Al-Ajmi v Linton - [2021] SADC 43

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
AL-AJMI v LINTON & ANOR
[2021] SADC 43
Judgment of his Honour Judge Durrant
21 April 2021
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION
RENTAL BONDS OR SECURITY DEPOSITS
Application for release of residential property lease bond and further compensation made - minor civil review sought on basis tenants had given notice of termination and had no obligation to pay.
Held: Application for review dismissed and decision of Magistrates Court affirmed.
No order as to costs.
Magistrates Court Act 1991 (SA) s 38, referred to.
Harradine v District Court of SA [2012] SASC 96, considered.

AL-AJMI v LINTON & ANOR
[2021] SADC 43

Introduction and Background

In Minor Civil Claim (2020/SMCH000799), a landlord and its property manager, applied for the release of a residential property lease bond in part satisfaction of unpaid rent and outgoings and the costs of reletting an Adelaide residential property. Further, the landlord applied for an order for payment of the balance of the monies allegedly owed thereafter.[1]
[1] Application dated 11 December 2020.
The tenant opposed the release of the bond and denied any money was due. He failed to appear at a conference convened by the Magistrates Court and the Deputy Registrar, presiding over that conference, determined the matter in his absence and entered judgment against him.
The tenant has made an application for review of the decision of the Deputy Registrar pursuant to s 38(6) the Magistrates Court Act 1991. That section confers jurisdiction on this Court to review a minor civil decision.
In undertaking a review of a minor civil decision, I am entitled to inform myself as I think fit and, in doing so, I am not bound by the rules of evidence. If I think fit, I may re-hear the evidence adduced before the Magistrates Court. Having undertaken a review, I may affirm or rescind the judgment or substitute a judgment I consider appropriate. In undertaking and determining this review, I must act according to equity, good conscience and the substantial merits of the case without regard to technicality and legal forms.
A decision of this Court on review is final and is not subject to appeal.[2]
[2] While there is no appeal to the Supreme Court, there can be judicial review by the Supreme Court of the review by the District Court in respect of the fairness of the procedure leading to the decision of this Court, not in respect of the merits of the case; Harradine v District Court of SA (2012) 280 LSJS 572; [2012] SASC 96, [34].
The Facts
The applicant tenant Mr Al-Ajmi, and another, entered into a fixed term lease for a property at Paxton’s Walk in Adelaide with the landlord Ms Christine Linton. The lease commenced on 16 April 2019. In March 2020, the lease was renewed for a further fixed term to expire on 6 March 2021. Ms Linton is now deceased.
1840 Real Estate Pty Ltd was appointed and authorised by the landlord as her property manager and agent for the leased premises. The property manager collected the rent, lodged the Residential Property Lease Bond paid by the tenant under the lease and otherwise dealt with the tenant.
In April 2020, the tenant left Adelaide to return to his native United Arab Emirates, in response to a public health lockdown ordered in South Australia. He continued to make payment of rent due under the lease until August 2020. At that time, he advised the agent of his intention to vacate the property and that he considered the lease had been terminated and that he was under no further obligation to pay rent or any other monies due to the landlord. He has made no further payments under the lease since that date.
Given that communication, the property manager made several attempts to contact the tenants and advise them of their continuing obligations under the fixed term lease and particularly, their obligation to continue to pay rent.
At about that time, the tenants returned the keys to the premises through a third party in Adelaide. Not all keys were returned. The tenants also arranged for that third party to remove some personal items remaining in the property and for the property to be cleaned.
The agent, at about that time, took steps to market the property for lease. The agent re-entered the property on behalf of the landlord and considered it needed to be cleaned, in order to present it for further lease. The agent incurred the cost of a cleaner to prepare the property for marketing and a future tenant. Further, the landlord had keys cut to replace those not returned. The agent continued to notify the tenant of the unpaid rent and outgoings and the further costs incurred in marketing the property.
The claim for release of the bond and further compensation was referred to the Deputy Registrar for conference on 13 November 2020. At the conference, she called the tenant by phone at the number he had given. There was no answer.
The Deputy Registrar thereafter, satisfied herself that a Notice of Hearing had been sent to the tenant and that the notice had said that, if a party failed to attend the conference, a decision could be made in their absence. The Deputy Registrar was further satisfied that the documents, provided to the Court by the landlord, substantiated the following claims:
