Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bullock v NSW Land and Housing Corporation [2018] NSWCATAP 310 Hearing dates: 14 December 2018 Date of orders: 20 December 2018 Decision date: 20 December 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member F Corsaro SC, Senior Member Decision: 1. The time to file the Notice of Appeal is extended to 16 October 2018. 2. Leave to appeal is granted and the appeal is allowed. 3. The order for termination and possession made on 18 September 2018 in application SH 18/15427 is set aside. 4. In lieu thereof, the following orders are made: a) The tenant, Mark Bullock, is to specifically perform the residential tenancy agreement dated 19 June 2006 by: (i) not causing or permitting any parties on or about the residential premises which might interfere with the reasonable peace, comfort or privacy of neighbours; (ii) not causing or permitting any children attending his premises to consume alcohol or to act in a manner which might interfere with the reasonable peace, comfort or privacy of neighbours; (iii) not causing or permitting his children to unlawfully attend the premises and conduct themselves in a manner that might interfere with the reasonable peace, comfort or privacy of neighbours; and (iv) not causing or permitting his children to cause damage to the premises. b) In the event the appellant breaches the orders in paragraph (a), the NSW Land and Housing Corporation (landlord) may relist these proceedings for the purpose of seeking a termination order, provided such application to relist is made on or before 30 June 2019. Catchwords: LANDLORD AND TENANT – Breach of residential tenancy agreement – discretion to terminate – factual findings regarding likelihood of future breach against the weight of evidence – leave to appeal Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Residential Tenancies Act, 2010 (NSW) Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Collins v Urban [2014] NSWCATAP 17 House v The King [1936] HCA 40; (1936) 55 CLR 499 Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Texts Cited: Nil Category: Principal judgment Parties: Appellant: Mark Bullock Respondent: NSW Land and Housing Corporation Representation: Appellant: S McCarthy (Counsel) Respondent: T Boyle (Counsel) Solicitors: Appellant: Legal Aid NSW Respondent: Not applicable File Number(s): AP 18/44483 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 18 September 2018 Before: D Moss, General Member File Number(s): SH 18/15427 reasons for decision Introduction 1. On 18 September 2018, following a hearing of application SH 18/15427 (the proceedings), the Tribunal made an order (termination order) terminating a residential tenancy agreement (agreement) in which the appellant, Mr Bullock, was the tenant. 2. The landlord/applicant in the proceedings was the NSW Land and Housing Corporation, the respondent in this appeal. 3. Although the NSW Land and Housing Corporation claimed Mr Bullock had breached the agreement in different ways, ultimately, the reason for the Tribunal's termination order was the finding that the appellant had breached the agreement by permitting interference with the reasonable piece, comfort and privacy of neighbours. The order for termination provided that the order for possession was suspended until 16 October 2018. 4. By notice of appeal filed 16 October 2018, the appellant sought to appeal the termination order. The appeal was filed out of time. However, the respondent has consented to time being extended. Accordingly, an order will be made extending the time until 16 October 2018. History of dispute and proceedings at first instance 1. The facts in this appeal are substantially agreed. They are recorded in the reasons for decision. 2. In this regard, we should note that in making the termination order, the Tribunal provided oral and written reasons for decision. During the hearing of the appeal, the Appeal Panel noted that the written reasons appear to deal with matters in addition to those contained in the oral reasons. However, both parties agreed that the Appeal Panel should determine the appeal having regard to both the oral reasons (which were transcribed and available to the Appeal Panel as evidence) and the written reasons for decision which were subsequently published on 22 October 2018 (written reasons). The Appeal Panel, accordingly, proceeded on that basis. 3. The agreed facts are as follows: 1. The appellant is a tenant in premises located at Windale in New South Wales (premises). 2. A agreement was entered into between the parties on 19 June 2006. That is, the appellant has been a tenant of the respondent for more than 12 years. 3. On 12 March 2018, the respondent issued to the appellant a notice of termination of the agreement. The grounds in the notice were a breach of clauses 7.1, 7.2, 7.3 and 12.3 of the agreement. 4. There was in fact a breach of each of the following clauses: 1. 7.3 – Not to interfere, or cause, or permit interference with the reasonable piece, comfort or privacy of the neighbours; and 2. 12.3 – Not to intentionally or negligently caused, or permit, any damage to the premises. 