing serious damage or injury (section 90 of the RTA) 1. In application SH 15/11579 ("the third application"), the applicant sought the following orders: * an order that restrains any action in breach of a residential tenancy agreement (section 187 (1) (a) of the RTA) * an order that requires an action in performance of the residential tenancy agreement (section 187 (1) (b) of the RTA) * an order directing a tenant to comply with a requirement of the RTA or the regulations (section 187 (1) (h) of the RTA) * a termination order where the tenant has breached the residential tenancy agreement for non-payment of rent (section 87 of the RTA) * a termination order or an order for the possession of premises (section 187 (1) (i) of the RTA) The applicant also sought an order terminating the tenancy under section 89 (5) of the RTA. Jurisdiction 1. The respondent is a tenant of the applicant. The premises are social housing premises within the meaning of s 136 of the RTA. The Tribunal has jurisdiction to hear and determine the proceedings. Background 1. The respondent, Mr Hrair Keshishian, has been a tenant of the applicant pursuant to a residential tenancy agreement dated 31 March 2005 ("the lease") since 4 April 2005. The premises which Mr Keshishian occupies pursuant to the lease are known as [*****] Avenue, Penrith. 2. It seems that in or about September 2014 Mr Keshishian began a rehabilitation process aimed at dealing with his drug addiction, particularly to the drug methadone. 3. At least since September 2014, Mr Keshishian's behaviour towards his neighbours within the home unit complex at [*****] Avenue, Penrith and also in an adjoining property has become objectionable. 4. The applicant contends that the respondent has behaved in a manner which interferes with the reasonable peace, comfort or privacy of Mr Keshishian's neighbours. The applicant also contends that the respondent has caused serious damage to the premises at [*****] Avenue, Penrith. Furthermore, the applicant contends that Mr Keshishian has caused injury to persons who are also tenants of the applicant. 5. Mr Keshishian admits that he damaged a window at the premises at [*****]Avenue, but disputes the other allegations in respect of injury to persons. 6. The applicant also asserts that the tenant has breached the lease by failing to pay rent in accordance with the lease and this breach grounds an entitlement of the applicant to seek orders terminating the lease and obtaining possession of the premises occupied by Mr Keshishian. Representation 1. Mr Brett Spackman represented the applicant in the first application and in the second application. Mr John Dauth represented the applicant in the third application. Both Mr Spackman and Mr Dauth are officers of the applicant and were present on both days of the hearing. 2. Mr Ali Amini represented the respondent. Mr Amini is a tenant's advocate with Western Sydney Tenants' Service and was present on both days of the hearing. Evidence 1. The applications were listed for hearing on 16 February 2015 at 9:15 AM. Mr Keshishian was not present at the commencement of the hearing as he was in prison custody. The Tribunal's registry staff were able during the course of the morning to arrange for Mr Keshishian to participate in the hearing by telephone. Mr Keshishian came onto the telephone at approximately 10:50 AM and remained on the telephone for about one hour before a prison officer informed the Tribunal that Mr Keshishian had requested a termination of the telephone call because Mr Keshishian was tired. 2. By the time that Mr Keshishian joined the hearing by telephone, evidence had been given by Mr Aaron David Taylor and by Ms Rania Youssef. When Mr Keshishian joined the hearing by telephone, Mr Amini provided Mr Keshishian with a summary of the evidence which had been given by Mr Taylor and Ms Youssef. Mr Keshishian gave evidence on oath following Mr Amini's recounting of the evidence. 3. On the second day of the hearing, on 18 May 2015, the hearing was scheduled to commence at 1:15 PM. On that occasion, Mr Keshishian was still in prison custody. Mr Amini indicated that he still had instructions to represent Mr Keshishian and the hearing commenced. The Tribunal's registry staff were again able during the course of the afternoon to arrange for Mr Keshishian to participate in the hearing by telephone. 4. Mr Keshishian joined the hearing at approximately 2 PM, but the telephone call was terminated at about 2:10 PM. Following the termination of the call, the Tribunal received a call from a prison officer to inform the Tribunal that Mr Keshishian had himself terminated the call. 5. At the Tribunal hearing on 16 February 2015, Mr Aaron David Taylor gave evidence by affirmation. Mr Taylor said that on 2 March 2015 he was visiting his girlfriend, Ms Rania Youssef, who lived at the home unit complex. He was inside his girlfriend's unit when he heard two people arguing. He went outside and found Ms Youssef and Mr Keshishian engaged in a verbal confrontation. Mr Taylor said that he saw Mr Keshishian take something from a garbage bin. The object was a metal stick and Mr Keshishian struck Mr Taylor on the right side of his face. The assault caused Mr Taylor's face to be lacerated. 