NSW Land and Housing Corporation v Kanoun

Judgment (6 paragraphs)

[1]

REASONS FOR DECISION

This is an application by the NSW Land and Housing Corporation (Housing NSW) for an Order from the Tribunal pursuant to section 87 of the Residential Tenancies Act 2010 (RT Act), or in the alternative, pursuant to section 92 of the RT Act, that would terminate the tenancy of Zaher Kanoun (the tenant), and for related orders. This application was made to the Tribunal on 15 September 2016 (the application).
For reasons that are set out following, the Tribunal has determined that the tenancy ought to be terminated pursuant to section 92 of the RT Act on the basis that it is comfortably satisfied that on 22 June 2016 the tenant: 1. seriously threatened Mr Jeffrey Xuereb, an employee of Housing NSW (employee), by driving a car at speed with menace directly at the employee outside the residential premises in a manner that put the employee's life and safety at risk (the incident); and 2. intentionally engaged in conduct in the course of the incident that is reasonably likely to have caused Mr Xuereb to be intimidated.
The application was listed before the Tribunal for conciliation and hearing in a Group List on 28 September 2016. Ms Marcia Jefferies, Senior Client Service Officer, attended the hearing on behalf of Housing NSW and submitted into evidence a notice of her authority to act on behalf of Housing NSW.
The tenant did not attend the hearing. No explanation was provided for the tenant's non-attendance. There was a copy of the Notice of Conciliation and Hearing sent to the tenant by the Registry notifying him or the hearing on the Tribunal file. That Notice was sent to the residential premises identified in the Residential Tenancy Agreement (RTA), which was in evidence before the Tribunal. Ms Jefferies gave oral evidence that the tenant remained living at that address. The Notice had not been returned to the Tribunal's Registry undelivered. In the absence of any evidence to the contrary, the Tribunal concluded that the notice of hearing had been served on the tenant.
On its face the Application concerned allegations that the tenant had engaged in seriously dangerous conduct that threatened the life and safety of a Housing NSW employee. In view of the seriousness of these allegations the Tribunal determined to hear the Application at its first listing in the absence of the tenant.

Applicable law

As noted above, Housing NSW seeks termination of the tenancy pursuant to both sections 87 and 92 of the RT Act.
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.
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
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.
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.
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. .
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.
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.
"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.
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.
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.
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."
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].
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.
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

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?
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.
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.
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.
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.
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.
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.
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.
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.'
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.
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.
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.
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.
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.
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

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Judgment (6 paragraphs)

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Cases Cited (4)