Evensen v Byrnes - [2013] SADC 5

District Court of South Australia
(Civil: Appeal Under Residential Tenancies Act 1995)
EVENSEN v BYRNES
[2013] SADC 5
Judgment of His Honour Judge Stretton (ex tempore)
18 January 2013
APPEAL AND NEW TRIAL
The appellant appealed against a refusal by the Residential Tenancies Tribunal to extend time for eviction for non payment of rent. The tenant had received apparently contradictory notices from the landlord concerning her tenancy in that she had received an application to the Tribunal to order immediate eviction based on non payment of rent, and also extended notice of eviction without grounds under the Residential Tenancies Act. The Tribunal found that substantial rent was owing and ordered eviction, and on an application to vary those orders gave the tenant one week to vacate. The tenant wanted more time. The appeal was heard as a matter of urgency on the day of eviction.
Held: There was no error in the approach of the Tribunal. The further notice of eviction without grounds had been served by the landlord as a "backup plan" in the event that its application for eviction based on non payment of rent was unsuccessful. Whilst this had subjectively confused the tenant, the landlord was quite entitled to have served it for that purpose. The tenant's confusion was not brought to the attention of the Tribunal by the tenant, and even if it had been it is unlikely that the Tribunal would have allowed more time than it did given the very extensive arrears of rent owing. The tenant paid a further weeks rent on the day of the appeal hearing. The appeal is dismissed and the orders of the tribunal affirmed, although in the totality of the circumstances apparent on appeal and the further payment of rent the court made an ancillary order pursuant to section 42G of the District Court Act allowing the tenant 7 days to vacate.
Residential Tenancies Act 1995 (SA) s41; District Court Act 1991 (SA) s42G, referred to.

EVENSEN v BYRNES
[2013] SADC 5

This is an appeal by Marie Kristine Evensen, a tenant pursuant to a residential tenancies agreement with Bernadette Byrnes a landlord. Ms Evensen appeals from orders of the Residential Tenancies Tribunal dated 10 and 11 January 2013.
The ultimate order of the tribunal was that she vacate the residence that she occupied pursuant to that residential tenancies agreement at 11 am on 18 January 2013, that is today.
To enable the appeal to be argued fully, I stayed the operation of that order earlier today until 4 pm today, ie now.
The appellant does not appeal against the order of eviction per se, but rather against the order refusing to extend the date and time of her required departure from those premises to a later date.
On 7 July 2011 the parties entered into a 12-month residential tenancy agreement in relation to premises known as Flat 3, 3 Edison Street, Glenelg North, South Australia at a rent of $595 per week. Unfortunately the rent has fallen behind and I am informed at this time the rent is paid to only about the start of October 2012. Even with the recent payment out of a quite substantial security bond, there is in excess of $5000 rent currently owing.
On 14 November 2012 the landlord signed and served a form 2 notice to remedy breach which required the rent to be brought up to date, but if not remedied sought vacation of the premises by 30 November 2012. When that did not occur the landlord made application to the Residential Tenancies Tribunal for eviction.
What has, it appears, slightly confused the tenant was that on 3 December, ie, after application had been made to the tribunal for eviction and termination of tenancy, the landlord served another notice on the tenant, this time a form 3 notice of termination without grounds, which can be served without any grounds, requiring termination and vacation in a period of not less than 90 days if certain criteria under the Act are fulfilled. The landlord and the agent have explained today that that was, as it were, a backup plan, so that they would get possession of the premises pursuant to that notice on the affluxion of 90 days even if the Residential Tenancies Tribunal would not make a more immediate order for vacant possession based just on arrears of rent.
It has been put to me today, and I am prepared to accept the submission from Mr Tredrea on behalf of his client, that his client was confused by that and thought that she had to 8 March to vacate, not understanding that the form 3 was, as it were, a backup notice that did not in any way, so far as the landlord was concerned, diminish the more immediate application by the landlord to the tribunal for possession much sooner on the basis of rental arrears.
