NSW Land and Housing Corporation v Gorges

NCAT Consumer and Commercial|2023-06-21|Before: Legal Services J

Introduction

This is an application by NSW Land and Housing Corporation (the landlord) for an order pursuant to s 90(1)(a) of the Residential Tenancies Act 2010 (NSW) (the Act) that would terminate a social housing tenancy agreement that subsists between it and Jose Gorges (the tenant) on the ground that the tenant has caused serious damage to neighbouring property available for use by the tenant in common with others, and for related orders. This application was made to the Tribunal on 3 February 2023 (the application).
For the reasons set out following I have determined to make orders terminating the social housing tenancy agreement and providing possession of the premises to the landlord with immediate effect.

Procedural history

The application was first listed before the Tribunal, differently constituted, for Directions by AVL on 14 April 2023. Mr Brett Spackman, Advocate, Communities & Justice Legal Services Branch, attended that listing of the application on behalf of the landlord. There was no appearance by the tenant. Directions were given to the parties for the filing and exchange of evidence. The application was otherwise adjourned to a Special Fixture for final hearing.
I note that the directions made on that occasion included the following note addressed to the tenant: NOTES: Mr Gorges is advised to seek assistance with his case and his housing requests (if any) from the welfare officer/social worker in the correctional facility.

Evidence and hearing

The landlord relied upon a bundle of documents and submissions filed with the Tribunal on 4 May 2023. The tenant did not file or serve any documentary material.
The hearing was conducted partly in person and partly via AVL. Mr Spackman, Advocate, appeared for the landlord in person. The tenant attended via AVL from a correctional facility in which he is currently detained. He gave oral evidence under oath. The parties had the opportunity to present their respective cases, to ask questions, and to make final submissions.

Material facts

The material facts are not in dispute and may be summarised as follows: a. The landlord is a 'social housing provider' as that term is defined in Part 7 (s 136) of the Act, b. The dispute arises from a 'social housing tenancy agreement' as that term is also defined in Part 7 (s 136) of the Act, c. The social housing tenancy agreement that subsists between the parties was made on 27 October 2021. The agreement was initially a fixed term agreement which was expressed to commence on 1 November 2021 and end on 30 October 2022. It appears that the tenancy has continued periodically since the end of the fixed term, d. The 'social housing premises' (as also defined in Part 7, s 136 of the Act), is a townhouse in a residential complex owned and operated by the landlord which is constituted by 22 units. The landlord leases each of the other units to social housing tenants under a social housing tenancy agreement, e. The tenant is the sole occupant of the social housing premises. He is 39 years of age, f. At all material times for this dispute the rent payable by the tenant under the social housing tenancy agreement was/is $118.85 per week, which is the equivalent of $16.97 per day, g. There is an electricity meter box which controls the supply of electricity to 7 units within the residential complex which is located near to the tenant's social housing premises, h. At about 2:50am on 16 January 2023 the tenant set fire to this electrical meter box. In this respect, the following account of this event appears in a NSW Police Facts Sheet prepared for the purposes of criminal proceedings against the tenant in the Local Court of NSW: "In early January 2023, the accused was observed on multiple occasions accessing the electrical meter box that controlled the electricity to about seven units within [the residential complex]. The electrical meter box is contained within a small shed which is locked and requires a key for access. This was witnessed by residents at the location where he was asked to stop however refused. About 2:50am on Monday 16 January 2023, the accused was standing outside his unit [address] where he has set fire to the tip of a plank of wood; this was observed by a witness. The accused then set fire to the electrical meter box by unknown means. This has caused extensive damage to the electrical meter box. New South Wales Fire Brigade were contacted and attended the location, they extinguished the fire and rendered the scene safe. As a result of the damage, the electricity was cut to seven units including the unit of the accused. Police attended location where a crime scene was established. A canvas of the location was conducted where two lighters and a screwdriver was located and seized. Police located and seized a charred plank of wood on the footpath, this was photographed and seized. Police observed a tin of 'fuel' in the recycling bin of the location. Police applied for and were granted crime scene warrant [no.] by Fairfield Local Court About 10:00am on Monday 16th January 2023, police were conducting crime scene duties outside [address of social housing premises]. Police could hear the accused inside the premises acting erratic and speaking to himself. … About 1:15pm, police attended [address of social housing premises] where crime scene warrant [no.] was executed. Police located and seized a fuel tin in the recycling bin at the location. Police observed the walls within the unit to have small amounts of fire damage and charcoal wiped over the walls".
On 16 January 2023 the tenant was taken into custody and charged with various offences concerning the fire, resisting arrest, and assaults upon the arresting Police. He was refused bail,
On 19 April 2023 the tenant appeared before Fairfield Local Court charged with four offences contrary to the Crimes Act 1900 (NSW). These were one offence contrary to s 195(1)(b) Intentionally or recklessly damage property by fire/explosive, and three offences contrary to ss 60AA and 60(1) concerning resisting arrest and assaulting a Police Officer respectively. He was convicted of all four offences. He was sentenced to an aggregate term of 12 months imprisonment commencing 16 January 2023 and expiring 15 January 2024 with a non-parole period of 6 months. The tenant is currently expected to be released from custody on parole on 15 July 2023,
The electrical metre box was seriously damaged by the fire and took some time to repair. This disrupted the electricity supply to 7 units within the residential complex. Consequently, the landlord was obliged to relocate two of its other tenants to temporary accommodation at a cost of approximately $5,000.00,
Although there is no medical evidence to this effect before the Tribunal, the landlord submits, and the tenant does not deny, that the tenant lives with chronic schizophrenia. There is no evidence of the treatment and support the tenant has received or is receiving in relation to that condition. However, in his oral evidence, the tenant informed the Tribunal in response to its questions that he has received 'injections' since being taken into custody and is 'no longer hearing voices'.