1. The breaches arose from the conduct of the appellant's daughter, Shaylee, and the appellant's son, Hayden, and events which had occurred at the premises. Shaylee is 15 years old. 2. The conduct included: 1. the police attending the premises on 27 December 2017 at which they found stolen goods about which Hayden was charged with aggravated break, enter and steal. The Tribunal was not satisfied the appellant was aware the premises were being used by his son to store stolen goods: written reasons at [56]-[57]; 2. the police attending the premises on 31 December 2017 in consequence of complaints made concerning a party at the premises at which approximately 50 children, aged from 13 to 15, were present. There were signs of alcohol being consumed in the backyard by the children at the party: written reasons at [59]; 3. on 21 January 2018, Shaylee, Hayden and other children throwing potatoes, tomato sauce, rocks and other items at neighbouring premises number 152: written reasons at [68]; and 4. on 9 March 2018, a party at which there were approximately 300 children present, including children as young as 12 years of age who were drinking alcohol: written reasons at [70] Here the Tribunal found: It took 18 Police cars and approximately 40 Police Officers to manage the behaviour at the premises and shut the party down. The tenant was at home during the party. Police spoke to the tenant and notice he was "intoxicated" and "uncooperative". 1. There were "at least 6 large, noisy and disruptive parties held at the residential premises from 30 December 2017 to 8 July 2018, with either the tenant's consent or acquiescence": written reasons at [86]. 1. There were other incidents involving a neighbour, Ms Lane, who was "abused and threatened with physical violence" by Shaylee and her friends on 28 May 2018 and that police intervention was required to ensure the safety of Ms Lane: written reasons at [71]-[73]. 2. In addition, Shaylee broke multiple windows at the premises, the appellant contacting the respondent and advising he was prepared to enter a payment plan to pay for repairs of the windows: written reasons at [63]. 3. Other evidence included: 1. that the appellant had requested a transfer for his son and himself "to get away from the area": written reasons at [66]; 2. the appellant had been advised his tenancy was at "high risk" due to many breaches of the tenancy agreement caused by his daughter and that the appellant "was advised to consider contacting the Police to have his daughter removed from the premises": written reasons at [67]. 1. In relation to the appellant, and his circumstances, the Tribunal had before it the following information: 1. A report from Dr Isaac (see written reasons [19] and following) that records: 1. the appellant suffers from Bipolar Affective Disorder and Social Anxiety Disorder; 2. the appellant has become the sole guardian of two adolescent children following a tragic death of their mother; 3. the appellant's children, particularly his daughter Shaylee, "struggled" with the death of their mother and, in Shaylee's case she has had "multiple disturbances and interactions with the legal system"; 4. while the appellant is working with various agencies, the appellant has been adversely affected by this situation and his circumstances would be made worse if he did not have adequate housing. 1. The appellant gave evidence that he is on medication, Pristique. He suffers headaches, nosebleeds and stress and has tried to take his life on 2 or 3 occasions: written reasons at [36] 2. the appellant is on a disability support pension. and has been living in social housing premises all his life. He has strong personal and family connections to the Windale area. He has attempted to take his own life and is suicidal: written reasons at [105] 3. In the event the tenancy was terminated, the appellant would be classed as an "unsatisfactory former tenant" due to breach of the agreement: written reasons at [22] 4. The appellant's son, Hayden, is autistic and hyperactive. However, Hayden has moved out of the premises for his own safety and had been gone for 4 months at the time the proceedings were heard by the Tribunal: written reasons at [29]. 5. Shaylee is presently on bail and lives with her grandmother. Bail conditions require her not to come near the premises, however she has breached these conditions: written reasons at [34] and [84]. 1. It was against this background that the Tribunal, correctly, determined that there had been substantial breaches of the agreement. That finding was not challenged on appeal. 2. Having regard to the Tribunal's determination of substantial breaches of the agreement, the Tribunal was required to exercise a discretion and determine whether it would make a termination order or not. 3. The Tribunal correctly noted that, when making a termination order of a social housing agreement, it was required to have regard to the factors set out in s154E of the Residential Tenancies Act, 2010 (NSW) (RT Act), the Tribunal made the following findings: 1. that it was likely the neighbouring residents would suffer serious adverse effects in the future if the tenancy were not terminated: written reasons at [100]; 2. the appellant "allowed" his daughter, Shaylee, to continue to visit the residential premises, even though she was in breach of her bail conditions: written reasons at [101]; 3. the appellant was not and has not been in breach of an order of the Tribunal: written reasons at [103]; 4. the interference with the reasonable peace, comfort or privacy of neighbours "permitted by the tenant, was extreme, harmful and inexcusable". (Emphasis added): written reasons at [107]; 5. "the Tribunal has no confidence that the tenant would not permit further interference with his neighbours' peace, comfort and privacy if the residential tenancy was to continue" (Emphasis added): written reasons at [108]. 