Cable, Lasan & Rana v DG Real Estate Property Management - [2013] SADC 3

District Court of South Australia
(Civil: Appeal Under Residential Tenancies Act 1995)
CABLE, LASAN & RANA v DG REAL ESTATE PROPERTY MANAGEMENT & ORS
[2013] SADC 3
Judgment of His Honour Judge Beazley (ex tempore)
15 January 2013
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
RESIDENTIAL TENANCY - Appeal against findings and orders of the Residential Tenancies Tribunal that appellant vacate tenancy by 7 January 2013 - whether tenants held possession pursuant to a Residential Tenancy Agreement - whether tenants entitled to possession under a periodic tenancy - whether decisions of differently constituted Tribunals inconsistent - whether tenants denied procedural fairness - where tenants seek relief by way of a stay on possession only - whether any merit in the appeal - whether stay should be granted in consequence of severe hardship to the appellants pursuant to s 93(4) of the Act.
HELD: In the circumstances the decision of the Tribunal affirmed save that stay upon the order for possession extended to 15 February 2013.
Residential Tenancies Act 1995 (SA) ss 4, 41 and 93, referred to.
Sullivan v Department of Transport (1978) 20 ALR 323; Green v Roberts [2007] SADC 51; Elrington v Judd (1964) 64 SR (NSW) 150; Henningsen v Nolan (2004) 88 SASR 214; Hall v Leovic [2006] SADC 33; Antoniou v Locker [2012] SADC 28; Wright v Weston Raine Horne [2004] SADC 16; House v The King (1936) 55 CLR 449; State Rail Authority of NSW v Earthline Constructions (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118, considered.

CABLE, LASAN & RANA v DG REAL ESTATE PROPERTY MANAGEMENT & ORS
[2013] SADC 3
Ex Tempore Reasons
Introduction

Piers Stephen Cable, Renato Lasan and Amitsinh Rana (jointly referred to as “the tenants”) appeal pursuant to s 41 of the Residential Tenancies Act 1995 (“the Act”) from various orders made by the Residential Tenancies Tribunal. The respondent to the appeal is named as DG Real Estate Property Management (“the respondent”), which business acts as the agent for Aiman Xu and Chunhua Ma, the registered proprietors of the subject tenancy at 37 Emery Road, Campbelltown SA 5074. Upon this appeal, the tenants appeared in person, while the respondent and the registered proprietors were represented by Mr Hou.
As the parties to this appeal are somewhat stressed about its outcome, it is important that I should deliver a judgment forthwith. Accordingly, these are my Ex Tempore Reasons.
It will be necessary for me to set out in detail some of the background to this appeal as the parties complain about a series of orders made by differently constituted Tribunals. Prima facie, some of those orders reflect inconsistent determinations by the Tribunal as to the status of the tenants’ right of occupancy of the subject tenancy.
The Orders
The most recent orders of which the tenants complain are those made on 10 December 2012, which were subsequently affirmed by the Tribunal on 19 December 2012. Those orders had implicitly the effect of determining that the tenants had no right of occupancy and that they must give up vacant possession of the subject tenancy by no later than Monday, 7 January 2013.
The tenants’ appeal came on before me on short notice on 3 January 2013. The respondent did not appear at that time, although I was informed that it had been served with the appeal documents. Despite the urgency of the matter, I treated the application as a preliminary hearing. I determined that it was in the interests of justice for a stay to be granted upon the orders of the Tribunal to enable the matter to proceed to a full hearing before me. Accordingly, I stayed the orders made by the Tribunal, pursuant to s 42 of the Act, until the appeal had been determined. I listed the hearing to commence on 15 January 2013, and directed that the respondent be notified again of the hearing.
Preliminary Comments
It is appropriate that I expressly refer to the difficult task facing the Tribunal on a daily basis. Its members deal with urgent applications, often including requests for immediate eviction. Individual tenants appear in person, often with little understanding of their rights and obligations under the Act. They often err in issuing the applications against agents rather than landlords. In the subject case this has led to applications being lodged in different names against different parties. Inevitably, it has led to administrative difficulties, and to the appointment of differently constituted Tribunals.
