Ettles v Hicks
[2025] SASCA 85
•6 August 2025
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 agree upon.
Residential Tenancies Act 1995 (SA) ss 69(1), 80 and 93, referred to.
Lesses v Maras (No 2) [2016] SASC 140, applied.
ETTLES v HICKS
[2025] SASCA 85
Interlocutory application
STANLEY JA:
Introduction
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.
If a tenant is in breach of the obligation under s 69 of the RTA, then the landlord may serve a notice of termination under s 80 of the RTA, which requires the tenant to remedy the breach within seven days and if the breach is not remedied, then the notice of termination will require the tenant to vacate the property after a further seven days.
If the tenant is in breach of the obligation under s 69 of the RTA, the tenant has been served with a notice of termination but has failed to remedy the breach within the time permitted, and has failed to vacate the property within the time required, then the landlord may apply to the Tribunal seeking an order for vacant possession pursuant to s 93 of the RTA.
Grant of a stay pending appeal
The principles governing the grant of a stay of execution pending appeal are well established. They are summarised in the reasons of Doyle JA in Lesses v Maras (No. 2)[1] as follows:
In short, the Court has a discretion to grant a stay, and if so, as to the terms of that stay. While it is not necessary to establish special or exceptional circumstances, the party seeking a stay must demonstrate a proper reason, or appropriate case, to warrant the exercise of the discretion to grant a stay in his or her favour. The mere filing of an appeal will not suffice. Rather, the Court generally proceeds from the starting point that the decision below was correct, and hence that the party who has been successful at trial is entitled to the benefit of their judgment. However, from this starting point, the Court exercises a broad discretion which entails consideration of the competing rights of the parties, any prejudice likely to be suffered by either party in the event that a stay is or is not granted, and the overall balance of convenience.
[1] [2016] SASC 140 at [6].
Findings of the Tribunal
The applicant’s grounds of review were set out by her in the following terms:
I know I can be messy and untidy at times but that shouldn’t be the reason why we get evicted, we haven’t ruined her house as she claims and yes I know her photos make us look bad but I also do have days where the house is spotlessly clean. I have done a lot of what was needed to fix some of the breaches, I’m doing my best even though it doesn’t look like it. I have tried very hard to secure another property but it is very challenging during the school holidays. All I am asking is just for an extension of time to find somewhere else or a stay.
In the course of the hearing on 19 June 2025 the Deputy President noted the applicant said:
The circumstances of the situation have changed – she has recently ceased some of her employment and she has been able to tackle the cleaning and repairs issues at the property. She has had the pest controller into the property twice recently and the cockroach infestation has now been fully addressed and this has also addressed the issue of the smell at the property. The clutter has been removed from the front veranda and the bedrooms are immaculate. She has addressed the issue of the damaged blind. She resides at the property with her husband and 17-year-old daughter and it is very important that they have stable accommodation. She is likely to be offered another tenancy by a friend but that will not occur for another month or so and so she seeks to remain in the property until then.
At the same hearing the respondent provided a written statement of the grounds of termination of the tenancy which in summary are:
the applicant has had ample opportunity to remedy her breach, but she has failed to do so;
the photos provided by the applicant are inadequate because the photos of the toilet show that it is still dirty;
the floor is saturated and this may cause long-term damage;
the paintwork on a door is damaged;
The respondent has arranged for multiple trade persons to attend at the property to carry out repairs to the property and she requires access as soon as possible for this to occur. The respondent is concerned that the longer the applicant remains in the property, the more damage will be caused. She seeks vacant possession of the property as soon as possible.
The Deputy President reasoned that the Tribunal had provided the applicant with a fair opportunity to address the issue. The directions issued by the Tribunal on 20 March 2025 were detailed and required each of the parties to lodge submissions and evidence about the dispute. In particular, those directions required the applicant to provide a brief written submission setting out the history of the matter; what steps she had taken to clean up the property; the practical strategy to clean up the property such as a clean-up plan which identified tasks to be done room by room and which identified supports to assist in that process; any health issue which was relevant to the dispute; and any photos or other evidence.
On 1 May 2025 the Tribunal adjourned the application to allow the applicant a further opportunity to remedy the breach. The Tribunal order made on that day specified the following tasks to be completed by the applicant before the Tribunal hearing on 5 June 2025:
facilitate pest control treatment by a pest controller;
remove the odour from the premises;
organise a tradesperson to paint all internal surfaces that require painting;
repair or replace damaged vertical blinds;
repair or replace damaged towel rail;
maintain the premises in a reasonable state of cleanliness inside and out.
Despite these opportunities to address the issue of the poor condition of the property the Tribunal found that the applicant was unable to do so. By the hearing on 19 June 2025 the applicant had not provided any submission or evidence in response to the Tribunal’s directions of 20 March 2025. By way of contrast, the respondent provided an inspection report with photos which showed that the applicant was still in breach.
The Tribunal found that the evidence provided by the respondent prior to the hearing on 19 June 2025 included photos which show clutter on the veranda, in the shed and in the house; damaged and dirty walls; a dirty oven; crumbs, debris and cockroaches on floors throughout the house; a significant cockroach infestation in various rooms of the house; a damaged mixer tap; a dirty ceiling fan; a damaged blind; and damage to the ceiling in the lounge area.
The Tribunal did not accept the applicant’s submission that from time to time the property had been cleaned. The Deputy President found no evidence of that.
