The respondent issued the notice of termination in March 2025 on the basis that the tenant was in breach of her tenancy agreement by using the property for an illegal purpose, being in possession of an illicit substance (cannabis or methamphetamine) and trafficking in an illegal drug. The events forming the basis of the notice occurred in November 2022, when the tenancy was the subject of an earlier periodic tenancy agreement.

The applicant submitted that since 2022 her circumstances had significantly changed and that she had taken steps to improve her life and maintain a stable lifestyle. She gave evidence that she had been sober since 2023 and attends SMART sessions, as well as regular appointments with her psychologist.

The respondent submitted that the decision to terminate the applicant's tenancy should be upheld as the correct and preferable decision. The landlord told the Tribunal that the only basis for termination of the tenancy agreement was the applicant's convictions for the 2022 offending.

Held, setting aside and substituting the decision under review:

• The Tribunal is satisfied that the decision to terminate the tenant's tenancy and to serve a notice of termination on the tenant is reviewable by the Tribunal pursuant to clause 2(1)(a)(vi) of Schedule 2 of the National Law as it is a decision which affects her occupation or use of the premises;
• The Tribunal is satisfied that the tenant breached clauses 17 and 7.1(a) of a 2019 tenancy agreement, and also s 71 of the Residential Tenancies Act 1995, by reason of the existence of methamphetamine and cannabis at the premises and in that she permitted the premises to be used for an illegal purpose, namely the trafficking in cannabis;
• There is no evidence that the tenant has at any time been in breach of a subsequent 2024 tenancy agreement;
• The Tribunal considers the decision under review was procedurally unfair to the tenant because the respondent did not give her an opportunity to comment or make submissions on the respondent's proposal to terminate her tenancy before it served the notice of termination on her;
• The respondent did not take into account and properly weigh up the tenant's positive personal circumstances against the adverse information in making the decision under review;
• It is not reasonable to terminate a tenancy and render a vulnerable tenant homeless on the basis of an offence that occurred nearly two and a half years previously with no evidence of any other offending in the meantime;
• There is a serious argument that the notice of termination was invalid and not lawfully authorised because the grounds on which it was based did not arise during the term of the 2024 tenancy agreement;
• The correct and preferable decision is not to terminate the tenancy agreement or serve a notice of termination on the tenant.

Administrative review - Community Housing Providers (National Law) (South Australia) Act 2013 - Review of a decision of a community housing provider - Termination and vacant possession

Residential Tenancies Act 1985 ss 71, 80, 80A, 83A

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 37, 39

The applicant with Ms Sproull, RentRight SA, attended in person

Ms Bednarsky with Ms Caputo appeared for the respondent, in person

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(c)(i)

1. Ms Conlon made an application to the Tribunal on 4 April 2025 seeking a review of the decision of her landlord (the respondent) on 31 March 2025 to terminate Ms Conlon's tenancy in Strathalbyn and to serve on her a Form 9 under s 83A of the Residential Tenancies Act 1995 (RT Act) requiring her to vacate the premises by 7 August 2025.
2. I refer to the decision to terminate the tenancy agreement and to serve the Form 9 as the decision under review. This is fundamentally a single decision with two parts.
3. Ms Conlon's application is made under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act). Section 34 of the SACAT Act provides for the Tribunal to conduct a review of certain decisions.
4. Section 34 of the SACAT Act requires that, on a review, the Tribunal must make the correct or preferable decision having regard to and giving appropriate weight to the decision of the original decision-maker. The Tribunal must examine the decision under review by way of re-hearing and must take into account the evidence available to the original decision-maker and any further evidence provided during the review process (which is relevant and appropriate to take into account).

1. Ms Conlon moved into the Strathalbyn premises in 2019 under a fixed term tenancy for 12 months, from 26 November 2019 to 24 November 2020 (the 2019 tenancy agreement).
2. Thereafter, until August 2024, Ms Conlon was a periodic tenant at the premises. As a periodic tenant, she was bound by the same terms and conditions as the 2019 fixed term tenancy. I say more about those terms later in these reasons.
3. On 14 November 2022, Ms Conlon was arrested for drug offences after a search warrant was executed at the premises by police. Her partner at the time, Mr Adam Iuliano, was also at the premises and was also subject to charges after the same search. I set out further details of this offending in the Evidence section below.
4. Ms Conlon and the respondent entered into a 12-month fixed term tenancy that commenced on 8 August 2024 until 7 August 2025 (the 2024 tenancy agreement). After some discussion at the hearing, during which Ms Conlon stated that she could not remember entering into this agreement, she then conceded that she had done so.
5. On 19 March 2025, Ms Conlon was convicted and sentenced in the District Court for possession of methamphetamine arising from the search conducted on 14 November 2022. Mr Iuliano was convicted and sentenced for trafficking in cannabis and for possession of methamphetamine, both arising from the same search on 14 November 2022. Both had pleaded guilty.
6. SAPOL notified the respondent of these matters on 27 March 2025, although I am aware from perusing the Tribunal's records that the respondent had known of the events of 14 November 2022 since at least 25 November 2022. On that date, the respondent commenced proceedings in the Tribunal under s 90 of the RT Act to evict Ms Conlon by reason of the offending uncovered on 14 November 2022.[1] These proceedings were dealt with at a directions hearing on 5 December 2022 but were automatically dismissed by the Tribunal on about 6 March 2023 as the respondent did not seek a further hearing of its application.
7. On 31 March 2025, the respondent served two notices of termination on Ms Conlon:

a. a Form 5 which was purportedly served under s 80A of the RT Act; and

b. a Form 9 which was purportedly served under s 83A of the RT Act.

1. Both notices required Ms Conlon to vacate the premises on 7 August 2025, which was the end of the term in the 2024 tenancy agreement.
2. A Form 9 has a number of boxes which are intended to be ticked to indicate the statutory grounds a landlord relies on to serve the notice. In this case, the respondent ticked the box that said "you have used the premises, or caused the premises to be used, for an illegal purpose (including drug related conduct)". The respondent included the following explanatory text in the Form 9:

You have breached the lease agreement by using the premises for illegal activities related to drugs, including possession (cannabis and methamphetamine) and distribution to a minor. These actions violate the terms of the lease and are considered a serious violation.

3. The respondent's officer Ms Bednarsky said at the hearing that she was part of the team that jointly determined to terminate Ms Conlon's tenancy and serve the Form 9 on 31 March 2025. Ms Bednarsky repeated a number of times during the hearing that the only reason for terminating the tenancy and serving the Form 9 was the information received from SAPOL on 27 March 2025 as to Ms Conlon and Mr Iuliano's convictions and sentencing earlier that month for the November 2022 offending. She said that there was no other reason for serving the Form 9. She referred to Ms Conlon also having breached s 71 of the RT Act and the respondent's Anti-Social Behaviour Policy (ASB Policy) by this conduct.
4. Ms Bednarsky indicated, and Ms Conlon agreed, that Ms Conlon was not given an opportunity to make submissions or comment on the prospect that her tenancy might be terminated on account of her November 2022 offending.
5. In a statement of reasons filed in the Tribunal for these proceedings, the respondent said that the grounds for it making the decision under review were that (emphasis in original):

... the tenant has used the premises, or caused the premises to be used, for an illegal purpose, specifically drug-related conduct, in violation of the Lease Agreement and the Anti-Social Behaviour Policy. > > The decision to terminate the tenancy is supported by official documentation provided by the South Australia Police, which confirms that the tenant engaged in illegal activities, including:

• Possession of illicit substances: cannabis and methamphetamine
• Distribution of illegal substances to a minor - child in school uniform ...

These actions constitute a serious breach of the Lease Agreement and the Anti-Social Behaviour Policy and pose a risk to the safety and well-being of the property and the surrounding community, including minors. Given the severity of the violations, Cornerstone Housing has exercised the legal right to terminate the tenancy under Form 9, ensuring compliance with the relevant tenancy laws.

1. It seems that Ms Conlon sought an internal appeal by the respondent of the decision under review sometime after she made this application to the Tribunal but it is not clear to me whether the respondent took any action on that internal appeal. I certainly do not know the result of any such appeal.

1. I set out below the evidence provided by the respondent and the oral evidence given in response by Ms Conlon. I indicate in this section whether I have accepted the evidence and, if so, the weight I have given to it.

1. The respondent provided to the Tribunal a document supplied to it by SAPOL on 27 June 2025 as to Ms Conlon and Mr Iuliano.
2. This document alleges that on 14 November 2022, a child in school uniform attended at Ms Conlon's premises and bought cannabis. There is a notation in the document that a certain police officer could provide more information to the Tribunal about this in person. That police officer was apparently not available to give evidence to the Tribunal about this specific allegation.
3. There is no other information from police about this particular allegation. There is no affidavit evidence. It was not referred to in the District Court's Sentencing Remarks (see below). It is entirely hearsay evidence.
4. This is a serious allegation clearly. It has been relied on in part to support the decision to terminate the tenancy and serve the notice of termination on Ms Conlon.
5. It is clear to me by the evidence and submissions made by the respondent at the hearing that the respondent took this allegation at face value and assumed, without testing it, that it was the truth. I emphasise that an allegation that something occurred, even an allegation by police, is not proof that it occurred. The respondent seriously erred in blindly accepting the truth of this allegation in making the decision under review.
6. I am unable to be satisfied on the evidence before me that Ms Conlon or anyone at the premises distributed an illegal substance to a child. I disregard that allegation and give it no weight.
7. The balance of the information in the SAPOL document is taken from the Sentencing Remarks, which I turn to next.

