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 property. That order was granted in the Supreme Court. A letter was received by the tenants as owners from the sheriff of the Supreme Court of South Australia advising that the sheriff would attend the property to take possession behalf of the mortgagee. The position for the tenants as owners was therefore dire. They were not in a position to honour their obligations under their mortgage.
The tenants had unsuccessfully tried to sell the property in order to discharge their obligations to the mortgagee. The property had been on the market for some 18 months and in that time there had been very few offers for purchase. The best offer that had been made was in the amount of $250,000. The mortgage debt was in the amount of about $330,000.
In the course of negotiation between the bank and the tenants, the bank made offers to the tenants to vacate the property in consideration of the bank making a payment to the tenants in the amount of $23,000. There were two offers made by the bank, the first in about November 2012 of $15,000 and the second in March 2013 of $23,000 according to the evidence given to me by Ms Dowker today. The second written offer from the bank is dated 21 March 2013. It is Exhibit A4.
Ms Dowker informs me, and there was no challenge to this, that the cost of removing the tenants from the premises would be in the order of $15,000 and therefore it may be assumed (implicitly if not actually), that the bank was prepared to make a contribution of a further $8,000-odd for the tenants’ future rent at another premises. There is an obvious acuity in this offer of the bank in light of the position of the tenants as mortgagors and their possible continued tenure at the property.
Whether or not that offer was extant at the time of 21 May 2013 is not a matter that requires any final decision by me here. It may be a matter that is required to be considered in any further hearing in relation to the circumstances of this case. The offer was in existence as at least 21 March 2013. Whether or not it could have been accepted on 21 May 2013 is a matter for another day. In the absence of any evidence of its withdrawal by the bank, my view is that the letter may be seen as part of the background mosaic of facts in this matter. It is a matter that I will need to weigh in the balance in the decision that I make in this matter.
The contract for the sale and purchase of land, Exhibit A1, contained clause 9 which was a “possession” clause for the benefit of the vendor. It previously read:
9.Subject to any tenancies described in schedule one, at settlement, the Vendor shall give to the Purchaser vacant possession of the Land and possession of the included property and any keys to the Land.
That clause has been crossed out. There are initials of the vendors and the tenants, both dated 29 May 2013, next to the clause on the signed contract, which discloses a settlement date of 28 May 2013. The purchase price under the contract is $208,000. This is not a contract consequent upon a mortgagee sale. The purchaser is the landlord and the tenants are vendors.
Exhibit A2 is a document entitled 'Contract Addendum'. It is an addendum to the contract made between the tenants and the landlord. Under it, the parties agree that the agreement for the sale and purchase is required to be amended. It is to be understood that this document would be dated on or about 29 May 2013, albeit that Exhibit A2 does not carry a date. I assume that date because of the date of the initialling of the amendments to the contract, Exhibit A1.
A new clause 9 is inserted by virtue of the contract addendum. It reads:
Clause 9. Possession The Vendor shall grant to the Purchaser vacant possession of the Land and possession of the included property and any keys to the Land. The Purchaser shall grant to the Vendor a Tenancy Agreement for a minimum 12 month term with further extensions to the term of the agreement to be negotiated and granted provided all terms of the Tenancy Agreement are met and maintained by the Vendor.
The parties later executed a tenancy agreement. It is dated 9 July 2013. It is marked as Exhibit A3. Clause 28 of the terms of their agreement reads as follows:
PETS
28. Pets Okay (Pets are not allowed to be in the house or any attached rooms)
The tenants said in evidence that they did not initial the page which contains that clause. However, the documents before the Residential Tenancies Tribunal which contained that clause carry the initials of the tenants. Those are the same initials which are contained on the face of Exhibit A1 at clause 9 on p 8.
I am satisfied that the tenancy document contained the initials of the tenants. However that does not require further consideration because in my opinion the issue for my consideration is the question (as between the tenants and the landlord) of what transpired prior to and as at the date of this agreement and what has transpired between that time and the time of the execution of that Contract Addendum document.
