Barnes v Van Den Ijssel

[2021] SASCA 151

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

BARNES v VAN DEN IJSSEL

[2021] SASCA 151

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Bleby)

17 December 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS

The applicant sought leave to appeal against a decision made by the President of the South Australian Civil and Administrative Tribunal (the Tribunal) on 12 November 2021, setting aside and substituting the vacant possession orders made in the Tribunal on 19 October 2021. The applicant sought to challenge the President’s orders that she be required to leave the property by midday the next business day if she fails to make payments by nominated dates and times, and that the lease continue to 14 January 2021. On 17 November 2021, the applicant also sought orders staying the President’s decision dated 12 November 2021.

Held (the Court), refusing leave to appeal:

1.No point of principle has been raised and no arguable error has been identified in the reasons or approach of the President.

2.      Leave to appeal should be refused.

3.      There is no utility in granting a stay and the application dated 17 November 2021 is dismissed.

South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70(1a); Residential Tenancies Act 1995 (SA) s 65, referred to.

BARNES v VAN DEN IJSSEL
[2021] SASCA 151

Court of Appeal – Civil: Livesey P and Bleby JA

1. THE COURT (ex tempore):     This is an application for leave to appeal a decision made by the President of the South Australian Civil and Administrative Tribunal (the Tribunal) on 12 November 2021.

2. Against a long history of various defaults in the making of rental payments, following a hearing of the landlord’s application for an order for possession, on 19 October 2021 the Tribunal found that the notice of breach issued by the landlord was valid and that the applicant had failed to remedy her breaches.  This had the effect of terminating the tenancy. 

3. The Tribunal noted that recent payments had been made but arrears remained and, whilst self-executing orders should only be made in extreme circumstances, these were appropriate.  The applicant was ordered to make various payments by nominated dates and times, failing which the applicant was required to leave the property by midday on the next business day following the failure to make payment.

4. After conducting a thorough review pursuant to s 70(1a) of the South Australian Civil and Administrative Act 2013 (SA), the President found that it was appropriate to allow the applicant to remain in the premises until mid-January 2022 so as to afford the applicant a chance to secure alternative accommodation for herself and her two children, one of whom is said to be disabled.  On that basis, the President ordered that the applicant have leave to apply for internal review and the orders made on 19 October 2021 were set aside and substituted with different orders which, effectively, gave the applicant extensions of time by which to make various payments. 

5. The President had granted a stay of the earlier eviction order pending the outcome of the internal review.

6. On 17 November 2021 the applicant commenced this appeal, seeking leave to appeal from the Court of Appeal.  She also made an application seeking a stay of the orders made on 12 November 2021. 

7. On 18 November 2021 the President heard the landlord’s further application for possession following an asserted failure by the applicant to keep to the payment schedule.  The President found that as there was substantial compliance it was appropriate to allow the orders to remain on foot so that the tenancy would continue for a few weeks while the applicant sought alternative accommodation.

8. It is clear from the applicant’s materials that she wishes to complain about what she describes as a breach of her right to “peaceful enjoyment of the property” pursuant to s 65 of the Residential Tenancies Act 1995 (SA). However, as the President explained in her reasons on the internal review, that was strictly not a matter for the internal review absent a fresh application made by the applicant seeking appropriate findings and relief in respect of that asserted breach.

9. In our view no point of principle has been raised by the proposed appeal and no arguable error identified in the reasons or approach of the President.

10. Leave to appeal should be refused. 

11. There is no utility in granting a stay and so the application dated 17 November 2021 is dismissed.