NSW Land and Housing Corporation v Kanoun

Evidence before the Tribunal

1. Ms Jefferies gave oral evidence under affirmation. She submitted into evidence a copy of the RTA and related documents; a copy of a Notice of Termination of the tenancy issued pursuant to section 87 of the RT Act dated 29 July 2016; a copy of a Statutory Declaration declared by Jeffrey Xuereb on 26 September 2016; a copy of an email from a Housing NSW contractor to a Housing NSW officer about difficulties encountered in carrying out works at the residential premises dated 11 July 2016; a copy of anonymous 'feedback' received by Housing NSW's Feedback and Complaints line regarding the tenant dated 4 September 2016; and a copy of a letter sent by Housing NSW to the tenant about the termination of his tenancy for anti-social behaviour dated 15 September 2016. Ms Jefferies also submitted a short summary of alleged recent antisocial behaviour by the tenant.

Jurisdiction

1. The tenancy which is the subject of this dispute was originally established under a fixed term RTA made on 23 January 2009. The RTA is a standard form Housing NSW RTA. The tenancy has continued on the basis of successive fixed term RTA's since that time pursuant to notices issued under section 14A of the Residential Tenancies Act 1987 and section 142 of the RT Act. The current fixed term RTA commenced on18 July 2016 and is expressed to end on 15 July 2018. Prior to 23 January 2009 the tenant of the residential premises was the current tenant's mother, with whom the current tenant lived. He succeeded as tenant of the residential premises upon her death. I am satisfied that the RTA is a tenancy agreement to which the RT applies.
2. By Notice of Termination (Termination Notice) issued pursuant to section 87 of the RT Act dated 29 July 2016 Housing NSW terminated the tenancy on the ground that the tenant has breached clause 7.2 of the RTA which obliged the tenant "not to cause or permit a nuisance.' The breach was particularised as follows: Particulars 1. On 22 June 2016, a staff member from NSW Land and Housing Corporation visited the complex in which you reside and whist he was walking down the common driveway, you accelerated towards the staff member and slammed on the brakes and shouted "Who the fuck are you and what do you want?" You then exited your vehicle and continued to verbally abuse the staff member using foul language.
3. The Termination Notice was served on the tenant by post. It is thus deemed to have been served on the tenant 4 working days later on 4 August 2016. The Termination Notice required the tenant to give Housing NSW vacant possession of the residential premises on 21 August 2016. I am satisfied that the Termination Notice complies with the requirements for a Termination Notice of this type set out in sub-sections 82(1) and (2) and 87(1) and (2) of the RT Act.
4. The tenant did not give Housing NSW vacant possession of the residential premises on 21 August 2016, or at any later time up to the date of the hearing of the Application. Housing NSW thus now has standing under section 83(2)(b) of the RT Act to make an Application to the Tribunal for Termination of the Tenancy. As noted above, this Application was made to the Tribunal on 15 September 2016. The Application has thus been made after the date the tenant was required to give Housing NSW vacant possession and it has been made within the 30 day time period from the date of vacant possession specified in the Notice required by sub-section 83(2)(a) and Regulation 22(2) of the Residential Tenancies Regulation 2010. On this basis I am satisfied that the Tribunal has jurisdiction to hear and determine the Application for termination of the tenancy based upon the alleged breach of the RTA by the tenant pursuant to section 87 of the RT Act.
5. The Applicant also applies to the Tribunal for termination of the tenancy pursuant to section 92 of the RT Act. Pursuant to sub-section 92(3) of the RT Act, Housing NSW is entitled to make an application to the Tribunal for termination of the tenancy pursuant to section 92 of the RT Act without giving the tenant a Termination Notice pursuant to this section. I am thus satisfied that the Tribunal has jurisdiction to hear and determine this Application under section 92 of the RT Act as well as section 87 of the RT Act.