1. In the light of these findings, the Tribunal determined to make an order for termination and possession, suspending it for only 28 days because it was not satisfied there were exceptional circumstances justifying a longer period of suspension. Consideration 1. The documents relevant to this appeal are contained in an appeal book (AB) filed by the appellant. The appeal book contains the evidence from the hearing at first instance, the Notice of Appeal, Reply to Appeal and the appellant's written submissions. The respondent also provided written submissions. 2. Oral submissions were made by the parties who were each represented by counsel at the hearing of appeal. 3. The Notice of Appeal raises several grounds. These were: 1. That the orders of the Tribunal were unreasonable in that the Tribunal failed to have regard to various factors which require consideration and/or did not have regard to evidence which was before it; 2. the Tribunal erred in law by applying the wrong test under s 87 of the RT Act in determining whether there were circumstances sufficient to justify termination; 3. The Tribunal's reasons were inadequate; and 4. the decision made was against the weight of evidence and leave to appeal should be granted because the appellant may have suffered a substantial miscarriage of justice. 1. The first three grounds raise questions of law for which there is a right of appeal. Ground 4 requires leave to appeal: see s 80(2(b) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). Having regard to the provisions of Sch 4 cl 12 of the NCAT Act, leave may only be granted if the Appeal Panel the appeal panel is satisfied the appellant may have suffered a substantial miscarriage of justice. In this regard the principles in Collins v Urban [2014] NSWCATAP 17 are relevant to the grant of leave. 2. Written submissions were made in support of these grounds and oral submissions were made at the hearing before the Appeal Panel. 3. Inter alia, the appellant submitted that there was an error in the exercise of discretion and that the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 and/or the Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 operate to permit intervention by the Appeal Panel due to errors of law. Reference was also made to the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 4. In our view, it could not be said that the decision of the Tribunal was unreasonable in any relevant sense. The Tribunal's reasoning exhibited a rational approach to the findings of fact it made, a proper identification of the matters it was required to have regard to in exercising its discretion, and the exercise of its discretion by applying the facts as found to the relevant criteria. Certainly, it could not be said that the decision lacked evident and intelligible justification. 5. As to the adequacy of reasons ground, an error might established where a decision maker: 1. ignores evidence critical to an issue in a case and contrary to the assertion of a fact made by one party: Mifsud v Campbell (1981) 21 NSWLR 725 per Samuels JA at 728 D-E; and 2. otherwise fails to set out relevant evidence and findings and/ or explain why a particular conclusion has been reached: see Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 per Meagher JA at 441-444 1. While the appellant identifies particular facts, such as his engagement with the Youth Hope Centre, and submits that the Tribunal, in its reasons for decision, does not explain how these facts were taken account of in the exercise of discretion, it could not be said that the reasons, when read as a whole, failed to have regard to these facts and explain why the particular decision was reached. Accordingly, the challenge based on adequacy of reasons is rejected. 2. Lastly, none of the material to which we have been referred suggests the Tribunal did not identify the correct test or failed to consider the factors set out in s 154E to which the Tribunal must have regard in considering whether to terminate a social housing tenancy agreement. 3. It follows that we are not satisfied a relevant error of law has been established. 4. The following findings were ultimate findings of fact, which were critical to the Tribunal's decision to terminate the tenancy: 1. the appellant allowed his daughter to continue to visit the premises, even though this was a breach of her bail conditions: at [101]; 2. the interference with the reasonable peace, comfort or privacy of the neighbours, which was extreme, harmful and inexcusable, was "permitted by the tenant": at [107]; and 3. the Tribunal had "no confidence that the tenant would not permit further interference": at [108]. 