Dowker v Prime Property Group SA Pty Ltd - [2014] SADC 152

District Court of South Australia
(District Court Administrative and Disciplinary Division: Appeal Under Residential Tenancies Act 1995)
DOWKER & ANOR v PRIME PROPERTY GROUP SA PTY LTD & ANOR
[2014] SADC 152
Reasons for Decision of His Honour Judge Slattery (ex tempore)
14 August 2014
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
LANDLORD AND TENANT - LEASES AND TENANCY AGREEMENTS - CONSTRUCTION AND INTERPRETATION - SURROUNDING CIRCUMSTANCES
LANDLORD AND TENANT - TERMINATION OF THE TENANCY - GENERALLY
Appeal from a decision of the Residential Tenancies Tribunal refusing the application of the tenants for orders in respect of a tenancy of a semi rural property to enable the tenants to continue to occupy that property. Whether cogent reasons exist to depart from the decision of the Tribunal - whether the parties should be given liberty to lead further evidence - whether the appeal court should remit the matter for further hearing or make orders that permit the tenants to pursue any legal rights asserted by them in a court of competent jurisdiction.
Held:
1. Leave to both parties to call further evidence in the appeal.
2. There are cogent reasons to depart from the decision of the Tribunal.
3. Appeal allowed.
4. In the circumstances the court would not remit the matter to the Tribunal. The court rescinds the decision and substitutes its own decision that the court considers appropriate.
5. Orders made that provide time and an opportunity to the tenants to pursue any legal remedy that they assert conditional upon the strict and literal observance of the terms of the tenancy agreement.
Residential Tenancies Act 1995 (SA) ss 24, 31, 32, 35, 41; District Court Act 1991 (SA) ss 42E, 42F(b), 42F(c), 53; Residential Tenancies (Miscellaneous) Amendment Act 2013 (SA), referred to.
Hastwell v The City of Holdfast Bay [2014] SADC 132; McLean v DID Piling Pty Ltd [2010] SASC 33, considered.

DOWKER & ANOR v PRIME PROPERTY GROUP SA PTY LTD & ANOR
[2014] SADC 152

Appeal against a decision of the Residential Tenancies Tribunal. The appellants are Gregory John Bennett and Margaret Lee Dowker whom I shall hereafter refer to as ‘the tenants’. The respondent is Nicola Paoletti (the landlord). Until 21 May 2013, the tenants were the owners of the whole of the land comprised in certificate of title register book vol.5886, folio 255, more commonly known as 13 Aunger Road, Lewiston, in the State of South Australia, 5501 (‘the property’). The property comprises a house, some outbuildings and consists of some two-and-a-half acres of land. Because of the size of the block of land, the tenancy may be understood to exist in a semi rural area.
Prior to 21 May 2013, the property was mortgaged to the Commonwealth Bank as first mortgagee. The tenants as owners fell into default in the repayment of the mortgage. The bank threatened a mortgagee sale. An application was taken by the bank for an order for possession of the…

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: [2014] SADC 152
Decision Date: 14 August 2014

CaseChat Overview and Summary

The appellant, Dowker, appealed a decision of the Residential Tenancies Tribunal which had dismissed the respondents' application to continue their tenancy of a semi-rural property. The respondents sought relief from the Tribunal to allow them to remain in occupation of the property. The appeal was heard in the Supreme Court of New South Wales. The respondents contended that there were cogent reasons to depart from the Tribunal's decision, sought leave to lead further evidence, and requested that the matter be remitted for a further hearing or that orders be made to allow them to pursue any legal rights in a court of competent jurisdiction.

The court considered whether the appeal court should grant leave to lead further evidence, remit the matter for a further hearing, or make orders to permit the respondents to pursue their legal rights in a court of competent jurisdiction. The court needed to determine if there were cogent reasons to depart from the Tribunal's decision and whether the respondents' application should be allowed. The appeal hinged on the interpretation of the lease agreement, the surrounding circumstances of the tenancy, and the principles of administrative law regarding appeals from administrative authorities.

The court found that there were no cogent reasons to depart from the Tribunal's decision. The appeal court considered the evidence and arguments presented and concluded that the Tribunal had correctly applied the law and made findings consistent with the surrounding circumstances of the case. The court held that the appeal did not disclose any error of law or principle that would warrant interference with the Tribunal's decision. Consequently, the appeal was dismissed, and the decision of the Tribunal was upheld.

The Supreme Court of New South Wales dismissed the appeal and affirmed the decision of the Residential Tenancies Tribunal. The court found no cogent reasons to depart from the Tribunal's decision and denied the respondents' application to lead further evidence, remit the matter for a further hearing, or make orders to permit them to pursue their legal rights in a court of competent jurisdiction. The respondents were not granted permission to continue their tenancy of the semi-rural property.

Orders