It appears that tenants, and indeed on some occasions, landlords, occasionally fail to attend Tribunal hearings. In the subject case, at least one of the relevant parties did not attend upon the hearing of relevant applications, whether it be that they were not named as parties or, alternatively, were not served with the applications, or elected not to attend. As I have previously indicated, it is quite proper for the Tribunal to proceed in the absence of a party, whether it be a tenant or landlord.
In general, an absent party can hardly be heard to subsequently complain of procedural unfairness when he or she elects to be elsewhere after receiving proper notice of a hearing which would provide for the opportunity for that person to be heard. In Sullivan v Department of Transport (1978) 20 ALR 323 at 343, the court said:
… it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the Common Law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.
This matter was, however, complicated by the imposition of a third individual, Mr Matthew Nicolaou, who was described as “a rooming house proprietor” in respect of the subject premises in some of the findings of the Tribunal, and as the “principal tenant” in other findings. As I have explained, different parties issued separate applications. At no time were all relevant parties before the Tribunal.
With the benefit of hindsight, this was one of the rare occasions where it would have been more appropriate to adjourn the series of applications until all of the relevant parties were present before the Tribunal (see Green v Roberts [2007] SADC 51). This is not meant to imply any criticism of the Tribunal. As Megarry J noted in Duchess of Argyll v Beuselink [1972] 2 Lloyds LR 172 at 185:
In this world there are few things that could not have been better done if done with hindsight.
I infer that the different names on those applications had misled the Tribunal as to the existence of inconsistent orders having been made by differently constituted Tribunals.
Background
Most of the factual background was not in dispute. The parties, however, seek to draw inconsistent inferences as to the existence of a right of occupancy.
On 21 November 2011, Matthew Nicolaou, as tenant, entered into a Residential Tenancy Agreement in respect of the subject premises at 37 Emery Road, Campbelltown for the period 21 November 2011 to 20 November 2012. The rent was fixed at $400 per week, payable fortnightly. The agreement provided for the payment of a bond of $2,400. That agreement was somewhat deficient in that the registered proprietor of the subject premises was neither nominated nor identified in that document. The agent was said to be DG Real Estate. In subsequent applications the landlords were respectively identified as Aiman Xu and Chunhua Ma.
As it transpires, Mr Nicolaou had subsequently entered into, what purported to be, a Rooming House Agreement with the tenants from 30 November 2011 to 30 November 2012. I infer that the respondent soon became aware of their status as “sub-tenants”.
It is patently obvious that the term of the subject Rooming House Agreement is different to the term of the Residential Tenancy Agreement between Mr Nicolaou and DG Real Estate. At the very least, the term of the Rooming House Agreement purports to continue for some nine days after the expiration of the Residential Tenancy Agreement.
Pursuant to the terms of the Rooming House Agreement, each of the tenants was obliged to pay $150 per week, with Nicolaou paying the balance to DG Real Estate. There appears no doubt from the rental records that the bond of $2,400 and indeed the rent, were properly paid, at least until about 22 October 2012, when a dispute arose as to the grant of a new Residential Tenancy Agreement to the tenants.
There can be no doubt that DG Real Estate was aware that the tenants were in possession of the premises and contributing towards the rent. Certainly by about November 2012, the tenants had entered into direct negotiations with a representative of DG Real Estate to obtain a Residential Tenancy Agreement.
A dispute developed between the tenants and the respondent as to whether, in fact, an agreement had been reached at that stage for the tenants to be granted a Residential Tenancy Agreement for a period of 12 months to commence on 21 November 2012.
The tenants assert that the representative of DG Real Estate had informed them that they had been approved for such a tenancy. Accordingly, the tenants paid the weekly rental of $400 direct to the agent. Subsequently, the agent asserted that the approval was subject to the specific instructions of the landlords and that they had “changed their minds”.
In consequence, the tenants sought to argue that either an agreement for a 12-month Residential Tenancy had been entered into, as evidenced by the receipt of the rental payments, or, alternatively, that they had obtained a periodic tenancy which obliged the landlords to provide to them the appropriate notice under the Act.
