Elix v Elix - [2025] SASC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
ELIX v ELIX
[2025] SASC 148
Judgment of the Honourable Justice Gray (ex tempore)
27 August 2025
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION
LANDLORD AND TENANT - LEASES AND TENANCY AGREEMENTS
This matter is an appeal against orders of a senior member of the South Australian Civil and Administrative Tribunal (‘SACAT’) arising from a failure by the applicant to pay rent and the landlord seeking orders for vacant possession.
The Senior Member allowed an internal review of a member in the original jurisdiction of SACAT. This was done on the basis that it was preferable to do so as the respondent had agreed to continue the tenancy on the basis the applicant paid rent and made some contribution toward arrears. Orders were made by consent.
The applicant did not comply with the orders and was evicted from the property on 18 August 2025.
The appeal to the Supreme Court sought orders permitting the applicant to return to the property and further time for payment of rent arrears. An interlocutory application seeking the appeal be heard urgently was also filed.
Held, dismissing the application for leave to appeal and refusing an extension of time:
1.The appeal does not raise any reasonably arguable grounds, no error in the approach of the Senior Member has been identified, and it is not in the interests of justice to permit an extension of time: [24]-[26].

Residential Tenancies Act 1995 (SA) s 39; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71, referred to.
Aldridge v Registrar of Firearms (SA) [2022] SASC 5; Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1; Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10; Re AKS [2016] SACAT 19; Varricchio v Wentzel [2016] SASC 86; (2016) 125 SASR 191, considered.

ELIX v ELIX
[2025] SASC 148
Civil: Single Judge Appeal

GRAY J (ex tempore): This matter concerns an appeal against the orders of a Senior Member of the South Australian Civil and Administrative Tribunal (‘SACAT’ or ‘the Tribunal’). The dispute in this matter is between two brothers, Mr Paul Elix, who was the applicant in SACAT and the tenant in a residential tenancy agreement (‘the tenant’); and his brother, Mr Andrew Elix (‘the landlord’). For ease of reference, I will refer to the parties by their first name. I mean no disrespect in doing so.
The matter before this Court concerns an application for leave to appeal to this Court brought by the tenant from a decision of a Senior Member of SACAT, made on 9 May 2025.
The Senior Member granted leave for an internal review of a decision of a member in the original jurisdiction of SACAT and varied the original order. The applicant also brought an interlocutory application seeking an urgent listing 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.

Continue reading Elix v Elix

Details

AGLC: Elix v Elix [2025] SASC 148
Case: [2025] SASC 148
Decision Date: 27 August 2025

CaseChat Overview and Summary

In the case of Elix v Elix, the applicant, Paul Elix, appealed against a decision of the South Australian Civil and Administrative Tribunal (SACAT) that varied an earlier order for vacant possession. The earlier order was made following a breach of a periodic residential tenancy agreement by the applicant, who failed to pay rent. The respondent, Andrew Elix, sought an order for vacant possession, which was granted by a Tribunal member, but later varied by a Senior Member following an internal review. The applicant now appeals against the decision of the Senior Member, seeking leave to appeal and an extension of time to pay arrears of rent. The central legal issues in this case were whether the Senior Member erred in granting leave for an internal review and varying the original order, and whether the applicant had raised any reasonably arguable grounds for appeal.

The court examined the reasoning of the Senior Member and found that the agreement reached between the parties, which was confirmed by the applicant, supported the variation of the original order. The Senior Member had correctly applied the approach set out by Parker P in Re AKS, and the orders made were in the interests of justice, considering the financial hardship that would be occasioned to the respondent if the orders were interfered with. The court held that the applicant had not demonstrated any error in the Senior Member's approach and had not raised any reasonably arguable grounds for appeal. Furthermore, the court noted that the enforcement of the Tribunal's orders had occasioned hardship to the applicant but regarded the position of the respondent and the overarching consideration of the interests of justice.

