NSW Land and Housing Corporation v Lesniewski

NCAT Appeal Panel|2015-02-06

Solicitors: File Number(s): AP 14/46526 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: NSW Land and Housing Corporation v Catherine Lesniewski [2014] Date of Decision: 07 August 2014 Before: K Ross, General Member File Number(s): SH 13/53113

REASONS FOR DECISION

The appellant landlord (appellant) is a social housing provider of social housing premises under the Residential Tenancies Act 2010 (the RT Act). The respondent is a tenant of social housing premises located within the unit complex at 29 Victoria Avenue, Toukley (the Building).
On 14 October 2013, following a physical altercation between the respondent and the tenant of a neighbouring unit within the Building, the appellant made an application to the Tribunal seeking orders, including an order under subs 90(1)(b) of the RT Act, that the social housing tenancy agreement with the respondent be terminated.
On 7 August 2014, the Tribunal dismissed the appellant's application as it was not satisfied that s 90 applied to the facts in the application before it.

The Appeal and Grounds of Appeal

Subs 80(1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) makes provision for appeals to be made, to the Appeal Panel, against an "internally appealable decision". Subs 80(2)(b) of that Act provides that an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
There is no dispute that the decision of the Tribunal from which the appellant seeks to appeal is an "internally appealable decision" and that the appeal is entirely on a question of law, namely the proper construction of subs 90(1)(b) of the RT Act.
In its Notice of Appeal, the appellant described the grounds on which it was appealing as: Error of Law The Tribunal Member … erred in law in finding that the incident did not fall within s90 of the Residential Tenancies Act 2010. The correct interpretation should have been as submitted in the Applicant's submissions on or about 29 April 2014.
The orders sought by the appellant were that the matter be remitted to a single member of NCAT to be decided according to law.

The respondent, in her Reply to the Appeal, supported the orders made by the Tribunal and said: The Appellant's Appeal should be dismissed. The Tribunal Member … did not err in law. The Tribunal Member was correct in finding that the relevant incident did not fall within Section 90 of the Residential Tenancies Act 2010 (the Act). The Tribunal Member's interpretation of s90 of the Act was correct; the Appellant's interpretation of s90 was flawed. …

The Tribunal's decision

It is convenient to set out the submissions of the parties before the Tribunal as the same arguments have been pressed on appeal. These arguments are summerised at [7] to [13] of the Tribunal's decision as follows: "7. The landlord makes a number of submissions which can be summarised as follows: (a) The applicant says that s 90 protects the following persons from injury by the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises: (b) the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent, or an occupier, or a person on neighbouring land or premises used in common with the tenant. (c) An occupier includes any tenant or occupier of a unit located within the unit complex in which the tenant's unit is located (including an occupier of the tenant's unit). (d) The victim was an occupier of a unit in the complex, and it doesn't matter where the stabbing took place, because the locational qualifier on neighbouring land or premises used in common with the tenant does not apply to occupiers. 8. Alternatively the applicant submits that the victim was stabbed on neighbouring property as defined in s 90 (5) of the Act for the following reasons: (a) Neighbouring property as defined includes property adjoining or adjacent to the residential premises, and would extend to and include all of the land upon which the complex is located. (b) Residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence. Therefore the residential premises include all of the land owned and occupied by the applicant and contained within the complex. (c) As the stabbing occurred next to or on the road near the entrance to the complex the stabbing occurred on property adjoining or adjacent to the residential premises. (d) Therefore the Tribunal has jurisdiction to make the termination order under s 90. 9. In addition the applicant submits that the Residential Tenancies Act 1987 (the 1987 Act) provided that the Tribunal may make a termination order if satisfied that the tenant had intentionally or recklessly caused or permitted or was likely to intentionally or recklessly cause or permit: (a) … (b) injury to the landlord, the landlord's agent or any person in occupation of or permitted on adjoining or adjacent premises. It is submitted that the persons protected by the 1987 Act were extended to specifically include "an occupier" of other premises in the complex. The applicant submits that this reading of the section supports the submission that the injury to an occupier does not have to occur on neighbouring premises. 10. … 11. The respondent submits: (a) that the correct reading of section 90 requires that the placement of commas be taken into account so that the section is read as: Injury to: The landlord, The landlord's agent, An employee or contractor of the landlord or the landlord's agent, or An occupier or person on neighbouring premises or premises used in common with the tenant. (b) that the locational qualifier applies to an occupier or person (and not to the landlord, the landlord's agent or an employee or contractor of the landlord or the landlord's agent). (c) that the literal and ordinary meaning of the word 'on' is to be employed: (d) "(so as to be) supported by or attached to or covering or enclosing (sat on a chair, stuck on the wall, rings on her fingers, leaned on his elbow) (Australian Oxford Dictionary) (e) that it follows that the correct reading is that injury has been caused to an occupier or person, and that occupier or person was injured on adjoining property or premises used in common with the tenant. (f) that, in comparing s 68 of the 1987 Act with s 90 of the 2010 Act, the applicant is inviting the Tribunal to read into s 90 the words in occupation or permitted on without dealing with the question as to why the legislature used different words in the two sections. (g) that there is no need to look to the purposes of Parliament when the section is capable of a literal interpretation."
At [16] of its reasons for decision, the Tribunal said it accepted the submissions of the respondent and went on to say: "16. The Tribunal accepts the respondent's submissions in respect of the correct interpretation of the persons protected by the section. The placement of commas is relevant to that interpretation. Accordingly the Tribunal finds that the locational qualifier on neighbouring premises or premises used in common with the tenant applies to both occupiers and persons, such that the incident must occur on neighbouring premises or premises used in common with the tenant. 17. For completeness the Tribunal notes that the applicant submits that an occupier includes an occupier of any of the applicant's premises. There is nothing in the section or the Act to support that submission. It is not necessary for the Tribunal to determine the issue, but the Tribunal prefers an interpretation whereby an occupier is an occupier of the residential premises the subject of the application. The Tribunal does not accept that a comparison of the parallel provision in the 1987 Act with the provision in this Act means that the legislature meant to expand the class of persons protected. There is simply nothing to support that submission." (Italics added)

