Vidler v Compass Housing Services Co Ltd [2021] NSWCATAP 284

Vidler v Compass Housing Services Co Ltd [2021] NSWCATAP 284

The Tribunal erred in law by failing to properly apply s 154D(3)(b) of the Residential Tenancies Act 2010 (NSW), as it took into account irrelevant matters such as future engagement with support services and risks to others, rather than focusing solely on Ms Vidler's likely hardship if a termination order were made. On a new hearing, s 154D(3)(b) was engaged due to Ms Vidler's disability and substantial risk of undue hardship, so the discretion whether to order termination was enlivened; given the circumstances, the application for termination was dismissed.

Jurisdiction
Australia
Judgment Date
22 September 2021
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal upheld; application for termination dismissed
Legal Topics
['social Housing' 'termination of Tenancy' 'undue Hardship' 'disability Discrimination' 'statutory Interpretation']
['tenancy' 'administrative Law' 'discrimination Law'] ['social Housing' 'termination of Tenancy' 'undue Hardship' 'disability Discrimination' 'statutory Interpretation']

Case Brief

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Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the tenant intentionally or recklessly caused serious damage under s 90(1)(a) of the Residential Tenancies Act 2010 (NSW)' 'Whether the making of a termination order would result in undue hardship under s 154D(3)(b) of the Residential Tenancies Act 2010 (NSW)' "Proper construction of 'intentionally or recklessly' in the context of mental illness or disability" 'Whether the Tribunal correctly applied the statutory test for undue hardship']

Ratio Decidendi

The Tribunal erred in law by failing to properly apply s 154D(3)(b) of the Residential Tenancies Act 2010 (NSW), as it took into account irrelevant matters such as future engagement with support services and risks to others, rather than focusing solely on Ms Vidler's likely hardship if a termination order were made. On a new hearing, s 154D(3)(b) was engaged due to Ms Vidler's disability and substantial risk of undue hardship, so the discretion whether to order termination was enlivened; given the circumstances, the application for termination was dismissed.

Court Disposition

Appeal upheld; application for termination dismissed

Orders

  • ['Appeal upheld.' 'The decision of the Tribunal is set aside.' "In lieu thereof the respondent's application to the Tribunal is dismissed."]