6. When the police arrived, Mr Keshishian asserted that Mr Taylor was the assailant and he was the victim. 7. Mr Keshishian also suffered an injury to his face. The police records which form part of the applicant's documents of evidence have the following notation in the COPS narrative: "… Police observed TAYLOR's injuries to be consistent with a rough edged weapon while the accused displayed clean cut injuries, consistent with a sharp bladed weapon. The accused made no allegation of such a weapon being used and the police believe his story to be fabricated, with the wounds possibly self-inflicted." 1. The next witness called by the applicant was Ms Rania Youssef, who lives in unit 3. Ms Youssef corroborated the evidence of Mr Taylor. The catalyst for the assault upon Mr Taylor was a verbal confrontation between Mr Keshishian and Ms Youssef. 2. She gave evidence on affirmation that the incident on 2 March 2015 has left her feeling uncomfortable in the presence of Mr Keshishian and afraid for her safety. Ms Youssef claimed that Mr Keshishian had threatened to cut her throat. Ms Youssef also gave evidence that Mr Keshishian was prone, in recent times, to make disparaging and offensive remarks about Ms Youssef and her family. 3. Following the assault on Mr Taylor, Mr Keshishian damaged a window of Ms Youssef's unit by smashing it with a wooden pole. Mr Keshishian has admitted that he caused that damage. 4. Mr Keshishian gave evidence about the allegations made by Mr Taylor and by Ms Youssef when he joined the hearing by telephone. Mr Keshishian made the point that he is right-handed and that the injuries to Mr Taylor's face were on Mr Taylor's right side. 5. Mr Spackman cross examined Mr Keshishian. Mr Keshishian claimed, in cross examination, that his comments to Ms Youssef were friendly and civil enquiries about her mother's well-being. He denied using the words "slut" or "bitch" in reference to Ms Youssef. 6. The next witness called by the applicant was Darrell Hannaford Broome, who, with wife, lives in unit 1. 7. Mr Broome told the Tribunal that he had resided in unit 1 for about 17 years. He said that the entrance to Mr Keshishian's unit is about five or six metres away from the entrance to Mr Broome's unit. He said that he has obtained an apprehended violence order against Mr Keshishian. 8. Mr Broome gave evidence that on 24 September 2014 he was returning from a hospital visit when he was confronted by Mr Keshishian who commenced to verbally abuse him. Mr Broome became scared and, using his mobile telephone, called the police. He said that he felt threatened. He fears for his safety in the presence of Mr Keshishian. 9. Mr Broome gave evidence that on the following day, 25 September 2014, Mr Keshishian, during another verbal confrontation, spat on his wife. 10. Another incident occurred on 4 October 2014 when he called Mr Broome's wife a "whore". 11. On 16 October 2014, Mr Broome was in bed asleep. The time was about 9:30 AM and he was resting because he had been to the police station until 2 AM that morning. He was awoken by the loud abusive shouting of Mr Keshishian. Mr Broome called the police who arrived quickly. 12. Mr Broome gave evidence that he is distressed by Mr Keshishian's verbal outbursts. He says that he is fearful for his safety. He has difficulty sleeping. 13. In cross examination, Mr Broome conceded that a good relationship existed between Mr Keshishian and himself for eight or nine years and that the difficulties between them arose only since August or September 2014. 14. Mrs Perla Broome was the next witness to be called by the applicant. Mrs Broome lives with her husband in unit 1. 15. Mrs Broome gave evidence that on an occasion in the latter part of 2014, during a verbal confrontation between her husband and Mr Keshishian, Mr Keshishian pushed her hand away and spat on her. 16. Mrs Broome also gave evidence that a petition had been circulated among the residents of the home unit complex and also to adjoining neighbours. The petition, calling for Housing NSW to remove the respondent from the unit complex, was signed by six parties. The petition cited the petitioners' concerns about the threatening behaviour of Mr Keshishian and the effect it was having upon their comfort. 17. She said that the petition had been forwarded to the applicant and also to the local State Member of Parliament. 18. The applicant produced a copy of the petition to the Tribunal. 19. When giving evidence, Mrs Broome was clearly distressed about the abuse she and others were subjected to by Mr Keshishian. She was concerned for the welfare and well-being of her husband. 