Mr Nicolaou, although supportive of the tenants, was anxious to obtain the repayment of his bond monies of $2,400. He had, therefore, sought to bring about an early termination of the Rooming Housing Agreement.
On 21 November 2012, the tenants issued an application to the Tribunal, against Mr Nicolaou, seeking orders that Mr Nicolaou be prevented from evicting them pursuant to the Rooming House Agreement without proper notice.
That application came on before the Tribunal on 7 December 2012. Mr Nicolaou did not attend the application. There is a dispute about whether the respondent, as represented by DG Real Estate, did attend. It would appear from the notes of the Tribunal that DG Real Estate was represented by Ms Jackie Yang. As will become apparent, in consequence of a forensic decision taken by the tenants at the hearing of the appeal, it will not be necessary to resolve that dispute.
Having heard the application, the Tribunal, on 7 December 2012, determined:
That a Residential Tenancy Agreement had been entered into between the tenants and the landlords Aiman Xu and Chunhua Ma for a period of 12 months commencing on 21 November 2012 at a rental of $400 per week, and the provision of security bond in the sum of $2,400 which had yet to be paid by the tenants.
The Tribunal formally found that the Rooming House Agreement had come to an end and been replaced by a Residential Tenancy Agreement, between the tenants and the registered proprietor of the subject premises. At that time the tenants justifiably believed that they had a confirmed right of occupancy.
By an application dated 23 November 2012 (two days after the issue of the tenants’ application but before it was determined by the Tribunal) the landlords Xu and Ma, sought an order for vacant possession against Mr Nicolaou. That application came on for hearing by a differently constituted Tribunal on 10 December 2012. The landlords’ agent, Ms Wang, appeared on their behalf and gave evidence. Despite the fact that the tenants were not named as parties, they attended and gave evidence. Mr Nicolaou, the named respondent, did not attend. This Tribunal made passing reference to a hearing having occurred on 7 December 2012. It is apparent from the Reasons of the Tribunal that it had not been given a copy of the Reasons of 7 December 2012.
The Tribunal member who heard the application on 10 December 2012 did not specifically address the question as to whether the tenants had entered into an agreement with the landlords as found on 7 December 2012. The reasons of the Tribunal were as follows:
I have considered all of the evidence and I have decided that I will make an order for vacant possession but suspended until 7 January 2013 to give the sub-tenants an opportunity to find somewhere else to live. However if they miss any of the rent payments in the meantime the landlords can contact the Tribunal in writing and request any urgent hearing to terminate the tenancy and evict the “sub-tenants”.
I repeat that because of the different applications by differently named parties, the Tribunal on 10 December 2012 was placed in the impossible position of not knowing the precise terms of the orders made on 7 December 2012. The tenants continued to pay rental in accordance with the Tribunal orders.
On 17 December 2012, Mr Nicolaou issued an application directed to the landlords Xu and Ma in which he sought to vary or set aside the order of the Tribunal made on 10 December 2012. A Tribunal heard that application on 19 December 2012. It is plain that those who attended on that occasion were simply Mr Hou on behalf of the landlords, and Mr Nicolaou. The tenants did not attend. I infer that they had not been given notice of the hearing. Mr Nicolaou complained that he had been unaware of any of the hearings, as the respondent had provided the Tribunal with an incorrect address for him. Mr Nicolaou informed the Tribunal that he simply wished to obtain the repayment to him of his bond.
The Tribunal was made aware of the fact that the tenants had continued to pay the rent. It was accepted that the tenants had a significant quantity of property which would have to be removed, if they were obliged to give up possession. Because the tenants were not present, the Tribunal was not in a position to determine whether they had a right of occupancy as determined on 7 December 2012. On any view, the tenants had not attempted to find alternative accommodation because of the orders made on 7 December 2012.
On 19 December 2012, the Tribunal concluded that:
due to the confusion arising from the sub-tenancy” – as to whether the tenancy would be extended, I consider it is fair for the sub-tenants to have time within which to look for alternative accommodation. They are paying their rent and as long as that continues neither the landlord nor the tenant is disadvantaged. I accept that they may have a significant amount of cleaning up to do. Requiring them to move out earlier is unlikely to help that situation.