In any event, the landlords’ application for termination, eviction and an order for payment of arrears of rent came before the tribunal on 2 January 2013. The landlord, through her agent, Ms Cavuoto, attended and put the landlord’s position. Notwithstanding notice, the tenant did not attend. I am told by Mr Tredrea and also deduce from documents filed by the parties, that the tenant was unable to attend on that day as her son was ill. I also note, by way of background, that the tenant says she was born and raised in Norway and has, inferentially, a limited understanding of her obligations as a tenant. I do not know what those limitations are. Accordingly that submission can only go so far.
Unfortunately the tenant did not notify the tribunal that she was not able to attend, nor did she request any adjournment or change of date or time, or inform the tribunal of any reason why an order for eviction should not be made. Understandably, therefore, the tribunal, at the hearing of 2 January, dealing solely with the 14 November notice of termination which had been duly served, focused on that notice. There being no reason why eviction should not be ordered in light of the very extensive amount of rent owing, notwithstanding a noted defect in the termination notice relating to the amounts payable to remedy the breach, the tribunal ordered that the premises be vacated by Wednesday, 9 January. It made other orders relating to the bond and outstanding rent. That order gave the tenant a week to vacate. There is no appeal against those orders.
The tenant then applied to the Residential Tenancies Tribunal to vary the orders that the tribunal had made on 2 January 2013, on the basis that: ‘Unable to attend as my sons was ill. I was raised in Norway and Australia is my adopted country. Seek a variation of the order so extension until early March 2013 and an opportunity to pay arrears. Had domestic issues with partner. Current order creates hardship.’
That application came before the tribunal shortly afterwards. It was first heard on 10 January but was adjourned to 11 January 2013 to enable the tenant to ascertain whether she was able to obtain further funds towards the rental arrears. The tenant did secure a further week’s rent and paid $595 towards her arrears. The tenant had an advocate at that hearing who submitted that the tenant should be able to pay further moneys in upcoming weeks, although the tribunal concluded that there was no absolute assurance that that would have occurred. The tribunal noted that the tenant sought to remain in the premises until early March 2013 and noted her personal situation, her difficulties and the problems she had with rent. The tribunal noted the 14 November 2012 form 2 Notice of Termination of Tenancy, and the technical inaccuracy of that notice, in that it overstated the amount of the rental arrears. The tribunal went on to note the very extensive arrears of rent. The tribunal reaffirmed its 2 January 2013 factual finding that rent was, as at that date, paid up to 1 October 2012. It observed that taking into account the payment of $595 made on 11 January, rent was paid only up to 8 October 2012. It observed that taking into account the security bond in the sum of $3360 had been paid out to the landlord, there was further rent still outstanding in the sum of $5100.
In those circumstances the tribunal was loath to vary its previous order to any significant degree. It did, however, essentially in light of the fact that a further week’s rent had been paid and in light of the tenant’s difficulties generally, vary the order by giving the tenant a little further time, ie, until 11 am today, Friday, 18 January 2013, to vacate.
The tenant appeals to this Court pursuant to s41 of the Residential Tenancies Act.
In order to interfere with the decision, this Court must be satisfied that the tribunal erred in a relevant way. There must be some error in the exercise of the discretion, some failure to consider a relevant matter or an erroneous consideration of an irrelevant matter, or there must be some error of law or mistake of material fact. Even if no mistake is apparent on the face of the reasons of the tribunal, if the court is satisfied that in light of the orders or the reasons there must nonetheless have been a mistake in one of those ways, the court will also intervene.
I take into account everything Mr Tredrea has helpfully submitted today. In particular he submits that the tribunal did not consider the potentially confusing effect that the 3 December 2012 form 3 notice of termination may have had on the tenant, in that it purported to require the tenant to vacate on 8 March 2013, therefore subjectively it appeared to the tenant to be granting her a considerable period of time before she would need to vacate.