Material facts

1. The material facts to emerge from the evidence may be briefly stated as follows: 1. On 22 June 2016 Jeffrey Xuereb, a Housing NSW Technical Officer, attempted to conduct an inspection of the residential premises. He called at the door, but no-one answered; 2. When he was satisfied his call would not be answered, Mr Xuereb walked back to his car to collect a calling card to leave at the front door to notify the tenant of his visit and to request contact by the tenant; 3. As Mr Xuereb was walking back towards the residential premises from his car down a common driveway, the tenant arrived home driving a motor vehicle; 4. When he saw Mr Xuereb, the tenant accelerated his motor vehicle towards Mr Xuereb. Just before the motor vehicle reached Mr Xuereb, the tenant applied the brakes to the motor vehicle bringing it to an abrupt halt; 5. the tenant then shouted abuse at Mr Xuereb using foul language, which included words to the effect "who the fuck are you and what do you want?" 6. Mr Xuereb introduced himself and explained the purpose of his visit; 7. The tenant then reversed his car back to the residential premises, got out, and continued to verbally abuse Mr Xuereb using foul language. The particulars of this verbal abuse are not in evidence; 8. this incident occurred in circumstances where there was a dispute between the tenant and Housing NSW about works which were to be performed at the residential premises. It appears that Housing NSW officers and contractors had experienced persistent difficulties in contacting the tenant which resulted in a contractor attending the residential premises without notice. It appears that the tenant objected to the contractor doing so; 9. On 11 July 2016 a representative of a Housing NSW contractor, Spotless, notified an Officer of Housing NSW that the tenant had refused its staff access to the residential premises, had repeatedly denied appointment times, and kept changing appointment times. The Spotless representative also reported that the tenant had been verbally abusive to its field and contact centre staff. The particulars of this verbal abuse are not in evidence; 10. On 4 September 2016 Housing NSW's Feedback and Complaints line received an anonymous call from a person claiming to be a neighbour of the tenant. The caller reported that loud arguments were taking place at the residential premises between the tenant and his wife "at least a couple of times a week." The caller also stated that the tenant had been taking drugs and that a friend of the tenant, who had previously been banned from entering the residential premises by Police had been visiting the tenant.

