Aboriginal Housing Office v Giles [2022] NSWCATCD 160

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Aboriginal Housing Office v Giles [2022] NSWCATCD 160 Hearing dates: 11 August 2022 Date of orders: 11 August 2022 Decision date: 11 August 2022 Jurisdiction: Consumer and Commercial Division Before: P French, Senior Member Decision: (1) The tenant, Matthew Giles [address] is to pay the landlord, Aboriginal Housing Office [address] the sum of $9,494.93 for rent owed under the residential tenancy agreement for the period from 27 March 2022 to 4 August 2022. The payment for rent owed is due immediately. (2) The tenant is to pay Aboriginal Housing Office rent, presently $330.00 per week, next payment due on the 17 August 2022, and once the arrears are paid in full, to pay rent in accordance with the residential tenancy agreement. (3) If the orders in respect of rent are not complied with then at any time before 11 February 2023 the landlord may request a re-listing of the application to determine whether the tenancy agreement should be terminated. Catchwords: LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – payment of rent Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – s 62 Residential Tenancies Act 2010 (NSW) – ss 83, 87, 88, 188 Category: Principal judgment Parties: Aboriginal Housing Office (Applicant) Mathew Giles (Respondent) Representation: SEARMS Community Aboriginal Corporation (Applicant) Murra Mia Tenant Advocacy Service (Respondent) File Number(s): SH 22/32492

REASONS FOR DECISION

Introduction 1. These are written reasons for a decision made on 11 August 2022 which have been prepared following a request to the Registrar pursuant to s 62(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Before the Tribunal was an application under s 87 of the Residential Tenancies Act 2010 (NSW) (RT Act) for an order that would terminate the residential tenancy agreement that subsisted between the parties on the grounds that the tenant had breached the agreement by failing to pay rent and water usage charges in accordance with that agreement. This application was made to the Tribunal on 19 July 2022 (the application). 3. At the hearing, the landlord did not press the claim insofar as it concerned water usage charges and sought orders for specific performance instead of orders for termination and possession. 4. The landlord was represented by Ms Ryan, a Housing Manager of the landlord's Agent, SEARMS Community Aboriginal Corporation. The tenant was represented by Ms Newton Schuyt, a Tenant Advocate from Murra Mia Aboriginal Corporation. Ms Newton Schuyt told the Tribunal that she had initially been able to obtain authority to act for the tenant, but had subsequently been unable to contact him again to obtain instructions in relation to the matter. 5. The landlord relied upon a bundle of documents, which included a copy of the residential tenancy agreement, the termination notice, and the tenant's rent record. The tenant did not file any evidence. 6. I made the following findings of jurisdictional fact: 1. There is a residential tenancy agreement subsisting between the parties to which the RT Act applies; 2. The landlord had served the tenant with a termination notice on the ground of non-payment of rent that complies with the requirements of Part 5 of the RT Act; 3. On the date the termination notice was issued the tenant was more than 14 days in arrears of rent; 4. The termination notice was served in accordance with section 223 of the RT Act; 5. The date for termination specified in the termination notice had passed; 6. The tenant had failed to return possession of the premises to the landlord in accordance with the termination notice; 7. The application was made within the period permitted by sections 83 and 88 of the RT Act. 1. I made the following findings of fact on the evidence before me: 1. The tenant had breached the residential tenancy agreement by failing to pay rent in accordance with that agreement; 2. The breach of the tenant's obligation to pay all rent due was not remedied before the termination date specified in the notice; 3. The breach of the tenant's obligation to pay all rent due had not been remedied up to the date of the hearing. As at the date of the hearing the tenant owed rent for the period 27 March 2022 to 11 August 2022 in the amount of $9,494.93 and was 201 days in arrears. 1. I was satisfied on these findings that the landlord was entitled to orders that would require the tenant to perform his obligations under the agreement with respect to rent, by paying rent when it fell due and by paying rent that was outstanding. 2. There was no issue that the tenant's current subsidised rent is $330.00 a week which would next fall due on 17 August 2022. 3. The tenant's rent arrears are very substantial, and it may reasonably be assumed that the tenant would find it impossible or difficult to pay this amount as a lump sum. Ordinarily, the Tribunal would make a specific performance order for the payment of arrears by instalments. However, there were two difficulties with this at the time of the hearing. First, the tenant has had the benefit of an order of this nature in the recent past, which he has failed to comply with. Second, Ms Newton Schuyt informed the Tribunal that she had been unable to obtain any instruction from the tenant as to his capacity or intention with respect to the payment of rent arrears. 4. In oral evidence the Tribunal was informed that the landlord had recently referred the tenant to Murra Mia Aboriginal Corporation in the hope that that agency may have more success in engaging with the tenant to assist him to meet his rent obligations and sustain his tenancy. Ms Newton Schuyt informed that Tribunal that her agency hoped to be able to secure financial and other supports for the tenant, but despite making initial contact, it had not been possible to make subsequent contact with the tenant. As at the date of the hearing, it therefore could not be known if the tenant intended to co-operate with attempts to sustain his tenancy. 5. Having regard to these matters I could see no utility in ordering the payment of rent by instalments where there was no satisfactory evidence of the tenant's capacity or intention to comply with such an order. 6. If a payment plan can be agreed other than in the context of any enforcement action in the Local Court, the parties may apply to the Tribunal pursuant to s 188 of the RT Act for order 1 to be varied by consent to order the tenant's rent debt to be paid by instalments or as otherwise agreed. 7. In accordance with the Tribunal's usual practice, on the landlord's application, I granted the landlord leave to relist the application at any time before 11 February 2023 if the tenant fails to comply with the orders for specific performance. At any such relisting of the application the Tribunal will determine on the facts as they present at that time if the landlord is entitled to orders for termination of the residential tenancy agreement and possession of the premises.

Orders 1. For the foregoing reasons I made the following orders: 1. The tenant, Matthew Giles [address] is to pay the landlord, Aboriginal Housing Office [address] the sum of $9,494.93 for rent owed under the residential tenancy agreement for the period from 27 March 2022 to 4 August 2022. 2. The payment for rent owed is due immediately. 3. The tenant is to pay Aboriginal Housing Office rent, presently $330.00 per week, next payment due on the 17 August 2022, and once the arrears are paid in full, to pay rent in accordance with the residential tenancy agreement. 4. If the orders in respect of rent are not complied with then at any time before 11 February 2023 the landlord may request a re-listing of the application to determine whether the tenancy agreement should be terminated.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 09 December 2022 - Amendment of incorrect date in Order 3. 09 December 2022 - Correction of spelling error. 20 September 2023 - Formatting amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2023