The appellant's argument on appeal

As noted above, the appellant's contention is that the location qualifier in subs 90(1)(b) of the RT Act does not apply to "an occupier" - it contends that it only applies to a "person." It argued that to apply the location qualifier to "an occupier", as the Tribunal did, rendered the insertion of the word "person" otiose, as an occupier is also a person.
The appellant argued that the purpose of the provision is protective of the persons named in the subsection. That is, the purpose of the subsection is to protect the prescribed persons from injury by the tenant. In oral argument the appellant submitted that the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent and an "occupier" each had a relationship with the tenant. Whereas, a "person" did not have such a relationship. We understood the appellant to argue that the location qualifier provides the necessary connection or relationship for a "person", but does not otherwise apply to the other prescribed persons.
The appellant went on to submit that subs 90(1)(b) protected the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent and an "occupier" from injury by the tenant regardless of where the incident causing the injury had occurred. That is, even if the tenant had assaulted the landlord or his/her agent while on holiday in Africa, the landlord would still be able to avail himself/herself of the termination remedy in subs 90(1)(b).
The appellant argued that the decision of Sheller JA in Crook v Consumer, Trader and Tenancy Tribunal of NSW and Anor [2003] NSWCA 370, at [37], provided support for its contention that s 68 of the Repealed Act had been enacted to provide protection to the parties described in that section. It went to argue that the Appeal Panel in Tailo v New South Wales Land and Housing Corporation [2014] NSWCATAP 66, at [8], made a similar finding in regard to s 90 of the RT Act.
The appellant also argued that, as subs 90(1)(b) of the RT Act was a re-enactment of s 68 of the repealed Residential Tenancies Act 1967 (the Repealed Act) it should be similarly construed. In this regard it relied on the Explanatory Notes to the Residential Tenancies Bill 2010, in particular at paragraph (h) of the Explanatory Notes relating to the provisions in Division 2 of Part 5 of the Bill. These provisions were said to be a re-enactment of the provisions in Division 3 of Part 5 of the Repealed Act, which included s 68.
Paragraph (h) of the Explanatory Notes to the Residential Tenancies Bill was in the following terms: "(h) the grounds on which a landlord may apply to the Tribunal for a termination order relating to serious damage or injury caused by a tenant have been extended to apply to serious damage or injury caused by other occupants and to circumstances where serious damage or injury is caused to neighbouring property or injury is caused to employees or contractors of the landlord or landlord's agent."
Section 68 of the Repealed Act was in the following terms: 68 Tribunal may terminate residential tenancy agreement where tenant causes serious damage or injury (1) The Tribunal may, on application by a landlord under a residential tenancy agreement, make an order terminating the agreement if it is satisfied that the tenant has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit: (a) serious damage to the residential premises, or (b) injury to the landlord, the landlord's agent or any person in occupation of or permitted on adjoining or adjacent premises. (2) If the Tribunal makes an order terminating a residential tenancy agreement under this section, the Tribunal shall also make an order for possession of the residential premises taking effect immediately. (3) In the case of a tenancy of social housing premises, a reference in subsection (1) (a) to the residential premises is taken to include a reference to any property adjoining or adjacent to the premises (including any property available for use by the tenant in common with others).
The appellant argued that the repealed subs 68(1)(b) did not contain a location qualifier and had its application for termination been brought under that subsection the Tribunal would have found that the subsection applied to the circumstances that were before it. In this regard it argued that the Tribunal failed to have regard to the historical context in which s 90 was enacted as well as the mischief or purpose to which it was directed.
During the course of oral argument we invited the parties to make submissions as to whether a possible construction of subs 90(1)(b) was that the location qualifier related to all the prescribed persons, in that the injury must have been inflicted on the prescribed persons whilst on the "neighbouring property or premises used in common with the tenant". That is, whether the location qualifier in the subsection was referable to the location where the tenant had inflicted the injury on the prescribed persons.
In its further submissions, the appellant said that if the location qualifier were to be found to apply to each of the prescribed persons in the subsection, the words "injury to the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent or an occupier" would be rendered "entirely otiose and have no work to do given the word "person" immediately before the location qualifier would include the these prescribed parties". That is, a construct of this kind would render words within the section otiose, which was contrary to the principles set out in Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490 (Project Blue Sky), at [71].
In addition, the appellant argued that to construe the subsection in this way would mean that it would have no application where a tenant or the person occupying the tenant's residential premises inflicted an injury on the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent or "an occupier" while on the tenant's premises.
The appellant reiterated the submissions it had made before the Tribunal below in regard to the meaning of the words "an occupier" and "neighbouring property" in subs 90(1)(b). We have dealt with these in more detail below.
Submissions were also made on the question as to whether the word 'injury" in subs 90(1)(b) included psychological injury. As noted by the appellant, the Tribunal did not address this issue in its reasons for decision. In light of the findings that were made by the Tribunal, this was clearly not an issue the Tribunal was required to address. Nor in our view do we need to determine this issue for the purpose of this appeal other than to note that the word "injury" should be given its ordinary meaning in the context in which it appears.

