Hollins v NSW Land and Housing Corporation

Preliminary matters

1. The legal representatives appearing at the directions hearing today did not appear before the Tribunal. Consequently they were not in a position to indicate, from their own knowledge, what had occurred at that hearing. Thus, no one really knew whether or not oral reasons for decision were given on that occasion. Subsequent to the hearing, on 10 August 2018, the Appellant had requested written reasons for the decision made on 2 August 2018. At the time of the writing of these reasons, those written reasons were not available.
2. On 29 August 2018, the Appellant also filed an application for a stay of the original decision pending appeal. In that application of the Appellant's legal representative stated: 1. It is appropriate, and in the interests of justice, for the Tribunal to exercise its discretion to stay the order set out above. 2. The Respondent to this appeal has an order for termination vacant possession. If that order is not stayed, the Respondent can obtain vacant position on 30 August 2018, and the appeal will be rendered nugatory. A stay is necessary to ensure the effectiveness of the appeal; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 at 694. 3. The Appellant has an arguable case. The Tribunal erred in law by miscarrying in its discretion under s 92 [of the RT Act] and by failing to take into account manager considerations in section 154E [of the RT Act]. 4. The balance of convenience favours a stay. The Appellant continues to pay rent. The only prejudice to the Respondent in granting the stay is time. The Appellant stands to lose a substantial and significant right in the state is not granted, that is, the social housing and will be homeless. Further she is likely to be classified as an unsatisfactory former tenant and will therefore not be able to re-enter social housing in the future.

Principles to be applied

1. There was no issue that the Tribunal has power to order a stay: see s 43 of the Civil and Administrative Tribunal Act 2013, discussed in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37. In Bentran, the President of Tribunal (Wright J), summarised the principles to be applied in determining whether or not to grant a stay pending the determination of an appeal (see par [9]). In summary, those principles included the following: 1. the onus is on an applicant for a stay to make out a case that it is appropriate for the court or Tribunal to make such an order; 2. an order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal; 3. the Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. 4. the Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies; 5. in exercising the discretion, the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties; 6. finally, the overriding principle in an application for a stay is to ask what the interests of justice require.

Appellant's submissions

1. The Appellant relied on written submissions dated 30 August 2018 and an affidavit of the Appellant dated 31 August 2018 in summary, the Appellant states in her affidavit that:

• she has been a tenant of the Respondent since 2014, and has not had previous issues with her tenancy; she has expressed domestic violence in her childhood and at the hands of her ex-partner;
• she has three children. The oldest child aged five lives with his father, and the Appellant sees him some afternoons, weekends and school holidays. The two other children were removed from her care by the Department of Family and Community Services (FACS) about 18 months ago;
• she has symptoms consistent with complex Post-Dramatic Stress Disorder. She attached a note from an accredited mental health social worker to that effect;
• FACS is trying to evict her because she abused its staff and they came to her home on 9 May 2018. She is "really sorry" that she "blew up" at the staff and understands that this behaviour is unacceptable. She hopes to reengage with counsellors to ensure this kind of behaviour will not happen again;
• seeing the FACS staff in her home was particularly traumatic for her as it reminded her of the removal of the children;
• the Appellant is up-to-date with her rent;
• if evicted, the Appellant will be homeless and cannot afford private rental accommodation in her area; if she is homeless she fears she will not be able to regain custody of her two youngest children, and will not have safe and adequate housing to allow her eldest son to visit her.

1. The Appellant's submissions repeat what is contained in her stay application. In addition, the submissions state that the Appellant stands to lose a substantial and significant right if the stay is not granted, that is, the social housing tenancy. She submits that she is also likely to be classified as an unsatisfactory former tenant if evicted, and will be ineligible for future social housing until she satisfies the "onerous conditions" of that policy. Nor would she be eligible for rent start products such as a bond loan or tenancy guarantee.
2. The Appellant submits that, for the following reasons, she has an arguable case on appeal:

• the Tribunal's discretion miscarried by not adequately considering with the circumstances justified termination;
• the Tribunal failed to consider a mandatory kind consideration, namely s 154E of the RT Act;
• the Tribunal failed to set out adequate reasons for its decision.

