Compass Housing Services Co Ltd v Terry [2025] NSWCATCD 182;

1. There has been an extensive procedural history to the matter that may be summarised as follows.
2. On 3 October 2023, at the conciliation and hearing of the matter orders were made by the Tribunal for specific performance with leave to relist by 3 April 2024. The orders were made in absence of the respondent.
3. On 10 January 2024, a relist application was received from the applicant. On 25 January 2024 the relist application was withdrawn. A further relist application was made on 3 April 2024. On 22 April 2024, the matter was joined to be heard with a matter remitted for hearing by the appeal panel
4. On 14 May 2024, a hearing of the matter listed on 23 May 2024 was adjourned and the proceedings were listed for conciliation on 20 May 2024. On 20 May 2024, the matter was programmed for contested hearing
5. On 4 June 2024, by consent, the tenant was ordered to comply with the residential tenancy agreement by keeping the residential premises in a reasonable state of cleanliness both inside and out. In particular, the Tribunal ordered that the tenant remove an unregistered vehicle from the premises by 21 June 2024; remove all of the tenants items stored in the common area by 21 June 2024; and that the tenant not store any items on the common property. The tenant was also ordered to continue to engage with support services including the HASSI programme. Those orders were accompanied by an order giving leave to relist the matter on or before the 14 of December 2024.
6. The orders made by consent on 4 June 2024 did not include orders relating to the internal condition of the premises.
7. On 17 September 2024, an application for relist for the reason that the landlord claimed the tenant had not complied with the specific performance order made 4 June 2024. On 10 October 2024 directions were made for a contested hearing.
8. On 6 February 2025, the hearing was adjourned (despite the landlord's opposition) for the respondent to obtain assistance from legal aid. Other orders were made for exchange of documents
9. On 16 April 2025, the Tribunal made orders in relation to an application for a guardian ad litem. On 10 June 2025, a guardian ad litem was appointed by the Tribunal.
10. The matter was listed for hearing, and was heard, on 10 August 2025.

1. At the hearing the landlord was represented by their authorised representative who attended in person. Ms Terry was represented by Ms Leanne Bosman, principal solicitor of Mallee Family Care Community Legal Centre who attended the hearing in person. The landlord did not oppose representation of the tenant by an Australian Legal Practitioner and the Tribunal made orders for representation. Ms Daydie Terry was also in attendance in person at the hearing. Ms Lise Ballantyne, the appointed guardian ad litem, attended the hearing virtually.
2. The landlord gave sworn evidence comprised of a bundle of 327 pages, identified as Exhibit A. By way of summary, the bundle contained a chronology, a residential tenancy agreement, previous orders of the Tribunal, correspondence from HASI and Mission Australia, routine inspection reports from 2023, 2024 and 2025, Ministerial correspondence, work orders, a housing statement, correspondence from Broken Hill Council and correspondence reciting contact with New South Wales Fire and Rescue, various photographs and other correspondence.
3. The tenant relied on the following documents attested to by the tenant's legal representative: a 24 page bundle of documents containing a statement of Lise Ballantyne, an outline of submissions with supporting documents, a letter from Doctor Allanna Byrne, a Clinical Psychologist, dated 30 October 2024 and a medical certificate dated 5 August 2025 from a general practitioner.

1. A tenancy only terminates in the circumstances set out in the Act, see section 81. The Tribunal may terminate a residential tenancy agreement for breach if it is satisfied of the matters set out in section 87(4) of the Act (as it was at the relevant time of making this application), and in considering the circumstances of the case may have regard to the matters set out in section 87(5) of the Act (as it was at the time of making of this application.) The relevant provision has changed in number but not in substance and is now set out in section 87C of the Act.
2. Further, in determining whether to terminate a social housing tenancy the Tribunal must have regard to the matters set out in section 154B and 154E of the Act.

