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…

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 Hall v Leovic and Ivich

Details

AGLC: Hall v Leovic and Ivich [2006] SADC 33
Case: [2006] SADC 33
Decision Date: 15 March 2006

CaseChat Overview and Summary

In this case, the appellant, Hall, sought to appeal against findings and orders made by the Residential Tenancies Authority in relation to a dispute with the respondents, Leovic and Ivich. The central issue was whether a fixed term residential tenancies agreement had been entered into and the subsequent rights of the parties. The appellant, a tenant, alleged that safety issues had rendered the premises uninhabitable, while the respondents, the landlords, sought to terminate the tenancy and regain possession. The dispute culminated in the Tribunal making an order for possession in favour of the respondents after negotiations had broken down.

The key legal issues before the court involved the nature of the residential tenancies agreement and whether a fixed term tenancy or a periodic tenancy had been established. Hall argued that the agreement was for a fixed term, while the respondents contended that a periodic tenancy had come into existence following the expiration of any initial fixed term. Additionally, the court had to consider the validity of the possession order made by the Tribunal after negotiations between the parties had failed.

The court examined the evidence and the findings of the Tribunal, concluding that the agreement between the parties was indeed for a fixed term. However, the court found that the safety issues raised by the tenant did not justify termination of the tenancy without a proper legal process. The court further determined that the negotiation breakdown did not automatically entitle the landlords to possession, but the Tribunal's decision to grant possession was ultimately upheld based on the existing law and the circumstances of the case.

The court affirmed the decision of the Tribunal, dismissing the appeal and upholding the order for possession made in favour of the respondents. This decision reinforces the importance of following proper legal procedures in disputes involving residential tenancies and the rights of both landlords and tenants under the Residential Tenancies Act.

Orders