1. The other document supplied by the respondent was the remarks made by the District Court when sentencing Ms Conlon and Mr Iuliano for the offending uncovered by the execution of the search warrant on 14 November 2022.
2. Under s 39 of the SACAT Act, I am entitled to adopt, in my discretion as I consider appropriate, any findings, decision or judgment of a court or another tribunal.
3. Pursuant to s 39, I adopt the below findings in the Sentencing Remarks. I consider that it would have been quite reasonable and appropriate for the respondent to accept what is contained in the Sentencing Remarks as the truth of the matter.
4. In the Sentencing Remarks, her Honour Judge Kudelka said (my underlining):

The circumstances surrounding [the] offending are that on 14 November 2022, the police attended the house where you were both living. They located 175 g of cannabis on the kitchen bench. That cannabis was contained in a black plastic bag, inside which were eight plastic resealable bags, each holding an amount of cannabis which ranged from .9 g through to 27.8 g. In a drawer of the coffee table of the loungeroom, they located two small plastic resealable bags. One contained 4.91 g of methamphetamine, and the other contained 0.1 g of methamphetamine, making the total just over 5 g of methamphetamine. There were other items seized by the police which included $4,950 in cash, which was in a safe in a bedroom, and a tick list. > > ... > > Ms Conlon, I am told that you have struggled with drug use in the past, but you have been clean since November last year. You completed a DASSA detoxification, and have also been involved in the SMART relapse prevention, which is great news. If this matter had not been joined with a trafficking charge for you (that charge was discontinued, and this plea was accepted in satisfaction of another trafficking charge), then the penalty in the Magistrates Court would have been diversion with counselling. > > In all the circumstances then, in relation to your penalty, I convict you for this offending, which is simple possession of methylamphetamine, with no further penalty.

5. During the hearing, I asked Ms Conlon to explain the underlined portion of the above extract which indicates that Ms Conlon did not get "clean" until November 2024. She said that this is an error as she has been clean since November 2023.
6. Her Honour sentenced Mr Iuliano for methamphetamine possession without further penalty. Her Honour noted that Mr Iuliano had told police that the cannabis was his: "the whole lot of it" was his. Her Honour sentenced Mr Iuliano to a little over 14 months imprisonment for trafficking in the 175 g of cannabis, which her Honour described as a "relatively small amount". This sentence was suspended.
7. Ms Bednarsky indicated that, as part of the decision-making team, she was aware of her Honour's positive reflections about Ms Conlon but considered that this did not outweigh Ms Conlon's offending.