1. The Tribunal makes the following findings of material fact based on the evidence provided by the parties.
2. There is a residential tenancy agreement between the parties that is regulated under the Act.
3. The agreement relates to residential premises within a larger complex of premises.
4. The tenancy is a social housing tenancy.
5. A termination notice that was valid in all technical respects was issued by the landlord on 11 July 2023 seeking vacant possession on 4 August 2023.
6. The termination notice cited breaches of the residential tenancy agreement including following: clause 17.1 in relation to cleanliness, clause 60.3 in relation to accumulation of rubbish on the premises; and clause 16.3 in relation to interference with the reasonable peace, comfort and privacy of neighbours.
7. As at the date of the hearing, there had been an improvement in the condition of the external parts of the property, in that many items such as the vehicle the subject of consent orders made by the Tribunal on 4 June 2024 had been removed. There had also been the removal of items from the interior of the premises, however additional items had been brought to the premises and stored at the premises such that by 22 July 2025 the premises was, at minimum, in no better condition that which gave rise to the issue of the termination notice on 11 July 2023. In summary the internal parts of the premises were cluttered with belongings and rubbish.
8. An assessment of the premises carried out by New South Wales Fire and Rescue on a date before 16 October 2024 characterised the clutter in the internals of the residential premises as a significant fire hazard putting both the tenant and other residents of the complex at risk in the event of the outbreak of a fire.
9. At the time of the inspection by New South Wales Fire and Rescue there were pathways for evacuation from the internals of the premises in the event of fire.
10. As at 22 July 2025, the interior of the premises was cluttered with various household items, rubbish and bags stacked around rooms such that the space available for moving about the premises was generally narrow. Some of the internal doors were partially blocked. Some of the rooms did not have a working smoke alarm, whereas other rooms did. Access to the laundry was blocked by clutter. The clutter was a trip hazard. Several of the doors only partially opened due to clutter. There was a detectable and significant pest issue.
11. As at 22 July 2025, the exterior of the premises was cluttered with a bed and mattress, cardboard boxes and other items including furniture.
12. There was no detectable reduction in the clutter at the premises between 1 April 2025 and 22 July 2025.
13. The tenant has a hoarding disorder, with excessive acquisition, and fair insight into her disorder, such that the tenant admits that she has a problem with hoarding and is aware of that problem.
14. The cost of cleaning the clutter as at 14 May 2025 was estimated to be $6,545.00. The tenant cannot presently afford to pay that amount due to her financial circumstances.
15. At the time of the hearing Ms Terry was actively engaging with support services, including Lifeline and a psychiatrist to obtain assistance with managing her disorder.
16. At the time of the hearing Ms Terry was obtaining the assistance of family and friends in relation to attempts to declutter the premises.
17. Since July 2023, Ms Terry has removed clutter from the premises but replaced it with additional clutter such that in net terms the amount of clutter has not reduced.
18. Ms Terry's hoarding disorder is the primary cause of the accumulation and residence of clutter at the premises.

1. The Tribunal had regard to the written and oral submissions of the parties. The submissions of the parties may be summarised as follows.
2. The landlord submits that the tenancy should be terminated. The clutter at the premises presents a fire risk to both the tenant and other tenants in the complex which is the primary matter of concern. The clutter also presents nuisance issues such as smell and pests, although pest treatment has been carried out. The clutter gives rise to the necessity to replace the flooring throughout the premises.
3. In relation to discretionary factors under section 154E of the Act, the landlord submitted as follows. First, that the tenancy is having a negative impact on neighbouring residents in relation to pests, odour, cleanliness and the risk of fire. Second, the fire risk presents a likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated. In making this submission the landlord conceded that there was no evidence of actual unsafe practices regarding the use of fire at the premises. The landlord characterised the risk as a fuel load risk in the event that a fire breaks out. The landlord says there are seven other units in the complex under its management. Third, the history of this tenancy is such that ongoing efforts have been made since 2023 to encourage compliance, but to date the tenant remains in breach of the residential tenancy agreement. Fourth, the tenant has been in partial breach of the specific performance orders made by the Tribunal previously in these proceedings.
4. The landlord also submitted that if the tenancy were terminated a 28 day period of suspended possession would be appropriate. If the unit were satisfactorily cleaned within that period the landlord would explore the possibility of the tenancy continuing by consent. In the event that the tenancy is terminated the landlord indicated that they would refer the tenant to the Salvation Army Homelessness Support.
5. The tenant submits that she accepts she is presently in breach of the residential tenancy agreement in relation to clutter, but does not accept that there is a pest issue. The tenant submits that the breach arises because of her hoarding disorder. The tenant concedes that the prognosis for that disorder is commonly poor. However, the tenant has insight into her disorder and motivation to address it. The tenant is engaging in consistent therapy and seeking support to tackle the clutter.
6. The tenant submits that the appointment of a guardian ad litem is a significant factor that will assist her with moving towards compliance as that person will provide valuable support and guidance to the tenant.
7. The tenant submits that her disability is a factor that is relevant for consideration under section 154E of the Act. Further, the tenant submits that breaches of the specific performance orders made by the Tribunal were not wilful and were the direct result of her disability.
8. The tenant submits that she faces homeless if the tenancy is terminated, and noting that the landlord is the only provider of social housing in Broken Hill, the tenant would face significant challenges in securing alternative accommodation in Broken Hill. The tenant submits that becoming homeless would delay and otherwise affect her ability to obtain treatment for her disorder.
9. The tenant also submits that her daughter is applying to be her carer, which gives rise to the prospect that the tenant will have greater support in addressing her disorder and give her assistance in decluttering the premises.
10. The tenant submits that genuine efforts are being made to address the clutter and that a specific performance order providing a period of three months to demonstrate progress would be appropriate.