Landlord

The landlord submits that the grounds for a termination order under s 90(1)(a) of the Act are made out in the circumstances of this case. That is because the tenant intentionally or recklessly caused serious damage to the electrical meter box which controls the electricity supply to the tenant's and six other social housing premises in the residential complex. It submits in this respect that the meter box is 'neighbouring property' for the purposes of s 90(1)(a) which was available for use by the tenant in common with others.
The landlord submits that by operation of s 154D(2) and (3) of the Act it is mandatory for the Tribunal to make a termination order in the circumstances of this case. That is because the Tribunal will be satisfied of the matters set out in section 90(1). With respect to s 154D(3)(b) the landlord submits that although the tenant has chronic schizophrenia, he has not discharged his onus of establishing that he has a 'disability' within the meaning of that section as at the date of the hearing, or in the alternative, that he would suffer undue hardship on that basis if a termination order were to be made.
With respect to s 154D(3)(c) the landlord submits that the Tribunal will be satisfied that there are no other exceptional circumstances in this case that enliven the Tribunal discretion with respect to whether a termination order should be made.
If the Tribunal concludes, contrary to its submission, that the discretion conferred by s 154D(3)(b) or (c) is, the landlord submits that the discretion should be exercised so as to make a termination order due to the unacceptable risk that the tenant's behaviour represents to the safety of its other tenants.

tenant

The tenant submits that his tenancy should not be terminated because he has nowhere else to live and will otherwise be homeless on his release from prison. He submits that the absence of stable accommodation will also adversely impact on his ability to obtain release from prison on parole on 15 July 2023. He submits that he is very sorry for setting fire to the electricity meter box. He submits that he has good relationships with several other tenants in the residential complex.