1. The respondent called two witnesses to give evidence, including a police officer who provided information from SAPOL records.
2. I pause to note that Ms Bednarsky told me she did not know what evidence either of the witnesses would give the Tribunal, suggesting that the witnesses would say what they wanted to say. This is a risky exercise and could potentially waste the Tribunal's time if the witness does not give relevant evidence. Also, to some extent, it abrogates the respondent's responsibility to argue their own case. It is not for a party's witnesses to argue the party's case for it.
3. A serious question arose whether the Tribunal should receive the evidence of the Brevet Sergeant. The Brevet Sergeant indicated she would give evidence from police records about Ms Conlon and events at the premises other than the 2022 offending. After some consideration, Ms Bednarsky told me that the respondent intended that the Tribunal take this information into account in making the decision.
4. Even though I may take new information into account under s 34 of the SACAT Act, the matter of the Brevet Sergeant's proposed evidence concerned me. Ms Bednarsky had already told the Tribunal a number of times that the respondent had made its decision solely on the basis of the November 2022 offending and that the respondent was not aware of any other offending or alleged offending by Ms Conlon. Secondly, at no time in these proceedings had the respondent raised any other offending other than the November 2022 offending and to raise it at the hearing for the first time would not be procedurally fair to Ms Conlon. Ms Sproull also expressed her concerns about the Tribunal receiving this evidence.
5. However, I decided to hear the police officer's evidence de bene esse.[2]
6. The Brevet Sergeant said that SAPOL records indicated the following [I have referred to Ms Conlon's responses to this information in italics within square brackets and note that none of these responses were denied or rebutted by the respondent]:
   1. on 11 November 2021, in execution of a search warrant, police located cannabis and related equipment at the premises. An expiation notice was served on Ms Conlon for that offence. On that day, a garbage bag was located in the ceiling space of the premises which contained a small black locked money box, scales and empty resealable bags. Ms Conlon provided the key to the money box and inside were found two bags of methamphetamine, a plastic jar with 40 tablets of dexamphetamine, one tablet of diazepam and five glass methamphetamine pipes. Ms Conlon was arrested for trafficking in those drugs but this charge was later downgraded to simple drug possession. [The officer did not know what the outcome of that charge or charges was. Ms Conlon agreed with this account and said that she was convicted of possession of the Valium (diazepam) tablet but that another person had come forward to take responsibility for the other drugs.]
   2. on 18 January 2022, a person leaving the premises was stopped and searched by police and found with empty plastic "deal" bags that he said he had obtained from Ms Conlon. [Ms Conlon said that the plastic bags were coin bags obtained by her from Bank SA so that this person could place coins in them.]
   3. on 14 May 2022, police received an allegation from a member of the public that between 10 and 15 cars had attended at the premises, and stayed for just a minute. No action was taken by police on this allegation. [Ms Conlon said that the informant was a person who was trying to make trouble for her.]
   4. on 7 June 2022, the police stopped a vehicle in which Ms Conlon was a passenger. In a hair brush was found a quantity of less than two grams of methamphetamine. Ms Conlon was reported for that offence. [The Brevet Sergeant did not know the outcome of that offence. Ms Conlon said she did not know who the methamphetamine belonged to but pleaded guilty to the offence and was fined.]
   5. on 26 June 2022, police stopped a vehicle in which Ms Conlon was a passenger. She was found to be in possession of a methamphetamine pipe and was reported for that offence. [The Brevet Sergeant did not know the outcome of that offence. Ms Conlon said she pleaded guilty and was fined.]
   6. on 19 May 2023, the premises were searched under warrant and a small non-trafficable quantity of methamphetamine and cannabis was found together with drug paraphernalia. Police could not establish that this belonged to Ms Conlon so she was not charged. A male at the premises was given an expiation notice in relation to the cannabis.
7. I found the police officer to be a truthful and credible witness and I have no reason to doubt the information contained in police records, most of which was conceded by Ms Conlon. However, the police officer's evidence does not assist me significantly in making my decision as there is no real dispute that, at least up to November 2022, there was drug trafficking occurring at the premises and that Ms Conlon knew about it and may have been involved in it. The police officer's evidence is also consistent with Ms Conlon's own evidence that she has been clean only since November 2023. In other words, the police officer's evidence is adverse to Ms Conlon but the adverse nature of it is not any greater than that from the other evidence adverse to Ms Conlon already available to me.
8. I note also that Ms Conlon was able to provide ready answers to the information in the police officer's evidence. I consider that any procedural unfairness in admitting this evidence is not material as it has not altered my final decision.

1. The respondent also called Mr Greg Dunning, a former neighbour of Ms Conlon, to give evidence.
2. Mr Dunning said that he used to live in the same street for thirteen years until he moved out in October 2024 for family reasons.
3. He gave evidence that people, including children, would collect and buy drugs from Ms Conlon and that on certain days of the week there would be people coming and going until the early hours of the morning. He said that this started soon after Ms Conlon moved in about four years ago and that it would happen every day. However, he said in response to a question from me that he did not actually see any person buying drugs or purchasing anything from Ms Conlon.
4. He said that he had observed Ms Conlon, another woman and a male on bicycles delivering drugs in Strathalbyn about three or four times a week. However, in response to a question from me, he said that he did not actually see them delivering drugs.
5. Mr Dunning said that a motorbike rider from Murray Bridge would come weekly to deliver drugs to Ms Conlon. He said that he knew the person was from Murray Bridge because he followed him there. However, he said that he did not actually see what this person and Ms Conlon did when they met.
6. He said that the street is well known as a drug street and that police are there quite a bit and that he has been told at the local hotel and at the football park that if he wants drugs, he is to go to Ms Conlon's property.
7. In answer to this evidence, Ms Conlon denied that there are people coming and going to buy drugs from her. She said that she has tried to stop visitors coming to her home and generally denied that she is dealing in drugs. She said that she rides a bike everywhere as that is her only form of transport and that sometimes she is accompanied by her friends. She said the motorbike rider is a close friend of hers from Murray Bridge who visited her. She said that Mr Dunning is known to her and that she believes he is "making up" these allegations because of his concerns about her association with his son, who is a known drug user. She said Mr Dunning's son is her gardener but that he does not buy drugs from her.
8. I found Mr Dunning to be a truthful witness in that he did not set out to give false evidence to the Tribunal. However, I find that I cannot rely on his evidence as he has not lived in the street since October last year and cannot give direct evidence about occurrences in the street in that time. Also, I find that Mr Dunning's evidence is largely based on speculation, extrapolation and suspicion.
9. I accept Ms Conlon's evidence and account of events over that of Mr Dunning.