20. Mrs Broome also gave evidence that Mr Keshishian sometimes pestered her into lending him money. To avoid the requests for loans, Mrs Broome said that she would pretend not to be home when Mr Keshishian knocked on the front door. On one occasion Mr Keshishian started knocking on a bathroom window to gain Mrs Broome's attention. 21. Both Mr Broome and Mrs Broome were moderate in the giving of their evidence. Whilst it is clear that there was a history of some verbal abuse by Mr Keshishian to the Broomes prior to August/September 2014, both Mr and Mrs Broome downplayed the effect of the respondent's bad behaviour until it became unbearable in the latter part of 2014. 22. A resident of an adjoining property owned by the respondent gave evidence. Ms Kaari Thompson gave evidence on oath that she lives at [*****] Avenue, Penrith. Her residence adjoins the unit complex in which Mr Keshishian resides. 23. Ms Thompson gave evidence that in September 2014, Mr Keshishian was screaming abuse directed to Mr Broome. Mr Kesheshian then entered Ms Thompson's premises. Ms Thompson told him to leave. He then began verbally abusing Ms Thompson, calling her a whore. He then flicked his cigarette in her face and punched her in the mouth. Ms Thompson was knocked to the ground and Mr Keshishian jumped on top of her. Ms Thompson's children were outside and, witnessing the skirmish, became distressed and started to cry. Ms Thompson said that she was able to kick Mr Keshishian off her and grabbed an iron bar and struck him with it. She called 000 and the police arrived. Apparently, Mr Keshishian informed the police that Ms Thompson had struck him without provocation while he was walking down the street. The police arrested Ms Thompson, but later released her without charge. Ms Thompson said that no charges were laid against Mr Keshishian as there were no independent witnesses. 24. Ms Thompson has provided two written statements to Housing NSW complaining about Mr Keshishian's behaviour. Both the statements are dated 17 October 2014. They detail the extensive verbal abuse which the respondent has directed to the Broomes and to herself. 25. Mr Dauth gave evidence that, by a Notice of Termination dated 4 February 2015 and posted to the premises on that day, the respondent was given notice that he had breached the lease by not paying rent on time and by failing to pay water charges contrary to a term of the lease. The Notice of Termination informed the respondent that the applicant claimed that as at 31 January 2015 an amount of $783.85 was owing for rent and, based on a weekly rental of $98.85, the rent was more than 14 days in arrears. 26. An amount of $51.50 for outstanding water usage charges was also particularised in the Notice of Termination. 27. The deemed date of service of the Notice of Termination was 10 February 2015 and the Notice of Termination required the tenant to give vacant possession to the landlord on 4 March 2015, a date not earlier than 14 days after the date of service of the Notice of Termination. 28. Mr Dauth sought an order under section 89 (5) of the RTA on the basis that the tenant had frequently failed to pay rent owing on or before the day set out in the lease. Mr Dauth tendered the rent transaction report in relation to the respondent's rent payment history to support the application under section 89 (5). 29. Mr Dauth gave evidence that there was a high demand for this type of property and there is a 15 year wait for accommodation of this kind. Mr Dauth however, did concede that the tenant had never before been brought to the Tribunal in his 10 years as a tenant of the applicant. 30. The hearing notes tendered by Mr Dauth indicated that the arrears of rent to 18 May 2015 were $193.76 and water usage charges to 18 May 2015 were $61.65. 31. In accordance with orders made by the Tribunal the applicant and the respondent provided documents to the Tribunal and the other party in support of their cases. The Tribunal has taken into account those documents. 32. There is some uncertainty as to why Mr Keshishian is imprisoned. It does not appear that he has been convicted of the offences alleged against him in the assault of Mr Taylor in March 2015. It seems, however, that the incarceration is connected with Mr Keshishian's alleged offences against Mr Taylor and the admitted damage caused to the window. Apparently, the court has refused to grant bail to Mr Keshishian. The Law 1. Section 33 of the RTA provides that a tenant must pay rent under a residential tenancy agreement on or before the day set out in the agreement. 2. Section 51 of the RTA provides that a tenant must not cause or permit a nuisance, or interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant or intentionally or negligently cause or permit any damage to the residential premises. 