Applicable law

Part 5, Division 1 of the Act deals with the termination of residential tenancy agreements generally. Section 83(1) in that Part provides that if the Tribunal makes an order terminating a residential tenancy agreement under the Act, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect.
Section 114 of the Act concerns the suspension of possession orders. It provides: 114 Suspension of possession orders (1) The Tribunal may suspend the operation of an order for possession of residential premises for a specified period if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension. (2) The Tribunal may impose an obligation on a tenant to pay a specified occupation fee for the period for which the order for possession is suspended.
Part 5, Division 2 of the Act deals with termination of residential tenancy agreements by a landlord. Section 90 in that Part and Division confers power on the Tribunal to make an order terminating a residential tenancy agreement in circumstances of serious damage to premises by a tenant. It relevantly provides: 90 Serious damage or injury by tenant or other occupant (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant … has intentionally or recklessly caused or permitted - (a) serious damage to the residential premises or any neighbouring property (including any property available for use by the tenant in common with others), … (2) The termination order may specify that the order for possession takes effect immediately. (3) A landlord may make an application under this section without giving the tenant a termination notice. (4) the Tribunal may make a termination order under this section that takes effect before the end of the fixed term is the residential tenancy agreement is a fixed term agreement. (5) In this section - "neighbouring property" means - (a) property adjoining or adjacent to the residential premises, or (b) property owned by the landlord in the general locality of the residential premises.
Part 7 of the Act concerns social housing tenancy agreements. Pursuant to s 137 of that Part, in the event of any inconsistency between Part 7 and any other provision of the Act or regulations, Part 7 prevails to the extent of the inconsistency.
Division 5 of Part 7 deals with the termination of social housing tenancy agreements. Section 154D in that Division requires the Tribunal to make a termination order in certain circumstances. It provides, relevantly: 154D Tribunal required to make termination order in certain circumstances … (2) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord if - (a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90(1) … (3) However - … (b) subsections … (2) do not apply if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by … a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 who is occupying … the social housing premises, and (c) subsection (2) does not apply if the tenant satisfies the Tribunal that there are other exceptional circumstances that justify the order not being made. … (5) If the Tribunal does not make a termination order as a consequence of subsection (3), the Tribunal must provide written reasons for the decision.
Section 154E in Part 7 concerns the exercise of discretion to make a termination order for a social housing tenancy agreement where that discretion exists. It provides: 154E Exercise of discretion to make termination order (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following - (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. (2) this section does not limit any other matter that may be considered by the Tribunal under this Act.
Section 154G in Part 7 deals with orders for possession in the context of termination of a social housing tenancy agreement. It provides: 154G Order for possession (1) If an order is made for termination of a social housing tenancy agreement, the order for possession must not specify a day that the order for possession is to take effect that is later than 28 days after the day on which the termination order is made unless the Tribunal is satisfied that there are exceptional circumstances justifying a later day. (2) The order for possession cannot be suspended for a period that would result in it taking effect later than 28 days after the day on which the termination order was made unless the Tribunal is satisfied that there are exceptional circumstances justifying a longer period of suspension.

Consideration

To determine the outcome of this application the Tribunal must pose and answer the following questions: 1. Are the grounds for a termination order to be made under s 90 made out? 2. If the answer to (a) is "yes" is it mandatory for the Tribunal to make a termination order by operation of s 154D(2) ? 3. If the answer to (b) is "no", and the discretion conferred by s 154D(3)(b) or (c) is enlivened, how should that discretion be exercised in this case having regard to the mandatory considerations contained in s 154E(1) and any other relevant considerations? 4. If the exercise of discretion is to make a termination order, should the order for possession be suspended for any period, and if so, by what period? 5. If the exercise of discretion is not to make a termination order, what other orders, if any, should be made in disposition of the application?