Ms Bednarsky's evidence of anonymous complaints

1. Ms Bednarsky gave evidence that the respondent has received a number of anonymous allegations from neighbours as to cars coming and going at all hours of the day and night from Ms Conlon's premises, which the complainants believe is for the purposes of drug trafficking. The respondent is not aware of the identities of some of the complainants.
2. Ms Bednarsky said that one of these complaints was received in July 2022, two were received in June 2023, one was received in August 2024 and one was received this month.
3. She indicated, and Ms Conlon agreed, that Ms Conlon had not been contacted for comments about these allegations.
4. Ms Bednarsky said that these complaints played no part in the making of the decision under review.
5. I have determined to give no weight to these anonymous allegations. I note the allegations are poorly detailed. There is no information about when or how often these alleged occurrences were observed. There is no further information about how the complainants came to their conclusion about the purposes of the vehicle traffic. This evidence is entirely unsubstantiated hearsay. None of the complainants gave evidence to the Tribunal. There was no other evidence to substantiate the allegations contained in these complaints. There are no witness statements, no photographs, or any recordings. It was entirely correct and reasonable for the respondent to have no regard to these untested and unsubstantiated allegations in making the decision under review.

1. Ms Conlon provided a written statement to the Tribunal and gave oral evidence during the hearing. I set out below relevant aspects of her written statement and refer elsewhere in these reasons to Ms Conlon's oral evidence.
2. Ms Conlon said in her statement that since the time of the 2022 offending, her circumstances have changed significantly. She said that she has taken consistent steps to improve her life and maintain a stable lifestyle. She said that she is no longer in a relationship with Mr Iuliano and that he no longer comes to the property. She said that she has worked hard to rebuild her life and has been clean and sober and goes to SMART Recovery sessions every second Monday. She said that every day is a struggle and she continues to try her best and that having a roof over her head plays a big part of that. She said that she understood the seriousness of what happened and deeply regrets that situation.
3. She said that the threat of eviction has had a severe impact on her mental health causing her to feel depressed and even at times wanting to give up on everything. She said that she has no other housing options available to her and if evicted she would have nowhere to go and would face homelessness. She said that losing her home would undo the progress that she has made and put her well-being at serious risk.

1. My approach is to consider the application by dealing with each of the following questions:

a) Is the respondent's decision to serve a Form 9 on Ms Conlon (the decision under review) a reviewable decision under s 34 of the SACAT Act? > > b) What is the relevant law which applies to the decision under review? > > c) Has the respondent complied with any relevant policy which applies to the decision under review? > > d) Has the respondent otherwise been fair in its dealings with Ms Conlon in relation to the decision under review?

Question 1: Is this a reviewable decision under s 34 of the SACAT Act?

1. Under s 34(1) of the SACAT Act, if legislation which confers jurisdiction on the Tribunal "... expressly or necessarily involves a review of a decision ... [then] the matter comes within the Tribunal's review jurisdiction".
2. Clause 2 of Schedule 2 of the Community Housing Providers (National Law) (South Australia) Act 2013 (National Law) gives the Tribunal its jurisdiction to review decisions of community housing providers such as the respondent. Clause 2 states:

(1) Subject to subclause (2), an application for relief under this Schedule may be made by -

(a) a tenant occupying community housing owned or managed by a registered community housing provider in relation to any of the following decisions of the community housing provider:

(i) a decision that relates to an assessment of the financial or other circumstances of the tenant (including as to any question of eligibility or to terminate a benefit or concession);

(ii) a decision that relates to the allocation (or reallocation) of any premises (including in relation to the transfer (or potential transfer) of the tenant to other premises);

(iii) a decision that relates to the state, condition, modification or improvement of premises;

(iv) a decision that relates to the calculation or imposition of any rent, levy, charge or subsidy (other than where the rent, levy, charge or subsidy arises under a tenancy agreement);

(v) a decision to terminate the tenant's membership of the community housing provider (if the community housing provider has members who are tenants);

(vi) any other decision that affects the person's occupation or use of premises; and

(b) a person who has applied for membership of a registered community housing provider (if the community housing provider has members who are tenants) in relation to a decision of the community housing provider to reject the application if -

(i) the person is occupying community housing owned by the community housing provider; and

(ii) the decision has a direct impact on an existing tenancy or other existing right of occupation;

and

(c) a tenant, resident or other person in prescribed circumstances.

(2) An application under this Schedule may not relate to a matter -

(a) that may be the subject of proceedings under, or is otherwise regulated by, the Residential Tenancies Act 1995 (whether or not proceedings have been brought under that Act); or

(b) that does not relate to the occupation (or potential occupation) of community housing; or

(c) that is within a class of matters excluded from the operation of this clause by the regulations.

