Hall v Leovic and Ivich - [2006] SADC 33

District Court of South Australia
(District Court Administrative Appeals Tribunal: Appeal Under Residential Tenancies Act 1995)
HALL v LEOVIC AND IVICH
Judgment of His Honour Judge Beazley (ex tempore)
15 March 2006
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
RESIDENTIAL TENANCIES ACT - Appeal against findings and orders of Tribunal - Whether tenant and landlord entered into a residential tenancies agreement for a fixed term - Complaints about safety of premises raised - Order for possession by landlord made after negotiations broke down - Whether periodic tenancy existed - Tribunal decision affirmed.
Residential Tenancies Act 1995 ss 68, s 79(1), 93(3), 93(4), referred to.
Henningsen v Nolan (2004) 88 SASR 214; Erlington v Judd (1964) 64 SR (NSW) 150, considered.

HALL v LEOVIC AND IVICH
[2006] SADC 33

Janette Gail Hall (the tenant), appeals against the order of the Residential Tenancies Tribunal delivered on 9 February 2006. In very brief reasons for decision the Tribunal concluded that the tenant and the landlord, Mr Peter Leovic had entered into a residential tenancy agreement for a fixed term commencing 11 December 2004 and terminating on 11 December 2005.
The Tribunal further found that the landlord/tenant relationship had come to an end on 11 December 2005; and that while the tenant remained in possession from that date and paid rent on a fortnightly basis, it was not such as to constitute a periodic tenancy. That finding was based upon the tribunal’s acceptance of the evidence of the landlord that he permitted the tenant to remain in possession simply while the tenant considered whether to accept the offer of a further fixed term of the lease. When those negotiations broke down, an application was made by the landlord for an order for possession.
Having made that order, the tribunal referred to its power under s 93(3) of the Act, not to suspend an order for possession for more than seven days, but in any event with the agreement of the parties, fixed the date of possession as being 2 March 2006.
On 28 February 2006, upon the application by Ms Hall, I stayed that possession order until the outcome of this appeal. Both parties have become quite stressed about the outcome of the appeal and it is important that I do deliver judgment forthwith. There is some unusual background to the matter. There is no doubt that the tenant had raised in correspondence and with the tribunal some complaints about her health and safety at the premises. I don’t need to go into the background of those matters for the purpose of this appeal.
The landlord had offered a fresh lease to the tenant from as early as 13 December 2005 when he wrote to the tenant requesting an answer as to whether the tenant wished to stay at the premises. On 16 December 2005 a detailed but it must be said, a rather odd letter in reply came from the tenant raising her concerns about various matters but saying that she did not want to move. In that letter she did not purport to accept the terms of a new lease nor did she make any reference to accepting any new fixed term lease. The proposed lease was actually sent by the landlord on 22 December 2005 offering a further fixed term and was signed in anticipation by the landlord. He received no response to those documents, and sent a further letter on 6 January 2006 seeking an answer but also requesting an inspection of the property, to take place on 18 January 2006.
On 18 January 2006 the tenant did not attend at the inspection and a further letter was forwarded by Mr Leovic. What then happened is that on 20 January 2006 the tenant issued proceedings in the Residential Tenancies Tribunal seeking an order that repairs of electrical wiring and plumbing be made. As it transpired that issue was not dealt with by the Tribunal, presumably on the basis that if in fact the lease had come to an end and the landlord was entitled to possession, there was no point in making orders for those repairs. The landlord responded on 23 January 2006 with an application seeking vacant possession.
Subsequent to the findings of the Tribunal on 9 February 2006, the tenant issued a further application in the Tribunal on 24 February 2006 seeking compensation for an alleged breach of s 68 of the Act.
The appeal is concerned with a very narrow issue and that is whether in permitting the tenant to remain in possession after 11 December 2005 and receiving rental on a fortnightly basis, a periodic tenancy was created. A finding that a periodic tenancy was created would have rather dramatic consequences for the parties. If indeed a periodic tenancy had been created, then pursuant to s83 of the Act, a landlord giving notice of termination without specifying a ground for the termination would be required to give 90 days notice. The landlord did not give any such notice but maintained that there was no periodic tenancy agreement because he simply permitted the tenant to remain in possession until such time as the negotiations for the fixed term lease were complete. Had the fixed term agreement been signed by the tenant then that was the end of the matter. If in fact no fixed term agreement had been agreed between the parties then the landlord would have proceeded to obtain possession of the premises.
There are some curiosities in this matter, which were not dealt with by the Tribunal. One of them involves the form of application issued by both the tenant on 20 January 2006 and the landlord in his application of 23 January 2006. They both commented upon the question of a fixed or periodic tenancy. The tenant in her application referred to the fixed tenancy commencing on 11 December 2004 with no ending date, but specifying that a periodic tenancy had started on 12 December 2005.
The landlord in his application specified that the fixed term commenced on 12 December 2004 and ended on 12 December 2005 but expressly referred to a periodic tenancy having commenced on 13 December 2005. Those documents were not referred to at all in the reasons of the Tribunal. I do not know whether they were in fact considered by the Tribunal. Mr Leovic said, and I accept, that when he signed that document it was an unfamiliar document and that he did not mean to convey that as a matter of fact that a periodic tenancy had commenced on 13 December 2005. He has consistently asserted (other than in that document) that he simply permitted the tenant to remain in possession until the already tendered fixed term lease was either accepted or refused. The particular Tribunal member was exceedingly well qualified to determine whether, as a matter of law a periodic tenancy had been created. No party raised before the Tribunal, the proper construction of clause 20 of the lease document which itself provides for holding-over after the fixed term as follows: ‘With the approval of the landlord, the tenant may occupy the premises after the end of the term of this agreement, subject to the conditions of this agreement until a time mutually agreed to by both parties.’
