NSW Land and Housing Corporation v Barber [2022] NSWCATCD 188

NSW Land and Housing Corporation v Barber [2022] NSWCATCD 188

Although the tenant breached clause 13.1 by using, causing or permitting the premises to be used for an illegal purpose, the Tribunal was not satisfied that the breach was sufficient in the circumstances to justify termination. The Tribunal balanced the objective seriousness of the small-quantity heroin supply conviction against the tenant's candid evidence, treatment for psychological and substance use disorders, guilty plea, agreement to comply with specific performance, hardship and lack of social housing alternatives, absence of previous breaches of Tribunal orders, and lack of current neighbour complaints. The termination and possession application was dismissed and a specific...

Jurisdiction
Australia
Judgment Date
29 September 2022
Procedural Posture
Application for Termination of Residential Tenancy and Possession for Breach of Residential Tenancy Agreement / Contested Hearing
Outcome
Application for termination of the tenancy and possession dismissed; specific performance order made.
Legal Topics
['termination and Possession' 'breach of Residential Tenancy Agreement' 'use of Premises for Illegal Purpose' 'drug Supply Conviction' 'discretion to Terminate' 'specific Performance Order']
['leases and Tenancies' 'residential Tenancy' 'social Housing'] ['termination and Possession' 'breach of Residential Tenancy Agreement' 'use of Premises for Illegal Purpose' 'drug Supply Conviction' 'discretion to Terminate' 'specific Performance Order']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Termination of Residential Tenancy and Possession for Breach of Residential Tenancy Agreement / Contested Hearing

Legal Issues

  1. 1 ['Whether the tenant breached the residential tenancy agreement by using, causing or permitting the premises to be used for an illegal purpose.' 'Whether the breach was, in the circumstances of the case, sufficient to justify termination under s 87(4)(b) of the Residential Tenancies Act 2010.' 'Whether the Tribunal should exercise its discretion to terminate the tenancy under s 154E of the Residential Tenancies Act 2010.' 'Whether an alternative specific performance order should be made requiring compliance with clause 13.1 of the residential tenancy agreement.']

Ratio Decidendi

Although the tenant breached clause 13.1 by using, causing or permitting the premises to be used for an illegal purpose, the Tribunal was not satisfied that the breach was sufficient in the circumstances to justify termination. The Tribunal balanced the objective seriousness of the small-quantity heroin supply conviction against the tenant's candid evidence, treatment for psychological and substance use disorders, guilty plea, agreement to comply with specific performance, hardship and lack of social housing alternatives, absence of previous breaches of Tribunal orders, and lack of current neighbour complaints. The termination and possession application was dismissed and a specific...

Court Disposition

Application for termination of the tenancy and possession dismissed; specific performance order made.

Orders

  • ['The application for termination of the tenancy and possession of the property to the landlord is dismissed.' 'The tenant must comply with the terms of the residential tenancy agreement by complying with clause 13.1 of the agreement and not use the residential premises, or cause, or permit the premises to be used,...