1.Outstanding and unpaid rent in the amount of $5,713.
2.Water usage and supply of $121.78.
3.Cleaning – carpet cleaning and rubbish removal in the amount of $720.
4.Portion of a reletting fee in the amount of $217.04.
5.Portion of advertising of $87.45.
6Locksmith charges of $155.00.
The Deputy Registrar, accordingly, made an Order for compensation in the amount of $7,014.24. Further, she ordered payment of the bond to the landlord and that the bond sum of $2,400 be receipted by the landlord in part payment of the compensation ordered. She consequently ordered that the balance of the compensation sum, $4,614.27, be paid by the tenant to the landlord within 14 days.
Submissions of the parties
The agent’s representative told me that, given the orders made by the Deputy Registrar, no further rent or outgoings had been charged by the landlord and no further monies would be claimed. The agent’s representative also confirmed that she had been present when the Deputy Registrar had called the tenants and that there had been no answer. The agent’s representative said there had been no agreement between the tenant and landlord to forgo any rent or outgoings after the tenants vacated the premises. She told me she made repeated efforts to inform the tenants about their continuing obligations while taking steps to relet the property.
The tenant said he did not receive a phone call for the conference but he was with his phone, knew the conference was taking place and was waiting for a call. He said his failure to attend at the hearing was therefore not his fault.
Further, the tenant said that he considered by giving notice that he was vacating the premises he was no longer obliged to pay any monies relating to the property. He told me that he had paid for the property to be cleaned himself when he moved out and that he had already paid the amount of $155 claimed for the new keys.
Consideration
It is clear from the Record of Outcome of the conference held on 13 November 2020, that attempts were made by the Deputy Registrar to contact the tenant by telephone. I accept that was done. Having said that, I do also accept what the tenant told me about his readiness to participate. I cannot discount that a call was made but not received and therefore have proceeded to consider this matter afresh.
I have considered the merits of the claim and the expressed defence, the application for review and the submissions of the parties.
The tenant seeks an order that the judgment be set aside and that the landlord return the full amount of the bond of $2,400. He contends that rent should not have accrued from 15 August 2020, being the date when he advised the agent of his intention to vacate the property. He considers that the correspondence with the agent constituted an agreement to cancel the lease and further and in any event, that he cleaned the property and that the cleaning fee claim made is therefore unnecessary and that he had also already paid the $155.00 for the locksmith. No evidence of the locksmith payment was provided. In that respect, the agent said if that sum had been paid they would not charge it again.
The agent said that the lease was for a fixed term and the tenant had a continuing obligation to pay the rent notwithstanding that, by abandonment of the property and non-payment- he had repudiated the lease. The agent told me about the steps it had taken to relet the property and the fees it had charged to the tenant in doing so. The outstanding rent and the outgoings due were not disputed as to quantum.
In determining this review, I have conducted an enquiry as provided for by subs 38(1) of the Magistrates Court Act 1991. That broadly inquisitorial and non-adversarial way of determining issues in dispute, ensures that this Court acts in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
I have had regard to the matters put to me during the hearing, the history of the matter contained in the Magistrates Court file and the findings of the Magistrates Court set out in the Record of Outcome from the Deputy Registrar.
I am satisfied that the applicant entered into a fixed term lease which was not due to expire until 6 March 2021. His notice to the agent that he was vacating the premises and his failure to pay rent was a repudiation of the lease. The landlord, in those circumstances, took steps to relet the premises and to mitigate her loss by re-letting the premises. She was entitled to recover the non-payment of rent, outstanding outgoings and the costs of reletting and was further entitled to payment of the bond in part satisfaction and to the further order made by the Deputy Registrar for payment of the balance.
I accept what the agent told me as to the attempts made to communicate with the applicant regarding the consequences of his breach of the fixed term lease. Further, I accept that cleaning was required to bring the premises to an appropriate standard for leasing and that the fees for cleaning and a locksmith remained unpaid.
I find there is no reason to interfere with the decision of the Magistrates Court; the tenant has no defence to the claim.
The application for minor civil review is dismissed and the decision of the Magistrates Court is affirmed. There will be no order as to costs.