In order to inform those matters it is necessary to recite some background. At the time that the purchaser of the property and now the landlord Mr Paoletti became aware of the property, information about the availability of the property for sale had been put on a website called Gumtree. That information had been placed on that website by the tenants. The information indicated that the property was available for purchase. Mr Paoletti informs me that nothing was said in the document about dogs being in the house and that the presence of the dogs at the property is one of the very contentious issues in this matter. Mr Paoletti said that if he had known that there were dogs in the house he would not have purchased the property. He asserts that there are now 24 dogs living on the premises and they have free access to the house and have been spoiling the house and the property. The fact of the existence of the dogs at the premises is not in contest except that the tenants say that the dogs number only 20 and generally are in the house only to sleep at night. They do have full access to the house during the day thorough two “doggy doors” created for them.
However Mr Paoletti also informed me that at or about the time that he executed the contract of purchase and the addendum he knew that there were dogs at the property. He also knew that there was access by those dogs to the house on the property and he also knew that there were other animals on the property. Thus he knew that at all relevant times there was the presence of dogs inside the house on the property.
The tenants contend that the landlord knew of dogs in the house and that he therefore did not insist upon a strict compliance by the tenants with the term about pets in the house. They say that this was their clear understanding from everything that was said and done at the time.
It was soon after the contract was executed and was settled, and this is probably some time after 28 May 2013, that Mr Paoletti had a property manager, Naomi Stell, go through the property and she identified the number of dogs on the property. After the report had been received by Mr Paoletti from Ms Stell he went to the property and identified, he says for the first time, the number of dogs on the property. That evidence also appears to be a very real point of contention in the matter and that was attempted to be addressed by the parties on a number of occasions. Mr Paoletti agreed that once he realised how many dogs were involved he offered to give assistance to the tenants to build a dog run but because of family circumstances he was prevented from doing so. He did not then insist that the dogs be removed from the house and be kept out permanently.
He said in evidence that he did not want a disease scenario in the house because of those dogs. He felt that he had been harassed and also his property manager Mr Nelson had been harassed by the tenants, and there was generally a refusal of the tenants to keep the dogs outside.
He also says that one of the other principal points of contention apart from the dogs was that the keys had not been given over, notwithstanding the amended clause 9.
From the tenants' point of view they agreed that the situation in which the property was purchased was a mortgagee sale scenario and that the transaction had been managed through the bank, their pro bono lawyer Mr Campbell and through the representatives of Mr Paoletti as purchaser.
The tenants contend that as a matter of fact they were told at the time (by no later than 28 May 2014 and certainly as at 21 May 2014) when the contract was signed that they would be able to stay on the property and rent for a number of years. When tested by me as to what the understanding was, Ms Dowker informed me that the understanding from the discussions that she had with Mr Paoletti was that they would be able to stay at the property for at least a few years. I deal with this evidence later in these reasons.
Nothing was discussed as to the limitation of the time period of the tenancy and certainly nothing was said which would indicate that at the end of the first year period the notice would be given to vacate the property. The tenants’ understanding from what was said by the landlord was that the lease would be renewed. This is, in part, supported by the wording contained in Exhibit A2 which, on one view, may be seen to give a right to renew the tenancy. The tenants agreed that rent and outgoing payments fell behind but had now been brought up to date, and they say and there was no challenge to this fact that rent and outgoings are now paid. They also said that no demand had ever been made for the dogs to be removed from the property.
Ms Dowker informed me that if the tenants had known of the change of attitude of the landlord to the rental of the premises and the circumstances which existed at the date of the contract then they would have taken the bank's offer. They have suffered detriment as a result. Mr Paoletti challenges whether or not the bank's offer was in existence at the relevant time. However that is not a matter I can resolve at this hearing.
Ms Dowker also says that Mr Paoletti saw dogs going into and out of the house and that assertion was not significantly challenged by Mr Paoletti. The question was the number of dogs which were on the premises. Ms Dowker informed me that the tenant's position is that they were persuaded to accept the offer for the sale and purchase of the property at the amount of $208,000 on the basis of the promises that had been made to them by Mr Paoletti concerning their continuing rental of the property. She also says that they have a permit to keep 20 dogs because they live in a zone R2 area with two and a half acres of land.