The respondent's argument on appeal

The respondent also reiterated the submissions she made before the Tribunal below. As noted in the above extract from the Tribunal's reasons for decision, the respondent contended that the literal interpretation and grammatical placement of commas in subs 90(1)(b) above, is of considerable importance in construing the provision.
It also argued that the inclusion of the word "person" was not a tautology, but sought to guard against the possibility of the general being read as not including the particular. That is, the inclusion of the word "person" negated the restrictive implication of "occupier" and on this basis they should not be read separately so that the location qualifier did not apply to the "occupier".
In the alternative, the respondent argued that on the basis of the syntactical presumption reddendo singula singulis (where two or more subjects are qualified by two or more matters, the qualifications attach to the subjects in which they appear) the location qualification "on neighbouring property" would apply to the "an occupier" and the location qualifier "premises used in common with the tenant" would apply to "person."
The respondent also submitted that if the appellant's construction of subs 90(1)(b) is accepted (i.e. the location qualifier does not apply to "an occupier") this would provide an overreaching protection irrespective of where the injury occurs. In this regard it was submitted that the RT Act was not a means by which occupants were given an ultimate protection irrespective of the proximity to the premises for which termination was sought. This was primarily a matter falling within the criminal justice system.
In response to the question as to whether the location qualifier applied to all the described persons in subs 90(1)(b), the respondent submitted this was not an issue the Appeal Panel needed to determine, as the only issue was whether it applied to the words "an occupier".
Again, we have dealt with the respondent's submissions in regard to the meaning of the words "an occupier" and "neighbouring property" below.

Principles of statutory construction

There is no dispute as to the relevant principles of statutory construct. However, it is convenient to briefly deal with these.
In Project Blue Sky (supra), at [69], the majority (McHugh, Gummow, Kirby and Hayne JJ) said the following as being the primary object of statutory construction (with citations omitted): "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed."
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41, 239 CLR 27, at [47], the High Court (per Hayne, Heydon, Crennan and Kiefel JJ) again explained that the "task of statutory construction must begin with a consideration of the text itself. … The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."
This approach to statutory construction was applied by the NSW Court of Appeal in Hudson v ARAP 1 (NSW) Pty Ltd [2015] NSWCA 126, at [25], per Bathurst CJ: see also Taylor v Owners-Strata Plan No 11564 [2013] NSWCA 55, at [86].
The same approach to statutory construction was recently applied by the Full Federal Court (per Flick, Murphy and Griffiths JJ) in Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [26]. The Court went on to consider a number of other decisions the High Court. At [27], the Court noted the following remarks of the High Court in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252: "[27] In Saeed v Minister for Immigration and Citizenship… French CJ, Gummow, Hayne, Crennan and Kiefel JJ stated at [31] (citations omitted): As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative "intention" is to be ascertained, "what is involved is the 'intention manifested' by the legislation". Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning."
Also of relevance in construing a provision of an Act is the Interpretation Act 1987. S 33 of that Act provides: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
Section 34 of that Act relates to the use of extrinsic material, such as any matter not forming part of the act that is set out in the document containing the text of the Act and any explanatory note or memorandum relating to the Bill for the Act, in interpreting a provision of an Act. Subs 34(1) provides that such material can be considered: 1. to confirm the meaning of the provision is the ordinary meaning conveyed by the text of the provision, or 2. to determine the meaning of the provision if it is ambiguous or obscure, or if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
In general, courts were loath to pay regard to the punctuation of an Act: see DC Pearce RS Geddes, Statutory Interpretation in Australia, (7th ed. 2011, LexisNexis Butterworths) at [4.56]. However, today there is a shift in this approach, but not to the extent of a slavish adherence to the punctuation so as to defeat the legislature's intention or the purpose or object underlying the Act.
As noted by DC Pearce and RS Geddes, the syntactical presumptions are no more than aids to understanding a writer's intention and can be readily discarded if there is any suggestion that a different meaning is intended: see Statutory Interpretation in Australia (supra), at [4.22]. The application of the reddendo singula singulis presumption we note was discussed and rejected in Melbourne City Council v Melbourne Port Corp [2003] VSC 200, at [17] and Robb v Transport Accident Commission [2004] VCAT 983, at [55] to [63]. In both cases the presumption was rejected as its application gave rise to an interpretation of the relevant section in issue, which was inconsistent with the purpose/intent of the relevant legislation/Act.

