New South Wales Land and Housing Corporation v Cain [2013] NSWDC 68

New South Wales Land and Housing Corporation v Cain [2013] NSWDC 68

Because the Tribunal was satisfied that the tenant had intentionally or recklessly caused or permitted use of the residential premises for purposes specified in s 91(1)(a) of the Residential Tenancies Act 2010 (NSW), it was required to make a termination order. Section 91(1)(a) did not confer an unconfined discretion to refuse termination; any discretion was limited to matters such as whether the order for possession should take effect immediately. The Tribunal also erred by taking into account irrelevant considerations including the tenant's health, financial circumstances and rehabilitation arrangements.

Jurisdiction
Australia
Judgment Date
23 May 2013
Procedural Posture
Appeal From Consumer, Trader and Tenancy Tribunal Decision Concerning Termination of Residential Tenancy / District Court Appeal Decided
Outcome
Appeal allowed; CTTT order set aside; residential tenancy terminated and possession ordered with immediate effect, stayed for 28 days.
Legal Topics
['termination Order for Use of Premises for Illegal Purposes' 'residential Tenancies Act 2010 (nsw) S 91' 'drug Supply and Cultivation Offences' 'whether Statutory Power Was Mandatory or Discretionary' 'error in Exercise of Discretion']
['landlord and Tenant' 'residential Tenancies' 'statutory Interpretation' 'administrative Law'] ['termination Order for Use of Premises for Illegal Purposes' 'residential Tenancies Act 2010 (nsw) S 91' 'drug Supply and Cultivation Offences' 'whether Statutory Power Was Mandatory or Discretionary' 'error in Exercise of Discretion']

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Procedural Posture

Appeal From Consumer, Trader and Tenancy Tribunal Decision Concerning Termination of Residential Tenancy / District Court Appeal Decided

Legal Issues

  1. 1 ['Whether s 91(1)(a) of the Residential Tenancies Act 2010 (NSW) required the Tribunal to make a termination order once satisfied that the tenant intentionally or recklessly caused or permitted use of the premises for drug manufacture, sale, cultivation or supply.' 'Whether the Tribunal had a discretion to refuse termination under s 91(1)(a).' "If there was a discretion, whether the Tribunal made legal error by considering the tenant's health, financial circumstances and rehabilitation program."]

Ratio Decidendi

Because the Tribunal was satisfied that the tenant had intentionally or recklessly caused or permitted use of the residential premises for purposes specified in s 91(1)(a) of the Residential Tenancies Act 2010 (NSW), it was required to make a termination order. Section 91(1)(a) did not confer an unconfined discretion to refuse termination; any discretion was limited to matters such as whether the order for possession should take effect immediately. The Tribunal also erred by taking into account irrelevant considerations including the tenant's health, financial circumstances and rehabilitation arrangements.

Court Disposition

Appeal allowed; CTTT order set aside; residential tenancy terminated and possession ordered with immediate effect, stayed for 28 days.

Orders

  • ['Appeal allowed.' 'Order of the Consumer Trader and Tenancy Tribunal dated 19 November 2012 set aside.' 'An order pursuant to s 91(1)(a) and (3) of the Residential Tenancies Act 2010 terminating the residential tenancy agreement between the plaintiff as landlord and the defendant as tenant in respect of the...