Some challenge was made by Mr Paoletti about the existence of the permit. However I am satisfied from what was said to me by Ms Dowker and Mr Bennett that that is the case.
There were a number of hearings of this matter before the Residential Tenancies Tribunal. The first hearing before the Tribunal concerned a failure to pay rent. There was a hearing on 19 May 2014 before Tribunal member I Garnham. The Tribunal member after hearing all the evidence and confirming that the tenancy was terminated made the following orders:-
1.The tenancy is reinstated on the condition the tenant makes the rent payments and water account payments ordered below.
2.The tenant must pay to the landlord the sum of $500.00 on Thursday 22 May 2014, and then pay the same amount every fortnight until rent is two weeks in advance. However, if the lease is not extended all rent arrears owing will become due and payable on 16 June 2014.
Should any amount remain outstanding after this time these orders may be enforced in the Magistrates Court.
3.The tenant must pay to the landlord the sum of $50.00 on Thursday 5 June 2014 and if the lease is extended, then pay the same amount every fortnight until the unpaid water accounts in the sum of $278.94 are paid in full. However, if the lease is not extended all water accounts owing will become due and payable on 16 June 2014.
Should any amount remain outstanding after this time these orders may be enforced in the Magistrates Court.
4. If the tenant misses any of the payments ordered in orders 2 and 3 the landlord may lodge a Form 7 Application seeking an order that the tenancy be terminated without first serving a Form 2 notice of termination.
5.The landlord must notify the tenant when the final payments due under this order ha[ve] been made.
Soon after those orders were made there were complaints made by the tenants to the Residential Tenancies Tribunal concerning the activities of the landlord's agent. On my reading of the materials there appears nothing relevant that arises out of those matters.
There was then a further application to the Residential Tenancies Tribunal made by the tenants concerning the notice that had been given to them that they would be evicted from the premises at the end of the first 12 month period.
It is not necessary for me here to canvass all of the issues that were argued before the Tribunal in the application that was heard by Mr S Georgiadis as Tribunal member. At the end of the hearing Mr Georgiadis gave reasons and made the following orders:-
Pursuant to s 93 of the Act, I make an order for possession of the premises at 13 Aunger Road, Lewiston SA on Friday 11 July 2014. However, I suspend the operation of the order under [s]ection 93(4)(a) for 45 days and extend the operation of the residential tenancy agreement under [s]ection 93(4)(b) until the landlord obtains vacant possession of the premises from the tenant on Monday 18 August 2014.
The tenant must vacate the premises by 11:00 am on Monday 18 August 2014 and if the tenant fails to give up possession then the order for possession may only be enforced by the Tribunal bailiff.
There was then considerable correspondence between the tenants and the Tribunal and I refer in particular to a letter of 7 July 2014 from the tenants to the Tribunal. Arising from that correspondence, it is apparent that both of the tenants suffer significant medical issues. Ms Dowker suffers from very serious spinal and other conditions which in time will render her quite invalid.
The tenants received a response from the Tribunal of 28 July 2014. The letter was written by the presiding member of the Tribunal, Ms Barbara Johns. In the second paragraph of the letter Ms Johns says as follows:-
You have raised a number of matters in your letter. Some of those matters concern the manner in which the property was transferred from you to the current owner. You have suggested that the transaction was unconscionable and may even be fraud. They are not matters which can be dealt with in this Tribunal. The Tribunal can only deal with tenancy disputes.
Elsewhere in other correspondence from the Tribunal a suggestion is made to the tenants that if they wish to pursue the matter, then the appropriate place (in terms of jurisdiction) is the Magistrates Court.
Before proceeding to announce my decision in this matter it is necessary to identify that the jurisdiction of the Tribunal is set out s 24 of the Residential Tenancies Act 1995 (SA) (‘the Act’).[1] The Tribunal has exclusive jurisdiction to hear and determine a tenancy dispute, but it does not have jurisdiction to hear and determine a monetary claim with the amount claimed exceeds $40,000.
