On 20 September 2017 ex tempore oral reasons were given for the orders made at the conclusion of the hearing. The respondent's representative has requested written reasons for the decision pursuant to s 62(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). The following are the reasons for the decision.
On 11 July 2017 NSW Land and Housing Corporation (the landlord) applied to the Tribunal for an order terminating the residential tenancy agreement with Rebecca Khodragha (the tenant) for residential premises at Punchbowl NSW. The landlord relied on a notice of termination dated 29 March 2017 under s 85 of the Residential Tenancies Act 2010 (the RT Act) for termination of a periodic agreement, requiring the tenant to give vacant possession of the premises on 9 July 2017, a date not earlier than 90 days after the service of the notice.
In evidence is a copy of the residential tenancy agreement between the parties, dated 21 August 1998, commencing on 24 August 1998, for residential premises at Punchbowl. Clause 32 of the residential tenancy agreement provides:
32 Rental Rebate Provisions
32.1 The tenant agrees to give written notice to the landlord of all income and any subsequent changes of the tenant and of all other persons residing on the premises within twenty eight (28) days of entering into this agreement and within twenty eight (28) days of any subsequent changes.
32.2 The tenant acknowledges that a failure to notify the landlord in writing within twenty eight days shall constitute a breach of this agreement entitling the landlord to issue a Notice of Termination and seek possession of the premises.
It is not in dispute that the premises are residential premises, being a two bedroom unit, and that there is a residential tenancy agreement between the parties, and the termination notice complies with the formal requirements of s 82(1) and (2) of the RT Act and the further requirements of s 85 applicable to the termination of a periodic agreement. The agent of the landlord served the termination notice personally on the tenant on 29 March 2017. The tenant has not been in continual possession of the premises for a period of 20 years or more, and so s 85(4) does not apply.
Section 85 of the RT Act provides:
85 Termination of periodic agreement
(1) A landlord may, at any time, give a termination notice for a periodic agreement.
(2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.
(3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.
It was not in dispute that the tenant remains in possession. The application to the Tribunal was made two days after the termination date specified in the termination notice.
The critical issue between the parties is whether the Tribunal must proceed in accordance with the language in s 85 and terminate the residential tenancy agreement if satisfied that the termination notice has been served in accordance with the section.
The landlord formally submits that the Tribunal should not apply the decision of the Supreme Court in Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424, and that the reasoning of the Appeal Panel in Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWCATAP 62 is to be preferred. The tenant submits that that decision binds the Tribunal, and in fairness the landlord concedes that that is the position.
The decision of Adamson J requires the Tribunal to consider the matters listed in s 154E of the RT Act before proceeding to make a termination order. Her Honour's reasoning is summarised at paragraph [49] of the reasons:
The conclusion that ss 85 and 154E are inconsistent requires consideration of how the inconsistency is to be resolved. In my view, a harmonious reading of the provisions, which accords priority to s 154E, produces the result that the Tribunal, when considering whether to terminate a social housing agreement pursuant to s 85, is obliged to consider not only whether the three matters in s 85 have been established, but also each of the matters listed in s 154E. If, after having had regard to those matters, the Tribunal considers that the social housing agreement ought be terminated, then, as long as the matters referred to in s 85 have been established, then it will proceed to terminate it. If, however, the Tribunal, having regard to the matters in s 154E, does not consider that the social housing agreement ought be terminated, it will decline to do so, notwithstanding that the matters referred to in s 85 have been established by the social housing provider.
Section 154E of the RT Act 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.
The parties made submissions as to each of the matters specified in s 154E.
[2]
(a) the effect the tenancy has had on neighbouring residents or other persons:
The landlord submits that this matter is not relevant in the present circumstances. The tenant submits that the Tribunal must consider the impact of the tenancy on the tenant's 10 year old son, Ahmed.
[3]
(b)the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated:
It was not in dispute that this factor is not relevant in the present circumstances.
[4]
(c)the landlord's responsibility to its other tenants:
The landlord submits that its responsibility to its other tenants comes about because it is the largest provider of social housing and it has a responsibility to its existing tenants and to the 60,000 people on a waiting list for public housing. The tenant accepts that the waiting list for public housing is significant. There is no dispute that the landlord's provision of public housing is a valuable and important contribution to the community.