The location qualifier in subs 90(1)(b) of the RT Act

We are unable to accept the appellant's argument that subs 68(1)(b) of the Repealed Act did not have a location qualifier. The express words of the subsection would indicate otherwise.
In our view, in accordance with the principles of statutory construction (including s 33 of the Interpretation Act) subs 90(1)(b) of the RT Act must first and foremost be construed having regard to the express words of the subsection, the context in which it appears in that Act and not by reference to the repealed provision.
For the reasons set out below, we have found it unnecessary to have regard to s 68 of the Repealed Act or the Explanatory Notes to the Residential Tenancies Bill.
A literal reading of subs 90(1)(b) of the RT Act (including punctuation), we agree, leads to the conclusion that the location qualifier applies to both the "an occupier" and a "person". The appellant we note does not dispute this literal interpretation, but contends that this interpretation fails to give effect to the legislative intent or is contrary there to. In our view this is not borne out from the provision as a whole, the context in which it appears and the language and overall purpose of the RT Act.

The RT Act

While the RT Act does not expressly state its purpose or object, it is perhaps best described in the Long Title, namely to regulate the rights and obligations of landlords and tenants, rents, rental bonds and other matters relating to "residential tenancy agreements."
The Act is divided into 12 Parts.
Part 1 contains general provisions in regard to the application of the Act. For example, s 6 of the RT Act provides that the Act applies to existing and future "residential tenancy agreements" in respect of "residential premises" within New South Wales. Some residential premises and some residential tenancy agreements are excluded from the Act (see s 7 and 8). These exclusions are of no relevance to this appeal.
Part 2 of the RT Act relates to "residential tenancy agreements". Subs 13(1) in this Part defines a "residential tenancy agreement" to be an agreement under which a person (the landlord) grants to another person (the tenant) for value a right of occupation of residential premises for the purpose of use as a residence. S 15 makes provision for standard forms of residential tenancy agreements to be prescribed under the regulations. Such standard forms, however must not be inconsistent with the Act.
Part 3 of the RT Act sets out the rights and obligations of a landlord and tenant under a residential tenancy agreement. These provisions set out the essential terms of every residential tenancy agreement. For example, ss 49 to 54 set out a tenant's rights and obligations as to his/her occupation and use of the residential premises the subject of the residential tenancy agreement. Ss 55 to 59 set out the landlord's obligations in regard to the premises the subject of a residential tenancy agreement and his/ her rights of entry to those premises.
In this regard, s 50 sets out the tenant's right to quiet enjoyment and the landlord's obligation not to interfere with this quite enjoyment. The section also provides that the landlord has an obligation to take all reasonable steps to ensure that the landlord's neighbouring tenants do not interfere with the tenant's right to quiet enjoyment. That section is in the following terms: 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the resident premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. Maximum penalty: 10 penalty units. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenant do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement.
S 51 sets out the obligations of the tenant in regard to the use of the premises the subject of a residential tenancy agreement, which includes an obligation not to interfere, or cause or permit any interference with reasonable peace, comfort or privacy of a neighbor. That section relevantly provides: 51 Use of premises by tenant (1) A tenant must not do any of the following: (a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose, (b) cause or permit a nuisance, (c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant, (d) intentionally or negligently cause or permit any damage to the residential premises, (e) cause or permit a number of persons to reside in the residential premises that exceeds any number specified in the residential tenancy agreement. (2) A tenant must do the following: (a) keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, (b) notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage. (3) On giving vacant possession of the … (4) In this section: "residential premises" includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant. (5) This section is a term of every residential tenancy agreement.
S 54 of the RT Act provides that a tenant is liable, to the landlord, for any other person who is lawfully on the residential premises the subject of the agreement. That section provides: 54 Liability of tenant for actions of others (1) A tenant is vicariously responsible to the landlord for any act or omission by any other person who is lawfully on the residential premises (other than a person who has a right of entry without the tenant's consent) that would have been a breach of the residential tenancy agreement if it had been an act or omission by the tenant. (2) This section is a term of every residential tenancy agreement.