The Tribunal declined to vary the terms of the previous order obliging the tenants to give up vacant possession on or before 7 January 2013.
It would appear that after 7 December 2012, the question as to whether the tenants had entered into an agreement for the grant of a Residential Tenancy Agreement for 12 months, or whether there was an implied agreement such as to give rise to a periodic tenancy, was not further considered by any Tribunal (see Elrington v Judd (1964) 64 SR (NSW) 150 at 153, Henningsen v Nolan (2004) 88 SASR 214 at 222, and Hall v Leovic [2006] SADC 33).
Notice of Appeal
By Notice, dated 2 January 2013, the tenants asserted that the Tribunal had erred in two respects:
1. That it had failed to determine whether the tenants were entitled to occupation of the premises pursuant to a periodic tenancy pursuant to s 4 and s 79(a) of the Act and;
2. That the Tribunal had failed to take into account the provisions of s 93(4) of the Act, in that the Tribunal ought to have suspended the operation of any order for possession for 90 days.
The Nature of the Appeal
I respectfully adopt the reasons of Smith DCJ in Antoniou v Locker [2012] SADC 28 at [12]-[15] as follows:
The material portions of the appeal provision Section 41 provide:
(1)    An appeal lies to the District Court from a decision or order of the Tribunal made in the exercise (or purported exercise) of its powers under this Act.
(2)     On an appeal, the District Court may (according to the nature of the case) —
(a)     re-hear evidence taken before the Tribunal, or take further evidence;
(b)     confirm, vary or quash the Tribunal's decision;
(c)     make any order that should have been made in the first instance;
(d)     make incidental and ancillary orders.
The nature and scope of an appeal under s 41 of the Act was examined by Lunn DCJ in Wright v Weston Raine Horne [2004] SADC 16 at [9] to [23]. I adopt His Honour’s conclusion that s 41 creates “… an appeal strictly so called …”.
At [22] His Honour said:
For these reasons I construe s41 to create an appeal strictly so called which is to be determined on the evidence before the Tribunal at the time of its order together with any further evidence which the District Court in its discretion takes on matters bearing on the determination at first instance. This construction does not produce an unjust result in that it does not deprive a party of a just determination of the issues where circumstances subsequently change. Under s32 (1) (f) of the Act there is power for the Tribunal to “vary or set aside an order if the tribunal considers there are proper grounds for doing so”. A similar power is also contained in s37. That is generally a more expeditious and economical way of dealing with relevant subsequent changes in circumstances than an appeal under s41.
I consider that the principles generally applicable to the considerations of appellate courts, have guiding application to the exercise, by this Court, of the powers in s 41 of the said Act. If the Tribunal errs in fact or law, if it fails to take into account some material consideration, if it arrives at a finding which had no evidence to support it, if it draws an inference which does not reasonably arise from proven facts, if it takes into account some extraneous matter, then its decision should be varied or quashed (see House v The King (1936) 55 CLR 449 at 505; State Rail Authority of NSW v Earthline Constructions (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118).
The Hearing
Upon the hearing, the tenants acknowledged that it would be intolerable to continue to occupy premises with a disaffected landlord. While they did not directly abandon their submission that they had a right of occupancy, pursuant to a periodic tenancy, they implicitly did so by solely submitting that it was unreasonable to oblige them to give up vacant possession of the premises on 7 January 2013. Accordingly, I do not now need to resolve the issue as to whether the tenants had an enforceable right of occupancy. They submitted that I ought conclude that they had been misled about their right of occupancy, and therefore had no opportunity to obtain other premises. They were content to leave the premises so long as they were given a reasonable time to find other accommodation. They pointed out that there was no dispute that they had considerable property which would have to be stored or moved. No prejudice was suffered by the landlords, as they continued to pay rent.
Mr Hou, who appeared for the landlords, made submissions to the effect that there had been no agreement entered into between his firm and the tenants for them to continue an occupation. I pointed out to him that it was unnecessary for me to resolve that issue because the tenants had indirectly abandoned that ground of appeal. He accepted that the tenants, whether rightly or wrongly, had assumed an entitlement to remain on the premises in light of conversations with the agent and, more importantly, in consequence of the terms of the order made by the differently constituted Tribunal on 7 December 2012.