Applicable law

1. As noted above, Housing NSW seeks termination of the tenancy pursuant to both sections 87 and 92 of the RT Act.
2. Section 87 of the RT Act is in the following terms: 87 Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach.
3. Section 92 is in the following terms: 92 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 (b) intentionally engaged, or intentionally caused or permitted another person to engage, in conduct in relation to any such person that would be reasonably likely to cause the person to be intimidated or harassed (whether or not any abusive language or threat has been directed towards the person). (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 if the residential tenancy agreement is a fixed term agreement
4. This is a social housing tenancy which requires the Tribunal in the exercise of its discretion to terminate the tenancy to have regard to those matters set out in section 154E of the RT Act. Section 154E of the RT Act is in the following terms: 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.
5. It the Tribunal exercises its discretion to terminate the tenancy, it must also have regard to the terms of section 154G of the RT Act which is in the following terms: 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.
6. Housing NSW's section 92 termination application rests on exactly those grounds specified in its section 87 Termination Notice. The central factual and legal issues in the dispute concern an allegation that the tenant engaged in conduct of a threatening, abusive, and/or intimidatory nature towards a Housing NSW employee. Having regard to the 'guiding principle' to be applied in all aspects of the Tribunal's practice and procedure, which is to facilitate the just quick and cheap resolution of the real issues in a proceeding in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings (set out in section 36 of the Civil and Administrative Tribunal Act 2013), the Tribunal therefore determined that the Application was most appositely dealt with under section 92 of the RT Act. .
7. With respect to section 92 of the RT Act, it may be observed that in order to engage the Tribunal's discretion to terminate the tenancy it is not necessary for Housing NSW to prove that the tenant has contravened both sub-sections 92(1)(a) and 92(1)(b). Proof of a contravention of either sub-section is sufficient to engage the Tribunal's discretion to terminate the tenancy. However, it is open to the Tribunal to find on a factual basis that both sections have been contravened by the same conduct or different conduct.
8. In order to establish that the tenant has breached sub-section 92(1)(a) of the RT Housing NSW must do more than prove that the tenant has engaged in threatening or abusive conduct. It must further prove that this conduct is "serious" or "persistent." It is to be observed that Housing NSW is not required to prove that the impugned conduct was both serious and persistent. It is sufficient for Housing NSW to prove that the impugned conduct was either serious or persistent. However, it is open to the Tribunal to find on a factual basis that the impugned conduct is both serious and persistent.
9. "Serious' and 'persistent' are ordinary English words that are to be interpreted and applied on a normative basis in the context of section 92 of the RT Act.
10. In Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128 the Appeal Panel of this Tribunal reviewed the relevant authorities and determined that the word "seriously" in the context of sub-section 92(1)(a) of the RT Act is to be construed and applied as meaning "grave" or "concerning" [at 36]. This is an objective test to be decided on the facts before the Tribunal: Lindsay [at 35]. The word should be given the same meaning in the context of section 92 of the RT Act.
11. The word "persistently" in the context of sub-section 92(1)(b) of the RT Act does not appear to have been the subject of Appellate consideration. Having regard to the Oxford English Dictionary definition of "persistent" I am satisfied that the word should be understood as meaning "determined" "repeated" or "continuous" conduct. This is also an objective test.
12. In order to establish that the tenant has contravened sub-section 92(1)(b) of the RT Act Housing NSW must prove that the tenant "intentionally engaged … in conduct in relation to a Housing NSW employee and/or contractor that would be reasonably likely to cause that person to be intimidated or harassed."
13. In Cure v Bridge Housing Ltd [2014] NSWCATAP 80 the Appeal Panel of this Tribunal established the test for "intention" in the context of section 90 of the RT Act. It determined that the word was to be given its ordinary meaning which required proof that the tenant had "determine[d] mentally on [a particular] result or such result must be that person's aim or purpose" (in the context of section 92(1)(b) that result is intimidation or harassment of a Housing NSW employee or contractor). It held that intention will not be present if the result was unforseen [at 43]. In Lindsay the Appeal Panel determined, consistent with its' decision in Cure, that this result must be "pre-meditated" [at 45].
14. The harm proscribed by section 92 is conduct by a tenant that is 'threatening', 'abusive' or which constitutes 'intimidation' or 'harassment'. These are also ordinary English words which are to be interpreted and applied on a normative basis. They are words that have similar meanings. Having regard to the relevant dictionary definitions and the legislative context in which these words appear I am satisfied that 'threat' and 'threaten' in the context of section 92 means words and actions that 'menace', 'endanger', 'scare' or 'terrorise' a person protected by that section (protected person). 'Abusive' and 'abuse' mean words and actions that 'harm,' 'hurt', 'insult,' 'humiliate', 'degrade,' and 'frighten' a protected person. 'Intimidate' means words and actions that 'frighten', 'menace', 'terrify', or 'overbear' a protected person, for reasons that may include in an effort to make that person behave in a particular way or to achieve a particular result.
15. The term 'harass' (or 'harassment') are not defined in the RT Act. However, these terms have been the subject of substantial consideration in the fields of employment and anti-discrimination law. Although section 92 is a different legislative context, it appears to me the term 'harassed' ought to be given a meaning consistent with that which has developed in employment and anti-discrimination law. In McCormack v Commonwealth [2007] FMCA 1245 the Court relied upon the Macquarie Dictionary definition to conclude that harassment means to "trouble by repeated attacks, incursions, as in a war of hostilities; harry; raid; to disturb persistently; torment, as with troubles, cares." Notably, the court found that for conduct to constitute harassment it must be repeated or persistent (see also: Penhall-Jones v State of NSW [2008] FMCA 832).

