NSW Land and Housing Corporation v Paul

NCAT Consumer and Commercial|2022-06-07|Before: Mr P

Introduction

This is an application by NSW Land and Housing Corporation (Housing NSW) for an order pursuant to s 91(1)(a) and (b) of the Residential Tenancies Act 2010 (NSW) (the Act; RT Act) that would terminate a social tenancy agreement that subsists between it and Sharon Paul (the tenant) on the ground that the tenant, and an occupant of the premises (the tenant's adult daughter, Ms Rebecca Davies), intentionally or recklessly caused and permitted the use of the premises for illegal and unlawful purposes related to the possession, sale and supply of prohibited drugs. This application was made to the Tribunal on 4 August 2021 (the application).
Illegal and unlawful use of the premises is conceded in this case. It is not in issue that termination of the tenancy is therefore mandatory according to s 154D(1) unless to do so would be likely to cause a person with a characteristic specified in s 154D(3)(b) to suffer undue hardship. If undue hardship is found, a discretion not to terminate the tenancy is enlivened.
For the reasons set out following I am satisfied, with respect to the tenant, that the discretion is enlivened but should not be exercised in her favour. The decisive factor is the tenant's culpability. The tenant's previous social housing tenancy was terminated for illegal use of the premises in 2007. She then became ineligible for social housing on that basis for 14 years. Her ineligibility was revoked on application in March 2021, and she entered into her current social housing tenancy agreement with Housing NSW in May 2021. When she did so she clearly knew the serious consequences that would flow from the use of the premises for illegal or unlawful purposes. Despite that, she immediately caused and permitted the premises to be used for the possession, sale, and supply of prohibited drugs and for other unlawful purposes on a very extensive scale. This was wholly intentional conduct that constitutes compete defiance (repudiation) of her contractual obligations to Housing NSW.
In these circumstances I can have no confidence that the tenant will not engage in such conduct in future, or that deterrence in the form of specific performance orders with a relisting option would have any utility or provide Housing NSW with an effective remedy. I have therefore made orders for termination and possession pursuant to s 91(1)(a) and (b) despite the likelihood that these orders will result in the tenant suffering undue hardship because of her disability.

Procedural history

The application was first heard and determined by the Tribunal, differently constituted, on 26 August 2021. Orders terminating the residential tenancy agreement and giving possession of the premises to the landlord were entered by consent. Those consent orders were the subject of an Appeal which was also resolved by consent on 23 November 2021. The Appeal Panel set aside the orders for termination and possession, and the application was remitted to the Tribunal, to be differently constituted, for re-hearing and determination.
The remitted application first came before the Tribunal, differently constituted, for Directions on 18 January 2022. In accordance with the Tribunal's usual practice where both parties are present at the first listing of an application the Tribunal attempted to assist the parties to resolve the dispute co-operatively by Conciliation. Those efforts were not successful. Consequently, the application was set down for a Special Fixture Hearing and directions were issued to the parties for the filing and exchange of the documentary evidence that they intended to rely upon at the final hearing. Leave was also granted for Housing NSW to issue a Summons to NSW Police in relation to the subject matter of the dispute and for both parties to be represented in the proceedings by an Australian Legal Practitioner.
On 23 February 2022 the parties requested the Tribunal, by consent, to not list the application for hearing until after 1 June 2022 because the tenant's concurrent criminal proceedings were due to be finalised on 18 May 2022. On 25 February 2022, the Tribunal, differently constituted, made consent orders in Chambers giving effect to this request and extending the time for the filing and exchange of evidence.

Evidence and hearing

Both parties responded to the Tribunal's directions for the filing and exchange of documentary evidence. Housing NSW's primary bundle was marked Exhibit A1. A supplementary bundle, which contained a Statutory Declaration dated made by Mr Luke Gooding dated 14 July 2022 was marked Exhibit A2. The tenant's primary bundle of documents was marked Exhibit R1. It contained Statutory Declarations made by Ms Paul (the tenant) and Ms Cassandra Harmer both dated 24 May 2022, and expert Psychological Evaluation by Mr Ustvan Schreiner, Clinical Psychologist dated 2 May 2022, among other evidence. A supplementary bundle, which contained a further Statutory Declaration by Ms Paul dated 26 July 2022, was marked Exhibit R2. Both parties also filed submissions and submissions in reply.
There was a degree of contention in relation to the evidence and submissions filed by Housing NSW. In relation to Housing NSW's submissions filed just prior to the first Special Fixture Hearing on 7 June 2022, I dealt with the tenant's objections by limiting the hearing on that date to the presentation of Housing NSW's evidence and submissions in chief, then adjourning the matter part-heard, and by giving the tenant a further opportunity to file submissions in reply before the hearing continued 5 August 2022. There were initially objections on both sides to the filing of Exhibits A2 and R2. However, these were ultimately not pressed.
Ms Paul and Ms Harmer were both called to give oral evidence and were subject to cross-examination. No other witnesses were called.