[1] The Act s 24—Jurisdiction of Tribunal
The evidentiary powers of the Tribunal are set out in s 31 and the procedural powers in s 32 of the Act. Section 35 of the Act gives the Tribunal the power to make orders in the nature of an injunction by a legally qualified member of the Tribunal. The Tribunal has the power to make interlocutory orders on matters within its jurisdiction, and make binding declarations of right, whether or not any consequential relief is or could be claimed. Those declarations can only be made on matters within jurisdiction.
In my opinion the presiding member of the Tribunal was correct in the information that she provided to the tenants concerning the limitations of the Tribunal about the claims that might be made by the tenants. However my agreement with those expressed views must be seen in the context of the jurisdiction of this Court under s 42E of the District Court Act 1991 (SA) (‘District Court Act’). If it be the case that in the exercise of jurisdiction I identify matters being facts, circumstances or things which may ground causes of action or form the basis of any cause or defence that may have been dealt with differently by, for instance, a Court of competent jurisdiction then a question arises of whether that is a matter worthy of further consideration by me on the application of the tests under s 42E of the District Court Act. I accept that conceptually these are difficult matters however I think that the breadth of jurisdiction that I exercise here is not so confined as to require me to ignore matters that I identify in evidence before me that are significant and that, because of jurisdictional limits, are not dealt with by the Tribunal below. These matters may well fulfil the requirements of cogent reasons. The question of the identification of errors in this appeal is a question at large and is not confined in the same way as the jurisdiction of the Tribunal is limited.

This is an appeal under s 41 of the Act.[2] By virtue of the amendments made to that section under the Residential Tenancies (Miscellaneous) Amendment Act 2013 (SA) sub-s (2) of that section as it previously existed has been deleted. This means that in the identification of the tests applicable to this appeal only s 42E of the District Court Act has application. Under that provision I am required to examine the decision of the original decision maker on the evidence or material before that decision maker, but I may, as I think fit, allow further evidence or material to be presented to me. I am not bound by the rules of evidence, but I may inform myself as I think fit and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. On the appeal I must give due weight to the decision being appealed against and the reasons for it and not depart from it, except for cogent reasons.
[2] The Act s 41—Appeals
In my decision in Hastwell v The City of Holdfast Bay[3] I said as follows about s 42E of the District Court Act:-
[8] This is an appeal against the decision of a Master and it is brought pursuant to s 42E of the District Court Act 1991 (SA) (‘District Court Act’). Under that section the Court, on an appeal, must examine the decision of the original decision-maker on the evidence or material before the original decision-maker and may allow further evidence or material to be presented to it. The Court is not bound by the rules of evidence but may inform itself as it thinks fit and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The Court must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
[9] The concept of what constitutes cogent reasons in my opinion is not completely settled and will, by the nature of things, vary from case to case. I am aware of the decision of Judge Smith of this Court in Moore v The Registrar of The Medical Board of South Australia wherein his Honour considered the issue of cogent reasons and the onus of proof under s 42E and where his Honour said:
‘So it can be seen that the appeal is no longer by way of rehearing and, rather than undertake a complete re-evaluation of the decision, the Court must accord significant weight to the original decision. Put another way, there should be no departure from it save for “cogent reasons”. This is a little at odds with the decision maker bearing the burden of justifying the decision.’
[3] [2014] SADC 132.
[10] The learned Master interpreted that decision to mean that the respondent (before him, and before me today) bears the onus of establishing that the original decision was justified and that there, as here, this was done through Exhibit R1. It is then that the burden falls upon the appellant to show that there are cogent reasons for varying the order.
[11] The learned Master was also of the view that it was only necessary for the respondent to justify its original decision because the context in which s 42E appears in the District Court Act is in respect of administrative decisions and thus a different test under s 42E will then apply.
[12] In the District Court Civil Rules 2006 (‘DCR 6R’), rule 286 provides as follows:
286—Hearing of appeal
(1) An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2) Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3) Subject to any limitation on its powers arising apart from these rules, the Court may—
(a) draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b) amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c) remit the case or part of the case for rehearing or reconsideration;
(d) make orders for the costs of the appeal.