1. There were clear breaches of the agreement which were not challenged on appeal. There was evidence that the appellant knew of and permitted, or at least took no steps to stop, various parties occurring at the premises in the period up until July 2018. These events included children consuming alcohol. On the other hand, there was evidence that the appellant's daughter Shaylee was, to use the Tribunal's words "out of control" and that the appellant had been seeking help in managing this situation, finding himself the sole parent in tragic circumstances. 2. It was in these circumstances that, as determined by the Tribunal, the critical facts in favour of terminating the tenancy (rather than making a specific performance order) were that the appellant was continuing to permit his daughter to visit the premises and was likely to permit interference with neighbours peace, comfort and privacy into the future. 3. The appellant challenged these findings of fact. 4. A resolution of this aspect of the appeal requires an examination of the evidence at the hearing. 5. The respondent's counsel, quite properly and consistently with the respondent's obligations as a model litigant, referred the Appeal Panel to relevant sections of the transcript where the evidence of these matters is found. In doing so, the respondent conceded that if the critical findings of fact were found to be against the weight of evidence, then leave to appeal should be granted. This is because the appellant may have suffered a substantial miscarriage of justice because he had been deprived of "a chance that was fairly open of achieving a better outcome than occurred": Collins at [70] and following. 6. There was evidence that, despite being informed of breaches of the early in 2018 and being warned that his tenancy was at "high-risk", the appellant permitted a recurrence of the events which constituted a breach of the agreement on multiple occasions. This was at times when his daughter and son were living with him. At those times it would appear that the daughter had not been charged. This material constitutes some evidence from which it could be concluded the appellant would permit future breaches to occur. 7. It is in this context that the Tribunal's oral reasons recorded in the transcript at p 103, line 20 (AB 137) should be understood. There, the Tribunal said: The circumstances of the objective circumstances of this case are horrific and the neighbours have been put through hell and they would rightly expect the Tribunal to bring an end to that hell for them once and for all today because Mr Bullock hasn't done anything to help them. On the positive side there hasn't been a serious incident in the past two months. 1. We note from this statement that, at the time of the hearing on 18 September 2018, there had been no serious incident in the previous two months. That is, the Tribunal found that since July 2018 there had been no further breaches. 2. In this regard, the evidence discloses the appellant's children no longer reside in the premises. 3. It is in this context that the findings relating to the appellant "permitting" future breaches and/or "allowing" his daughter to return to the premises in the future needs to be considered. 4. Evidence concerning what has occurred since the daughter has left the premises is found at p 51 of the transcript (AB 85). There, the appellant answered questions from the Tribunal in the context of the Tribunal considering what orders should be made in consequence of the breaches which had occurred. The exchange was as follows: Tribunal: Mr Bullock, one of the things I have had in my mind was that I, you know, consider, because I consider all options, was a specific performance order and one of the conditions was that Shaylee is not to come to the house. But she is, and you're not stopping her? Mr Bullock: No, I stopped her. I had to ring the … Tribunal: You give her money, so of course she's going to come back? Mr Bullock: Her grandmother didn't have any money over there. I don't know. See, that was … Tribunal: There is a court order on your daughter? Mr Bullock: yes, ma'am. Tribunal: … not to go near that house, and you let her? Mr Bullock: I don't let her. Because … Tribunal: So how can I have any confidence that you're going to obey any specific performance order that I make? Mr Bullock: She's already stopped, already. See the police have been around in the last couple of weeks as well, and even though there is a-I'm honest with them. I tell them if Shaylee has been there. I don't have to, but I always do, because honesty is the best policy, and I've spoken to them about it and they're the ones that put the order on Shaylee. Because it's not just me that's gone through this over nine months. It's the police as well, and they have done everything in their power. They've hit her with everything in their power, and it's still not working, from their side of it either. So it's hard to blame them for something in that respect, because as I said, I've kicked her out of here at 2 o'clock in the morning. She's knocked on my door over the last few weeks at 2 o'clock in the morning, and I've sent her away, you know and I've gone back in the house, and I'm upset, but I've had to do that. But at the same time it's what I have to do. So in the last couple of weeks where she has come in and I've given her money, outside of that I've kicked her out at least 20 times where I've told her, "You cannot come here," and she knows that, and if anything the last few months have been really good. 1. The appellant's counsel submitted that the evidence discloses Mr Bullock has done all in his power to prevent his daughter from returning to the premises. In this regard the evidence discloses the appellant reports his daughter's breach of bail conditions to the police. These facts are inconsistent with the finding that the appellant will continue to permit a breach of the agreement. 