3. Section 87 of the RTA provides that a landlord may give a termination notice on the ground that the tenant has breached the lease. The Tribunal may make a termination order if it is satisfied that the tenant has breached the lease and the breach is sufficient to justify the termination of the lease and a termination notice has been given accordance with the section. The termination notice must specify a termination date that is not earlier than 14 days after the date on which the notice is given. 4. Section 88 of the RTA provides that a termination notice given by the landlord on the ground of breach solely arising from a failure to pay rent is of no effect unless the rent is unpaid for at least 14 days. 5. Section 89 (3) of the RTA provides that a termination of a lease based solely on the tenant's failure to pay rent ceases to have effect if the tenant pays all rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord. However, section 89(5) of the RTA provides that despite subsection (3), the Tribunal may make a termination order if the tenant has frequently failed to pay rent owing for the residential premises on or before the day set out in the lease. 6. Section 90 provides that the Tribunal may make a termination order if it is satisfied that the tenant has intentionally or recklessly caused or permitted serious damage to the residential premises or any neighbouring property or injury to an occupier or person on neighbouring property or premises used in common with the tenant. 7. Section 187 of the RTA gives the Tribunal powers to make orders which include orders restraining actions, orders requiring actions to be performed, orders for the payment of money and orders for termination or possession of premises. Submissions 1. Mr Spackman submitted that this was an appropriate case for the Tribunal to make an order terminating the respondent's tenancy and making an order for the possession of the premises. 2. He said that the evidence regarding the assaults on Mr Taylor and on Ms Thompson was sufficient to enable the Tribunal to make an order for termination pursuant to section 90 (1) (b) of the RTA. 3. The admitted damage to the window would invoke the operation of section 90 (1) (a) of the RTA. 4. He said there were five separate dates on which Mr Keshishian interfered with the peace and comfort of his neighbours. He was served with a Notice of Termination dated 18 November 2014. It was Mr Spackman's submission that Mr Keshishian should have taken that Notice of Termination as a warning and modified his behaviour. 5. Mr Spackman addressed the Tribunal on the requirement imposed on the Tribunal under section 152 of the RTA to have regard to the various matters set out in subsection (1). 6. Mr Amini submitted that an order terminating Mr Keshishian's lease would leave him homeless as he would be unable to obtain housing in the private market. Mr Amini also submitted that the cause of Mr Keshishian's current behaviour is the program to cure his drug addiction. 7. Mr Amini stated that the Tribunal should apply the test in Briginshaw v Briginshaw (1938) 60 CLR 336 as the Tribunal was dealing with the respondent's future rights as a tenant of the Housing NSW. 8. He also submitted that Mr Keshishian was provoked by Mr Taylor. Mr Amini also submitted that the Tribunal should take into account the medical evidence provided on behalf of the respondent. Determination 1. The Tribunal finds that the respondent intentionally caused injury to Mr Adam Taylor on 2 March 2015. The Tribunal accepts the evidence of Mr Adam Taylor and Ms Rania Youssef in relation to the incident on 2 March 2015. 2. The Tribunal finds that the respondent intentionally caused injury to Ms Kaari Thompson on or about 6 September 2014. The Tribunal accepts the evidence of Ms Kaari Thompson in relation to the incident on or about 6 September 2014. 3. The Tribunal finds that since at least September 2014 until on or about 2 March 2015 the respondent, by his behaviour and verbal abuse, has interfered with the reasonable peace, comfort and privacy of his neighbours. The Tribunal accepts the evidence of Ms Rania Youssef, Mr Daryl Broome, Mrs Perla Broome and Ms Kaari Thompson in relation to the various incidents about which each of them gave oral testimony. 4. The Tribunal finds that a Notice of Termination based on the non-payment of rent was served on the respondent on or about 10 February 2015 at which date rent was in arrears by more than 14 days. The Tribunal finds that the Notice of Termination required the tenant to vacate the premises at [*****] Avenue, Penrith on 4 March 2015, being a date more than 14 days after the date of service of the Notice of Termination. The Tribunal finds that as at the date of the hearing on 18 May 2015, the tenant owed rent to 18 May 2015 in the sum of $893.76 and owed water usage charges in the sum of $61.65 to 18 May 2015. 