[13] This appeal is to be by way of rehearing. The Court may determine the appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal or to state grounds of appeal appropriately in the notice of appeal, and the Court may draw inferences of fact from evidence taken at the original hearing and hear further evidence.
[14] In my opinion s 42E, when read with DCR 6R 286, sets out the legislative scheme in which this appeal must be decided. It is necessary to first identify the basis upon which I may proceed in relation to the question of whether an appellable error has been made by the learned Master.
[15] In my opinion, the question of the relevant approach that I should take in this appeal is now well settled and has been applied by this Court on a number of occasions. The relevant authority is that of the decision of her Honour Layton J in McLean v DID Piling Pty Ltd. This case concerned an appeal from the decision of a Master of the Supreme Court and it was conducted under rule 286 of the Supreme Court Civil Rules 2006 which is the equivalent of the DCR 6R 286 that I have referred to above. The relevant discussion commences at paragraph [16] of her Honour’s judgment.
[16] Her Honour disagreed with the judgment of Judge Tilmouth in Beare v Light Regional Council on the basis that the judgment of his Honour in that case may be seen to be inconsistent with other decisions of Justices of the Supreme Court, in particular Mullighan J in George v Dowling and by Wicks J in Mac Audio Acoustical Consultants Pty Ltd (In Liquidation) v Eddy.
[17] Her Honour summarised the position at paragraph [22] of her Honour’s decision:
‘In addition, several recent decisions of the Full Court of this court have required a court to find error before exercising the discretion afresh. Accordingly, counsel’s submission should not be accepted. Instead it is appropriate to follow the well known rules in House v The King, which case sets out the circumstances in which an appellate court would disturb an exercise of discretion. In that case the High Court said (at 504-5):’
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[18] At paragraph [23] of her Honour’s decision she said: ‘Accordingly it is necessary that the appellant identify an error by the Master of the kind described in House v The King before any appeal should be allowed’. In my opinion that is my task in this matter.[4]
[4] Ibid [8]-[18] (citations omitted).
One issue that has arisen before this Court on this appeal is that it may be said that the decision of the Residential Tenancies Tribunal were correct to the extent that the Tribunal purported to exercise jurisdiction under the Act about the tenancy agreement, but those decisions do not address matters that are now of apparent significance after I exercised my discretion to permit all the parties to give further evidence. I allowed further evidence to be given because I formed the view that there were a number of matters arising on the papers that required further elucidation.
The Tribunal does not appear to have received any such evidence or to have given any consideration to the issues concerning the understanding that may have been created in the minds of the tenants at the time that they signed the contract for sale and purchase of the land, Exhibit A1, about the length of the tenancy agreement or about pets. The Tribunal also appears not to have given any consideration to any aspect of the reliance of the tenants to their detriment by failing to take up the offer of the bank as mortgagee and based upon their understanding of the position arguably created by the words and conduct (or both) of the landlord.
I gave leave to both parties to call further evidence surrounding the circumstances of the sale of the property and the grant of the tenancy to the tenants by the landlord. In the course of that evidence it became clear to me that there was, at the least, a prima facie case that the tenants could make out in a proceeding before a court about the land contract and the associated tenancy. The issues concerned the detrimental reliance by the tenants upon the understanding they had about the extension of the lease term and the question of any waiver or forbearance by the landlord concerning the “pets” clause in the tenancy – which in turn may ground an estoppel against the landlord. I also formed the view that the tenants should have the opportunity to ventilate those issues in a court proceeding if that was their wish.
The Tribunal also does not appear to have given consideration to the question of the legal effect of that understanding operating upon the minds of the tenants about the length of the tenancy that may have been created by the landlord at the time that they executed the tenancy agreement, Exhibit A3, the detriment they may have suffered as a result and any questions of either waiver or estoppel that may arise.
Also the Tribunal does not appear to have given consideration to the second and third questions at the heart of the dispute between the parties, namely the existence of the dogs and their access to the premises, the operation of the Residential Tenancies Agreement concerning pets and what the tenants understood at the time of the agreement because of what was said to them and their reliance on it. In my view, the tenants should have the opportunity to pursue those questions and matters if they wish.