In conclusion, the court dismissed the appeal and found that there was no basis for granting leave to appeal. The orders of SACAT were upheld, and the applicant was required to comply with the payment plan agreed upon by the parties. The court also noted that the question of arrears would be a matter for the parties to determine, subject to the orders of SACAT and their willingness to have discussions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The matter was called three times this morning, and the applicant did not attend. The matter was then adjourned until 11:00 a.m. today to facilitate the applicant’s attendance, who was, it became apparent from the first hearing, in custody at the time.Background The documents provided indicate that on 18 April 2024, Mr Paul Elix entered into a periodic residential tenancy agreement with his brother, Mr Andrew Elix. The effect of that agreement was that an amount of $440 per week would be paid every fortnight by Mr Paul Elix to Mr Andrew Elix. That agreement is governed by the Residential Tenancies Act 1995 (SA). The agreement provided for the issue by the landlord of a notice of breach. The tenancy agreement provided that, if the breach was not remedied within a specified period, then the tenancy will end.[1] [1] Periodic Residential Tenancy Agreement entered into 18 April 2024 between Andrew William Elix (landlord) and Paul Elix (tenant), cl 14. A notice of breach was issued on 31 March 2025. At that time, the amount of the outstanding rent was $4,840.00. The tenant was requested to remedy the breach by 8 April 2025. The landlord, by application dated 10 April 2025, sought an order for vacant possession. The application was heard by a member of SACAT on 1 May 2025. The Member held that the notice of breach was valid, and that rent was paid until 30 January 2025, and that the rent in arrears at the day of the hearing was the amount of $5,720.00. The Member made an order that the tenant must move out of the premises by midday on Thursday, 8 May 2025. The Tribunal order provided that, if the tenant did not move out, the order may be enforced by the Tribunal bailiff, and that any rent owing at the date of vacant possession becomes immediately due and payable by the tenant. The tenant applied for an internal review of the decision of the Member at first instance. The Senior Member granted leave for an internal review of a decision of a member in the original jurisdiction of SACAT, and varied the original order.The decision of the Senior Member the subject of this appeal and enforcement The Senior Member determined, applying the approach set out by Parker P in Re AKS[2] that leave should be granted as the tenant proposed and the landlord agreed to an order which was suggested as preferable to the order made at first instance.[3][2] Re AKS [2016] SACAT 19 at [14] (Parker P).[3] Decision of Senior Member McEvoy in Paul Elix v Andrew Elix (South Australian Civil and Administrative Tribunal, 2025/SIR000113, 9 May 2025) at [7] (‘SACAT Decision’). At the time of the hearing before the Senior Member, the landlord had not enforced the order and the tenant remained in occupation of the premises. The tenant indicated to the Tribunal that he had not yet looked for other accommodation. He had lost his job in August 2023 and had not worked since that time. The tenant indicated that his marriage had broken up and he was pursuing custody of his young son. The tenant indicated that he and his son have medical issues and these incur expenses. The tenant wanted to stay in the premises, and he recently accessed a lump sum from his superannuation, and so has money to pay rent, but he also has bills and other expenses.[4][4] SACAT Decision at [10].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J

The tenant applied for an internal review of the decision of the Member at first instance. The Senior Member granted leave for an internal review of a decision of a member in the original jurisdiction of SACAT, and varied the original order.The decision of the Senior Member the subject of this appeal and enforcement The Senior Member determined, applying the approach set out by Parker P in Re AKS[2] that leave should be granted as the tenant proposed and the landlord agreed to an order which was suggested as preferable to the order made at first instance.[3][2] Re AKS [2016] SACAT 19 at [14] (Parker P).[3] Decision of Senior Member McEvoy in Paul Elix v Andrew Elix (South Australian Civil and Administrative Tribunal, 2025/SIR000113, 9 May 2025) at [7] (‘SACAT Decision’). At the time of the hearing before the Senior Member, the landlord had not enforced the order and the tenant remained in occupation of the premises. The tenant indicated to the Tribunal that he had not yet looked for other accommodation. He had lost his job in August 2023 and had not worked since that time. The tenant indicated that his marriage had broken up and he was pursuing custody of his young son. The tenant indicated that he and his son have medical issues and these incur expenses. The tenant wanted to stay in the premises, and he recently accessed a lump sum from his superannuation, and so has money to pay rent, but he also has bills and other expenses.[4][4] SACAT Decision at [10]. The landlord indicated at the Tribunal hearing before the Senior Member that he was reliant upon the income from the rent to meet the mortgage repayments from the property, and that if there was no income from the property, he would be unable to keep the house and would have to sell it. The landlord indicated that the house had been purchased for investment purposes, but he was now experiencing financial hardship due to the lack of rental income. The landlord indicated that the tenant was he brother and he had offered him the house to live in when the tenant separated from his wife, and whilst he did not want to see his brother without a home, he did not want to come back to the Tribunal and he could not afford not to be receiving rent.[5][5] SACAT Decision at [11]. The reasons of the Senior Member record that, after some discussion, it was agreed that the tenant could remain in the premises until 30 August 2025 on the basis that full rent was paid, and some payments were made towards the arrears. The Senior Member indicated that, although the order at first instance was the correct order, it was preferable to vary the original order to reflect the agreement reached at the hearing held on 9 May 2025. The Senior Member made the following orders:1. The Tribunal grants leave to apply for internal review. 2. I vary the order of the Tribunal made on 1 May 2025 by setting aside and deleting orders 1 and 2, and substituting the following orders instead. 3. The tenant may remain in the property on condition the tenant pays to the landlord $980.00 (ordinary rent of $880 per fortnight, + $100 toward the arrears of rent), by 5:00pm on Friday 16 May 2025. If this payment is not made the tenant must move out of the premises by midday on Monday 19 May 2025. 4. The tenant must make payments of $980.00 to the landlord by the following dates, and if the payments are not made, the tenancy will terminate, and the tenant must move out of the premises by 12 noon on the following Monday after the default in payment: a. 30 May 2025, or the tenant must move out by midday Monday 2 June 2025b. 13 June 2025, or the tenant must move out by midday Monday 16 June 2025 c. 27 June 2025, or the tenant must move out by midday Monday 30 June 2025 d. 11 July 2025, or the tenant must move out by midday Monday 14 July 2025 e. 25 July 2025, or the tenant must move out by midday Monday 28 July 2025f.8 August 2025, or the tenant must move out by midday Monday 11 August 2025 g.22 August 2025, or the tenant must move out by midday Monday 25 August 2025 5. If the tenant misses any of the above payments and does not move out of the premises by the time stated, the landlord may lodge a statutory declaration to that effect and an up-to-date rent record. If the Tribunal is satisfied that the payment was not made, the bailiff may be instructed to evict anyone remaining at the premises without delay. 6. The tenancy will in any event terminate on Saturday 30 August 2025. If the tenant does not move out of the premises by that date, the landlord may advise the Tribunal and ask for the Tribunal bailiff to enforce this order.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