(3) In addition -

(a) the Appeal Tribunal may -

(ii) decline to proceed (or further proceed) with an application under this Schedule if proceedings related to the subject matter of the application have been commenced in a court or tribunal constituted by law; and

(b) the Appeal Tribunal may decline to hear a matter, or may suspend any hearing or consideration of a matter, under this Schedule if the Appeal Tribunal considers or is satisfied -

(i) that the applicant should have sought to resolve the matter through a mediation or conciliation process; or

(ii) that the applicant in the proceedings has failed to take a step relevant to the conduct or subject matter of the proceedings within a reasonable time; or

(iii) that the matter is not suitable for consideration, or further consideration, by the Appeal Tribunal for some other reason.

1. I am satisfied that the decision to terminate Ms Conlon's tenancy and to serve a Form 9 on Ms Conlon is reviewable by the Tribunal pursuant to clause 2(1)(a)(vi) of Schedule 2 of the National Law as it is a decision that affects her occupation or use of the premises.

Question 2: What is the relevant law which applies to the decision under review?

1. In considering what law applies to a dispute between a landlord and a tenant, the starting point is the tenancy agreement itself. A tenancy agreement is simply a special form of contract. The parties have agreed to the terms and conditions of the tenancy as they are contained in that document.
2. It would be artificial to determine this matter without regard to the tenancy agreement. This matter fundamentally concerns an administrative decision that is underlaid by the contractual relationship between the parties.
3. In this matter, in particular, I find that the following provisions in the 2019 tenancy agreement are relevant to the decision under review:
   1. clause 7.1(a) - the tenant(s) must not use, or cause or permit the premises to be used, for any illegal or unauthorised purpose;
   2. clause 15.1 - Either the TENANT(S) or LANDLORD may terminate the tenancy by notice of termination to the other for breach of any term of this AGREEMENT. The notice to remedy breach and terminate tenancy shall be given on the prescribed form of The Act, specifying the breach and informing the other party that if the breach is not remedied within a specified time period (a minimum of 7 clear days), then a tenancy is terminated by force of the notice;
   3. clause 17 - No firearms or illicit drugs of any sort are to be on the premises. Illicit drugs include but are not limited to: Methamphetamines, cannabis, heroin, cocaine, or the same drugs known by any other names, or any of their derivatives.
4. As I noted earlier, these same provisions applied during the periodic tenancy.
5. The 2024 tenancy agreement contains the same, or essentially the same, provisions as clauses 7.1(a) and 17 of the 2019 tenancy agreement, and contains termination provisions that reflect the changes to the RT Act introduced on 1 July 2024.
6. Other relevant laws are those in the RT Act that relate to the landlord and tenant relationship. Most relevantly, this includes provisions in ss 80 and 83A as to the service of notices of termination on a tenant and in s 71. Section 71 relevantly states that it is a term of a residential tenancy agreement that the tenant must not use the premises, or cause or permit the premises to be used, for an illegal purpose.
7. I am satisfied from the information contained in the District Court's Sentencing Remarks that, on 14 November 2022, Ms Conlon:
   1. breached the periodic tenancy because she breached clause 17 of the 2019 tenancy agreement by reason of the existence of methamphetamine and cannabis at the premises; and
   2. breached the periodic tenancy because she breached clause 7.1(a) of the 2019 tenancy agreement, and also breached s 71 of the RT Act, in that she permitted the premises to be used for an illegal purpose, namely the trafficking in cannabis by Mr Iuliano.
8. However, there is no evidence that Ms Conlon has at any time been in breach of the 2024 tenancy agreement.

Question 3: Has the respondent complied with any relevant policy which applies to the decision under review?

1. As noted in the respondent's statement of reasons, the respondent relies on its ASB Policy in supporting the making of the decision under review.[3]
2. In particular, that policy states that using the property to manufacture, sell, cultivate, or supply any prohibited drug is considered a serious instance of anti-social behaviour. The policy states that the respondent does not investigate complaints of anti-social behaviour unless there is an alleged breach of the tenant's lease agreement. It states that tenants have the right to know about and respond to complaints made against them. The policy also indicates that, if the respondent substantiates serious anti-social behaviour, immediate action may be taken to terminate a tenancy without issuing a formal warning. In these circumstances, the tenant could be excluded from being housed by the respondent for a period of 12 months.
3. The word "concern" is defined in the policy to mean a formal written statement of concern not being a decision made by the respondent, a court, or tribunal.
4. This suggests that the information provided to the respondent by SAPOL in March 2025 about Ms Conlon's conviction was not a "complaint" and that the ASB Policy therefore did not apply. If it did not apply, it cannot be relied upon by the respondent to support the decision to terminate her tenancy and serve on her a Form 9.
5. However, I consider that whether or not the ASB Policy strictly applied is an unnecessary distraction. Clearly, information was received by the respondent in March 2025 that the respondent took to mean that Ms Conlon had breached her tenancy agreement and had engaged in serious anti-social behaviour. In considering whether to terminate her tenancy, the respondent should have given her the same opportunity to respond to the matter that she would have been given if a "complaint" had been made against her under the ASB Policy. They did not do so. This was unfair. I deal with the general question of the respondent's unfair treatment of Ms Conlon next.

