Gerringong Housing Aboriginal Corporation v Williams [2022] NSWCATCD 133

Gerringong Housing Aboriginal Corporation v Williams [2022] NSWCATCD 133

The termination notice was validly served, gave the required 90 days' notice and the application was filed within time. The tenant failed to establish a retaliatory application because the conduct causative of the landlord's decision concerned demands for a high perimeter fence and dog enclosure, social media abuse and resulting community conflict, not action to enforce any right of the tenant under the agreement, the Residential Tenancies Act 2010 (NSW) or another law. The Tribunal was therefore required by s 85(3) to terminate the tenancy and make an order for possession, with possession suspended for 21 days to 30 August 2022 and a daily occupation fee ordered.

Jurisdiction
Australia
Judgment Date
10 August 2022
Procedural Posture
Application by Landlord for Termination of a Periodic Residential Tenancy Agreement and Possession Under Ss 83 and 85 of the Residential Tenancies Act 2010 (nsw). / Redetermination of Remitted Application After Successful Appeal; Special Fixture Hearing Proceeded in the Respondent's Absence.
Outcome
Residential tenancy agreement terminated; possession ordered for the landlord; order for possession suspended until 30 August 2022; occupation fee and costs timetable ordered.
Legal Topics
['90 Day No Grounds Termination Notice' 'retaliatory Eviction Defence' 'social Housing Tenancy Agreement' 'order for Possession' 'occupation Fee' 'costs Directions']
['residential Tenancies' 'social Housing' 'civil Procedure'] ['90 Day No Grounds Termination Notice' 'retaliatory Eviction Defence' 'social Housing Tenancy Agreement' 'order for Possession' 'occupation Fee' 'costs Directions']

Case Brief

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Procedural Posture

Application by Landlord for Termination of a Periodic Residential Tenancy Agreement and Possession Under Ss 83 and 85 of the Residential Tenancies Act 2010 (nsw). / Redetermination of Remitted Application After Successful Appeal; Special Fixture Hearing Proceeded in the Respondent's Absence.

Legal Issues

  1. 1 ['Whether the landlord issued a valid 90-day termination notice for a periodic agreement under ss 82 and 85 of the Residential Tenancies Act 2010 (NSW).' 'Whether the termination application was lodged within the applicable time limitation period.' 'Whether the termination notice or application was retaliatory within s 115 of the Residential Tenancies Act 2010 (NSW).' 'Whether the agreement was a social housing tenancy agreement and how that affected the order for possession.' 'What date for possession and occupation fee should be ordered.']

Ratio Decidendi

The termination notice was validly served, gave the required 90 days' notice and the application was filed within time. The tenant failed to establish a retaliatory application because the conduct causative of the landlord's decision concerned demands for a high perimeter fence and dog enclosure, social media abuse and resulting community conflict, not action to enforce any right of the tenant under the agreement, the Residential Tenancies Act 2010 (NSW) or another law. The Tribunal was therefore required by s 85(3) to terminate the tenancy and make an order for possession, with possession suspended for 21 days to 30 August 2022 and a daily occupation fee ordered.

Court Disposition

Residential tenancy agreement terminated; possession ordered for the landlord; order for possession suspended until 30 August 2022; occupation fee and costs timetable ordered.

Orders

  • ['The residential tenancy agreement is terminated in accordance with s 85 of the Residential Tenancies Act 2010 as the landlord has served a 90-day notice for termination of a periodic agreement.' 'The residential tenancy agreement is terminated immediately, and possession is to be given to the landlord on the date...