Grounds for termination under s 90(1)(a)

As set out above, there is no issue in these proceedings that on 16 January 2023 at about 2:50am the tenant set fire to the electrical meter box situated on the common property of the residential complex in which his social housing premises is located. In relation to that conduct, on 19 April 2023, the tenant was convicted of an offence pursuant to s 195(1)(b) of the Crimes Act 1900 (NSW) being to intentionally or recklessly damage property by fire.
Three issues arise in relation to that conduct in terms of whether it establishes grounds for a termination order under s 90(1)(a). First, whether the conduct was 'intentional or reckless', second whether the damage caused by the fire constitutes 'serious damage', and third, whether the electrical metre box is part of the residential premises or neighbouring property and attracts the operation of the section.
With respect to the first issue, the tenant has been convicted of an offence in relation to this conduct on the criminal standard of proof. It would thus appear that no argument was made to the Local Court on behalf of the tenant that his conduct was unintentional or involuntary because of a mental illness, or if it was, that this argument was not successful. There is no satisfactory evidence before the Tribunal that would permit it to conclude in these proceedings that this conduct was involuntary due to mental illness, and I note that this point was not argued by the tenant. I thus find that the conduct was intentional for the purposes of s 90(1)(a).
With respect to the second issue, the fire: a. required the attendance at the residential complex of NSW Fire and Rescue to extinguish the fire, b. involved the attendance of NSW Police who carried out a crime scene investigation which identified not only the 'extensive damage' to the meter box, but also two lighters, fuel in the recycling bin, and minor fire damage and charcoal smears to the interior of the social housing premises, c. resulted in the tenant being charged, convicted and sentenced in relation to a criminal offence contrary to s 195(1)(b) of the Crimes Act 1900 (NSW), d. required extensive repairs to the electrical meter box and electrical circuits connected through it, e. disrupted the electricity supply to 7 units within the residential complex, f. required the landlord to relocate the residents of 2 units within the residential complex to temporary accommodation at a cost to the landlord of $5,000.00.
Each of the matters set out above are indicia of the seriousness of the tenant's conduct. I find that his fire setting caused serious damage.
With respect to the third issue, the electrical metre box is external to the residential premises, but I am satisfied that it falls within the definition of neighbouring property as provided in s 90(5). In this respect it is adjacent to the social housing premises, and it is property available for use by the tenant in common with others. In this latter respect, although the electrical metre box was intended to be locked and thereby 'off limits' to the tenants of the residential premises they each used the electricity service supplied via the meter box. It is in this sense that it was available for their use.
It follows from these conclusions that I am satisfied that the grounds for a termination order under s 90(1)(a) are made out on the evidence. In setting fire to the electrical meter box the tenant intentionally caused serious damage to neighbouring property of the social housing premises, being property available for use by the tenant in common with others.

Is a termination order mandatory?