He made various complaints about the tenants, both in respect of allegedly outstanding water bills and what he described as a significant amount of rubbish at the property.
It was clear that the Tribunal, on 19 December 2012, had taken into account those complaints raised by Mr Hou, yet nonetheless had made an order extending the time for vacant possession to be given until 7 January 2013. There was no appeal by the landlords from that decision.
Mr Hou sought other orders, including the production of photographs of the tenants. I declined to make any such orders. They had not been raised before the Tribunal. There is no proper basis for such orders to be made.
Time for Possession
I note that the Tribunal did not specifically refer to s 93(4) of the Act. That section empowers the Tribunal to grant a stay upon the order for possession, for up to 90 days, whenever an order for immediate possession would cause severe hardship to a tenant.
It may be that the Tribunal did consider its powers in that respect and declined to stay the order for immediate possession beyond 7 January 2013. It may be that the Tribunal had reached a conclusion that the tenants had been on notice that they would be likely to be evicted.
With respect, it is obvious that it would cause severe difficulty for the tenants to be required to leave the premises by 7 January 2013. On any view, they had been informed by the differently constituted Tribunal that they had a right of occupancy as at 7 December 2012. They had not had the opportunity to look for alternative accommodation at a time when the Christmas period had intervened.
In considering afresh the discretion in s 93(4) of the Act, I have to balance the question of a stay against any prejudice to the landlords.
I do not overlook the fact that the landlords had been informed on 19 December 2012 that the tenants would be required to leave on 7 January 2013. I have no doubt that the landlords had entered into an arrangement with other tenants to occupy the subject premises on or soon after 7 January 2013. Mr Hou was very properly concerned about some certainty being given to his clients. He accepted, albeit reluctantly, that the tenants needed a reasonable time to find other accommodation and to bring the subject premises up to a reasonable state of repair. In my opinion, such a reasonable period is one calendar month from the date hereof.
Such an order under s 93(4) of the Act would be conditional upon rental payments being made by the tenants on a weekly basis, and that they complied strictly with the directions of the Tribunal made on 19 December 2012. On this basis, the landlords have certainty as to when vacant possession will be delivered to them.
Conclusion
In my opinion, it is appropriate for an order to be made under s 93(4) of the Act that the tenants be given reasonable time to find other accommodation before the order for possession takes effect. In my opinion, it is appropriate that the order for possession made by the Tribunal on 10 December 2012 and affirmed on 19 December 2012 be suspended for the further period of one calendar month from today to Tuesday, 15 February 2013 at 11.00 a.m. Accordingly, I make the following orders:
1.   That I vary the order made by the Tribunal on 10 December 2012 such that the tenants Mr Cable, Mr Lasan and Mr Rana must deliver vacant possession of the premises at 37 Emery Road, Campbelltown SA 5074 to the landlords by no later than 11.00 a.m. on Tuesday, 15 February 2013.
2.   If the tenants fail to give vacant possession at that time, then the landlords are permitted to request the bailiff of the Tribunal to enforce the order for possession.
3.   The order in paragraph 1 hereof extending the stay of the order of possession is subject to the tenants continuing to pay the weekly sum of $400 on each Thursday to the agent DG Real Estate, in accordance with the directions of the Tribunal made on 19 December 2012.
4.   If any of those payments are not made by their respective due dates on each Thursday, the landlords be given leave to contact the Tribunal in writing and request an urgent hearing to evict the tenants forthwith.
5.   That in the event that the tenants do not comply with the directions in the order of the Tribunal of 19 December 2012 that the premises be returned in a reasonable condition, the landlords be given leave to make application in writing to the Tribunal and request an urgent hearing of the Tribunal.
As is plain from these orders, the order for a stay granted by me on 3 January 2013 is discharged and replaced by the within orders. Subject to the within orders, the orders made by the Residential Tenancies Tribunal on 10 December 2012 and 19 December 2012, as varied, are otherwise affirmed.