Roberson v New South Wales Land and Housing Corporation [2021] NSWCATAP 94

Roberson v New South Wales Land and Housing Corporation [2021] NSWCATAP 94

Although the Tribunal did not err in stating the legal test for undue hardship and did not deny procedural fairness, leave to appeal was granted because the evidence as a whole preponderated strongly against the finding that the tenant would not suffer undue hardship. The evidence established that termination would likely cause homelessness, disrupt treatment and support services required by the Community Correction Order, and have significant adverse effects on the tenant's physical and mental wellbeing. Because s 154D(3)(b) applied, termination was discretionary rather than mandatory. Having considered the seriousness of the drug supply conduct and the s 154E factors, but also the...

Jurisdiction
Australia
Judgment Date
16 April 2021
Procedural Posture
Residential Tenancy Appeal Concerning Termination Under S 91(1)(a) of the Residential Tenancies Act 2010 (nsw) / Appeal From Orders Made in the Consumer and Commercial Division on 23 November 2020
Outcome
Appeal allowed; orders 1-4 made on 23 November 2020 were set aside; the termination application was dismissed and performance orders were made.
Legal Topics
['termination of Residential Tenancy Agreement' 'use of Premises for Illegal Purposes' 'mandatory Termination Under S 154 D' 'undue Hardship' 'discretion to Terminate Under S 154 E' 'leave to Appeal' 'procedural Fairness' 'weight of Evidence']
['landlord and Tenant' 'residential Tenancies' 'social Housing' 'administrative Law'] ['termination of Residential Tenancy Agreement' 'use of Premises for Illegal Purposes' 'mandatory Termination Under S 154 D' 'undue Hardship' 'discretion to Terminate Under S 154 E' 'leave to Appeal' 'procedural Fairness' 'weight of Evidence']

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Procedural Posture

Residential Tenancy Appeal Concerning Termination Under S 91(1)(a) of the Residential Tenancies Act 2010 (nsw) / Appeal From Orders Made in the Consumer and Commercial Division on 23 November 2020

Legal Issues

  1. 1 ['Whether the Tribunal erred in construing s 154D(3) by failing to give the expression "undue hardship" its ordinary meaning in the context of the Residential Tenancies Act 2010 (NSW).' "Whether the Tribunal denied the tenant procedural fairness in its treatment of the COVID-19 pandemic and the tenant's financial circumstances and capacity to secure alternative accommodation." 'Whether leave to appeal should be granted because the decision may have caused a substantial miscarriage of justice as not fair and equitable or against the weight of evidence.' 'Whether, once mandatory termination did not apply because undue hardship was established, the residential tenancy agreement should be terminated in the exercise of discretion.']

Ratio Decidendi

Although the Tribunal did not err in stating the legal test for undue hardship and did not deny procedural fairness, leave to appeal was granted because the evidence as a whole preponderated strongly against the finding that the tenant would not suffer undue hardship. The evidence established that termination would likely cause homelessness, disrupt treatment and support services required by the Community Correction Order, and have significant adverse effects on the tenant's physical and mental wellbeing. Because s 154D(3)(b) applied, termination was discretionary rather than mandatory. Having considered the seriousness of the drug supply conduct and the s 154E factors, but also the...

Court Disposition

Appeal allowed; orders 1-4 made on 23 November 2020 were set aside; the termination application was dismissed and performance orders were made.

Orders

  • ['Orders 1-4 inclusive made on 23 November 2020 in application SH 19/33771 are set aside.' 'In lieu thereof, the following orders are made:' 'The application for termination of the residential tenancy agreement is dismissed.' 'Julie Roberson is to perform the residential tenancy agreement dated 27 February 2019 in...