Dowker v Paoletti - [2015] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
DOWKER & ANOR v PAOLETTI
[2015] SASCFC 43
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)
13 April 2015
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - RECOVERY OF POSSESSION - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
Appeal from a judgment of the District Court making an order that the appellants give vacant possession of the respondent’s property. The Residential Tenancies Tribunal had made an order for vacant possession. On 14 August 2014, on appeal to the Administrative and Disciplinary Division of the District Court, the primary judge rescinded the Tribunal’s decision subject to the appellants observing the whole of the terms and conditions of the tenancy agreement. On 15 October 2015, on application by the respondent, the judge found that the appellants had failed to comply with the tenancy agreement in breach of his earlier orders. The judge discharged his earlier orders and ordered that vacant possession be given by 1 December 2014.
Whether the judge erred in finding that the appellants had failed to comply with the terms and conditions of the tenancy agreement. Whether the judge erred in discharging the orders made on 14 August 2014. Whether the judge erred in ordering that the appellants vacate the premises by 1 December 2014.
Held (Parker J; Kourakis CJ and Stanley J agreeing):
Appeal dismissed. There was a proper basis for the judge to find that the appellants had failed to comply with the tenancy agreement. The judge did not err in discharging the orders made on 14 August 2014. The judge did not err in the exercise of his discretion to order that the appellants vacate the premises by 1 December 2014.
Residential Tenancies Act 1995 s 95; District Court Act 1991 Pt 6 Div 2, s 42E, s 42F, referred to.
Dowker v Prime Property Group SA Pty Ltd [2014] SADC 152, considered.

DOWKER & ANOR v PAOLETTI
[2015] SASCFC 43
Full Court: Kourakis CJ, Stanley and Parker JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Parker J.
STANLEY J: I have had the advantage of reading the draft reasons of Parker J. I agree with the orders he proposes and his reasons. I would hear the parties as to the date of discharge of the stay order made by Nicholson J on 12 December 2014.
PARKER J: This is an appeal from a judgment of the District Court making an order that the appellants give vacant possession of the respondent’s property at Lewiston. The matter had proceeded in the District Court on appeal from the Residential Tenancies Tribunal.
Background
The appellants, Margaret Dowker and Gregory Bennett, are tenants and live at the property. The respondent, Nick Paoletti, is the landlord.
Prior to 21 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] SASCFC 43
Decision Date: 13 April 2015

CaseChat Overview and Summary

This matter concerned an appeal to the Supreme Court of South Australia from orders made by the District Court, which itself had reviewed decisions of the Residential Tenancies Tribunal. The dispute involved a landlord, Mr Paoletti, seeking vacant possession of a property from the tenants, Ms Dowker and others. The tenants had previously entered into a contract for the sale and purchase of the land, which included a tenancy agreement.

The primary legal issues before the Supreme Court were whether the District Court judge had erred in finding that the tenants had breached the terms of the tenancy agreement, specifically concerning the presence of dogs on the premises after a certain date, and whether the judge had been correct in rejecting the tenants' explanations for this breach. The court also considered whether the tenants had refused the landlord or his agents access to the premises and whether rent was in arrears, although the focus of the appeal appears to have been on the breach relating to the pets.

The Supreme Court, comprising Kourakis CJ, Stanley and Parker JJ, reviewed the evidence presented to the District Court. The judge had found that emails and a photograph indicated the presence of dogs in the house after the date stipulated in previous orders, despite the tenants' denials. The judge rejected the tenants' assertions that the emails referred to past events and that the photograph was old, concluding that the evidence demonstrated a breach of the no-pets clause in the tenancy agreement. The court also noted that the tenants' refusal to grant access to the property was a relevant factor in assessing their credibility.

The Supreme Court ultimately set aside the original orders for vacant possession made by the Residential Tenancies Tribunal. However, it imposed new terms and conditions. These included requiring the tenants to commence legal action regarding the contract of sale and tenancy agreement within 90 days, and to strictly observe the terms of the tenancy agreement, including the prohibition on keeping pets, during that period. Liberty was granted to the landlord to apply for the discharge of these orders if the tenants failed to comply with the new conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Orders were made as follows:1. I set aside the orders made by the Residential Tenancies Tribunal on 4 July 2014 for the tenants to give vacant possession of the whole of the land in certificate of title register book volume 5886 folio 255 more commonly known as 13 Aunger Road, LEWISTON SA 5501 but upon the following terms and conditions:1.1That within 90 days of this day, if they are so advised, the tenants commence an action in any court in which the tenants seek such relief as they may be advised in respect of the terms of the contract of sale and purchase of that land made between them and dated the 21st day of May 2013 and any contract addendum to that contract and any tenancy agreement dated 9 July 2013.1.2That within the said period of 90 days or any extension thereof the appellants as tenants shall observe the whole of the terms and conditions of the said tenancy agreement and for the avoidance of doubt the tenants are not allowed to keep any pets in any house or any attached rooms on those premises.1.3In the event that the tenants fail to comply with sub paragraphs 1.1 and 1.2 of these orders, there be liberty to the landlord to apply at short notice and by email to my chambers through the Registry for the discharge of these orders.1.4 I give liberty to all parties to apply including on short notice....Decision under appeal By application dated 30 September 2014, Mr Paoletti sought orders from the District Court for vacant possession of the property, for the house keys to be handed over and for payment of all outstanding monies. The application was heard by the same judge on 15 October 2014. The application by Mr Paoletti raised three grounds relevant to this appeal: 1that there was evidence there had been dogs in the house after 14 August 2014 in breach of the judge’s orders; 2that the appellants had refused Mr Paoletti and/or his agents access to the premises, notwithstanding that proper notice was given under clause 11(d) of the tenancy agreement; and3that rent was in arrears. The judge received oral evidence from Mr Paoletti and documents that he tendered. His partner, Ms MacFarlane, also gave evidence.Dogs Three emails sent after 14 August 2014 by Ms Dowker to Mr Paoletti’s property manager had mentioned dogs being in the house. One of the messages had attached a photo of Ms Dowker in the house with about 10 dogs. In her oral evidence Ms Dowker denied that the dogs still had access to the house. She asserted that any statement in the emails that there were dogs in the house was made in the past tense and referred to events prior to 14 August 2014. She also stated that the photo was an old photo. The judge rejected those contentions. His Honour read the emails as being in the present tense and held that the context of the emails indicated that the photograph was contemporaneous. His Honour also considered that Ms Dowker’s denial of dogs being in the house had to be measured against her refusal to allow Mr Paoletti access to the home. His Honour found that there had been dogs in the house in breach of paragraph 1.2 of the orders made on 14 August 2014.Access to premises

Ratio Decidendi

Legal Principle Established

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