2. As to the fact the appellant gives his daughter money, the evidence is that the grandmother is unable to give the 15-year-old any money and it is hardly surprising that a father might do so. While this might be seen as some "encouragement" to the daughter to attend the premises, in the context of the evidence we have set out above we do not think such action of a father should be considered as conduct which amounts to permitting an ongoing breach of the agreement or otherwise is evidence that the appellant is permitting his daughter to return to the premises. To the contrary, the evidence to which we have referred is the clearest indication that the appellant was taking what action was available to him to positively discourage his daughter from attending the premises, including reporting her to the police for breach of her bail conditions, a matter which might lead to her imprisonment. 3. Having regard to the above, we have formed the view that the Tribunal's findings at [101], [107] and [108] were against the weight of evidence. Rather, we are satisfied that the appellant was taking steps to prevent his daughter from attending the premises to prevent further breaches of the agreement from occurring and that the appellant has not otherwise continued to breach the agreement. Consequently, leave to appeal should be granted. 4. The issue is whether the appeal should be allowed and, if so, what orders should be made. 5. This is a very unusual case. 6. There is evidence that the appellant condoned some of the conduct which constituted breaches of the agreement. 7. On the other hand, there are a number of factors counting in favour of making a specific performance order. There is evidence the appellant has significant disabilities, that he has a good history as a tenant for more than 12 years and that he has strong connections and has lived in this community without any issues until his circumstances dramatically changed following the death of his children's mother. In this regard it seems clear that it was the conduct of his children, particularly his daughter Shaylee, which has given rise to the circumstances of breach. 8. Relevant to the disposition of this appeal is whether the appellant, or anyone permitted to reside with him, is likely to breach the agreement in the future. In this regard, at the hearing of the appeal, there was no suggestion any further breaches have occurred since the appellant's children have left the premises. 9. The fact that the appellant's daughter unlawfully attends the premises, against his wishes and in circumstances where he actively reports this unlawful conduct of the police, is not a reason in the present case to terminate the tenancy. This is because, without a finding of permission, it could not be said that such conduct amounts to a continuing breach by a tenant of his obligations under a residential tenancy agreement. While it might be a factor to weigh having regard to ss 154E(1)(a) and (b), it seems to us that the Tribunal must take account the conduct of the tenant in relation to such circumstances. In this regard, the positive action of the appellant in reporting his daughter's unlawful conduct to the police is significant. 10. Consequently, we have formed the view that the appeal should be allowed, the order for termination set aside and in lieu thereof an order should be made in the nature of a specific performance order. 11. It should be on terms that the respondent be permitted to relist the proceedings if the terms of the order are breached, such relist to be available at any time up until 30 June 2019. Orders 1. The Appeal Panel makes the following orders: 1. Leave to appeal is granted and the appeal is allowed. 2. The order for termination and possession made on 18 September 2018 in application SH 18/15427 is set aside. 3. In lieu thereof, the following orders are made: 1. The tenant, Mark Bullock, is to specifically perform the residential tenancy agreement dated 19 June 2006 by: 1. not causing or permitting any parties on or about the residential premises which might interfere with the reasonable peace, comfort or privacy of neighbours; 2. not causing or permitting any children attending his premises to consume alcohol or to act in a manner which might interfere with the reasonable peace, comfort or privacy of neighbours; 3. not causing or permitting his children to unlawfully attend the premises and conduct themselves in a manner that might interfere with the reasonable peace, comfort or privacy of neighbours; and 4. not causing or permitting his children to cause damage to the premises. 1. In the event the tenant breaches the orders in paragraph (a), the NSW Land and Housing Corporation (landlord) may relist these proceedings for the purpose of seeking a termination order, provided such application to relist is made on or before 30 June 2019. ********* 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: 20 December 2018