The respondent, who is also self-represented on the appeal, has indicated that he is willing to discuss a payment plan with the applicant, and that there is still outstanding a few thousand dollars in respect of the arrears on the property, but that since the enforcement of the orders of SACAT by the SACAT bailiff, the applicant has not returned to the property. The respondent indicated that he was reliant on the payment of rent to meet the mortgage repayments on the property.Consideration As the applicant was advised during this hearing, an appeal to this Court is not a review of the merits.[12] Many of the matters raised by the applicant at this hearing concern matters which do not directly arise on the question of whether there was error in the decision of the Senior Member on internal review. [12] Aldridge v Registrar of Firearms (SA) [2022] SASC 5 at [54] (Parker J). I do not consider that the applicant has raised any reasonable arguable grounds in the notice of appeal. The applicant has not demonstrated error in the approach that the Senior Member took. The applicant on this review accepted that he had agreed to the orders proposed by the Senior Member, it was just that he had not been in a position to comply with those orders and had missed payments. This Court should only grant leave to appeal from a SACAT internal review decision where the appeal is reasonably arguable, and the subject matter is of sufficient substance to justify consideration.[13] The applicant has not raised any reasonably arguable grounds. [13] See, as to being reasonably arguable: Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1 at 5-6, [19]-[20] (Parker J); Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at 11, [3] (Kourakis CJ, with Bampton and S Doyle JJ agreeing). See, as to substance: Aldridge v Registrar of Firearms (SA) [2022] SASC 5 at [33] (Parker J). SACAT is a specialist tribunal, it is clear from the Senior Member’s decision that the orders made on 9 May 2025 were the subject of agreement between the parties, and that was confirmed by the applicant on the appeal. It is difficult to ascertain in these circumstances how the granting of leave would be in the interests of justice. Regard needs to be had to the role of SACAT as a specialist tribunal, and the role of that Tribunal in assisting the parties to reach the agreement that was reached.[14][14] Varricchio v Wentzel [2016] SASC 86; (2016) 125 SASR 191 at 198, [37] (S Doyle J). Whilst I accept that the enforcement of the Tribunal’s orders occasioned hardship to the applicant, in considering the interests of justice, regard must also be had to the position of the respondent. The overarching consideration is the interests of justice.[15] There is no basis demonstrated on this appeal as to why the applicant should be granted leave to appeal, particularly having regard to the financial hardship that would be occasioned to the respondent if there was interference with the orders made by SACAT. It is also not in the interests of justice to extend time. In relation to the question of the arrears, that will be a matter for the parties to determine.[16] [15] Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1 at 5, [19] (Parker J); Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at 11, [3] (Kourakis CJ, with Bampton and S Doyle JJ agreeing).[16] Subject to the orders of SACAT and insofar as the parties indicated at this hearing a willingness to have discussions.Conclusion and orders