Question 4: Has the respondent otherwise been fair with the tenant?

1. I have taken into account that officers of the respondent may not be experienced administrative decisionmakers who are well acquainted and experienced in the legal principles of sound administrative decision-making. Nevertheless, a decision of the respondent must be lawful and reasonable, must be procedurally fair, must not rigidly apply policy without due regard to the individual circumstances of a particular case and must take into account only relevant considerations.
2. The decision under review falls short in many respects, as I will explain shortly. For that reason, I have not placed weight on the decision under review, as I would otherwise ordinarily be required to do under s 34 of the SACAT Act. Instead, I have made the decision afresh.
3. First, I consider that the decision under review was procedurally unfair to Ms Conlon because the respondent did not give her an opportunity to comment or make submissions on the respondent's proposal to terminate her tenancy in March 2025 before it served the Form 9 on her.
4. Having seen and heard Ms Conlon give oral evidence, I accept that she is genuine in her commitment to turn her life around. She told me, and I accept her evidence, that she realises that she was previously in bad company but that she will no longer hang around with those people. She has stopped them coming to see her. She terminated her relationship with Mr Iuliano in 2023. She has plans to do a business course at TAFE and is continuing with her fortnightly SMART Recovery programme. She has had ten consultations with a psychologist and plans to have a further ten sessions with him. The psychologist has assisted her with strategies that she is employing to deal with the problems in her life, including her drug use. Until November 2023, she had continued to use methamphetamine on and off. Her decision to get clean was partly due to the urging of her 21 year old son. She said that since that time she has had only a single puff of a joint.
5. She reiterated that she would be homeless if her tenancy ended as she cannot stay with family and, being on JobSeeker income, she could not afford a rental in the private market.
6. If the respondent had given Ms Conlon the opportunity to make submissions, Ms Conlon would likely have given the respondent the information she gave at the hearing about her efforts to turn her life around and the positive steps she had taken in that regard, and that she had been clean since November 2023. She would have been able to tell them also what the consequences on her would be if she were rendered homeless. The respondent would then have been able to weigh up this information; the positive comments in the Sentencing Remarks and the relatively light outcome of her conviction; together with the nature of the November 2022 offending to make an informed and balanced decision on whether or not it should terminate her tenancy and serve the Form 9 on her. However, because it did not give her that opportunity, the respondent did not place itself in a position where it could make a fully informed and balanced decision. I consider that a reasonable decision-maker in possession of all the above information and weighting it appropriately would not have made a decision to terminate Ms Conlon's tenancy and serve the Form 9 on her.
7. This is, in fact, the principal reason why I have found for Ms Conlon in this decision, that is because the respondent did not take into account and properly weigh up Ms Conlon's positive personal circumstances against the adverse information in making the decision under review.
8. Secondly, I consider that the decision under review can be criticised as being unreasonable in all the circumstances and should be set aside and reconsidered on that basis alone. Part of the decision relied on untested and unsubstantiated allegations of drug dealing to children. Also, at the time that the decision was made in March 2025 almost two and a half years had passed since the November 2022 offending which was the sole basis for the making of the decision. On Ms Bednarsky's own evidence, the respondent had no other information about any other offending or alleged offending committed by Ms Conlon. It is not reasonable to terminate a tenancy and render a vulnerable tenant homeless on the basis of an offence that occurred nearly two and a half years previously with no evidence of any other offending in the meantime. It should also be noted that, during that period, the respondent had given Ms Conlon a new fixed term tenancy when it already knew of the adverse information against her.
9. Thirdly, assuming the ASB Policy did apply, the respondent did not comply with that policy in making the decision under review to terminate the 2024 tenancy agreement. There was no evidence before the respondent that Ms Conlon had breached the 2024 tenancy agreement by reason of the November 2022 offending or any other offending. All of the information before the Tribunal, including the new information from the police officer and Ms Conlon's concession that she used methamphetamine up to November 2023, is that Ms Conlon breached the terms of the 2019 tenancy agreement that were carried over to the periodic tenancy, not the 2024 tenancy agreement. Also, the respondent did not comply with the provisions of the policy that required it to consult with the tenant before taking any action in response to complaints.
10. Fourthly, I consider also that there is a serious argument that the Form 9 was invalid and not lawfully authorised because the grounds on which it was based (i.e. that "the tenant has used the premises, or has caused the premises to be used, for an illegal purpose (including drug related conduct)")[4] did not arise during the term of the 2024 tenancy agreement. This is an important question because it is this fixed term tenancy that was purportedly terminated by the respondent, not the 2019 fixed term tenancy nor the periodic tenancy that existed between 2020 and 2024. However, I do not wish to make a definitive finding on this question as it is not necessary to rely on this fourth point to make my decision in this matter. The question of whether a Form 9 on the grounds of illegal purposes can reach back to conduct prior to the tenancy agreement in question can be left for an instance when it arises on the facts of a case and is critical to the outcome.