Respondent's submissions

1. The Respondent relies on written submissions dated 3 September 2018, together with a statement of Mr Paul White and Ms Shannon Hill, also both dated 3 September 2018.
2. Mr White is employed by FACS as an Advocate. His duties include representing the Respondent at hearings before the Tribunal. Mr White states that he appeared at the Tribunal on the day the order for termination and possession was made. After the hearing, the Appellant's advocate John McKenzie told Mr White that he had just been speaking with the Appellant and that she had made several threats to physically harm Mr White. Mr McKenzie thought it appropriate to inform Mr White. Following this, the Tribunal made arrangements for a Sheriff's officer to escort Mr White from the building together with Mr McKenzie.
3. Ms Hill is a Team Leader with FACS. Her role is to lead a team of officers managing tenancies on behalf of FACS and the Respondent. She is the team leader who manages the Appellant's social housing tenancy. Ms Hill has received numerous reports from staff that the Appellant has regularly abused them during the interactions with her at the residential premises. FACS staff consider that the Appellant's abusive behaviour has become a normalised pattern of expected behaviour by the Appellant. As a result of being abused and threatened by the Appellant, staff have been unable to effectively engage with the Appellant due to concerns they hold for their personal safety. In the circumstances, Ms Hill is unable to provide a safe working environment for her staff, as the Appellant's conduct presents an unmanageable risk. She believes that the granting of a stable unnecessarily exposes FACS staff to the ongoing risk of abuse and threats of harm from the Appellant.
4. The principal elements of the Appellant's detailed submissions are as follows.
5. First, in considering whether to grant or refuse a stay, the Tribunal must have regard to the evidence before the Tribunal that was relied upon by the Respondent in support of the application that the residential tenancy agreement between the parties dated 23 November 2017 be terminated pursuant to s 92 of the RT Act.
6. Section 92 of the RTA relevantly provides: Tribunal may terminate residential tenancy agreement for threat, abuse, intimidation or harassment (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has: (a) seriously or persistently threatened or abused the landlord, the landlord's agent or any employee or contractor of the landlord or landlord's agent, or caused or permitted any such threats, abuse or conduct, or
7. The Respondent submits that there was compelling evidence for the Tribunal to find that the Appellant had seriously and persistently threatened and abused the Respondent's employees and contractors.
8. Secondly, the Respondent submits that there have been additional and subsequent incidents of the Appellant having made threats against FACS representatives, notably on 2 August 2018 (see generally the statements of Ms Hill and Mr White).
9. Thirdly, the Appellant does not dispute the finding that she had breached s 92 of the RT Act and in fact conceded and admitted the breach (see Notice of Appeal, Appeal Ground 1). The Appellant claims however that the Tribunal failed to adequately consider whether the circumstances of the breach of s 92 of the RT Act by the Appellant justified termination of the residential tenancy agreement where the evidence before the Tribunal was that the Appellant would be homeless if evicted and would have little chance to regain custody of two of her children (see Notice of Appeal, Appeal Ground 1 and the Appellant's submissions at [12]).
10. As to the possibility of homelessness, the Respondent submits that as the Appellant conceded that she had breached s 92 of the Act, the likelihood of homelessness as a result of the termination of a social housing tenancy has limited relevance in cases where there is a history of breach: Ramsey v NSW Land and Housing Corporation [2018] NSWCATAP 49 at [34].
11. As to the claim that the Tribunal failed to give adequate reasons for its decision to terminate the Agreement, as Registry has received an application for written reasons pursuant to s 62(2) of the RT Act, the Tribunal has not therefore failed to give adequate reasons.
12. As to the Appellant's submission that the balance of convenience favours a stay as the only prejudice to the Respondent if the stay is granted is time, the Respondent submits that as the largest provider of social housing in NSW, the prejudice to the Respondent if a stay is the delay in being able to provide the social housing premises to a family that is entitled to and in need of such housing.
13. As to the Appellant's submission that if the stay is not granted, the Appellant will be classified as an unsatisfactory former tenant and will be ineligible for future social housing and will become homeless, the Respondent submits that the conduct and anti-social behaviour of the Appellant justifies her being classified as an unsatisfactory former tenant and is not a factor relevant to whether the stay ought to be granted.