The 3 December 2012 form 3 was tendered in the course of the appeal as Exhibit A1. Mr Tredrea also tendered as A2 a letter dated 14 December 2012 from the agent to the tenant which foreshadows a need by the tenant to remedy issues concerning the cleanliness and condition of the property before a further inspection foreshadowed for 16 January 2013. Mr Tredrea points to the fact that that letter does not contain any reference to the applications before the tribunal or any requirement or even contingency that the tenant vacate.
There is no reference to either the 3 December 2012 form 3 notice of termination or the 14 December 2012 letter by the agent to the tenant in the tribunal’s reasons of either 2 January or 11 January. It is unclear whether either of those documents were brought to the attention of the tribunal.
On balance it appears they were not specifically brought to the attention of the tribunal during the course of the hearing. If they had been it is highly likely they would have been referred to in the reasons. Further, I cannot locate copies of either of those documents on the files of the hearing. Is that right Mr Tredrea?
MR TREDREA: I couldn’t locate any copies on the file either your Honour.
HIS HONOUR: So it is on balance likely that the tenant did not realise that it was important to bring those documents to the attention of the tribunal if she was taking the position that she was confused by them.
I note from the tribunal’s reasons, given on 11 January, that it concluded that it should be no surprise to the tenant that she would be required to vacate the premises in light of the 14 December 2012 notice and other factors. If the relevant documents A1 and A2 had been brought to the attention of the tribunal it may not have come to the same conclusion and may have allowed her further time prior to being required to vacate.
So a relevant matter to the application for a further period of time prior to vacation was not considered by the tribunal. The tribunal did not make any ostensible error in doing that, because those materials were not brought to its attention, nor were those materials on file.
On the other side of the coin the landlord has indeed been unpaid for a very considerable period of time and has suffered a considerable loss to date. So it is not possible for this Court to definitively say that the tribunal would have allowed more time had those documents been brought to its attention.
In my view, in light of the very substantial amount of arrears of rent it is highly likely that if a further extension had been granted by the tribunal, in light of those further documents having been brought to its attention, it would have only been for a brief further period.
In all the circumstances I also take into account that a further week’s rent has been paid in cash during the course of this afternoon as confirmed by Mr Tredrea.
The court must consider whether to confirm, vary or quash the tribunal’s decision. In the final analysis, in rehearing the matter, the court has taken into account everything that was before the tribunal, the submissions made today and the further material tendered today by the tenant.
I come back to the overall starting point that a landlord is entitled to be paid rent for providing their property to a tenant. The tenant is obliged to pay that rent and if the rent is not paid then subject to the various provisions in the Residential Tenancies Act the landlord is entitled to have their property back.
I have carefully considered the tribunal’s decision and can detect no error. The tenant however did not bring to the tribunal’s attention its subjective confusion upon receipt of A1 and A2, which did infer that she would not be required to vacate until March 2013.
In the totality of the circumstances I find that the further material, should it have been provided to the tribunal, on balance may have persuaded the tribunal to allow a very short further period of time for the tenant to vacate.
In all the circumstances, there being no error, the appeal is dismissed. However on the basis of the further material and information recieved by consent on the appeal, I am prepared to make an ancillary order pursuant to s42G of the District Court Act that the tenant have a further week from today to vacate.
Accordingly, the first order of the tribunal dated 11 January 2013 is varied to provide that the tenant must move out of the premises by 11 am on Friday, 25 January 2013. If the tenant does not move out the order may only be enforced by the tribunal bailiff. Orders 2 and 3 will remain.
The tenant is there for a further week. I note that a further week’s rent has been paid. Accordingly the outstanding amounts, per order 2 by the tribunal, will remain the same, as will order 4, that the order for payment of rent may be enforced in the Magistrates Court if it is not satisfied.
The ultimate consequence is that there will be one further week to vacate.
RULING COMPLETED 4.30 P.M.