Material facts

Housing NSW and Ms Paul are parties to a social housing tenancy agreement that was made on 11 May 2021. The rented premises is a free-standing house located in a social housing estate (although I note there is some contention about this) in North Albury. At the time the social housing agreement was made, Housing NSW consented to one of Ms Paul's daughters, Ms Rebecca Davies (also known as Rebecca Harmer), occupying the premises with her as an authorised occupant. The tenant and Ms Davies moved into the premises on or about 12 May 2021.
The social housing tenancy agreement includes in clause 13 a term prohibiting the use of the social housing premises for any illegal purpose, which is founded upon s 51(1)(a) of the Act. It provides: USE OF THE PREMISES BY TENANT 13. The tenant agrees: 13.1 not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose…
On the date she signed the agreement, the tenant also signed a short, plain-English summary of her obligations under the social housing agreement. Included as a dot point in that summary was the following statement: "Do not use the property for anything illegal".
Ms Paul was previously a tenant of Housing NSW under a residential tenancy agreement that was made some time in 2003. That tenancy was terminated by order of the Consumer Trader and Tenancy Tribunal on 29 November 2007 (the order for possession being suspended to 13 December 2007) on the ground that Ms Paul had breached clause 7.1 of the agreement 'not to use the residential premises, or cause or permit the residential premises to be used, for any illegal purpose'. The particulars of the breach specified in the termination notice that gave rise to the termination application are as follows: Particulars On 13 June 2007, Police executed a search warrant at [address of residential premises]. You were present during the search. During this search Police located 2 grams of cannabis in the kitchen, 29 grams of cannabis in the lounge room, 2 sets of scales (1 with cannabis residue) and 2 bongs. You have been charged by Police with 1 x Possession of a Prohibited Drug and 2 x Supply of a Prohibited Drug. Additionally, you have been charged with 1 x Goods in Custody suspected of being stolen.
Those particulars are based on information the then South and Western Region Department of Housing received from NSW Police Albury Local Command Intelligence Office in correspondence dated 27 June 2007.
In relation to the 2007 criminal proceedings against Ms Paul, Housing NSW relies upon NSW Police Event Ref No: E 30942174 which states as follows: Narrative Details As a result of an ongoing operation BALDRICK Police conducted observation of [the tenant's then social housing premises]. Police observed a number of people attending the address for a short period of time and then leaving. On the 17th of May 2007, Police stopped and spoke to one of the persons seen leaving the address. Police conducted a search of this person and located an amount of cannabis. Police were informed by this person that they had purchased the cannabis from the accused Sharon PAUL. As a result of this information Police continued observations on the accused address [the tenant's then social housing premises]. On 13th of June 2007, Police conducted observation on the accused address … At 9:20am Police observed a male person attend the accused address knock on the front door enter the address and leave after a short period of time. Police stopped and searched this male person and located 3 grams of cannabis. At 9:30am Police observed a 15 year old female attend the accused address knock on the front door enter the address stay a short period of time and leave again. The 15 year old female was stopped and searched by Police and located was 1 gram of Cannabis which is (sic) informed Police she had just purchased from [the address of the tenant's then social housing premises]. As a result of the ongoing observation and the searching of two persons and the location of the cannabis on these persons Police applied and were granted a warrant 28/7 from Albury Court. At 11.10am Police attended [the tenant's then social housing premises] and executed warrant 28/7. The accused was at home when the search warrant was executed. During the search warrant Police located in the kitchen in a bowl was 2 grams of cannabis, 2 sets of scales one with cannabis residue, and a bong. Located in the dining area was a second bong. The accused informed she had these items for personal use. Police continued the search and located in the corner of the lounge room in a black ladies should bag 1 x plastic resealable bag containing 29 grams of cannabis. The accused was cautioned and placed under arrest. The search warrant was suspended and the accused was taken to Albury Police Station and entered into custody. The accused was conveyed back to [the tenant's then social housing premises] and the search warrant was completed. At the completion of the search warrant the accused was conveyed back to Albury Police Station and offered the opportunity to be interviewed which she declined …
In Housing NSW's evidence is a Statement of Police, Senior Constable Joanne Gay dated 7 August 2007 which was prepared for the purposes of the 2007 criminal proceedings against Ms Paul. It relevantly states that on 13 June 2007 during a Police Operation a young person was placed under arrest for the possession of cannabis and taken to Albury Police Station where she was questioned in the presence of her mother. The following appears at paragraph 7 of Constable Gay's statement: 7. Constable Milnes said, "where did you come from?" She said, "Sharon Paul's place". The young person was taken back to Albury Police Station where she was interviewed about this cannabis. … In this interview she stated that she had bought the cannabis from Sharon Pauls place [at Ms Paul's residential address] paying $20.00 for 1 gram.
In her Statutory Declaration dated 27 July 2022 Ms Paul states the following in relation the 2007 criminal proceedings: 8. In relation to previous illegal activities [at address of rented premises] … the NSW Police withdrew the charges relating to the supply of drugs. I was sentenced to a good behaviour bond for 6 months for possession of cannabis. I admit that in the past I have used cannabis for personal use and pain relief for my arthritis but I deny that I was "drug dealing". I told police that the 15 year old that they alleged I sold cannabis to was a neighbour's daughter, [name], who would sometimes come over to my place when she had a blue with her mother and that she had stolen the cannabis without my knowledge. I did not supply drugs to a minor. …
The tenant also relies upon an email exchange between her solicitors in these proceedings and Senior Constable Christopher Harris, Albury Police Station dated 1 April 2022 in which Constable Harris confirms that the tenant received a 6 months' good behaviour bond for the possession offence under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and that the other charges related to supply and goods in custody were withdrawn.
By letter dated 3 October 2008 the delegate of the then NSW Department of Housing notified the tenant that it had been determined that she was ineligible for public housing. That letter states, relevantly: This letter is about any future application for public housing A review of your former tenancy record has found that there were a number of serious breaches of the tenancy agreement when you lived at [address]. For this reason you are not eligible for public housing. Former tenants are not eligible for public housing if they, or a member of their household at the time, breached their previous tenancy agreement in any of the following ways:  Illegal activities were carried out by the tenant or a member of their household on the Department's premises. …
The social housing agreement dated 11 May 2021 was the outcome of an application for social housing the tenant made in March 2021 which was accompanied by a request that her ineligibility for social housing be revoked. The tenant's application for the revocation of her ineligibility status was based, at least in part, on the elapse of time since this status was imposed, and her contention she no longer engaged in the illegal conduct that gave rise to that exclusion. As is set out in more detail in the tenant's evidence later, she had been homeless and living on an itinerant basis for some time in the lead up to that application.
During the period she was homeless and living itinerantly the tenant was living on and off with Ms Davies, who was her 'carer'. Ms Davies was listed as a proposed occupant of the premises on the tenant's application for social housing on the basis that she was the tenant's carer.
In 2020, NSW Police established Strike Force Adige to investigate mid to large scale supply of methylamphetamine in the Albury/Wodonga area by Ms Davies and her associates. On 27 April 2021 NSW Police obtained a surveillance device warrant for the residential premises. NSW Police installed listening and optical surveillance devices in the premises on 5 May 2021 pursuant to that warrant.
Immediately or shortly after moving into the premises Ms Davies made modifications to the premises. She installed CCTV cameras which covered the front of the house and front door which were attached to a monitor located in the lounge room. Ms Davies also installed an electronically pin coded lock to the front door.
Between 12 May 2021 and 22 July 2021 NSW Police monitored the tenant and Ms Davies using the surveillance devices installed at the premises. On 22 July 2021 NSW Police executed a search warrant at the premises. Ms Davies was arrested and taken into custody. The tenant was not arrested.
The tenant was subsequently charged with six offences related to her conduct during the period 12 May 2021 to 22 July 2021. She appeared before Albury Local Court on 18 May 2022 in relation to those charges. The charges and outcomes are set out in the following table: Seq. no Offence Maximum penalty Outcome 1 Owner/occupier knowingly allow use as a drug premises (1st offence) Imprisonment - 12 months and/or Fine - 50 penalty units Conviction - Fine $1,200.00 Drug Misuse and Trafficking Act 1985 - s 36Y(1)(A) 2 Take part supply prohibited drug - greater than small and less than or equal to indictable quantity T1 (methylamphetamine) Imprisonment - 2 year/s and or Fine - 100 Penalty Units Conviction - Fine $880.00 Drug Misuse and Trafficking Act 1985 - s 25(1) 3 Supply prohibited drug - less than or equal to small quantity - T2 (cannabis leaf) Imprisonment - 2 year/s and or Fine - 50 Penalty Units Withdrawn Drug Misuse and Trafficking Act 1985 - s 25(1) 4 Take part supply prohibited drug greater than small quantity less than or equal to indictable quantity - T 1 (methylamphetamine) Imprisonment - 2 year/s and or Fine - 100 Penalty Units Conviction - Fine $620.00 Drug Misuse and Trafficking Act 1985 - s 25(1) 5 Possess prohibited drug (cannabis leaf) Imprisonment - 2 year/s and or Fine - 20 Penalty Units Found guilty without proceeding to conviction - dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 - s 10(1) 6 Deal with property proceeds of crim less than $100,000 T2 District Court - Imprisonment 3 years withdrawn Crimes Act 1900 (s 193c(2) Local Court - Imprisonment 2 years and or Fine - 50 penalty points.