For example on one view it might be said that when Mr Paoletti visited the premises at the time of, or very soon after, the execution of the contract of 21 May 2013 and saw the dogs taking access to the premises, and said to the tenants that he had no difficulty with pets, the tenants may well have understood that he had no difficulty with all of the animals on the premises and that would include the dogs taking access to the premises or that he may have waived compliance (strict) with the tenancy agreement terms about pets.
On another view, it might be said that whatever Mr Paoletti said was limited by what he saw at the relevant time and that if he had a better understanding, then he may change his views. However, that is not a matter that I could resolve here nor is it a matter for me to resolve because that is not the purpose of this appeal.
Other issues that arise include the fact that an interpretation of the Contract Addendum and the conversations that surround the execution of the Contract Addendum, which appear to have taken place on 29 May 2013 (Exhibit A2), indicate that an understanding may have been created in the minds of the parties that there was an expectation in the tenants of a right to seek an extension of the tenancy for at least a period of another 12 months. Ms Dowker said that her understanding from what was said to her by the respondent was that they would be able to stay on for at least a few years, and when I asked her about that understanding, she agreed that the tenants thought that the tenancy would be for a period of 24 months (12 months plus 12 months).
That is not a matter for me to finally decide in this appeal. I am satisfied on all the material provided to me that (adopting the analogy of an interim/interlocutory injunction) there is at least a serious issue to be tried concerning a prima facie case that may be made out by the tenants based on their understanding of their rights at the time they executed the tenancy agreement, at the time they executed the agreement for sale and purchase of the land and at the time of the Contract Addendum.
Another question arises both at law and in equity is whether any estoppel, whether estoppel in pais or equitable estoppel or promissory estoppel arises by virtue of the conduct of the parties.
Those are matters for another place. However, when I give consideration to the conduct of this appeal and my obligations under s 42E of the District Court Act, then because of the existence of those very matters I am of the opinion that there are cogent reasons to depart from the decision under appeal. In my opinion, there are sufficient prospects upon the facts in this matter and the legal remedies that may be available to the tenants that have not been ventilated before the Residential Tenancies Tribunal to form the view that, by not considering those matters, the Tribunal has fallen into error. A court of competent jurisdiction may well reach a conclusion that is different from the decision of the Residential Tenancies Tribunal. I immediately acknowledge that it is not possible for me to form any concluded view upon those matters but I am of the view that they are sufficient to inform the exercise of my discretion in favour of the tenants in these peculiar circumstances. However, having regard to the authorities that bind me in this case, I am in a position where I may vary the decision of the Tribunal, on terms, so that if the tenants successfully pursue their rights before a court, then any remedy that they obtain will not be rendered barren.
It is not my role here to attempt to fashion some form of remedy for the tenants. Conversely, if the tenants wish to pursue any rights that they claim then it is not part of my role to form any final view on those matters as I have mentioned them here. The Tribunal may have been limited because of jurisdictional issues. But that is something of a hollow vessel when it is known that the Tribunal did not further ventilate the issues before it because of those limitations. Thus, I may accord all necessary weight to the original decision but still make a finding of cogent reasons. I must act according to equity, good conscience and the substantial merits of the case. By doing so I am not in any way contravening the rule in McLean v DID Piling Pty Ltd.[5]
[5] [2010] SASC 33.
It is possible to conclude that if the Tribunal had made further enquiries and received further evidence it may well have identified the further matters that I have outlined above. It may well be the case that a failure to do so constitutes an error. This would constitute an error because the Tribunal has failed to take into account some material consideration(s) as identified by me above. I am unable to identify whether and if so how those matters may have affected the Tribunal’s exercise of discretion because of the absence of enquiry about them.