[5]
(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:
The landlord submits that this is the critical factor. The landlord points to the fact that the tenant has been receiving rebated rent since 1999 until that was terminated earlier this year, based on the information provided by the tenant. The landlord's position is that the circumstances of the tenant were not as disclosed to it, in contravention of cl 32 of the residential tenancy agreement and other documents provided by the tenant. In summary, and the landlord has provided a copy of the investigation undertaken by the Tenant Fraud Unit, the tenant failed to disclose that since March 1999 her husband was also living with her at the property, her husband owned two properties in Lakemba and Greenacre, there was a business run from the premises, and an older son was working and earning income from August 2014. The tenant was prosecuted for two offences under s 69 of the Housing Act 2001. The tenant pleaded guilty and was sentenced in the Local Court on 28 October 2016 to three months home detention, to 27 February 2017. The rental subsidy has been cancelled and her rental account is now in arrears of $110,822.72 as at 23 April 2017. The tenant has been convicted of serious fraud, and not to terminate the tenancy would send a message to the community that they could feel free not to comply with their obligation to keep social housing providers informed of their personal circumstances.
The tenant accepts that the offence was a serious offence; however there have been serious consequences for the tenant personally in terms of the loss of employment, the need to serve a period of home detention, the significant loss of income and her inability to work. There are significant consequences for the tenant's 10 year old son Ahmed. The tenancy is close to the 20 years where s 85(4) would apply.
[6]
(e)whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal:
It was not in dispute that this factor is not relevant in the present circumstances.
In addressing s 154E (2), the tenant's representative submits that the tenant is a sole parent for her son Ahmed. The tenant has had significant media attention and has lost her job and is not able to work. Her husband is not with her now and she is dependent on Centrelink payments. She receives approximately $450 per week in income support payments. The tenant has paid her debt to society and there should be no more punishment of the tenant.
Having considered the submissions made as to each of the s 154E factors, the Tribunal agrees with the landlord that the seriousness of the fraud offences for which she has been convicted, and the need to ensure that social housing tenants comply with their obligations to keep landlords informed as to their personal circumstances, weigh extremely heavily in the circumstances of this case, and outweigh any consideration personal to the tenant. Having considered the balancing of the various matters in accordance with s 154E, the Tribunal is of the view that the social housing tenancy ought to be terminated on the basis of the s 85 termination notice.
The Tribunal is required to make an order for possession of the premises. The parties have made submissions as to how long a period ought to be granted for the tenant to find alternative accommodation, and the order for vacant possession suspended. The tenant seeks suspension for four to six months, primarily on the basis of the matters put in relation to s 154E. The landlord submits that a period of 14 days is appropriate. The Tribunal considers that the personal circumstances of the tenant are relevant in considering the period for which the order for possession should be suspended, and the primary factor in that regard is the impact on the tenant's 10 year old child and the need to avoid if possible relocating him from the school he currently attends. The Tribunal accepts that it will be difficult for the tenant to find alternative accommodation, however, the tenant has been on notice for six months that she would have to vacate the premises and find alternative accommodation and the prosecution and sentencing process took place even longer ago, in late 2016. While the Tribunal does not consider that 14 days is an appropriate period to suspend possession, given the need to find alternative accommodation that will assist a 10 year old child to maintain his current schooling, it is not appropriate to suspend possession for the period urged by the tenant. The Tribunal is satisfied that the order for possession should be suspended for a period of 30 days.
The orders of the Tribunal are:
1. The Residential Tenancy Agreement is terminated in accordance with s 85 of the Residential Tenancies Act 2010 as the landlord has served a 90 day notice for termination of a periodic agreement.
2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.
3. The order for possession is suspended until 20 October 2017.
4. The tenant shall pay the landlord a daily occupation fee at the rate of $47.86 per day from the day after the date of termination, namely 21 September 2017 until the date vacant possession is given to the landlord.
5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.
L Pearson
Principal Member
NSW Civil and Administrative Tribunal
29 September 2017
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
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Decision last updated: 29 November 2017