McAuliffe v CTTT & Anor [2004] NSWSC 824

McAuliffe v CTTT & Anor [2004] NSWSC 824

Although the hydroponic cultivation of cannabis in two areas of the premises fell within the ordinary meaning of use of the residential premises for an illegal purpose, the Tribunal's termination of the plaintiff's long-standing social housing tenancy was harsh and plainly unjust on the facts. The plaintiff was 65, had strong local and community ties, medical and psychiatric evidence supported her remaining in the accommodation, she had not sold cannabis, neighbours were not adversely affected, and she was unlikely to re-offend. A substantial injustice occurred, amounting to an error of law, so the appeal was upheld and the Tribunal decision set aside.

Jurisdiction
Australia
Judgment Date
09 September 2004
Procedural Posture
Appeal to the Supreme Court From a Decision of the Consumer Trader and Tenancy Tribunal on a Question of Law / Appeal Determined; Extension of Time Granted
Outcome
Appeal upheld; Tribunal decision set aside; second defendant's Tribunal application dismissed; costs awarded to the plaintiff.
Legal Topics
['leave to Appeal' 'extension of Time' 'breach of Residential Tenancy Agreement' 'use of Premises for an Illegal Purpose' 'termination of Tenancy' 'exercise of Discretion']
['administrative Law' 'residential Tenancies' 'social Housing'] ['leave to Appeal' 'extension of Time' 'breach of Residential Tenancy Agreement' 'use of Premises for an Illegal Purpose' 'termination of Tenancy' 'exercise of Discretion']

Case Brief

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Procedural Posture

Appeal to the Supreme Court From a Decision of the Consumer Trader and Tenancy Tribunal on a Question of Law / Appeal Determined; Extension of Time Granted

Legal Issues

  1. 1 ['Whether an extension of time to appeal should be granted.' 'Whether cultivation of a prohibited plant constituted use of residential premises for an illegal purpose under s 23(1) of the Residential Tenancies Act 1987 (NSW).' 'Whether the Tribunal Member erred in the exercise of discretion under s 64 of the Residential Tenancies Act 1987 (NSW) by terminating the tenancy.' "Whether the Tribunal Member failed to take into account or give sufficient weight to the plaintiff's personal circumstances, the seriousness of the breach, the public interest and the interests of other affected persons."]

Ratio Decidendi

Although the hydroponic cultivation of cannabis in two areas of the premises fell within the ordinary meaning of use of the residential premises for an illegal purpose, the Tribunal's termination of the plaintiff's long-standing social housing tenancy was harsh and plainly unjust on the facts. The plaintiff was 65, had strong local and community ties, medical and psychiatric evidence supported her remaining in the accommodation, she had not sold cannabis, neighbours were not adversely affected, and she was unlikely to re-offend. A substantial injustice occurred, amounting to an error of law, so the appeal was upheld and the Tribunal decision set aside.

Court Disposition

Appeal upheld; Tribunal decision set aside; second defendant's Tribunal application dismissed; costs awarded to the plaintiff.

Orders

  • ['The decision of Tribunal Member H E Moore dated 19 November 2003 is set aside.' "The second defendant's application in the CTTT is dismissed." "The second defendant is to pay the plaintiff's costs as agreed or assessed."]