The Deputy President considered that the applicant’s submissions at the hearing on 22 July 2025 that she had fully addressed the issues about the condition of the property, was unrealistic and unlikely to be true. The Deputy President found the photos that the applicant had sent showed small sections of the house, and even those sections were not reasonably clean. The applicant made similar submissions in previous hearings and the Tribunal found her submissions were not an accurate assessment of the property. Accordingly, the Deputy President did not consider the applicant was capable of making an objective assessment about what was required for the condition of the property to comply with the requirements in s 69 of the RTA. In the circumstances she concluded that the original order was the correct or preferable order subject to allowing the applicant slightly longer to vacate the property given her difficult personal circumstances.
Unfortunately for the applicant she has failed to identify any arguable ground of appeal or to otherwise demonstrate that the proposed appeal is a bona fide appeal with at least some prospect of success. The applicant’s notice of appeal does not identify any arguable ground of appeal. It merely asserts that it was unreasonable of the Deputy President to expect a person to have photographs of their home across time and in varying states of cleanliness, and that the rejection of the applicant’s submission by the Deputy President that the property had from time to time been clean was wholly unreasonable. Further, the applicant complains that she had been denied procedural fairness and that the Deputy President made a number of remarks regarding her credibility in making submissions and that had she been provided the opportunity she would have been able to address the concerns expressed by the Deputy President and provide evidence and submissions to correct that view.
I do not accept these submissions.
First, I do not accept the applicant’s submission that it was unreasonable of the Deputy President to expect a person to have photographs of their home across time and in varying states of cleanliness. Once this matter was before the Tribunal and the issue was the applicant’s failure to maintain the property in a clean and tidy condition, if the applicant wished to contest the respondent’s complaint about the condition of the property she needed to provide evidence that the property was in a satisfactory condition. She failed to do so. In those circumstances there is nothing unreasonable in the Tribunal acting on the only evidence available to it.
Second, I reject the applicant’s complaint that she had been denied procedural fairness because the Deputy President made a number of remarks regarding her credibility in making submissions which she would have been able to address had she been provided the opportunity to do so. There was no denial of procedural fairness. The issue was the condition of the property. The applicant could not have been under any misapprehension about that. It must have been clear to her that she needed to satisfy the Tribunal that she had maintained the property in an appropriate condition and that she was capable of doing so in the future. There was a challenge to her assertions that she had done so. She was not taken by surprise. She had ample opportunity to address the concerns expressed by the Deputy President and provide evidence and submissions to correct that view.
In any event, at the hearing of this application the respondent has tendered an affidavit of her solicitor Edward Hewitt which exhibits photographs taken at the property on 5 August 2025 (FDN 6). They depict the condition of the property which is wholly unsatisfactory. That evidence is sufficient to satisfy me that the applicant does not have a reasonably arguable case on appeal.
More importantly, the appeal has been rendered inutile as the evidence is that on 4 August 2024 a bailiff enforced the orders made by the Tribunal on 22 July 2025 by entering the premises and serving the applicant with a notice of entry and eviction.
The application for a stay was not filed until 4 August 2025. The order made by the Tribunal on 22 July 2025 required the applicant to give vacant possession of the property by 10:00 a.m. on 1 August 2025. The applicant has failed to act in this matter with the urgency that the situation required. While she has provided an explanation that she spoke to someone from RentRite on a date prior to 19 June 2025, who advised her to seek an adjournment at the hearing on that date. She sought an adjournment but it was refused. There is no evidence of her doing anything further in relation to seeking a stay until 31 July 2025 when she filed her notice of appeal. The evidence is that the respondent was not served with the notice of appeal until 4 August 2025 at the earliest.[2] The notice of appeal refers to seeking a stay until final orders are made in the matter. However, she did not file this interlocutory application seeking a stay until 4 August 2025 notwithstanding she knew on 22 July 2025 that she had to vacate the premises by 10:00 a.m. on 1 August 2025.
[2] Although the Notice of Appeal was filed on 1 August 2025, this interlocutory application was not made until 4 August 2025 and filed by Registry on 5 August 2025. This hearing was listed shortly thereafter. Following contact from the Court regarding the proposed hearing time, the respondent filed a notice of acting. This timeline suggests that the respondent was likely not served with the notice of appeal until 5 August 2025. However, I note that counsel for the respondent informed the Court that service of the notice of appeal occurred on 4 August 2025. In any event, for the purpose of this application, I will assume that service of the notice of appeal occurred on 4 August 2025.
Generally speaking, in cases of this kind the balance of convenience would usually favour the grant of a stay, at least after allowing a sufficient time within which the applicant can obtain other accommodation. In this case, however, 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, I am satisfied the balance of convenience favours maintaining what is now the status quo. In these circumstances, the prejudice suffered by the applicant does not outweigh the prejudice to the respondent in circumstances where the applicant is no longer occupying the property.
I would dismiss the application for a stay.
However, the applicant sought an extension of time to vacate the property for four to six weeks; or failing that, for 10 to 14 days. Because I would dismiss the application for a stay pending the hearing of the appeal, I am not in a position to extend the time within which the applicant must vacate the property. As I have explained, that has already occurred. There is no basis now to make such an order or any utility in doing so. Nonetheless, I note that the respondent is prepared to allow a further extension of time to 4:00 p.m. on Friday 8 August 2025 to remove her property from the premises. Such extension is a matter for agreement between the parties.
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