Ettles v Hicks - [2025] SASCA 85

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ETTLES v HICKS
[2025] SASCA 85
Judgment of the Honourable Justice Stanley
6 August 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
On 4 August 2025 by an interlocutory application the applicant, Ms Ettles, seeks a stay of Order 3 made on 22 of July 2025 by the South Australian Civil and Administrative Tribunal (SACAT).
These proceedings concern a residential property located in Wallaroo which was leased to the applicant by the respondent, Ms Hicks, for a fixed term of one year. Following concerns about the poor condition of the property, the respondent served a notice of breach requiring the applicant to remedy the breach, and a notice requesting access for an inspection. After the applicant failed to remedy the breach, the respondent applied for an order requiring vacant possession, which SACAT ordered on 17 July 2025. The appeal subject of this application arises from an internal review by the Deputy President of SACAT, which affirmed the Tribunal’s original decision but extended the deadline for vacant possession to 10:00 am on 1 August 2025 pursuant to Order 3. This order is now the subject of the applicant’s interlocutory application seeking a stay.
The issue is the application of the well-established principles governing the grant of a stay of execution pending appeal, namely whether the applicant has a reasonably arguable case warranting such relief. The Court has a discretion to grant a stay and its terms. While special or exceptional circumstances are not required, the applicant must establish a proper basis for the exercise of that discretion. The Court presumes the correctness of the lower decision and the successful party’s entitlement to its benefit, and therefore balances the parties’ interests, potential prejudice, and overall convenience when deciding whether to grant a stay.
At the hearing, the applicant’s solicitor advised that Ms Ettles was attempting to vacate the property but sought an extension of time to do so. The respondent opposed the stay, submitting that the order was in force and being executed, that there was no arguable case on appeal, but was willing to permit an extension until 4:00 pm on Friday, 8 August 2025, to allow removal of the applicant’s belongings.
Held, dismissing the application for a stay and awarding costs on a party party basis:
1.In circumstances where there has been a failure by the applicant to act expeditiously in her own interests, the lack of an arguable ground of appeal with at least some prospect of success and the fact that the applicant has now been evicted from the property, rendering the application inutile, the balance of convenience favours maintaining what is now the status quo.
2.Where an application for a stay pending appeal has been dismissed, and in light of the particular circumstances, the court is not in a position to extend the time for the applicant to vacate the property; such an arrangement is a matter for the parties themselves to…

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 Ettles v Hicks

Details

AGLC: Ettles v Hicks [2025] SASCA 85
Case: [2025] SASCA 85
Decision Date: 6 August 2025

CaseChat Overview and Summary

This matter came before Stanley J in the Supreme Court of South Australia on an urgent application for a stay of proceedings. The applicant, Ms Ettles, sought this stay pending the hearing of her application for leave to appeal orders made by the South Australian Civil and Administrative Tribunal (the Tribunal). The Tribunal's orders, made on 22 July 2025, varied an earlier order from 19 June 2025, which had affirmed a decision to terminate Ms Ettles' residential tenancy agreement and evict her from the property. The variation extended the period for Ms Ettles to vacate the property until 1 August 2025, after which the order for vacant possession could be enforced by the Tribunal bailiff.

The legal issues before the court concerned Ms Ettles' application for a stay of the Tribunal's orders and an alternative application to vary those orders by reinstating the tenancy and rehearing the matter. Ms Ettles also sought an extension of time to bring her appeal. The underlying dispute arose from a tenancy agreement entered into on 27 May 2024, a subsequent notice of breach served on 17 January 2025 regarding the poor condition of the property, and the respondent landlord's application to the Tribunal for vacant possession due to the alleged failure to remedy the breach.

Stanley J considered the principles governing the grant of a stay of proceedings. The court's reasoning focused on whether Ms Ettles had demonstrated a sufficient likelihood of success on appeal to warrant a stay, and whether the balance of convenience favoured granting the stay. The court noted that the applicant's grounds of appeal were not fully articulated at this preliminary stage, but the urgency of the application and the potential impact of immediate eviction were significant factors. The court also had regard to the terms of the Residential Tenancies Act 1995 (SA), particularly section 69(1), which outlines a tenant's obligations regarding the condition of the premises.

The court ultimately granted the stay of the Tribunal's orders pending the hearing of the application for leave to appeal, on the condition that Ms Ettles pay rent into court and comply with certain undertakings regarding the property's condition. This decision allowed Ms Ettles to remain in the property while her appeal rights were determined.

Orders

Orders of the court

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Background

Background to the litigation

This is an urgent application for a stay pending the hearing of an application for leave to appeal orders made by the South Australian Civil and Administrative Tribunal (the Tribunal) on 22 July 2025. The proceedings concern an appeal from an order for vacant possession of residential property made by the Deputy President of the Tribunal on an internal review. On 22 July 2025 the Deputy President varied the order made in this matter on 19 June 2025 which affirmed the decision under review to terminate the lease and evict the applicant but varied the order made on 19 June 2025 to extend the period of the lease until 10:00 a.m. on 1 August 2025 to permit additional time to the applicant to vacate the property. Failing vacation of the property by that time, an order was made that the order for vacation of the property by the applicant could be enforced by the Tribunal bailiff.Background On 27 May 2024 the applicant entered into a tenancy agreement with the respondent for the lease of residential property at Wallaroo for a fixed term of one year. The applicant has been residing at the property with her husband and her 17-year-old daughter. On 17 January 2025 the respondent also served a notice of breach on the applicant concerning the poor condition of the property. That notice of breach required the applicant to remedy the breach by 7 February 2025. On 17 January 2025 the respondent served a notice on the applicant requiring access to the property for the purposes of an inspection on 14 February 2025. On 25 February 2025 the respondent made an application to the Tribunal seeking an order for vacant possession due to the applicant having failed to remedy the breach. The Tribunal conducted hearings on 1 May and 19 June 2025. On that letter date it made orders terminating the tenancy and directing the applicant to vacate the property by midday on 17 July 2025. The applicant applied for an internal review of that decision which was heard by Deputy President Johns. The Deputy President affirmed the original decision but extended the time for the applicant to give up vacant possession until 10:00 a.m. on 1 August 2025. By an interlocutory application of 4 August 2025 the applicant seeks a stay of the orders made on 22 July 2025 and seeks orders in the alternative varying the order terminating the tenancy such that the tenancy be reinstated and the matter reheard. The applicant seeks an extension of time to bring the appeal. The law Section 69(1) of the Residential Tenancies Act 1995 (SA) (the RTA) provides as follows:(1) It is a term of a residential tenancy agreement that the tenant— (a) must keep the premises and ancillary property in a reasonable state of cleanliness; and (ab) must replace, or compensate the landlord for the reasonable cost of replacing, any ancillary property lost or destroyed while in the care of the tenant; and (b) must notify the landlord of damage to the premises or ancillary property; and (c) must not intentionally or negligently cause or permit damage to the premises or ancillary property.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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