1. At the commencement of the hearing the tenant made an application for adjournment of the proceedings. The landlord opposed the application. The Tribunal refused the adjournment. The reasons for the refusal included the lateness of the application, the interests of the Tribunal in ensuring proper case management in the context of the guiding principle of the Tribunal set out in section 36 of the Civil and Administrative Tribunal Act 2013 in consideration that that the hearing of this matter had been fixed for some time and that this matter relates to an application first made in 2023.
2. In relation to the substantive hearing, the Tribunal is satisfied that the tenant's conduct constitutes an ongoing breach of the residential tenancy agreement in that the premises is not being kept in a reasonable state of cleanliness both inside and out.
3. In considering whether to terminate the residential tenancy, the Tribunal is satisfied after consideration of the various factors set out in section 87C(4) of the Act (which is in the same terms as section 87(5) of the Act prior to the amendment of the Act on 19 May 2025) that the conduct would, save for the matters set out below, otherwise warrant termination of a residential tenancy agreement.
4. In considering whether to make a termination order for a social housing tenancy agreement the Tribunal has had regard to the matters set out in sections 154B and 154E of the Act. In respect of those matters, the Tribunal considers as follows.
5. The Tribunal accepts the landlord's submissions that the that the tenancy is having an adverse effect on neighbouring residents by reason of the external clutter, smell and pests generated by the condition in which the premises is being maintained.
6. The Tribunal does not accept the landlord's submission that there is a significant likelihood that other persons will suffer serious adverse effects in the future if the tenancy is not terminated based on the risk of a fire. Whilst there must be some likelihood that if a fire starts at the premises the fuel load provided by the clutter could result in a dangerous fire there is no evidence before the Tribunal as to the likelihood of any such fire occurring. No such fire has occurred in the time since the application has been made to the Tribunal in 2023, and the landlord has accepted that there is no evidence of current risky practices in relation to the handling of fire at the premises.
7. The Tribunal accepts the landlord's submissions that the tenant has not complied fully with previous specific performance orders. The Tribunal also accepts the tenant's submissions that these failures to comply have not been wilful and have arisen consequent on the tenant's hoarding disorder.
8. Further, the Tribunal accepts that the tenant is genuine in her desire to address the clutter at the premises; is aware of the disorder; and is actively seeking assistance in relation to addressing both the disorder and the clutter at the premises. The Tribunal accepts that if the tenancy is terminated the tenant will effectively be homeless in Broken Hill, a remote and regional location. Each of these matters is a relevant consideration with regard to sections 87C(4)(f) and 154E(2) of the Act.
9. In the above circumstances, and having considered the relevant mandatory statutory matters for consideration set out above, in the exercise of its discretion the Tribunal considers that the tenancy should not be terminated. In exercising its discretion, the Tribunal has given particular weight to the disproportionate impact on the tenant of terminating the tenancy (being a social housing tenancy in a regional and remote setting) at a time when the tenant is demonstrating awareness of their predicament and a genuine intent and commitment to address a breach. The breach has persisted albeit in an evolving manner since at least 11 July 2023. The tenant has and continues to attempt in earnest to take steps to address the breach.
10. The Tribunal considers that an order for specific performance is appropriate, as the tenant is in breach of the tenancy agreement.
11. The Tribunal has also given consideration to whether there should be an order for a relist accompanying the order for specific performance. The Tribunal does not make an order for a relist for the following reasons.
12. The power to grant a re-list of proceedings arises under the discretionary powers under section 188 of the Act. It is not a renewal of proceedings under Schedule 4, Clause 8 of the Civil and Administrative Tribunal Act 2013.
13. In exercising its discretion, the Tribunal considers that making an order for re-list in the circumstances of this matter, which has been in the Tribunal since 2023, would result in the Tribunal effectively adopting a supervisory jurisdiction over the performance of the residential tenancy agreement. That outcome is not desirable. It is also not desirable to leave open the prospect of hearing and determining matters relating to the circumstances of a termination notice issue in July 2023 at some time in the future. This does not prevent the landlord from issuing a fresh termination notice based on the state of affairs that may be present at some time in the future, should the landlord consider it appropriate to do so.

1. For the foregoing reasons I make the following orders:

(1) The tenant is granted leave to be represented by an Australian Legal Practitioner.

(2) The tenant's application for an adjournment is refused.

(3) The tenant must comply with the terms of the residential tenancy agreement by keeping the premises in a reasonable state of cleanliness, both inside and out.

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.