Consideration

1. The starting point is that the Tribunal did make an order terminating the residential tenancy agreement of the Appellant on 2 August 2018. The Appellant appeared at that hearing and was represented. As noted above, s 92 provides that the Tribunal may terminate a residential tenancy agreement where the tenant has seriously or persistently threatened or abused the landlord, the landlord's agent or any employee or contractor of the landlord or landlord's agent, or caused or permitted any such threats, abuse or conduct. While, no party put in evidence before the Appeal Panel today what that evidence was, clearly, the Tribunal must have been satisfied of these matters to have made the order.
2. Ordinarily, the balance of convenience favours, all other matters being equal, a tenant remaining in the premises pending an appeal, as execution of a warrant would render the appeal nugatory. However, here the Respondent has indicated through it counsel that should the Appeal Panel not stay the order for possession, it will not relet the premises pending the outcome of the appeal.
3. As to the strength of the Appellant's case, given the absence of reasons, and the absence of the evidence below, this is impossible for me to assess. If it the case that the Tribunal overlooked the factors set out in s 154E, that would be a strong ground of appeal. Whether the ground is made out remains to be seen.
4. The ground of appeal that the reasons are inadequate are entirely hypothetical. As noted above, it was surprising that no legal representative appears to have listed to the sound recording of the hearing so as to enlighten the Appeal Panel.
5. Bentran is authority for the proposition that the power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal (here the Appeal Panel) specifies.
6. As to Ramsey, relied on by the Respondent, I accept that [par 34] states: Ground 1(d) asserts that the Tribunal did not take into account a material consideration, namely the likelihood of homelessness, if the tenancy was terminated. In our view, the Tribunal was conscious of that possibility in this case, and took this factor into account. But as we have explained it has limited relevance in cases where there is a history of breach. The statute itself places a strong emphasis on adherence to rent obligations.
7. However, I consider that while that principle is applicable at a final hearing, it has less application at this interlocutory hearing to determine whether a stay should be granted. Stays are granted in accordance with the principles set out in Bentran.
8. I am very troubled about the evidence that is before me about the Appellant's threats to FACS officers who were doing their duty on 9 May 2018 (which behavior is admitted) and on 2 August 2018 which was not admitted). However, in exercising my discretion, after weighing the balance of convenience and the competing rights of the parties, I think that the interests of justice warrant the granting of a stay, but subject to a condition that if there is any further similar breach of the residential tenancy agreement, the Respondent may have the matter listed, on 24 hours' notice, for the Appeal Panel to consider immediately lifting the stay. In other words, the Appellant is being granted this one indulgence pending the appeal. I do so in the exercise of my discretion because of her personal situation (namely being potentially homeless if the order is not stayed) and because of the evidence before me of her Post Traumatic Stress Disorder.

Order

1. For the above reasons, the Appeal Panel orders that: 1. Order (3) of the orders of the Tribunal of 2 August 2018 in SH 18/212139 is stayed until the hearing of the appeal subject to the condition that the Appellant is not to seriously or persistently threaten or abuse the Respondent, the Respondent's agent or any employee or contractor of the Respondent or the Respondent's agent, or caused or permitted any such threats, abuse or conduct, including and not limited to employees or contractors of the Department of Family and Community Services; 2. the Respondent has liberty to have the matter listed, on 24 hours' notice, for the Appeal Panel to consider lifting the stay if the Appellant breaches this condition.

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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: 04 September 2018