As can be seen from the abovementioned provisions, every residential tenancy agreement falling within the RT Act contains an express obligation (i.e. term of the agreement) that the tenant is not to cause or permit a nuisance or interference with the reasonable peace, comfort or privacy of his/her "neighbour". Furthermore, every resident tenancy agreement contains a term that a tenant is vicariously responsible to the landlord for the conduct of any person who is lawfully on the tenant's premises.
In general, a nuisance is the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with another person's use or enjoyment of their property: see Gales Holdings Pty Ltd v Tweed Shire Council [2013] 382 at [131] and [132]. In the text by A Anforth, P Christensen and S Bentwood in Residential Tenancies Law and Practice New South Wales (6th ed. 2014, Federation Press) at [2.51.3], it is noted that a nuisance in the context of a residential tenancy agreement can arise from noise, violence, smells, rubbish, car-parking, criminal activity and other circumstances.
The word "neighbours" in subs 51(1)(c) has been given a broad meaning and not limited to the adjoining occupier. It has been construed to include all persons sufficiently close to the conduct complained of and who have been adversely affected by that conduct: see Department of Housing v Goulding (1999) NSWRT 69 and A Anforth, P Christensen and S Bentwood in Residential Tenancies Law and Practice New South Wales at [2.51.4].
Cl 14, 15 and 16 of the standard form of residential tenancy agreement in schedule 1 of the Residential Tenancy Regulation 2010 are reflective of ss 51 and 54 of the RT Act. These clauses relevantly provide: "TENANT'S RIGHT TO QUIET ENJOYMENT 14. The landlord agrees: 14.1 that the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title to that of the landlord (such as a head landlord), and 14.2 that the landlord or the landlord's agent will not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises, and 14.3 that the landlord or the landlord's agent will take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. USE OF THE PREMISES BY TENANT 15. The tenant agrees: 15.1 …, and 15.2 not to cause or permit a nuisance, and 15.3 not to interfere, or cause or permit interference, with the reasonable peace, comfort or privacy of neighbours, and 15.4 not to intentionally or negligently cause or permit any damage to the residential premises, and 15.5 …. 16. The tenant agrees: 16.1 …, and 16.2 to notify the landlord as soon as practicable of any damage to the residential premises, and 16.3 that the tenant is responsible to the landlord for any act or omission by a person who is lawfully on the residential premises if the person is only permitted on the premises with the tenant's consent and the act or omission would be in breach of this agreement if done or omitted by the tenant, and 16.4 …"
Clauses 12, 13 and 14 of the residential tenancy agreement the subject of this appeal are in the same terms as those set out above.
Part 7 of the RT Act contains some additional provisions in regard to a residential tenancy agreement that is a social housing tenancy agreement in regard to residential premises that are social housing premises. Subs 138(1) makes provision for the social housing provider (the landlord) to request the social housing tenant to give a written undertaking not to engage in specified anti-social behaviour on: 1. the social housing premises to which the agreement relates, and 2. any property adjoining or adjacent to those premises (including any property that is available for use by the tenant in common with others) (an "acceptable behaviour agreement").
Subs 138(6) defines "anti-social behaviour to include "a reference to emission of excessive noise, littering, dumping of cars, vandalism and defacing of property."
Subs 138(2) provides that an acceptable behaviour agreement extends to the behaviour of any other person occupying (or jointly occupying) the social housing premises with the consent of the tenant.
S 55 of the RT Act sets out a landlord's right to access residential premises without the consent of the tenant. That right is limited and only arises in circumstances of an emergency, to carry out urgent repairs, where the landlord or the landlord's agent has made a reasonable attempt to obtain consent and has reasonable cause for serious concern about the health and safety of the tenant or any other person in the premises, the landlord has a reasonable belief the premises have been abandoned, or by order of the Tribunal.
Part 4 of the RT Act makes provision for the transfer (i.e. assignment) of a residential tenancy agreement and the sub-letting of residential premises the subject of a residential tenancy agreement.
Part 5 of the RT Act prescribes the grounds on which a residential tenancy agreement can be terminated by a landlord or a tenant.
Division 1 of this Part (ss 80 to 83) sets out the provisions generally in regard to termination of a residential tenancy agreement. Subs 81(1) in this Division, provides that a residential tenancy agreement terminates only in the circumstances set out in the RT Act. Subs 81(3), provides that a residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under the Act.
Division 2 and Division 3 of Part 5 set out the circumstances in which the Tribunal can make a termination order on the application of the landlord (Division 2) or the tenant (Division 3) to a residential tenancy agreement.
In some cases the landlord or tenant is required to issue a written Termination Notice prior to making an application to the Tribunal seeking a termination order. The requirements of such Notices is set out in s 82 of the RT Act. However, there are also circumstances where no written Termination Notice is required before making an application to the Tribunal.