Housing NSW relies upon the NSW Police Facts Sheet tendered to the Court on 18 May 2022 (as amended) in relation to these charges. It relevantly states: … Offence 1: Allowing use of the premises as drug premises - offence by owner or occupier (1st offence). … Between the 12th of May 2021 and the 22nd of July 2021 the accused allowed the house to be utilised for the purpose of drug supply and was aware persons were consuming prohibited drugs within the premises. On the 22nd of July a search was executed at [address of residential premises]. In the main living area of the house the police located methylamphetamine, pipes used for smoking methylamphetamine, scales, bags and containers used for the supply of methylamphetamine. Police also located 42 grams of methylamphetamine and forty two thousand three hundred and ninety dollars in Australian currency. Also located in the accused bedroom was 8.2 grams of cannabis and a set of small scales. The accused was involved in the supply of prohibited drugs from the premises herself. Offence 2: Take part in supply prohibited drug… At 8:58pm on the 18th of May 2021 the accused [telephone number] contacted her daughter Rebecca Harmer (intercepted service [telephone number] and spoke to her regarding [name, "A"] being at [address, not that of the residential premises] and wanting to see Harmer. Paul said "[name, name], you know." Harmer replied, "just ask her what she wants." Paul can be heard asking [name, "A"] in the background what she wants and then states she wants a half. Harmer asks "half what" Again Paul can be heard talking in the background, she says "half an ounce or half a (to Harmer) half a ball (1.75 grams)." Harmer says "alright I will see you soon". Call 11862. At 9:33pm on the 18th of May 2021 ["A"] used the accused phone and called the phone of Rebecca Harmer. ["B"] an associate of the accused and Harmer answered the phone. ["A"] has a conversation about the prohibited drug being a bit short and wanting to know by how much. Call no 11978 At 10.07pm on the 18th May 2021 Rebecca Harmer contacted ["A" and phone no] by phone call and discussed why the money smelled of bong water. "A" informs Harmer she left it under Harmer's mum's bong. Harmer and "A" arrange for the remainder of the prohibited drug to be supplied Call no 11887 … Offence 4: Take part in supply prohibited drug … At 9:36pm on the 2nd of June 2021 the accused and her daughter, Rebecca Harmer were at [residential premises]. The accused tells Harmer "C" and "D" want to transfer the money. Harmer tells the accused to have them transfer the money into the accused account. At 9:43pm the accused tells Harmer the money is in her account. Harmer tells the accused to keep the money. At 9:50pm "A" arrives and Harmer hands her a bag containing 1:75 grams of the prohibited drug methylamphetamine. "A" tells Harmer the money went into her mum's (accused) account. Harmer agrees. "A" has a conversation with the accused before leaving [the residential premises]/ Offence 5: Possess prohibited drug On the 22nd of July 2021 a search warrant was executed at [residential premises] At the time of the execution of the warrant the accused was in her bedroom. While still in her bedroom she pointed out to police 8.2 grams of cannabis leaf in the side table next to her bed. The accused claimed ownership of the cannabis leaf. …
Following her arrest, Ms Davies was charged with 201 offences including, relevantly to these proceedings, those set out in the table below. Ms Davies' criminal proceedings were still before the Court at the date of the hearing. She remains in custody. Offence No Charge Police Fact Sheet Extract 1 Owner/occupier knowingly allow use as a drug premises (1st offence) … The accused made a number of alterations to the [residential premises] CCTV cameras were installed on the exterior of the premises with a live monitor mounted in the lounge room. The CCTV cameras allowed the accused to view the front yard of the premises and the section of [street name] on front of her house. The accused installed an electric pin coded lock to the front door of the premises. Between 12th of May 2021 and the 22nd of July 2021 the accused supplied numerous persons with prohibited drugs (methylamphetamine) … and permitted numerous persons to administer prohibited drugs on the premises. Drug Misuse and Trafficking Act 1985 - s 36Y(1)(A) 2 Permit another person to administer/attempt to administer to him/her a prohibited drug The accused is the lawful occupier of [residential premises]. Between 12th of May 2021 and the 22nd of July 2021 the accused permitted numerous persons to administer prohibited drugs (methylamphetamine) by smoking the prohibited drug with an ice pipe. The accused supplied the prohibited drug on most of the occasions. … Drug Misuse and Trafficking Act 1985 - s 14(1) 6 Deal with property proceeds of crime value of the property less than $100,000 The accused had in her possession a stolen mobile phone .. On 22nd of July 2021 a search warrant was executed at [residential premises]. This mobile phone was recovered during this search warrant. Crimes Act 1900 - s 193C(2) 10 Supply prohibited drugs on an ongoing basis … The accused supplied methylamphetamine on four separate occasions [to persons attending the residential premises] between 1st (sic 21st) May 2021 and 30 May 2021 gaining a financial benefit from each of these supplies. Drug Misuse and Trafficking Act 1985 - s 25A(1) 11 Supply prohibited drugs on an ongoing basis …The accused supplied methylamphetamine on four separate occasions [to persons attending the residential premises] between 1st June 2021 and 30 June 2021 gaining a financial benefit from each of these supplies. Drug Misuse and Trafficking Act 1985 - s 25A(1) 12 Supply prohibited drugs on an ongoing basis …The accused supplied methylamphetamine on four separate occasions [to persons attending the residential premises] between 1st of July 2021 and 22 July 2021 gaining a financial benefit from each of these supplies Drug Misuse and Trafficking Act 1985 - s 25A(1) 13-70, 72-101, 103- 192 & 194 Supply a prohibited drug Each Fact Sheet details the supply of a prohibited drug (methylamphetamine) to various persons in various quantities at the residential premises Drug Misuse and Trafficking Act 1985 - s 25A(1) 102 Deal with property proceeds of crime value of the property less than $100,000 On 22nd July 2021 police [upon execution of the search warrant at the residential premises] located forty two thousand three hundred and ninety dollars and forty cents which was the property of the accused and was the direct result of criminal activity Crimes Act 1900 - s 193C(2) 193 Supply a prohibited drug At 7:15pm on 20th of July 2021 an unknown female attended [residential premises]. The accused agreed to supply ' Drug Misuse and Trafficking Act 1985 - s 25A(1) A half ounce' (14 games) of methylamphetamine to the unknown female for five thousand five hundred dollars. The accused supplied the unknown female with 3.5 grams (192) before payment as part of the agreement. Crimes Act 1900 On 22nd of July 2021 a search warrant was executed at [residential premises]. During the course of the search the mobile phone of the accused was seized. An examination of the phone located two photographs of the Victorian driver's license of [name] from a Wangaratta address. This identity was used to register Telstra mobile service [number] on 3rs April 2021. This mobile service was being used by [associate of accused] in a stolen handset. [associate] is the partner and co-accused of the accused. The mobile service was used to facilitate drug supply 198 &199 Possess identification information to commit, facilitate commission of an indictable offence … an examination of the phone [also] located pictures of the NSW driver's license of [name and address]. This license went missing during a break and enter [of person's address] in December 2016. This identity was being held by the accused for the purpose of creating future false telecommunication registrations to continue her drug supplying. S 192K 201 Supply a prohibited drug not less than large commercial quantity Between 20th October 2020 and 22nd July 2021 the accused supplied seven hundred and nine point nine two grams of methylamphetamine to numerous parties. The accused engaged in drug supply activity for profit spending profits from the supply on renovations, clothing and other personal items. … The total amount of methylamphetamine supplied by the accused was 709.92 grams … Drug Misuse and Trafficking Act 1985 - s 25(2)