By operation of s 154D(2) it is therefore mandatory for the Tribunal to make a termination order unless the circumstances in s 154D(3)(b) and/or (c) are established so as to preserve the discretion conferred in s 90(1)(a) as to whether a termination order should be made.
As set out above, the landlord submits, and the tenant did not contest, that the tenant lives with chronic schizophrenia. Schizophrenia is a disorder that affects a person's thought processes, perception of reality, emotions, or judgement and which may result in disturbed behaviour. It is thus a "disability" within the meaning of paragraph (e) of the definition of "disability" found in s 4 of the Anti-Discrimination Act 1977 (NSW).
The landlord submits that the time at which the Tribunal is to determine whether the tenant is suffering a disability is the date of the hearing of the application to terminate the tenancy, citing as authority for that proposition Hall v NSW Land and Housing Corporation [2018] NSWCATAP 257 at [21]. That may be accepted. The Appeal Panel in Hall goes on to state at [22] that the onus of asserting such a defence lies with the tenant.
Nevertheless, I find it difficult to understand the purpose of these submissions. It is the landlord who identifies the tenant as being a person living with chronic schizophrenia in its submissions. I cannot see how that can operate otherwise than as a concession that this element of the defence is made out. It is true that the tenant has not sought to prove, as at the date of the hearing, that he is in an active phase of mental illness (relapse or exacerbation of schizophrenia), but whether he is in an active phase or not, it is the landlord's own submission that the tenant's condition is 'chronic'. I am thus satisfied that the tenant is a person who has a long-term, or life-long, disability for the purposes of s 154D(2) and (3).
However, to attract the operation of s 154D(3)(b) it is also necessary for the tenant to establish that a termination order would result in undue hardship to him because of his disability status. In Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 at [49] an Appeal Panel held that "undue hardship" "means hardship that is excessive in all the circumstances.
At [53] that Appeal Panel explained the purposes of s 154D(3) in the following way: 53. The purpose of s 154D(3) is to mitigate the harsh consequences of s 154D(1) for defined categories of people who occupy social housing premises in circumstances where an order for termination would otherwise be mandatory regardless of the degree of fault of the social housing tenant. For s 154D(3) to be engaged, the Tribunal must be satisfied that termination of the agreement is likely to cause undue hardship to a person who falls into one of the specified categories and who is occupying the premises. … Each of these categories involves a person who may be regarded as less capable than others of dealing with the hardships that may ordinarily arise from the termination of a social housing tenancy. Section 154D(3) therefore requires specific consideration of the impact of termination of the social housing agreement on a child, a victim of domestic violence or a person with disability.
I note that Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 was subject to further consideration by the Court of Appeal in NSW Land and Housing Corporation v Orr [2019] NSWCA 231. However, the conclusions of the Appeal Panel set out above were not disturbed by the Court of Appeal.
The tenant is self-represented in the proceedings. He appears not to have taken up the suggestion made to him by the Tribunal at the first listing of this application to obtain assistance with his case from a welfare worker or social worker. He has not placed any document before the Tribunal in relation to hardship related to disability. Nor did he in his oral submissions draw the Tribunal's attention to any disability-related impact of a termination order.
The tenant's oral two submissions were that a termination order would render him homeless, because he has nowhere to live, and that the absence of secure housing may affect his ability to obtain parole in July 2023. Neither submission was grounded in, or related, in any direct sense to the tenant's disability. They are potential outcomes that would be faced by any non-disabled tenant in equivalent circumstances. I am left with an uneasy feeling that the tenant's case could have risen considerably highly than it has on his evidence, but it is not the Tribunal's role to make the tenant's case for him.
I thus conclude on the evidence available that there are insufficient grounds to conclude that the tenant would suffer an undue hardship if a termination order were made. Consequentially there is no residual discretion not to make a termination order conferred by s 154D(3)(b).
However, turning to s 154D(3)(c), I am satisfied that there is an exceptional circumstance that enlivens the operation of that section. The tenant gave oral evidence under oath that the absence of secure housing to which he can be released on parole is likely to delay his release from prison. In other words, it is likely to prolong his incarceration. Deprivation of liberty in a criminal justice facility is a very serious matter. The tenant has not filed any evidence of a social worker, parole officer, or solicitor to corroborate the existence of this risk, but nor was his oral evidence to this effect challenged by Mr Spackman. Moreover, I accept that the tenant's evidence is consistent with common experience to which I am able to have regard pursuant to s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW). I accept the tenant's evidence that a termination order would give rise to a risk of prolonging his incarceration. I am satisfied that this is an exceptional circumstance that enlivens the Tribunal's discretion whether to make a termination order.

