NSW Land and Housing Corporation v Forrest [2016] NSWCATCD 36

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Land and Housing Corporation v Forrest [2016] NSWCATCD 36 Hearing dates: 22 February 2016 Decision date: 14 April 2016 Jurisdiction: Consumer and Commercial Division Before: M Eftimiou, General Member Decision: 1 The Residential Tenancy Agreement is terminated in accordance with section 91 of the Residential Tenancies Act 2010. 2 The Residential Tenancy Agreement is terminated on 12 May 2016 and possession is to be given to the landlord on the date of termination. 3 The tenant is to pay a daily occupation fee calculated at 1/7th of her weekly rent from13 May 2016 until the date that possession is given to the landlord. Catchwords: S 91 Illegal Use Legislation Cited: Residential Tenancies Act 2010 Interpretation Act 1987 Civil and Administrative Tribunal Act 2012 Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Cain v NSW Land and Housing Corporation [2014] NSWCA 28 NSW Land & Housing Corporation v John Raglione [2015] NSWCATAP 75 Maxwell v Murphy(1975) 96CLR261 Category: Principal judgment Parties: NSW Land and Housing (Applicant) Timothy Forrest (Respondent) Representation: Counsel: Mr Gardiner for the applicant Ms Oliag (tenant's advocate) for the respondent File Number(s): SH 15/02841 Publication restriction: Unrestricted

REASONS FOR DECISION

Introduction and Background 1. By application filed on 20 January 2015 the applicant sought orders for termination and possession of the residential tenancy premises pursuant to section 91 of the Residential Tenancies Act (the Act). 2. The matter first came before the Tribunal on 2 March 2015 and was adjourned to enable the applicant to request a summons for production of documents. On 23 April 2015 the matter was adjourned for hearing and procedural directions made for the exchange of evidence. 3. On 25 June 2015 an application was made by the respondent seeking orders pursuant to s 55(1)(b) of the Civil and Administration Tribunal Act that the matter be dismissed because it is subjudice, alternatively that it be adjourned pursuant to s 51 until a date after which the proceedings would no longer be subjudice. 4. On 16 July 2015 the Tribunal made the following orders: 1. The determination of this matter is stayed pending finalisation of criminal proceeding in relation to Mr Forrest (H56791826). 1. The matter next came before the Tribunal on 14 September 2015. The parties advised the Tribunal that the criminal committal proceedings were set down for determination in February 2016. The parties were given an opportunity to make written submissions to the Tribunal to determine whether the stay should be lifted. 2. On 16 October 2015 the Tribunal made the following order: 1. The stay made by the Tribunal on 16 July 2015 is lifted. 1. On 3 November 2015 a notice of hearing was sent to the parties advising them that the hearing of the matter was scheduled for 22 February 2016. 2. On 16 December 2015 the Tribunal was advised that the tenant who had previously been legally represented by a private solicitor and then by Legal Aid was now represented by South West Sydney Tenant's Advocacy Service. The tenant advocate sought an extension of time to comply with the procedural directions that had been made by the Tribunal on 16 October 2015. 3. On 31 December 2015 the timetable that was made by the Tribunal on 16 October 2015 was amended and the respondent was given until 29 January 2016 to file and serve documents. 4. On 28 January 2016 the tenant advocate wrote to the Tribunal seeking additional time to file and serve. The tenant advocate also sought an adjournment of the formal hearing due to the unavailability of the respondent's legal representative. 5. The matter came before the Tribunal on 1 February 2016 as a directions hearing to determine the adjournment request; to determine whether the matter was ready to proceed to hearing on 22 February 2016 and to hear the parties on the question of whether the time for the respondent to comply with procedural directions should be extended. 6. On 1 February 2015 the Tribunal made orders refusing the adjournment request of the respondent and written reasons were given for the refusal. The procedural directions made by the Tribunal were again varied and the respondent was directed to file and serve all documents by 17 February 2016. The parties were advised that the hearing scheduled for 22 February 2016 would proceed. 7. At the hearing of the matter on 22 February 2016, Mr Gardener of Counsel appeared on behalf of the applicant. Ms Olaig from South West Sydney Tenancy Services appeared for the respondent. 8. 14 Ms Olaig indicated at the commencement of the hearing that she wished to make submissions to the Tribunal as to the correct legislation which was to apply in this matter. Mr Olaig indicated that if the Tribunal were to find that the Residential Tenancies and Housing Legislation Amendment (Public Housing Anti-Social Behaviour) Act 2015 (the Amending Act) was the relevant legislation that an application would be made to adjourn the proceedings, to enable the respondent to obtain further evidence. 9. 15 The Tribunal indicated to Ms Olaig that it had no difficulty in hearing submissions as to whether or not the Amending Act was retrospective in its application, however, the respondent needed to present the case addressing all the relevant issues. The Tribunal reminded the respondent that the application on 1 February 2016 to adjourn the proceedings had been refused, and no additional evidence was provided to support a further adjournment request. The Tribunal was not prepared to adjourn the matter to enable the respondent to obtain additional evidence as the respondent had been given a reasonable time to comply with procedural directions and no further reasonable explanation had been provided for the adjournment request. 10. 16 The applicant advised the Tribunal that it had not been served with the respondent's documents. The respondent advised the Tribunal that the documents had been sent by express post to the applicant and the Tribunal on 18 February 2016. The date for filing and serving had been determined by the Tribunal to be 17 February 2016. The applicant had not received the documents. 11. 17 The matter was briefly adjourned to allow the applicant to consider the respondent's documents. 12. 18 Mr Gardner argued that the Tribunal should not accept the respondent's evidence as it had not been filed and served in time. However, the applicant conceded that the proceedings do concern the determination of an important matter and the applicant being a Model Litigant would not object to the documents being submitted, however, the applicant would need time to consider the evidence and prepare for the hearing of the matter and that the applicant would be prejudiced if the matter proceeded on the day. 13. 19 The Tribunal again briefly adjourned the proceedings to allow the applicant further time to consider the evidence of the respondent. 14. 20 On resuming the proceedings, there was much discussion between the parties as to whether the matter should be adjourned to firstly enable the applicant to consider the respondent's evidence and secondly for the respondent to put on additional evidence. 15. 21 The applicant then indicated to the Tribunal that it would not object to an adjournment being granted but that the applicant was ready to proceed to hearing. 16. 22 The respondent advised that the respondent's criminal matters were next before the Courts on 12 September 2016 and again requested that the matter be adjourned until after this date. The Tribunal advised the respondent that the issue of the stay of the proceedings until after the criminal proceedings had been determined by the Tribunal in October 2015. 17. 23 The Tribunal determined that the matter should proceed to hearing to give effect to the guiding principle of the Tribunal, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Tribunal determined that the respondent had been given reasonable time and opportunities to obtain all relevant evidence and no reasonable explanation had been provided for a failure to do so.