As already noted, Housing NSW lodged this application for termination of the social housing tenancy agreement on 4 August 2021.
In January 2022, the tenant's eldest daughter, Ms Cassandra Harmer, and her 6 years old son moved into the premises to live with her. They were not originally authorised occupants. It appears that the tenant submitted a Rent Subsidy Application in relation to the changed occupancy of the premises on or about 18 February 2022, but this was not processed by the Department of Communities and Justice due to an oversight. In June 2022, Legal Aid made enquiries about the status of this application resulting in it being reactivated.
The tenant's evidence contains a copy of an email from a Department of Communities and Justice Client Service Officer to Legal Aid dated 6 June 2022 which states that Housing NSW removed Ms Davies as an authorised occupant with effect from 22 July 2021 and added Ms Harmer as an authorised occupant with effect from 18 February 2022. In its Submissions in Reply Housing NSW states that the date Ms Harmer and her son became authorised occupants was 22 July 2022.
Housing NSW makes the following submission in relation to its approval of Ms Harmer's occupancy of the premises: 25. However, it should be noted that Ms Harmer's eligibility to be approved as an authorised occupant of a particular social housing household is not an undertaking by the landlord either to provide her with social housing or to allow her to continue to reside in the leased premises. Under DCJ Housing Policy, authorised occupant status reflects a lack of factors that would cause a prospective occupant to be ineligible for approval for occupancy in social housing. 26. Authorised occupant status also does not create any legal relationship between the occupant and the landlord; it does not appear in any legislation. It simply relieves the tenant from the terms of her residential tenancy agreement which disallow unauthorised occupants and occupants over a certain number, through an approval (consent) process. 27 Accordingly this development has limited impact upon the situation with regards the application for termination. The only change is that, from 22 July 2022, Ms Harmer and her son cease to be unauthorised occupants who were until that time living at the premises in breach of Ms Paul's tenancy agreement.
In her Statutory Declaration dated 24 May 2022, the tenant (Ms Paul) gives the following evidence: 1. She is 57 years of age, 2. Her income is constituted by a Disability Support Pension ($900.80 per fortnight), Energy Supplement ($14.10) and Pension Supplement ($72.00), 3. She has no savings, a motor vehicle valued at approximately $3,000.00 is her only asset, and she has debts of more than $2,000.00 which are repayable at the combined rate of about of $300.00 per month, 4. She was diagnosed with arthritis and osteoarthritis in 2005, which are degenerative, and make it difficult to perform some everyday tasks. Consequently, she relies upon a carer, 5. She now uses a wheelchair for mobility, because she is only capable of walking 20m before experiencing pain, 6. She is a National Disability Insurance Scheme participant and receives domestic support 3 days a week for 3 hours each day (there is NDIS documentation in Exhibit R1 at Tab 12 which provides evidence of this), 7. She receives physiotherapy for an hour once a week and podiatry once a fortnight, 8. Prior to moving into the residential premises she was homeless for a period of approximately 18 months, living in a cabin in a caravan park, in hotel emergency accommodation paid for by Housing NSW, and in short-term rental (AirBnB). She and Ms Davies applied for at least 40 properties during this period, but all applications were rejected, 9. She has no family with whom she could stay with long-term.
At paragraphs 21 to 28 of the Declaration the tenant denies actual knowledge of Ms Davies' drug dealing and states that her solicitor in the criminal proceedings advised her to plead guilty to allowing the premises to be used as a drug house because no one would believe otherwise. She continues: 23. … Due to my arthritis and mobility issues, I spend most of the time in my room by myself and I call out if I need something. The cops would have been able to see that from the surveillance of my place. My room is at the end of the hallway, and I have everything I need right there - a fridge, TV, air conditioner, heater and the bathroom. I have my own personal space within the premises. On top of this, my sleep pattern isn't normal, and I am on prescription drugs which make me sleepy during the day. I have realised that Rebecca would have people over with the hallway door shut so I often couldn't see or hear what she was doing. I am losing my hearing too. … 25. I did know about the incident involving ["A"] in relation to offence two which I plead guilty to. After that happened, I twigged Rebecca was dealing and I confronted her and assured me it was a once off. Whenever I asked her if she was doing anything illegal, she blatantly lied to me, my own daughter … 27. In relation to offence four, Rebecca told me the money from [names] was in relation to selling my fridge. I didn't know it was in relation to supply of drugs. I didn't realise that this charge hadn't been withdrawn and I plead guilty to it. I am disgusted in both myself and Rebecca at this situation. Ice wreaks havoc on the community and causes ridiculous destruction. I don't want anything to do with dealing ice. … 28. In relation to the possess cannabis charge. I used cannabis for medicinal purposes to help with my pain and sleep. Rebecca used to get it for me, and I no longer have access to cannabis leaf.
In her Statutory Declaration dated 26 July 2022, the tenant (Ms Paul) gives the following additional evidence: 1. She requires more care than that provided to her under the NDIS. In this respect Ms Harmer assists her with showering, dressing, meal preparation and cleaning. Because she requires a live-in carer, she cannot live in a one-bedroom property, 2. Because of her mobility restrictions, she cannot live in a property that has stairs or which is not fitted with mobility rails, 3. She experiences anxiety and depression, 4. In addition to the financial liabilities outlined in her first Statutory Declaration she had recently borrowed $900.00 from a friend which has to be repaid. She has also recently borrowed money from her brother, 5. She could not afford to pay a rental bond in the private rental market.
In her oral evidence given at the hearing the tenant stated repeatedly that she did not know about Ms Davies' drug sale and supply activities at the premises. She stated that she was very remorseful for what had happened, that she hated the thought of methylamphetamine because of the harm is causes, and that she would never allow drugs into the premises again.
The tenant also relies upon a Statutory Declaration made by Cassandra Harmer dated 24 May 2022 in which Ms Harmer gives the following evidence: 1. She (Ms Harmer) has a back injury sustained in a workplace accident in 2009. She has four prolapsed discs, a bulged disc, and a pinched nerve. She has Paget's disease which means her bones don't rejuvenate properly after injury, 2. She has a Post-Traumatic Stress Disorder and severe anxiety and depression, 3. She is recovering from an Opioid addiction which she developed due to drugs prescribed at the time of her back injury. She has been on the methadone program since 2019, 4. She attends drug and alcohol therapy every three months, a psychologist every six months, and a pain management specialist every 3 months, 5. She is listed on a tenancy data base for an amount outstanding from a previous tenancy (this is verified by a TICA database listing which is appended at Tab 27 of Exhibit R1 which itemises rent arrears and compensation for property damage), 6. Her 6 years old son has a speech impediment. He receives support for early childhood intervention under the National Disability Insurance Scheme (this is supported by NDIS documentation which is at Tabs 14 and 15 of Exhibit R1). She believes he also has Autism Spectrum Disorder, but he does not have a formal diagnosis of this condition, 7. She is committed to caring for Ms Paul.
In her oral evidence given at the hearing Ms Harmer stated that she did not take drugs and would ensure that the tenant would never use drugs again.
The tenant relies upon a Psychological Evaluation report prepared by Ustvan Schreiner, Clinical Psychologist, dated 2 May 2022 which is at Tab 7 of Exhibit R1. I do not set out the contents of this report in detail on the basis of privacy considerations. His diagnosis and opinion are set out in section 4.3 of the report. He concludes Ms Paul has a Persistent Depressive Disorder or ongoing "low grade depression" and was at the time of the assessment experiencing a Major Depressive Disorder of moderate severity. He opines that these conditions "notably impact on her daily functioning" in that she has poor emotional coping skills and is socially isolative. He opines that homelessness would have a significant negative impact on the tenant's mental health, being likely to increase symptom severity, and lead to suicide ideation. He opines that "[i]t is highly unlikely that she would be able to cope independently and [that] it is unlikely that she would be able to find any type of housing independently.
The tenant also relies upon an unsigned letter from Ms E Baker, a Podiatrist of Charles Sturt University, dated 18 May 2022. Ms Baker states that the tenant has been receiving podiatry services from Charles Sturt Podiatry Clinic since 8 February 2019. She states that the tenant is classified a high-risk podiatry patient due to her history of Rheumatoid Arthritis which has contributed to foot deformity which is not reducible, her history of foot ulceration due to high pressure areas caused by Rheumatoid Arthritis, low mobility, which results in significant risk of falls, risk of fracture due to osteoporosis, and poor peripheral vascular supply to the feet, making it difficult for wound healing. She states that she is very concerned that if the tenant becomes homeless this will impact on her foot health and her ability to attended fortnightly podiatry appointments.
Additionally, the tenant relies upon a "Physiotherapy Report" dated 19 May 2022 by Ms S Lefoe, Physiotherapist, with Icaria Health. In her report Ms Lefoe states that the tenant has been receiving physiotherapy assessment and treatment from her service for four months. Ms Lefoe states that the tenant has a primary diagnosis of Rheumatoid Arthritis which is an autoimmune disorder primarily impacting joints. She states that the tenant has a 10 year plus history of worsening joint pain and deformity, which "renders her quite disabled". She states that the condition has caused gross deformity in the tenant's feet and hands and causes constant pain from several joints including her shoulders, hips, and cervical spine. Ms Lefoe goes on to state: As a result [the tenant] has great difficulty in managing her day to day activities of life such as eating, dressing, cooking, showering and walking. [The tenant] is unable to walk more than a few metres and is reliant on a 4 wheeled walker in the home and wheel chair when she leaves the home and assisted technology services to be able to remain safe. [The tenant's] disability means she requires assistance from her daughter and support workers to manage her day to day activities of life.
At tabs 18 to 22 of Exhibit R1 the tenant includes documents to establish the scarcity and high cost of rental accommodation in Albury and surrounding areas for persons with her and Ms Harmer's income. These are an Anglicare Australia Rental Affordability Snapshot National Report, April 2022, a PDR Real Estate Albury Market Update for the first half of 2022 which reports the rental median price for houses in the fourth quarter of 2021 as $425.00 per week and apartments as $300.00 per week and rental vacancy rates in decline, and a newspaper article from the Border Mail dated 5 March 2022 which reports that there are four to five as many people looking for rental accommodation in Albury and Wodonga as there are properties available, and rental availability as less than 1%.
At tabs 23 to 26 of Exhibit R1 the tenant appends various Housing NSW Policy documents. This material is relied on to establish that if the social housing tenancy agreement is terminated for illegal and/or unlawful use of the premises the tenant would be automatically ineligible for social housing and for other social housing assistance (such as a Rentstart Bond Loan) because she will not satisfy the precondition that she is "eligible for public housing".
In relation to the relevant considerations found in s 154E, Housing NSW relies upon a Statutory Declaration made by Luke Gooding dated 14 July 2022. Mr Gooding does not state his role in his Declaration but in other documents before the Tribunal he is identified as Team Leader - Tenancy, Department of Communities and Justice. His evidence (not otherwise before the Tribunal) may be summarised as follows: 1. There is a current 5-7 year wait list for a three-bedroom Housing NSW property in the Albury area, 2. There are on average 6 families a week in temporary accommodation (homeless) who require a three-bedroom property, 3. North Albury (the suburb in which the residential premises is situated) has a high density of public housing tenancies. There are 10 public housing tenancies in the same street as the residential premises, 4. There are social issues in North Albury, which include poor property care, graffiti, high instances of petty crime and violence which are highly correlated with drug use, 5. The tenant has held two previous tenancies with Housing NSW and its predecessors. The term of the first tenancy was 31 March 2003 to 7 March 2003. That tenancy ended due to transfer to another property. The term of the second tenancy was 8 December 2003 to 9 December 2007. That tenancy was terminated by the CTTT on the ground of illegal use. There was also a history of water and rent arrears, unsatisfactory property care and noise nuisance.
Housing NSW also relies upon Mr Gooding's Statutory Declaration in relation to the issue of undue hardship. His evidence in relation to this issue may be summarised as follows: 1. Housing NSW calculates rent "affordability" at 50% of weekly income, 2. Ms Paul's rent affordability is equal to $257.00 per week (being her Disability Support Pension ($414.00) and eligibility for Commonwealth Rent Assistance ($72.90) divided by two, 3. There were 9 properties (1, 2, and 3 bedrooms) advertised on the Domain website in this price range in the Albury and Lavington areas on 3 June 2022 (copies of these listing are appended to his Declaration), 4. Ms Paul and Ms Harmer's rent affordability with their combined incomes (Ms Harmer's income being a single Parenting Payment ($440.10) and Family Tax Benefit ($30.75)), taking account their eligibility for Commonwealth Rent Assistance ($87.75), is $499.84. 5. There were 36 properties (3 bedrooms) advertised on the Domain website in this price range in the Albury and Lavington areas on 3 June 2022 (copies of these listings are appended to the Declaration).
In response to this evidence, the tenant (Ms Paul) states the following in her Statutory Declaration made on 26 July 2022: 1. On 22 July 2022 there were 2 listings for 1 bedroom properties available in the Albury and Lavington areas for $250.00 or less (copies of these listings are appended to the Declaration). One of these properties has stairs, 2. On 22 July 2022 there were 18 listings for 3 bedroom properties in the Albury and Lavington areas for $500.00 per week (copies of these listings are appended to the Declaration). Many of these properties have stairs, 3. She does not believe 50% of household income is an affordable amount to pay for rent because she and Ms Harmer already struggle to make ends meet after paying the current rent.