Ms Hall understood that clause to mean that she was either in a periodic tenancy or that once the landlord had permitted her to remain in possession, then she could remain there until both parties agreed to bring it to an end. In essence she submitted that unless both parties agreed to a termination, she could remain in possession. In my opinion the construction suggested by Ms Hall is not open. The significant issue is whether a periodic tenancy was created. This was a matter on which the tribunal heard both Ms Hall and Mr Leovic. It was alive to the question as to whether a periodic tenancy had been created by virtue of the tenant’s continued occupation. In the end, the Tribunal accepted the evidence of Mr Leovic that there was no such periodic tenancy and it was simply a holding-over period to await the acceptance or refusal of the already tendered fixed term lease. It seems clear that the Tribunal’s decision would not have been altered in consequence of the language employed by Mr Leovic in his application for possession. Another issue raised by Ms Hall is whether she was being “punished” by the landlord for having issued proceedings relating to repairs. I am satisfied that there is no basis for that complaint. Mr Leovic seemed to have been genuinely concerned about Ms Hall and her welfare.
I have to give due weight to the decision of the Residential Tenancies Tribunal. It was open to the Tribunal to find that Ms Hall had held over pursuant to clause 20 of the lease. See Henningsen v Nolan (2004) 88 SASR 214 at 222. It was also open for it to find that there was an implied agreement to continue on as a periodic tenant. Elrington v Judd (1964) 64 SR (NSW) 150 at 153. As I have said, there were certain curiosities in relation to this matter including the fact that the parties had expressly suggested the existence of a periodic tenancy in their respective application forms. I cannot however say that the Tribunal was wrong in reaching the conclusion it did that there was no periodic tenancy created during the brief holdover period. My independent assessment of the correspondence leads me to the same conclusion. From the moment the fixed term came to an end the landlord was only interested in whether the tenant would accept another fixed term lease. His conduct from 13 December 2005 is consistent only with such a finding. In these circumstances the Tribunal was correct in finding that no periodic tenancy was agreed or should be implied. Further in my opinion no agreement was reached between the parties that clause 20 of the lease should apply. In those circumstances it seems to me that it is appropriate that I affirm the decision of the Tribunal that there was no periodic tenancy and that accordingly, pursuant to the Act, the Tribunal was entitled to conclude that the tenancy agreement had come to an end.
One further matter arose on the appeal, namely the powers of the Tribunal in relation to the time for the giving of possession. The Tribunal in its reasons referred to s 93(3) and said that the normal order made in those circumstances is that the Tribunal will not suspend an order for possession for more than seven days. In fact under s 93(4) the Tribunal is empowered to grant a much longer period of a stay. In any case in which an order for the immediate possession of premises would cause severe hardship to a tenant, the Tribunal is empowered to suspend the operation of an order for up to 90 days. It is at the least surprising that the Tribunal made no reference to the power in s 93(4) as on any view of the documents tendered before the Tribunal, the tenant was facing severe hardship in consequence of an order for possession.
Mr Leovic submitted that this was a case where an order had been made by the Tribunal on 9 February and that accordingly the tenant had already been given effectively a bit over a month to find other accommodation. While that is in fact correct, in my view it is not a realistic assessment of the difficulties facing Ms Hall. She has at all times assumed that her appeal might be successful and was hopeful of continuing to remain on the premises. She did not therefore look for other accommodation. In my view the Tribunal did err in not considering the effect of s 93(4) in these circumstances. Mr Leovic did inform me of the stress and other difficulties which he as landlord has faced in relation to this matter. He has, for reasons I do not need to relate, ongoing concerns about his insurance cover over the subject property. He is anxious to obtain possession as soon as possible. He is concerned about the property and the loss of the opportunity of obtaining another tenant in the event that the tenant is able to remain on the premises for a long period of time.
In my opinion it is appropriate for an order under s 93(4) that the tenant be given some reasonable time to find other accommodation, before the order for possession takes effect. In my opinion it is appropriate that the order for possession made by the Tribunal on 9 February 2006 be suspended for a further period of one calendar month from today.
Accordingly I make the following orders:
1That the decision of the Tribunal that there was no periodic tenancy and granting an order terminating the tenancy under s 79(1) of the Act be affirmed.
2That there be a stay of the order of possession made by the Tribunal until one calendar month from the date hereof. The effect of this order is that pursuant to s 93(4) of the Act the tenant deliver up possession of the premises at 6 Wilson Street, Christies Beach, S.A. 5165 to the landlord by no later than 11 am on Thursday, 13 April 2006.
3If the tenant fails to give up such possession then the landlord may request the bailiff of the Tribunal to enter into possession forthwith.
There were other matters that were raised in the respective applications before the Tribunal. These included orders for repairs, and compensatory relief. They were not considered by the Tribunal and accordingly are not before me. Should Ms Hall wish to proceed with them she will need to do so in the Residential Tenancies Tribunal.
As to Ms Hall’s initial application for an order that the premises be repaired, the Tribunal was right in concluding that it ought not deal with that issue in the event that the lease had come to an end. It simply could be of no concern to Ms Hall whether those repairs were effected or not, once she was required to give possession to the landlord.