I immediately acknowledge that Parliament had in mind the limitation of the jurisdiction of the Tribunal when it gave the rights of appeal under s 41 of the Act. At first blush it may be said that there is no reason for the Appeal Court to do anything here except to consider the matter within the confines of the Act and to consider “error” only in that context. If that “narrow” approach argument is correct it is a little difficult to understand why Parliament also expressly provided in s 42E of the District Court Act for the breadth of powers of this Court on the hearing of an appeal. However it is probably not necessary here to finally resolve that matter but it may likely be a matter that will arise again in the future. In my view it appears that in making his decision Mr Georgiadis has failed to take account of all of the matters that I have set out above. For that reason and because of the limited and confined jurisdiction of the Tribunal I would not in the exercise of my discretion remit the action.[6] That would only compound the current difficulties.
[6] District Court Act 1991 (SA) s 42F(c).
It is necessary for me as the Judge of this Court to announce my decision but in a way that protects the interests of both parties. It is not appropriate for me to make any orders here that protect the interests of one party to the detriment of the other.
In my opinion, the Residential Tenancies Tribunal was correct in suggesting that if there is to be any remedy in the tenants, it is a matter that the tenants must pursue themselves in a court of competent jurisdiction and that is a question for them. I have therefore decided to rescind the decision of the Tribunal and substitute a decision that I consider appropriate.[7] The most appropriate form of expression of that substitute decision is a form of orders that sufficiently protect the interests of both parties in the current circumstances. The form of those orders is set out hereunder.
[7] District Court Act 1991 (SA) s 42F(b).
There are time limits within those orders. Those time limits are to be strictly complied with; I will give liberty to any party affected by any lack of activity of the other party to apply to me for discharge of any orders that affect them.
I am satisfied at least that a prima facie case can been established by the tenants that there is a question of the interpretation of the residential tenancies agreement, the contract for sale and purchase, Exhibit A1 and the contract addendum, Exhibit A2. As well I am satisfied that there are questions of, for example, rectification of any agreement and also questions of estoppel in pais or promissory estoppel as well as waiver that might arise. There may also be questions of equitable estoppel arising between the parties.
In so finding, I am conscious that a balance must be struck between the interests of the tenants and the landlord. I will do so by the orders that I make hereunder. I make orders 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 21^st 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.
1.4I give liberty to all parties to apply including on short notice.
1.5I adjourn this matter until 9.00 am on 21 November 2014 for further orders and directions.
1.6I order that pursuant to s 53 of the District Court Act 1991 (SA) the transcript fees for both parties in respect of this hearing today are waived.

In the event that the tenants do not avail themselves of the opportunity provided within these orders then the landlord is at liberty to apply to this Court for orders for possession of the property.

(1)The Tribunal has—
(a)exclusive jurisdiction to hear and determine a tenancy dispute;
(b)subject to the regulations—jurisdiction to hear and determine claims or disputes arising from tenancies granted for residential purposes by the South Australian Housing Trust or a subsidiary of the South Australian Housing Trust, or arising under agreements collateral to such tenancies (including such agreements that may involve a third party);
(c)the other jurisdictions conferred on the Tribunal by statute.
(2)However, the Tribunal does not have jurisdiction to hear and determine a monetary claim if the amount claimed exceeds $40 000 unless the parties to the proceedings consent in writing to the claim being heard and determined by the Tribunal (and if consent is given, it is irrevocable).
(3)If a monetary claim is above the Tribunal's jurisdictional limit, the claim and any other claims related to the same tenancy may be brought in a court competent to hear and determine a claim founded on contract for the amount of the claim.
(4)A court in which proceedings are brought under subsection (3) may exercise the powers of the Tribunal under this Act.
(5)If the plaintiff in proceedings brought in a court under this section recovers less than $40 000, the plaintiff is not entitled to costs unless the court is satisfied that there were reasonable grounds for the plaintiff to believe that the plaintiff was entitled to $40 000 or more.

(1)An appeal lies to the Administrative and Disciplinary Division of the District Court from a decision or order of the Tribunal made in the exercise (or purported exercise) of its powers under this Act.
(3)The appeal must be commenced within one month of the decision or order appealed against unless the District Court allows an extension of time.
(4)If the reasons of the Tribunal are not given in writing at the time of making a decision or order and the appellant then requests the Tribunal to state its reasons in writing, the time for commencing the appeal runs from the time when the appellant receives the written statement of the reasons.