Exercise of discretion regarding termination order

Despite that, having regard to the mandatory considerations contained in s 154E, I am satisfied, as a matter of discretion, that a termination order should be made in the circumstances of this case.
The tenant's fire setting posed a serious safety risk to other persons because he lives in a communal environment. It also caused other residents very serious disruption arising from the absence of an electricity supply for some days. Two residents were obliged to relocate elsewhere temporarily while the electricity service was restored. While it appears that the fire setting was a one-off event, the tenant was witnessed making other attempts to interfere with the electrical meter box during January 2023 prior to the incident. The landlord has a responsibility to protect its other residents from such harm. I am satisfied that these are relevant considerations pursuant to s 154E(a), (b) and (c).
With respect to the s 154E(b) consideration, as noted above, the tenant does not appear to have raised a defence of mental illness to his criminal charges, and if he did, he was convicted of an offence under s 195(1)(b) of the Crimes Act 1900 (NSW) despite any such defence.
In the context of these proceedings there is no additional evidence that the tenant was affected by psychosis at the time of the event. Even if he was, there is no satisfactory evidence of any mental health care and treatment that has reasonable prospects of ensuring that such a safety risk to other residents would not occur again in future. The tenant did refer to having received 'injections' whilst in prison and to no longer hearing voices. It may be open to the Tribunal to infer from this that he is currently being treated with anti-psychotic medication. But even if this is the case, there is no evidence that would enable the Tribunal to conclude that any connection between the tenant's mental illness and his fire-setting has been resolved by treatment, or that such treatment would continue after the tenant's release because he voluntarily accepts it or is compelled by a forensic or community treatment order to do so.
In terms of other relevant considerations, I take account of the tenant's oral evidence that he is sorry about the fire-setting incident which I accept as a genuine statement. I also take account pursuant to s 154E(d) and/or s 154E(2) of the tenant's evidence that he has good relationships with several other tenants in the residential complex. However, in circumstances where there is no evidence from any other tenant of the residential complex before the Tribunal, that evidence or submission can be given little weight. Additionally, I consider in the exercise of discretion (that is, not just in relation to the conferral of discretion) that a termination order may adversely impact on the tenant's ability to obtain parole in July 2023 which would result in the prolongation of his deprivation of liberty. As I have said, that is a very serious matter.
However, weighing each of these considerations in the balance, I am satisfied that the s 154E mandatory considerations and the other relevant considerations ultimately weigh decisively against the exercise of discretion not to make a termination order. The seriousness of the fire setting incident itself, and the potential future risk to the safety of other residents of the residential complex arising from the tenant's conduct, in my view prohibit the exercise of discretion in his favour.
It follows from this that the landlord is entitled to an order terminating the residential tenancy agreement pursuant to s 90(1)(a) on the ground that the tenant caused serious damage to neighbouring property, being property available for use by the tenant with others. In accordance with s 83(1) possession of the premises is to be provided to the landlord on the date of termination.

Order for possession

Having determined to terminate the residential tenancy agreement, the Tribunal must now determine in accordance with ss 114 and 154G if the order for possession should be suspended and if so for what period.
I do not consider that this is an appropriate case in which to suspend the order for possession. The tenant is presently detained in a correctional facility and will be continuing to be so detained at least until 16 July 2023. He does not presently rely upon the social housing premises for his shelter and subsistence.
In oral evidence, the tenant informed the Tribunal that he does have furniture and personal possessions at the social housing premises. However, he stated that he would be able to arrange for his brother to retrieve these if a termination order was made.
Having regard to the fact that a termination order has been made and bearing in mind the potential future safety risk I have found the tenant poses to other residents of the residential complex, I do not consider it appropriate that he return at all to the social housing premises. The tenant, and any support services he may have available to him, should immediately plan for an alternative post-release accommodation arrangement.
Nevertheless, until the landlord obtains possession of the premises, the tenant must pay it a daily occupation fee of $16.97, being 1/7th of the weekly rent payable by the tenant under the social housing tenancy agreement.

Orders

For the foregoing reasons I make the following orders: 1. The Residential Tenancy Agreement is terminated in accordance with s 90(1)(a) of the Residential Tenancies Act 2010 (NSW). 2. The Residential Tenancy Agreement is terminated immediately, and possession is given to the landlord on the date of termination. 3. The tenant shall pay the landlord a daily occupation fee at the rate of $16.97 per day from the day after the date of termination, namely 24 June 2023, until the date vacant possession is given to the landlord. 4. Within 60 days of the date for possession of the premises specified in these orders the landlord may request a relisting of the application to determine the amount of the occupation fee owing.

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

Amendments 11 August 2023 - Formatting amendments. 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: 11 August 2023

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