Consideration

1. The issues for the Tribunal to determine in this Application are therefore as follows: 1. Did the tenant contravene section 92(1)(a) of the RT Act by seriously or persistently threatening or abusing an employee and/or contractor of Housing NSW? (justifying factor) or 2. Did the tenant contravene section 92(1)(b) of the RT Act by intentionally engaging in conduct in relation to an employee and/or contractor of Housing NSW that would be reasonably likely to cause that person to be intimidated or harassed (whether or not any abusive language or threat has been directed towards that person)? (justifying factor) 3. If so, should the Tribunal exercise its discretion to terminate the tenancy having regard to the justifying factor and the matters to be considered in the exercise of discretion to terminate a social housing tenancy set out in section 154E of the RT Act, and any other relevant consideration? 4. If the Tribunal exercises its discretion to terminate the tenancy, should it suspend the order for possession for any period of time, and if so, for what period? 5. If the Tribunal determines not to terminate the tenancy, should any other orders be made?
2. The evidence establishes that on 22 June 2016 the tenant accelerated a motor vehicle he was driving towards Mr Xuereb, a Housing NSW Technical Officer while Mr Xuereb was attending the residential premises in the course of his work. The motor vehicle was brought to an abrupt halt when the tenant slammed on the brakes of the motor vehicle prior to it colliding with Mr Xuereb. From an objective point of view, this conduct was menacing and terrorising. Mr Xureub might reasonably apprehend that this conduct constituted a threat to his safety and life. Had the tenant lost control of the motor vehicle Mr Xureub might have been hit causing him injury or death. I am satisfied that this conduct contravened section 92(1)(a) of the RT Act on the basis that it seriously threatened Mr Xuereb. In this respect, I consider the tenant's conduct to amount to a "grave" threat to the safety and life of Mr Xuereb. It is conduct at the most serious end of the spectrum of conduct to which sub-section 92(1)(a) applies. As the Appeal Panel of this Tribunal said in Cure there can hardly be a more serious threat to a person than a threat upon their life [at 36]. In this respect it does not matter that this was a single incident that, on the evidence, was not conduct of a persistent nature.
3. The incident also involved the tenant yelling at Mr Xuereb from his motor vehicle when it came to a halt and immediately afterwards when he left the motor vehicle and walked towards the residential premises. Apart from the words "Who the fuck are you and what do you want?" the words used by the tenant are not particularised. The best evidence of what else was said is stated this way in Mr Xuereb's statutory declaration, dated 26 September 2016: "When I said who I was he reversed back to his unit and got out and was still abusive to me." It is therefore difficult for the Tribunal to make its own objective assessment of the seriousness or persistence of this conduct. While it is clear that the tenant was abusive towards Mr Xuereb in the course of the incident, the Tribunal cannot be satisfied on the limited evidence available that the tenant seriously or persistently abused Mr Xuereb.
4. With respect to sub-section 91(1)(b) I am also comfortably satisfied that Mr Xuereb might reasonably have been intimidated by the tenant's conduct in driving a motor vehicle towards him and slamming on the brakes just prior to it colliding with him. I am satisfied that this conduct was intentional in the sense that it was a deliberate act - there was nothing accidental or inadvertent about it.
5. From an objective point of view this conduct was reasonably likely to be experienced by Mr Xuereb as terrorising and menacing. Although there is no explicit evidence of any motive for this conduct, it does appear to have had the purpose or effort of interfering with the performance of Mr Xuereb's duties, which including calling at the residential premises to inquire about necessary repairs. At the very least, from an objective point of view it was reasonably likely to discourage Mr Xuereb from continuing his visit to the residential premises on that occasion and in future. So much emerges from Mr Xuereb's statutory declaration where he states that Housing NSW's client management system would need to be updated to require a "2 man visit" in future and that inquiries would need to be made of Police in relation to any current risks of attending the residential premises.
6. However, because the incident was a single incident, and not a course of repeated or persistent conduct, it is not open to me to find that Mr Xuereb was harassed by the tenant's conduct.
7. Having found that the tenant contravened both sub-sections 91(1)(a) and (b) of the RT Act by seriously threatening and intentionally intimidating Mr Xuereb, the Tribunal must now determine if these justifying factors warrant termination of the tenancy having regard to other relevant considerations, including those set out in section 154E of the RT Act.