S 83 provides that where the Tribunal makes an order terminating a residential tenancy agreement, it must also make an order for possession of the residential premises and specify the date on which the order is to take effect.
As noted above, the grounds on which a landlord can seek an order for termination of a residential tenancy agreement are set out in Division 2 of Part 5 (i.e. ss 84 to 95). These grounds include those contained in s 90 which is in the following terms: 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, or any person who although not a tenant is occupying or jointly occupying the residential premises, 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), or (b) injury to the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent, or an occupier or person on neighbouring property or premises used in common with the tenant. (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. (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.
The other grounds on which a landlord can seek a termination order are: 1. where the term of the tenancy agreement has ended and the tenant remains in occupation following the issue of a Termination Notice and the date of termination in that Notice has expired (ss 84 and 85); 2. where the landlord has entered into a contract for sale of the residential premises under which the landlord is to give vacant possession and a Termination Notice has been issued to the tenant and the date of termination in that Notice has expired (s 86); 3. where the landlord has given the tenant a Termination Notice for breach of the residential tenancy agreement and the breach is sufficient to justify the termination of the agreement (s 87); 4. where the landlord has given the tenant a Termination Notice for breach of the residential tenancy agreement solely arising from a failure to pay rent for not less than 14 days (ss 88 and 89); 5. the tenant, or any person occupying or jointly occupying the residential premises of the tenant has intentionally or recklessly caused or permitted the premises to be used for an unlawful purpose (s 91); 6. the tenant, or any person occupying or jointly occupying the residential premises of the tenant has seriously or persistently threatened or abused the landlord, the landlord's agent or any employee or contractor of the landlord or the landlord's agent (s 92); 7. the landlord would, in the special circumstances of the case, suffer undue hardship if the residential tenancy agreement was not terminated (s 93); 8. the tenant has been in continual possession of the same residential premises for more than 20 years; and 9. the residential tenancy agreement has been terminated and the tenant who occupied or partly occupied the residential premises no longer resides there and the remaining occupants continue in possession.
Under ss 90, 91, 92, 93, and 94 a landlord is not required to give a Termination Notice to the tenant prior to brining an application for a termination order by the Tribunal. That is, an application for a termination order can be made immediately. However, even if made and the Tribunal is satisfied the landlord has established the grounds for making the order sought, the Tribunal has a discretion as to whether or not to make the order.
Division 3 (ss 96, 97 and 99 to 105) sets out the grounds on which a tenant can seek an order for termination of a residential tenancy agreement by the Tribunal. These grounds include termination at the end of a fixed term or periodic agreement (ss 96 and 97), a breach of the residential tenancy agreement (ss 98 and 103), rent increases during a fixed term of 2 years or more (s 99), early termination of a fixed term agreement is specified circumstances (s 100), termination by a co-tenant of a fixed term agreement (ss 101 and 102) and hardship to the tenant of a fixed term agreement (s 104). Prior to seeking an order from the Tribunal, the tenant is also required to give the landlord a Termination Notice setting out the grounds on which he/she is seeking termination.
Division 5 of Part 7 of the RT Act contains some additional grounds on which a social housing residential tenancy agreement can be terminated by order of the Tribunal, including termination on behaviour grounds: see s 154.
In this regard, we note the social housing residential tenancy agreement the subject of this appeal includes the following note at the end of the agreement: 8. Anti-Social Behaviour The tenant acknowledges that behavior of the kind described below may entitle the landlord to take action to terminate their tenancy. More particularly the types of behavior that are not acceptable include, without limitation to the Residential Tenancies Act: - … … - Damaging (willfully) any other property or public building in the neighbourhood. … - Threatening, abusing, intimidating or swearing at other people living nearby or visiting the neighbourhood. - Throwing anything at people living nearby or visiting the neighbourhood. - Assaulting people living nearby or visiting the neighbourhood. - Taking any other action that harasses, scares or distresses other people living nearby or visiting the neighbourhood. - …. …
Part 6 of the RT Act contains provisions in regard to the recovery of possession of residential premises by the landlord, or any other person with a superior title. Parts 8 to 12 contain provisions relating to rental bonds, the powers of the Tribunal in dealing with disputes arising out of a residential tenancy agreement, powers of enforcement, a Residential Tenancy Database and some miscellaneous matters.