Contentions of the parties

Housing NSW contends that the evidence establishes that the tenant and Ms Harmer have caused and permitted the social housing premises to be used for illegal purposes being the sale and supply of prohibited drugs, contrary to the Drug Misuse and Trafficking Act 1985, and for other illegal purposes, being for possession of drugs, dealing with the proceeds of crime, and for possession of identity information to commit or facilitate the commission of an indictable offence. It submits that the grounds for termination of the social tenancy agreement under both s 91(1)(a) and (b) are therefore made out.
Housing NSW concedes that the tenant is a person with disability and that her grandson is a child for the purposes of s 154D(3)(b). However, it submits that the tenant has not established that termination of the social housing tenancy agreement would constitute an undue hardship because of those characteristics. Consequently, it is submitted that the discretion conferred by that section is not enlivened, and that the Tribunal is therefore bound by the mandatory terms of s 91(1)(a) to terminate the social housing tenancy agreement. It also submits that it is mandatory that the Tribunal make a termination order under s 91(1)(b) because this is a case to which s 154D(1)(c)(ii) applies - the contravention of s 25(2) (supply drug not less than large commercial quality) of the Drug Misuse and Trafficking Act 1985 by Ms Davies being a show cause offence under s 16B(1)(f) of the Bail Act 2013(NSW).
In the alternative, Housing NSW contends that in the event that the Tribunal is satisfied that termination of social housing tenancy agreement is likely to constitute an undue hardship to the tenant, Ms Harmer and/or Ms Harmer's son, it should nevertheless exercise the discretion conferred by s 154D(3) to terminate the social housing tenancy agreement. It contends that no other outcome is reasonable in the circumstances of this case given the degree of the tenant's and Ms Davies' fault, the likelihood that the tenant will engage in illegal and/or unlawful use of the premises in future (this being the second tenancy in which she has done so), the absence of evidence as to the tenant's rehabilitation and reform, and the necessity to protect other social housing tenants from the scourge of methylamphetamine supply.
It submits that a specific performance order would be both futile and inappropriate because the tenant already made an undertaking not to engage in unlawful activity when she signed her residential tenancy agreement in May 2021, which she immediately disregarded and breached, and because deterrence is futile given the tenant has already experienced the consequences of supplying prohibited drugs from her social housing premises through the termination of her tenancy in 2007 and yet this did not deter her from doing so again.
The tenant concedes that she and Ms Davies used the premises for an illegal purpose contrary to s 91(1)(a). Contravention of s 91(1)(b) by Ms Harmer was not formally conceded, but nor did I understand it to be formally denied. The tenant's case in defence is that she, Ms Harmer, and Ms Harmer's son are persons with disability, and Ms Harmer's son is a child, and that because of these characteristics termination of the tenancy is likely to cause them to suffer undue hardship.
In short summary, the tenant contends that a termination order would render her homeless because she will not be able to obtain alternative affordable and accessible housing, even when her income is combined with Ms Harmer's income. That is because of the limited supply of rental properties, unaffordable rent prices, her requirement for accessible premises due to her disability (which it is contended are more scarce and more expensive), and her and Ms Harmer's poor rent history, which means they are not competitive with other prospective tenants.
Although contravention of s 91(1)(a) is conceded, the tenant does not concede the degree of personal fault contended for by Housing NSW and contends that she was largely unaware of Ms Davies drug dealing from the premises. She contends that Ms Davies is in custody, is likely to face a prolonged custodial sentence, and will not return to live at the premises with her. She contends that Ms Harmer now lives with her and is opposed to all drug use, including personal use of cannabis. She contends that in these circumstances there is no likelihood that there will be any recurrence of use of the premises for illegal or unlawful purposes. The tenant contends that she is remorseful for what occurred and would never place her housing at risk again by causing or permitting the premises to be used for possession, sale, and supply of drugs.
On these bases the tenant submits that the discretion conferred by s 154D(3) is enlivened in the circumstances of this case and that the Tribunal should exercise this discretion by refusing to make the termination order ought. She submits that the application ought to be dismissed, or in the alternative, that the Tribunal ought to make a specific performance order in lieu of a termination order that will require her to comply with her obligation not to cause or permit the premises to be used for an illegal purpose.

Applicable law

Section 91 of the Act provides: 91 Use of premises for illegal purposes (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) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or (b) the use of the residential premises for any other unlawful purpose and that use is sufficient to justify the termination. (2) In considering whether to make a termination order on the ground specified in subsection (1)(b), the Tribunal may consider (but is not limited to considering) the following - (a) the nature of the unlawful use, (b) any previous unlawful uses, (c) the previous history of the tenancy. (3) The termination order may specify that the order for possession takes effect immediately. (4) A landlord may make an application under this section without giving the tenant a termination notice. (5) 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.
Section 154D of the Act provides, relevantly: 154D Tribunal required to make termination order in certain circumstances (1) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord under a social housing tenancy agreement if - … (b) an application for the order is made under s 91 and the Tribunal is satisfied of the matters set out in section 91(1)(a), or (c) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, and any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used for the purposes of - … (ii) a show cause offence within the meaning of the Bail Act 2013, and the tenant or other person has been charged with an offence relating to those circumstances (whether or not the person is or has been found guilty of the offence). … (3) However - … (b) subsections (1) and (2) do not apply if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made or a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 who is occupying or jointly occupying the social housing premises… … (4) For the purposes of the application of section 91(1)(b) to social housing premises under this section - (a) the reference to residential premises in section 91(1)(b) is to be taken to be a reference to the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others); (b) if the Tribunal is satisfied that an offence of a kind referred to in subsection (1)(c) or (2)(b) has been committed by a person on the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others), the Tribunal must assume that - (i) the premises or property has been used for an unlawful purpose, and (ii) the use is sufficient to justify termination of the agreement. (5) If the Tribunal does not make a termination order as a consequence of subsection (3), the Tribunal must provide written reasons for its decision.
Section 154E of the Act provides: 154E Exercise of discretion to make termination order (1) In considering whether to make a termination order for a social housing agreement, the Tribunal must have regard to the following - (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (2) This section does not limit any other matter that may be considered by the Tribunal under this Act.
Section 154G of the Act provides: 154G Order for possession (1) If an order is made for termination of a social housing tenancy agreement, the order for possession must not specify a day that the order for possession is to take effect that is later than 28 days after the day on which the termination order is made unless the Tribunal is satisfied that there are exceptional circumstances justifying a later day. (2) The order for possession cannot be suspended for a period that would result in it taking effect later than 28 days after the day on which the termination order was made unless the Tribunal is satisfied that there are exceptional circumstances justifying a longer period of suspension.
The definition of "disability" for the purposes of s 154D(3)(b) is found in s 4 of the Anti-Discrimination Act 1977 (NSW), which provides: "disability" means-- (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