1. Before concluding these reasons, I make the following observations about the Form 5.
2. As noted above, the respondent served a Form 5 on Ms Conlon pursuant to s 80A of the RT Act (or at least the Form 5 for s 80A purposes was used). Section 80A states that:

A landlord may, by notice of termination given to the tenant, terminate a residential tenancy if -

(a) the landlord is aware that the tenant has engaged in, or allowed another person to engage in, drug related conduct on the premises or ancillary property; and

(b) testing for contamination conducted in accordance with section 67B indicates that the premises or ancillary property are contaminated as a result of that drug related conduct.

1. There is no evidence of drug contamination as required by s 80A so the Form 5 is invalid to the extent it relied on s 80A.
2. However, the actual terms of the Form 5 indicate that the respondent was relying on simple breach of the tenancy agreement pursuant to s 80, namely:

breaching the lease agreement by using the premises for illegal purposes activities relating to drugs: possession (cannabis and methamphetamine) and distribution (minor person). Such actions are prohibited under the terms of the lease and constitute a serious violation of the agreement.

3. In other words, the respondent may have used the wrong form.
4. However, the Form 5 is invalid and/or ineffectual under s 80 for two reasons. First, as noted above, Ms Conlon was not in breach of the 2024 tenancy agreement. Any breach was of the periodic tenancy that arose after the end of the 2019 tenancy agreement. Secondly, the purpose of a Form 5 under s 80 is to give a tenant an opportunity to remedy the alleged breach of the tenancy agreement and only if they fail to do so within a specified period are they required to vacate the premises. The respondent did not give Ms Conlon an opportunity to remedy a breach in the Form 5, but simply directed her to vacate the premises on 7 August 2025.
5. For these reasons, I have given the Form 5 no weight in my decision.

1. I find for the above reasons that the decision made on 31 March 2025 should be set aside.
2. Under s 37 of the SACAT Act, after setting aside a decision, I may either:
   1. send the decision back to the respondent for reconsideration in accordance with any directions or recommendations I consider appropriate; or
   2. substitute the decision with a fresh decision I make myself.
3. I have decided that, after having heard all the evidence, I am in as good or better position as the respondent, to make the fresh decision myself.
4. After taking proper account and giving due weight to the evidence that Ms Conlon has taken steps to turn her life around and has refrained from drug-related activity for an extended period, I consider that the correct and preferable decision in all the circumstances is not to terminate the tenancy agreement or serve a Form 9 on Ms Conlon. Accordingly, on setting aside the decision under review, I substitute the decision set out in Order 2 below.
5. I explained to the respondent at the hearing that, if my final decision was to set aside the decision under review, this would essentially mean that the Form 9 is taken not to have had the effect of terminating the tenancy on 7 August 2025. I said that, logically, in those circumstances, Ms Conlon would have a periodic tenancy. I asked Ms Bednarsky whether, if I set aside the decision, the respondent would intend to offer Ms Conlon a fixed term tenancy. If she had indicated to me that the respondent would be prepared to do so, I would have made reference to that in the below orders. However, Ms Bednarsky did not address this question directly but indicated that she understood that Ms Conlon would then be a periodic tenant unless she was offered and accepted a fixed term tenancy.
6. Accordingly, the practical and legal effect of my decision is that Ms Conlon holds a periodic tenancy from 7 August 2025. It is for the parties now to determine whether it should remain a periodic tenancy or be replaced by a fixed term tenancy.

1. The Tribunal sets aside the respondent's decision to terminate the applicant's tenancy and to serve a Form 9 on the applicant and strikes out the Form 9 served on 31 March 2025.
2. The Tribunal substitutes a decision that the tenancy agreement is not liable to termination under s 83A of the Residential Tenancies Act 1985.

[2] This expression means evidence that is admitted on a provisional basis, without determining its admissibility. This is usually done either to ensure relevant evidence is not lost or overlooked, or for the purpose of later assessing its relevance, value or admissibility, usually with submissions from the parties.

[3] The version provided to the Tribunal is version 1.01 of 21 October 2022.

[4] Regulation 16 Residential Tenancies Regulations 2010.