Proper construction of subs 90(1)(b)

As we have noted, applying a literal construction to subs 90(1)(b), the location qualifier applies to both "an occupier" and "person". That is, the injury the tenant (or the person occupying or jointly occupying the tenant's premises) inflicted on an occupier or person must have occurred on "neighbouring property" or "premises used in common with the tenant."
We are unable to accept the appellant's argument as to the purpose of subs 90(1)(b). In this regard we do not find that the decisions relied on by the appellant support its arguments. For example, Sheller JA, in Crook (supra), at [37] was considering the meaning of "injury" in that subsection and whether this should be qualified with the word "serious" as it appears in subs 90(1)(a).
In our view, having regard to the language, purpose and structure of the RT Act, the mischief to which subs 90(1)(b) is addressed is not protective in the sense contended for by the appellant; namely the protection of the prescribed persons from injury by the tenant. We accept this might be seen as a related effect of the subsection, but not its purpose.
As we have noted, the purpose of the RT Act is to regulate the rights and obligations of landlords and tenants in regard to a "residential tenancy agreement" concerning "residential premises". In accordance with this purpose the Act prescribes the standard terms of every residential tenancy agreement falling within that Act. These standard terms covering the same subject matters that are traditionally contained in tenancy agreements under contract law. The Act also contains provisions, which are traditionally grounds on which a tenancy agreement is terminated by operation of law or by way of agreement. These include where the term of the agreement has come to an end, a repudiation of the agreement by one party and accepted by the other party, or a breach of a term of the agreement by the landlord or the tenant (e.g. a failure by the tenant to pay rent and the tenant using the residential premises for an illegal purpose).
In our view, s 90 falls into the same category in that its purpose is to provide an immediate ground for termination arising from a fundamental breach of the terms of a residential tenancy agreement in so far as it relates to the tenant's obligations in regard to the use of the residential premises the subject of the agreement. Such use as we have noted includes conduct that adversely impacts on neighbouring property and persons residing on or lawfully on neighbouring property.
S 90, as we have noted, deals with "serious damage" and "injury" by the tenant or a person occupying or jointly occupying the tenant's residential premises. In our view, this is a ground arising from a breach by the tenant (or a person occupying or jointly occupying the residential premises of the tenant) of the statutory term set out in subs 51(1)(b), (c) and (d) of the RT Act or a breach of any written undertaking by the tenant under s 138 of that Act. Subs 51(1)(b), (c) and (d) of the RT Act we have noted imposes on the tenant an obligation in his/her use of the residential premises not to cause or permit a nuisance or interfere with the reasonable peace, comfort or privacy of his/her "neighbour". While this would also be a ground on which the landlord could seek a termination order under s 87 (i.e. a breach of the agreement), or s 154, in our view, the purpose of this specific ground for termination is to give the landlord a right to make an immediate application for the termination of the residential tenancy agreement without the need of giving the tenant a Termination Notice. That is, the legislature considered any s 51 or s 138 undertakings breach of the magnitude set out in s 90 as being a fundamental breach of the residential tenancy agreement between the parties that warranted immediate action and a possible termination by the Tribunal. That is, the legislature regarded serious breaches of this kind to be no different to the tenant using the residential premises for an illegal purpose.
S 90 also fulfils the landlord's obligation to any neighbouring tenants under subs 50(3) of the RT Act.
Accordingly, in our view, the purpose of subs 90, including subs 90(1)(b) of the RT Act is to address a serious or fundamental breach by the tenant (or a person occupying or jointly occupying the residential premises of the tenant) of the residential tenancy agreement. Its purpose is not protective as asserted by the appellant. And on this basis, we find that the literal construction of the location qualifier in subs 90(1)(b) applying to "an occupier" and a "person" is consistent with the purpose of that section and the other provisions in that Part of the RT Act. It is also consistent with the objects of the Act.
We would be inclined to give a similar construction to the subsection in so far as it relates to the other prescribed persons. However, we make no conclusive findings in this regard other than to say it is difficult to accept, given the language and purpose of the RT Act, that it was intended that the subsection applied regardless of where the injury was inflicted on the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent. Nor do the authorities support such a wide construction: see NSW Land & Housing Corporation v Christodoulo [2013] NSWDC 81, at [72]. As we have noted, a landlord's rights of entry to the residential premises the subject of the residential tenancy agreement are limited.

Conclusions in regard to the construction of subs 90(1)(b)

For the reasons set out above, we find that the Tribunal did not err in its construction of subs 90(1)(b) of the RT Act in that the location qualifier applies to an occupier and a person.

Meaning of "an occupier"

As noted above, at [17], of its reasons for decision, the Tribunal made no conclusive finding in regard to the meaning of the words "an occupier" in subs 90(1)(b), but indicated that it preferred an "interpretation whereby an occupier is an occupier of the residential premises the subject of the application" for termination as there was nothing to indicate that the legislature meant to expand the class of person protected.
In our view, as the meaning of "an occupier" was a matter in issue, it was incumbent on the Tribunal to make a finding as this was integral to its construction of the subsection and the circumstances of the application before it.
For the reasons we have already given, in our view the term "an occupier" should be given its ordinary meaning having regard to the purpose of the subsection and the mischief it is intended to address.
Again, we do not find it is necessary to have regard to the repealed section 68. Nor do we accept that the words "an occupier", in paragraph (b), is limited to the occupier as referred to in the introductory words of subs 90(1); namely "a person who … is occupying or jointly occupying the residential premises" of the tenant the subject of the landlord's application. For the reasons we have already given, such a construction is inconsistent with a literal reading of the subsection and the purpose or mischief the subsection is intended to address.
Accordingly, we find that the words "an occupier" must be construed as a person having a right to occupy the neighbouring property or premises used in common with the tenant the subject of the termination application.
On the basis of the agreed facts, the injury inflicted by the respondent was an injury to an occupier. However, the only real issue was whether that injury was inflicted on the occupier on "neighbouring property" or "premises used in common with the tenant".