5. As Mr Spackman submitted, Mr Keshishian should have taken the Notice of Termination as a warning and modified his behaviour. His aggression culminated in an episode which has led to criminal charges being laid against him. Furthermore, pending a hearing of those charges, Mr Keshishian has been incarcerated. 6. A medical report dated 12 February 2015 from Dr Anthony Fong refers to his "almost continuous mental instability and sometimes aggressive and paranoid behaviour". Dr Fong continues "his mood can fluctuate greatly from day to day". 7. A report dated 10 February 2015 from Anthony P Sciberras, Senior Psychologist, tendered on behalf of the respondent, makes the following comments: "Over these past months Harry has had difficulties with his neighbours, losing sleep over the confrontations he has had with them and being fearful of what might escalate between them." "If Harry could be treated with some leniency and support, the understanding and relocation to an area with similar aged and culturally sensitive neighbours would continue to assist in his well-being and future recovery to becoming a [sic] more like, his past productive and honest self." 1. The relationship between Mr Keshishian and his neighbours is so toxic that it would do neither Mr Keshishian nor his neighbours any justice in facilitating Mr Keshishian's continued residency at the home unit complex. 2. The Tribunal notes the comment made by Anthony P Sciberras that Mr Keshishian's well-being will be assisted by a relocation to an area with similarly aged and culturally sensitive neighbours. It is difficult for the Tribunal to consider as a real option the continuance of the tenancy in the face of that comment. 3. The Tribunal has considered the serious adverse effects which a continuation of the residential tenancy will have on neighbouring residents. The unwarranted assault upon Mr Taylor was a serious, intentional act. 4. The physical attack on Ms Thompson was shameful and reprehensible. 5. Having regard to the reports of both Dr Fong and Anthony P Sciberras, the Tribunal is not satisfied that Mr Keshishian would not reoffend. That being the finding, it follows that allowing the tenancy to continue would subject neighbouring residents to an unacceptable risk. 6. Section 50 (3) of the RTA requires a landlord to take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. Based on the medical evidence submitted on behalf of Mr Keshishian, the landlord could not be satisfied that Mr Keshishian would not commit further breaches if he were allowed to remain in possession of the premises. 7. Mr Spackman pointed out that the tenant was reminded of his obligation to comply with clauses 7.2 and 7.3 of his lease when the first matter came before the Tribunal on 19 February 2015. Clause 7.2 of the lease provides that the tenant agrees not to cause or permit a nuisance. Clause 7.3 of the lease provides that the tenant agrees not to interfere, or cause or permit interference with, the reasonable peace, comfort or privacy of neighbours. Mr Spackman submitted that whilst the reminder was not an order of the Tribunal, it was embodied in a form of order made on 19 February 2015 and the breach of the clauses in the context of the other orders made on 19 February 2015 was tantamount to a wilful breach of an order of the Tribunal. The Tribunal is not persuaded by Mr Spackman's submission on that point. Nevertheless, Mr Keshishian's failure to take heed of the reminder is a matter which the Tribunal takes into account in its determination of the applications before it. 8. In relation to the third application, the Tribunal will make an order based on the tenant's failure to pay rent in accordance with the lease, but is not satisfied that an order under section 89 (5) should be made. The tenancy has existed for about 10 years and Mr Keshishian's lapses in paying rent over the past six or so months can, to some degree, be explained by his current mental state and his incarceration since at least early March 2015. Orders 1. The Tribunal makes the following orders: 1. The tenancy is terminated immediately by reason of the respondent's breaches of s 33 (1), s 51(b), s 51(c), s 51(d), s 90 (1)(a) and s 90 (1)(b) of the Residential Tenancies Act 2010. 2. The order for possession is suspended until 13 July 2015. 3. The respondent shall pay the applicant a daily occupation fee at the rate of $0.71 from the day after the date of these orders to the date possession is given. 4. Within 60 days of the date of obtaining possession, the applicant may request the relisting of the application to determine the amount of occupation fee owing. 5. The respondent must pay to the applicant $893.75 for rent owed from 14 December 2014 to 18 May 2015 on or before 13 July 2015. 6. The respondent must pay to the applicant $61.65 for unpaid water usage charges accrued from 15 November 2014 to 18 May 2015 on or before 13 July 2015. C R Xuereb General Member Civil and Administrative Tribunal of New South Wales 23 June 2015 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: 28 August 2015