Consideration

To determine the outcome of this application the Tribunal must pose and answer the following questions: 1. Did the tenant, and/or Ms Davies, intentionally or recklessly cause or permit the residential premises to be used, either: 1. for the purposes of sale or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW); or 2. for any other unlawful purpose, or both? 1. If the answer to (a)(ii) is "yes", is that use sufficient to justify termination of the social housing tenancy agreement? 2. Does the tenant, and/or Ms Harmer, and/or Ms Harmer have a characteristic specified in s 154D(3)? 3. If the answer to (c) is "yes" with respect to the tenant, and/or Ms Harmer, and/or Ms Harmer's son, would termination of the tenancy be likely to cause any or all of them to suffer undue hardship because of that characteristic? 4. If the answer to (d) is "yes" with respect to the tenant, and/or Ms Harmer, and/or Ms Harmer's son, how should the Tribunal exercise the discretion conferred by that section, having regard to the relevant considerations contained in s 154E and any other relevant considerations? 5. If the Tribunal determines to exercise any discretion conferred by s 154D(3) to terminate the social housing tenancy agreement, should the order for possession be suspended, and if so by what period, to allow the tenant time to move? 6. If the Tribunal determines to exercise any discretion conferred by s 154D(3) not to terminate the social housing tenancy agreement what order(s) should be made to finalise the application?

Illegal and unlawful use

The tenant concedes that she caused and permitted the illegal use of the premises but only to the extent of her conviction on 18 May 2022 of seq 1, 4 and 5 of the offences with which she was originally charged. These offences concern intentional conduct. I did not understand Housing NSW to contend for any finding of illegal or unlawful use by the tenant herself beyond the subject matter of these convictions.
Although the tenant was also convicted on seq 2 of those charges, that offence did not occur at the rented premises and thus did not involve its 'use' for the purposes of 91(1)(a). I do however consider the commission of this offence relevant to the question of the tenant's degree of knowledge of Ms Davies drug dealing, which I will return to in the final stage of the analysis.
I thus find that the tenant caused and permitted the premises to be used as a drug premises, for the supply of a small quantity of methylamphetamine, and for the possession of Cannabis contrary to ss 36Y(1)(A), 25(1) and (10(1) of the Drug Misuse and Trafficking Act 1985. This use of the premises therefore establishes grounds for a termination order under s 91(1)(a).
The tenant also concedes that Ms Davies caused or permitted the illegal and unlawful use of the premises contrary to s 91(1)(a) and (b). However, that concession was not particularised against any of the 201 charges that have been laid against Ms Davies. As at the date of the hearing the criminal proceedings against Ms Davies have not been finalised, so the Tribunal does not have the benefit of knowing what charges are ultimately pressed and what offences are proved to the criminal standard. Nevertheless, the tenant did not put in issue the illegal and unlawful use of the premises by Ms Davies contended for by Housing NSW as evidenced by seq 1, 2, 6, 10, 11, 12, 13-70, 72-101, 102, 103-192, 193, 194, 198, 199, and 201 of the charges against her. In these circumstances I am satisfied it is open for me to find to the civil standard of proof that Ms Davies caused or permitted the premises to be used for the illegal and unlawful conduct specified in those charges, and I do so. I am satisfied that this was intentional conduct by Ms Davies.
Seq 6, 102, 198 and 199 of the offences with which Ms Davies has been charged refer to unlawful conduct which is contrary to the Crimes Act 1900(NSW). This use of the premises therefore establishes grounds for a termination order under s 91(1)(b). All other seq refer to illegal conduct under the Drug, Misuse and Trafficking Act 1985. This use of the premises therefore establishes grounds for a termination order under s 91(1)(a).
There may be an issue in this case as to whether the seq 1 offences with which the tenant and Ms Davies were charged (and the tenant convicted) are to be treated as use falling within the scope of s 91(1)(a) or 91(1)(b). In the circumstances of this case, it appears to me that the subject matter of those offences concerns the supply to other persons of methylamphetamine and Cannabis at the premises by Ms Davies and the consumption of those drugs at the premises by those persons. Based on this form of 'supply' I conclude the use falls within the scope of s 91(1)(a). However, Housing NSW has drawn attention to a decision of an Appeal Panel in NSW Land and Housing Corporation v Raglione [2015] NSWCATAP 75 at [5] where it was held that this form of use (that is, use of the premises as a 'drug house') falls within the scope of s 91(1)(b). If I am wrong in the conclusion that the use in this case falls within the scope of s 91(1)(a), I would be satisfied on the basis of the decision in Raglione that it falls within the scope of s 91(1)(b).

Is the unlawful use sufficient to justify termination of the tenancy?

This is not a case where is it open to the Tribunal to determine, as a matter of discretion, if the grounds for termination under s 91(1)(b) are sufficient to justify termination of the social housing tenancy agreement. That is because of the operation of s 154D(1)(c)(ii) which makes it mandatory for the Tribunal to make a termination order if it is satisfied, relevantly, that Ms Davies intentionally caused the premises to be used for the purposes of a show cause offence within the meaning of the Bail Act 2013. That is: such a show cause offence is specified as being of sufficient seriousness to justify termination of the tenancy.
Seq 201 of the charges against Ms Davies (supply prohibited drug not less than a large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985), the subject matter of which I have found proved to the civil standard, is a show cause offence by operation of s 16B(1)(f) of the Bail Act 2013. Subject to the discretion conferred by s 154D(3)(b) in this case, the Tribunal therefore must make a termination order under s 91(1)(b).

The s 154D(3) characteristics

Housing NSW concedes that the tenant is a person with disability within the meaning of s 4 of the Anti-Discrimination Act 1977. Although that concession was not particularised, I do not understand it to be in issue that the tenant is a person who lives with a partial loss of bodily function due to arthritis and osteoporosis or that she lives with a disorder that affects her thought processes, perception of reality, emotions, and judgment, being a mood disorder. I make those findings.
There can also be no issue that Ms Harmer's 6 years old son is a 'child'. I also find that he is also a person with disability on the basis that he has a partial loss of bodily function, being a speech impediment. That condition is established on the evidence to my reasonable satisfaction because he has been assessed as eligible for support (being early childhood intervention) under the National Disability Insurance Scheme on that basis. I do not find that Ms Harmer's son has Autism Spectrum Disorder because Ms Harmer's belief that this is the case is speculative only (at least at this stage). That belief is not supported by medical or psychological opinion.
The issue of whether Ms Harmer is a person with disability for the purposes of s 154D(3) is less straightforward. Five disabling conditions are referred to in her Statutory Declaration dated 24 May 22, being an (historical) back injury resulting in a present partial loss of bodily function, Paget's disease, which is a malfunction of part of a person's body (being the part that regenerates bone), Post Traumatic Stress Disorder, severe anxiety and depression and opioid addiction, each being a disorder or illness that affects a person's thought processes, perception of reality, emotions, or judgement. However, no objective evidence has been submitted to establish the existence of any of these conditions. I note that Ms Davies' Income Support Payment is a Parenting Payment, not a Disability Support Pension. I infer from this either that she has never sought a Disability Support Pension based on any disabling condition she contends for, or that if she has applied, she was unsuccessful in establishing the grounds for that payment. Of course, that does not mean she is not a person with disability.
In the circumstances I think the safest course is for me to take at face value Ms Harmer's claims about her disability. The lack of satisfactory evidence in relation to those conditions is better accounted for in the next stage of the analysis: that is, in determining if Ms Davies would be likely to suffer undue hardship because of these conditions if a termination order is made.

