Aboriginal Housing Office v Cargill [2019] NSWCATCD 45

Aboriginal Housing Office v Cargill [2019] NSWCATCD 45

Although the tenant's Turner's syndrome was accepted as a disability, the Tribunal was not satisfied that termination of the tenancy was likely to result in undue hardship. The effects relied on by the tenant, including impact on possible intensive correction order, connection to the house and area, attachment to animals, and access to local supports, were not so severe or excessive as to meet the statutory threshold. Because s 154D(3) was not made out, termination was mandatory and no consideration of s 154E factors was required.

Jurisdiction
Australia
Judgment Date
30 May 2019
Procedural Posture
Residential Tenancy Termination Application Under S 91(1) of the Residential Tenancies Act 2010 / Reasons for Decision and Amended Orders Under Section 63 of the Civil and Administrative Tribunal Act 2013
Outcome
Tenancy terminated immediately; order of possession suspended until 1 July 2019.
Legal Topics
['termination for Illegal Use of Premises' 'mandatory Termination' 'undue Hardship' 'disability' 'criminal Offence']
['residential Tenancy' 'social Housing'] ['termination for Illegal Use of Premises' 'mandatory Termination' 'undue Hardship' 'disability' 'criminal Offence']

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Procedural Posture

Residential Tenancy Termination Application Under S 91(1) of the Residential Tenancies Act 2010 / Reasons for Decision and Amended Orders Under Section 63 of the Civil and Administrative Tribunal Act 2013

Legal Issues

  1. 1 ['Whether the tenant caused or permitted illegal use of the premises under s 91(1) of the Residential Tenancies Act 2010.' 'Whether termination of the tenancy was mandated by s 154D(1) of the Residential Tenancies Act 2010.' 'Whether s 154D(3)(b) applied because the tenant was a person with a disability within the meaning of the Anti-Discrimination Act 1977 NSW and termination would be likely to result in undue hardship.' 'Whether, if termination was discretionary, the s 154E factors should be considered.']

Ratio Decidendi

Although the tenant's Turner's syndrome was accepted as a disability, the Tribunal was not satisfied that termination of the tenancy was likely to result in undue hardship. The effects relied on by the tenant, including impact on possible intensive correction order, connection to the house and area, attachment to animals, and access to local supports, were not so severe or excessive as to meet the statutory threshold. Because s 154D(3) was not made out, termination was mandatory and no consideration of s 154E factors was required.

Court Disposition

Tenancy terminated immediately; order of possession suspended until 1 July 2019.

Orders

  • ['The tenancy is terminated immediately.' 'The order of possession is suspended until 1 July 2019.']