8. Ms Jefferies gave evidence that the tenant is 27 years of age. He is on income support, which is a NewStart Allowance. Ms Jefferies was not aware that the tenant had any disability or health condition relevant to the exercise of the Tribunal's discretion to terminate the tenancy. The tenant lives at the residential premises with an adult woman who is his wife or partner. There is no evidence as to her circumstances. There are no children or any other dependent persons living at the residential premises.
9. Ms Jefferies told the Tribunal that the residential premises are part of a residential complex of social housing tenancies. She alleged that various neighbours of the tenant had expressed to Housing NSW officers that they had been intimidated and abused by the tenant and were fearful of him. However, no formal complaints had been received by Housing NSW by from any neighbour about the tenant with the exception of an anonymous complaint received on 4 September 2016 about noise nuisance arising from arguments between the tenant and a woman at the premises (presumed to be the tenant's wife or partner) 'a couple of times a week.'
10. It also emerges from the evidence that Housing NSW and its contractors have experienced persistent difficulties in engaging with the tenant. It appears that the tenant has refused access to the residential premises on repeated occasions, and that the tenant has repeatedly refused or avoided contact with Housing NSW officers and contractors.
11. While I take these matters into account, there is an insufficient evidentiary basis for me to find that the tenant has adversely impacted on neighbouring residents or other persons, or that there is a likelihood that neighbouring residents will suffer serious adverse effects in the future if the tenancy is not terminated. The alleged fears and concerns of other tenants is un-particularised hearsay. While I am not prevented by the rules of evidence from considering it, it has little probative value. I also note that there is no adverse history of the current tenancy or any previous tenancy before the Tribunal, nor does it appear that the tenant has breached any order of the Tribunal in the past, arising from any similar or other conduct.
12. In summary, it appears to me that the section 154E factors and other relevant factors are essentially neutral in this case; that is to say they do not weigh in favour of terminating or not terminating the tenancy having regard to the justifying factors. In this respect, I note that while the evidence is not sufficient to establish to the requisite standard an adverse prior tenancy history or neighbourhood impact, it also does not establish a positive tenancy history and no neighbourhood impact.
13. The Tribunal must therefore consider if the justifying factors, which arise from a single incident, are sufficient to warrant an exercise of discretion to terminate the tenancy. I am satisfied that this is the case. The tenant's conduct was menacing and dangerous. It was intentional. There is nothing to excuse it. Mr Xuereb is reasonably likely to have been terrified by the incident, and for the reasons stated above, he might have been seriously injured or killed. Such conduct towards a Housing NSW employee by a tenant in any circumstances is intolerable. Mr Xuereb is entitled to expect that he may go about his work without such threats and intimidation. In enacting section 92 of the RT Act Parliament clearly intended this Tribunal to protect Housing NSW employees, such as Mr Xuereb, from such conduct by terminating a tenancy where a tenant engages in conduct of such a serious nature, particularly where there is nothing to excuse such conduct.
14. Having reached the conclusion that the tenancy is to be terminated, the Tribunal must consider if the order for possession ought to be suspended for any period of time to enable the tenant time to find alternative accommodation and vacate the residential premises in an orderly manner. Ms Jefferies proposed that the order for possession be suspended by a period of 14 days. I am satisfied that this is a reasonable period of time for the tenant to vacate the residential premises having regard to the justifying factor and his personal circumstances. In this respect, I do consider that the tenant may experience difficulty in obtaining alternative accommodation given his limited financial means. However, that fact is unlikely to change no matter what period of time possession is suspended. Apart from this, the tenant is a young adult with no disability or health condition affecting his capacity, and no children or other dependent persons live with the tenant. The tenant has a wife or partner residing with him but there is nothing in evidence to suggest that there is any circumstance pertaining to her that would justify a longer period of suspension of the order for possession balanced with the justifying factors.
15. Until the date vacant possession is given, the tenant is to pay the landlord an occupation fee at a daily rate which is one-seventh of the weekly rent in the amount of $9:40 per day. Housing NSW is to notify the tenant of the orders made in this proceeding by delivery of a letter to the residential premises by 5pm on 20 October 2016. P French General Member Civil and Administrative Tribunal of New South Wales 20 October 2016 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: 15 December 2016