Undue hardship

In Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 at [49] an Appeal Panel of the Tribunal determined that the term "undue hardship" as it appears in s 154D(3)(b) means "hardship that is excessive in all the circumstances". The term "likely to result" in s 154D(3)(b) does not appear to have been the subject of specific consideration. In my view the term ought to be given its ordinary meaning which is that it is a "real possibility" or "probable" outcome, as distinct from an unrealistic or merely fanciful possibility.
At [54] of Orr the Appeal Panel explained that the purpose of s 154D(3) is" "to mitigate the harsh consequences of s 154D(1) for defined categories of people who occupy social housing premises in circumstances where an order for termination would otherwise be mandatory regardless of the degree of fault of the social housing tenant. For s 154D(3) to be engaged, the Tribunal must be satisfied that termination of the agreement is likely to cause undue hardship to a person who falls into one of the specified categories and who is occupying the premises. That person may or may not be a tenant. Each of these categories involves a person who may be regarded as less capable than others of dealing with the hardships that may ordinarily arise from the termination of a social housing tenancy….
The Appeal Panel's conclusions were cited with approval in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [32] per Bell P (Ward JA agreeing).
The analysis of whether termination of the social housing agreement would be likely to result in undue hardship takes place in a normative context where it must be accepted that termination may "routinely result in the tenant experiencing significant stress, discomfort, disruption, inconvenience and even hardship": NSW Land and Housing Corporation v Lea [2021] NSWCATCD 54 at [24]. Undue hardship is something than exceeds what is normative and arises in connection with the tenant or occupant's s 154D(3) specified characteristic.
I am satisfied on the tenant's evidence that she would be likely to suffer undue hardship because of her disability if a termination order is made. The tenant has established on her evidence that she has restricted mobility that requires the use of mobility aids including a wheelchair and mobility rails. It is not unrealistic or merely fanciful that she will experience undue hardship in finding disability accessible accommodation in the private rental market and therefore may be obliged to accept a housing option that is incompatible with her disability-related needs or be rendered homeless. Housing NSW has not established on its' evidence that the alternative housing options it claims were available when it conducted its searches can accommodate a person who uses a wheelchair for mobility or are modified internally to have handrails in areas such as the bathroom to prevent falls. It is thus not to the point that there may be housing options in the private rental market equal to or below Housing NSW's affordability threshold of 50% of income. For the Tribunal to be satisfied that the tenant would not suffer undue hardship due to her mobility disability it would need to be reasonably confident that there are accessible and modified housing options available to the tenant at that price point or below.
Mr Schreiner concludes that homelessness, and by inference, physically inaccessible or insufficiently accessible housing, is likely to lead to the exacerbation of the tenant's mood disorder, and lead to suicide ideation. I am satisfied that the tenant would suffer undue hardship if the tenancy was terminated on this additional basis.
However, otherwise than as I have stated above, my finding that the tenant would be likely to suffer undue hardship if a termination order is made is limited to her physical disability. The tenant has also established that she has a psychological disability that impacts on her daily functioning, including her coping ability. However, I am not satisfied that this condition is likely to result in her suffering undue hardship if a termination order is made. There is no evidence that treatment for this condition comes at a significant additional cost that reduces the amount of weekly income that the tenant can allocate to rent. The tenant is eligible for support from the National Disability Insurance Scheme and receives assistance with activities of daily living and social participation three days a week for a total of nine hours. This is a form of practical assistance that can ameliorate her coping difficulties insofar as this relates to the skills necessary to plan and carry out relocation to new premises. The evidence does not establish that the tenant's psychological condition requires any specific form of accommodation that is not reasonably available in the private rental market. Nor does it establish to my satisfaction that any treatment the tenant requires for her psychological condition would not be available to her if she were obliged to relocate from the North Albury area. I therefore conclude that the tenant is not less capable of dealing with the hardships that ordinarily arise from termination of a social housing tenancy agreement because of her psychological condition per se.
I am not satisfied that a termination order is likely to result in undue hardship to Ms Harmer's 6 years old child either on the basis that he is a child or because of his disability. The child's speech impediment does not affect his ability to live in alternative accommodation, and the cost associated with the treatment for that condition is borne by the National Disability Insurance Scheme. The cost of this support does not reduce the amount of income Ms Harmer is able to allocate to rent. The evidence does not establish that this disability related support would not be available to him if he were to relocate from the North Albury area. As a child, he is dependent upon Ms Harmer's ability to secure alternative accommodation. He is obviously not capable of doing so independently of her.
However, I am not satisfied that Ms Harmer has a disability which would result in her being less capable than others of dealing with the hardships that ordinarily arise from the termination of a social housing tenancy agreement. As I have explained above, Ms Harmer asserts several disabling conditions, but she has provided no independent evidence of their existence or impact on her. There is therefore no satisfactory basis upon which I could conclude that she is less capable than others of dealing with the hardships ordinarily associated with termination of a social housing tenancy agreement. There is no evidence of additional medical or allied health care costs related to the treatment of any disabling conditions that reduces her available income. There is no evidence that the health and allied health services she deposes to receiving in her Statutory Declaration dated 24 May 2022 would not be available to her if she were to relocate from the North Albury area.