Neighbouring property

In light of our findings above, the only matter remaining in issue is whether the "injury" inflicted on the tenant of the neighbouring residential premises to those of the respondent occurred on "neighbouring property or premises used in common with the tenant."
As we have noted the words "neighbouring property" is defined in subs 90(5) of the RT Act to mean as follows: "90(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."
The Tribunal dealt with the construction of this subsection at [19] and [20] of its reasons for decision.
At [19] and [20] the Tribunal said: "19 The Tribunal notes that the applicant [the appellant in these proceedings] seeks to terminate the tenancy of the respondent in respect of the residential premises occupied by her. This must be kept in mind when considering the definitions in the Act. The residential premises the subject of the residential tenancy agreement are unit X. The Act defines residential premises as "any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence. Accordingly the residential premises in this case are unit X, and include any land occupied by the tenant with the premises. The Tribunal does not accept the applicant's submissions that the residential premises include all of the land owned and occupied by the applicant landlord and contained within the complex. If this were so, the tenant would have an entitlement to occupy other units in the complex and this is clearly on the case. In order for the land to be included in the residential premises it must be occupied by the tenant, not by the landlord. This does not mean that the tenant may not have a right to use land around her residential premises, in common with the landlord or the landlord's other tenants. This does not make that land part of the residential premises. It is "land used in common with the tenant." 20. Accordingly, the Tribunal is not satisfied that the roadway, 15 metres from the entrance of the unit complex, falls within the definition of neighbouring property. The roadway is not property owned by the landlord in the vicinity of the residential premises, and it is not adjacent to nor does it adjoin the residential premises. It may be adjacent to and may adjoin the complex itself, and the complex contains the residential premises, but the complex is not equivalent to the residential premises."
As noted by the Tribunal a termination order, if made by the Tribunal will terminate the residential tenancy agreement between the landlord and the tenant and hence the tenant's right to occupy the residential premises the subject of the agreement. However, as we have noted subs 90(1)(b) applies where the tenant (or a person occupying or jointly occupying the residential premises of the tenant) intentionally or recklessly causes or permits an injury to an occupier on "neighbouring property or premises used in common with the tenant." Hence, it must be established that the "injury" occurred: 1. on neighbouring property, or 2. on premises used in common with the tenant.
In our view, the Tribunal erred in failing to consider whether the injury occurred "on premises used in common with the tenant". Its inquiry was limited to "neighbouring property."
In regard to (b) above, the word "premises" should be given its ordinary meaning and not limited to "residential premises" as defined under the RT Act. As noted above the word "premises" is used and not "residential premises" as defined under the Act. Accordingly, it has a broader meaning.
The word "premises" is defined in the Macquarie Dictionary to mean: "Premise noun 1. Also, premiss.a. Logic a proposition (or one of several) from which a conclusion is drawn. b. a basis, stated or assumed, from which reasoning proceeds. 2. (plural)a. the property forming the subject of a conveyance. b. a house or building with the grounds, etc., belonging to it. 3. …"
It is not for us, in this appeal, to determine whether a road fell within this description. This will ultimately be a question of fact having regard to the material before the Tribunal.
As we have noted "neighbouring property" is defined in subs 90(5). This subsection makes provision for two alternatives or circumstances. Common to both is the word "property", which should be given its ordinary meaning.
Subs 21(1) of the Interpretation Act 1987 defines the word "property" as follows: "21 Meanings of commonly used words and expressions (1) In any Act or instrument: … property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description, including money, and includes things in action."
This meaning is of course subject to a contrary intention as appears in the Act or instrument in which the word is contained (see subs 5(2) of the Interpretation Act). In our view, the RT Act does contain a contrary intention in that the word "property" only relates to real property and not personal property. Again whether the road in question is real property is a question of fact.
However, even if it is real property, the road was not owned by the appellant and in such circumstances subs 90(5)(b) would appear to have no application to the appellant's application before the Tribunal.
This leaves subs 90(5)(a), namely whether the road was adjoining or adjacent to the residential premises the subject of the agreement between the appellant and the respondent.
In our view the words "adjoining" and "adjacent" should not be given a technical or narrow meaning. Each word should be given its ordinary meaning in the context of the location of the residential premises the subject of the residential tenancy agreement for which a termination order is sought so as to give effect to the intent of the subsection.
In this regard the Macquarie Dictionary defines the word "adjoining" and "adjacent" to mean: "adjoining adjective bordering; contiguous: the adjoining room" "adjacent adjective lying near, close, or contiguous; adjoining; neighbouring: a field adjacent to the main road."
That is, there must be some proximity between the location where the injury was inflicted and the residential premises the subject of the residential tenancy agreement sought to be terminated. Hence where the residential premises the subject of the residential tenancy agreement is a unit within a larger complex of units, subs 90(5)(a) should not be limited to the units immediately adjoining or adjacent to the subject unit. What is adjoining and adjacent must be considered in the context of the circumstances having regard to the complex as a whole and the intent of the subsection.
Again, ultimately, whether the "injury" inflicted by the tenant occurred on property "adjoining or adjacent" to the residential premises is a question of fact to be determined from the circumstances of the matter before the Tribunal.

Conclusions and Orders

For the reasons set out above we have found that the Tribunal did not err in its construction of subs 90(1)(b) of the RT Act in that the location qualifier applies to "an occupier" and a person.
However, we have found that the Tribunal erred in failing to make a finding as to the proper construction of the word "occupier" and the construction and application of the location qualifier, including the meaning of "neighbouring property" in subs 90(5) of the Act.
As these are errors on law, the appropriate order is to allow the appeal and set aside the order made by the Tribunal and to remit the appellant's application for termination to the Tribunal for reconsideration. However, the only matters requiring reconsideration are the issues as to whether the "injury" inflicted by the respondent was on "neighbouring property or premises used in common with the respondent" and if so whether in the circumstance it is appropriate to make the orders sought by the appellant. The reconsideration of these matters is to be based on the material that was before the Tribunal at the original hearing and it would be appropriate for the Tribunal, as originally constituted, to reconsider these matters and re-determine the appellant's application.

Orders: 1. The appeal is allowed. 2. The order of the Tribunal made on 7 August 2014 is set aside. 3. The appellant's application, in part, is to be reconsidered by the Tribunal in accordance with paragraph 115 of these reasons for decisions. 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 07 September 2015 - file number corrected. 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: 07 September 2015

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