Exercise of discretion

The consequence of my finding that the tenant is likely to experience undue hardship if a termination order is made is that the Tribunal has discretion not to make a termination order. In this respect it is important to appreciate that the finding of undue hardship is only the "gateway" through which the discretion is enlivened, it is not a finding that governs the exercise of the discretion: NSW Land and Housing Corporation v Orr [2019] NSWCA 231 at [9]. However, it must also be accepted that the characteristics and circumstances that enliven the discretion will also be relevant considerations in its exercise.
The exercise of discretion requires consideration of the mandatory relevant considerations contained in s 154E and any other relevant considerations.
In terms of s 154E I have considered the following matters: 1. The tenant and Ms Davies have both been involved in the conduct of drug premises and in the sale and supply of prohibited drugs from the premises. In Ms Davies case, the premises is one location from which she has supplied a large commercial quality of drugs, being methylamphetamine and Cannabis. I accept Housing NSW's submission that the sale and supply of prohibited drugs causes individual and social harm. It has a serious negative effect on "other persons" for the purposes of s 154E(1)(a). This consideration weighs significantly in favour of a termination order being made, 2. There is no evidence that the tenancy has had any positive impact on neighbouring residents or other persons for the purposes of s 154(1)(a). No weight can be given to this consideration, 3. Ms Davies is presently in custody and is likely to be convicted and sentenced to a substantial term of imprisonment. The tenant was involved in the sale and supply of drugs, but the source of those drugs was Ms Davies. There is therefore a lesser likelihood that "other persons" will suffer serious adverse effects in future if the tenancy is not terminated for the purposes of s 154E(1)(b). This consideration weighs against a termination order being made, 4. However, the evidence would not permit the Tribunal to conclude that there is no likelihood that the tenant would not deal in prohibited drugs in future. Her previous tenancy was terminated in 2007 on the ground that she was involved in the possession, sale, and supply of drugs. There is no evidence that Ms Davies was involved at that time. Although the tenant's 2007 conviction was ultimately limited to possession, on the civil standard, I am satisfied that there was broader conduct by the tenant involving sale and supply of prohibited drugs. There is therefore some likelihood that other persons will suffer serious adverse effects in future if the tenancy is not terminated. I am therefore only prepared to give Ms Davies removal as an occupant from the premises limited weight as a consideration against making a termination order, 5. With respect to s 154E(1)(c), I accept Housing NSW's contention that it has a responsibility to its other tenants to prevent the use of social housing premises for the sale and supply of prohibited drugs due to the individual and social harm they cause. I accept Housing NSW's submission that there are causal links between the sale and supply of drugs and other forms of crime and antisocial behaviour including personal violence, theft, and vandalism. I reject the tenant's contentions that such a connection has not been proved. The criminogenic effects of drug addiction are an accepted legal and social fact. I also accept Mr Gooding's evidence that North Albury is an area with high density public housing and that there are 10 public housing tenancies in the same street as the premises. I am urged by the tenant's representatives to reject this evidence on the basis that Housing NSW has not provided any objective proof that this is the case. However, I am satisfied that as Team Leader - Tenancy, Department of Communities and Justice, Mr Gooding can give that evidence based on his own direct knowledge. Housing NSW's obligations to its other tenants therefore weighs significantly in favour of a termination order being made because, for the reasons I have stated, I cannot be satisfied that the tenant will not engage in drug dealing in the future, 6. With respect to s 154E(1)(d), I consider the tenant has breached both the current and her former tenancy agreements with Housing NSW by using those premises for illegal purposes. This weighs significantly in favour of a termination order being made. 7. With respect to s 154E(1)(e) there is no evidence that the tenant is or has been in breach of an order of the Tribunal. I therefore give no weight to this consideration.
I have considered the following additional matters: 1. The tenant has a physical disability which results in restricted mobility. She uses a wheelchair to aid mobility and requires (or at least benefits from) home modifications (mobility rails) which reduce the risk of falls. She can use her mobility device in the premises, and it is fitted with mobility rails. It is unlikely that she will be able to obtain accessible and modified accommodation in the private rental market within the price she is able to afford. This consideration weighs significantly against a termination order being made, 2. Homelessness and unsuitable housing have the potential to exacerbate the tenant's mental health conditions and lead to suicide ideation. This consideration also weighs significantly against a termination order being made, 3. Seq 1, 4 and 5 of the offences of which the tenant was convicted are offences carrying maximum terms of imprisonment. There is no issue that the conduct underlying these offences concerned the use of the premises. They therefore represent serious breaches of the social housing tenancy agreement. The offences with which Ms Davies has been charged are carry various terms of imprisonment up to life imprisonment. There is no issue that the conduct underlying many of these offences involved the use of the premises. They also represent very serious breaches of the social housing tenancy agreement. The high degree of seriousness of the illegal and unlawful use of the premises weighs heavily in favour of a termination order being made, 4. I am satisfied on the evidence that Ms Davies sought occupancy of the premises with the express intention of using it as a hub from which she would continue to engage in a drug dealing business. The tenant's contention that she did not initially know at all, and later did not know the extent of, Ms Davies drug dealing cannot be believed. It is not plausible that she did not know external surveillance cameras and a pin pad security device were installed at the premises by Ms Davies immediately after moving in. There was a monitoring device situated in the lounge room. No other explanation for the existence of this equipment was offered by the tenant. Although the seq 2 offence did not involve the use of the premises, it and the seq 4 offence of which the tenant was convicted provide clear evidence that the tenant both knew and was involved in Ms Davies' drug dealing business. The tenant's attempts to explain her conviction of the seq 4 offence now as a misunderstanding of the course of the criminal proceedings cannot be accepted. Acceptance of that contention would require an inference to be drawn that her legal representation in the criminal proceedings was grossly incompetent. No such inference can be drawn. The tenant's knowledge of and involvement in Ms Davies drug dealing from the outset of the tenancy is a consideration that weighs significantly in favour of a termination order being made, 5. In her evidence, the tenant has formally expressed remorse about Ms Davies' drug dealing and her own (unwitting, it is claimed) part in it. While I accept that the tenant is genuinely distressed by her present predicament, I do not accept that this constitutes remorse. There has been no satisfactory acceptance of responsibility for what occurred. Throughout her evidence, despite very compelling objective evidence to the contrary, the tenant has sought to deny knowledge of Ms Davies drug dealing and deny or minimise any role she played in it. Her evidence was essentially directed at self-justification, even to the extent of denying charges of which she was convicted to the criminal standard on a plea of guilty. I can not be satisfied on this basis that there is any fundamental change in the tenant's outlook that could provide comfort that she would not cause or permit the premises to be used for an illegal or unlawful purpose in the future. The tenant's expressions of remorse therefore can be given little weight against a termination order being made, 6. I am not satisfied in the exercise of discretion that a termination order would result in any disruption, inconvenience or hardship that is out of the ordinary for Ms Harmer and her son. For the reasons I have explained above, the evidence does not establish that their disability or Ms Harmer's son's age would result in undue hardship if a termination order was made. Ms Harmer and her son were approved as occupants of the premises by Housing NSW in the neutral application of its policy with respect to the authorisation of occupants of social housing premises. That authorisation did not constitute an affirmation of the tenancy. At the time the tenant applied for Ms Harmer and her son to be authorised as occupants, Housing NSW's application for termination of the tenancy on the grounds of illegal and unlawful use was already on foot. Ms Harmer could therefore have no reasonable expectation of long-term occupation of the premises by herself and her son. I therefore give the impact of a termination order on Ms Harmer and her son little weight, 7. I accept on the evidence that there is a scarcity of affordable rental accommodation in the locality in which the tenant and Ms Harmer wish to live. However, leaving aside the tenant's mobility restrictions and related needs which I have taken account of above, I am not satisfied that the tenant and Ms Harmer are in any different position to any other person who relies upon a Disability Support Pension or Parenting Payment as their primary source of income. I am not satisfied that this is a ground for the exercise of discretion to enable the tenant to retain social housing for which she has otherwise disqualified herself. Other than as set out above, I give general rental affordability little weight as a factor against a termination order being made, 8. I am satisfied on the evidence that Ms Harmer has been listed as a defaulting private tenant on a tenant database for failure to pay rent and compensation due to a private landlord. I accept that this will make it more difficult for Ms Harmer and her son separately, and the tenant and Ms Harmer together, to obtain private rental in future. However, I am not satisfied that a history of breach of a private rental agreement should operate, in the exercise of discretion, to permit the tenant to retain social housing for which she has otherwise disqualified herself. I therefore give Ms Harmer's negative private rental history little weight as a factor against a termination order being made, 9. Ms Harmer is recognised by Housing NSW as the tenant's carer. There is no evidence of any wider recognition of this, such as a Centrelink Carer Payment. However, I accept at face value Ms Harmer's evidence that she provides the tenant with daily personal care and practical assistance with daily living skills. I give this consideration some weight in determining whether to make a termination order. That is, there is a likelihood that if the tenancy is terminated the tenant and Ms Harmer may need to live separately, which may jeopardise Ms Harmer's ability to perform a role as the tenant's carer. However, a termination order will not inevitably lead to that outcome. Even if the tenant and Ms Harmer do not live together, they may still be able to live in reasonable proximity which will allow Ms Harmer to carry out this role on a drop-in basis. If that is not the case, the tenant is already an eligible participant of the National Disability Insurance Scheme. Should her support needs increase because of the cessation of the informal support provided to her by Ms Harmer it is open to her to apply for additional formal support from the NDIS.
Weighing each of these factors in the balance, I am not satisfied that those considerations that weigh in favour of the exercise of discretion not to make a termination order outweigh those considerations that weigh in favour of such an order being made. The balance falls decisively in favour of a termination order being made despite the likelihood that such an order will result in the tenant suffering undue hardship because of her disability.
The ultimately decisive issue is the tenant's culpability. The tenant's previous social housing tenancy was terminated for illegal use of the premises in 2007. She then became ineligible for social housing on that basis for 14 years. Her ineligibility was revoked on application in March 2021, and she entered into her current social housing tenancy agreement with Housing NSW in May 2021. When she did so she clearly knew the serious consequences that would flow from the use of the premises for illegal or unlawful purposes. Despite that, she immediately caused and permitted the premises to be used for the possession, sale, and supply of prohibited drugs and for other unlawful purposes on a very extensive scale. This was wholly intentional conduct that constitutes compete defiance (repudiation) of her contractual obligations to Housing NSW.
In these circumstances I can have no confidence that the tenant will not engage in such conduct in future, or that deterrence in the form of specific performance orders with a relisting option would have any utility or provide Housing NSW with an effective remedy.

Order for possession

Having determined that a termination must be made, I am required to consider if the order for possession of the premises ought to be suspended, and if so, for what period, to allow the tenant to move from the premises. The relevant test is found in s 114 of the Act. The Tribunal may suspend the order for possession if it is satisfied that it is desirable to do so having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension. If I do determine to suspend the order for possession, I must also have regard to s 154G of the Act. I am only permitted to suspend the order by a period more than 28 days if there are exceptional circumstances.
In the exercise of discretion, I have determined to suspend the order for possession for a period of 28 days based on the following considerations: 1. It is reasonable to allow the tenant this time to arrange alternative appropriate accommodation, which I have accepted may pose serious difficulties for her. No greater period of suspension is justifiable on this ground, however, because those difficulties may not be capable of being overcome and the order for possession cannot be suspended indefinitely, 2. There is a child living at the premises and his needs for an orderly transition to alternative accommodation must be taken account of, 3. It is in the interests of both Housing NSW and the tenant that the tenant has time to attend to her end of tenancy obligations, 4. No greater period of suspension of the order for possession is justifiable given the seriousness of the grounds upon which the termination order is made.
I note that I am not asked to make any order for payment of an occupation fee.

Orders

For the foregoing reasons I make the following orders: 1. The residential tenancy agreement is terminated under s 91(1)(a) of the Residential Tenancies Act 2010 and possession of the premises is given to the landlord on the date of termination. 2. The order for possession is suspended until 21 November 2022.

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 14 September 2023 - Formatting amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2023

(2019) 100 NSWLR 578

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (6)

Cases Cited (5)