Henderson v South Australian Housing Trust - [2024] SASCA 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
HENDERSON v SOUTH AUSTRALIAN HOUSING TRUST
[2024] SASCA 55
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Kimber)
9 May 2024
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
LANDLORD AND TENANT - LEASES AND TENANCY AGREEMENTS
LANDLORD AND TENANT - AGREEMENTS FOR LEASE - BREACH
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION
A Senior Member of the South Australian Civil and Administrative Tribunal (“SACAT”) ordered that the lease between the appellant and respondent be terminated, and that the appellant vacate the premises. The appellant sought an internal review of that decision. On review, the President of the SACAT affirmed the decision of the Senior Member.
The appellant appeals the decision of the President on the grounds that the President erred in finding the appellant failed to keep the premises in “good tenantable condition”, thereby breaching a condition of the tenancy agreement (“the Agreement”); and in finding the breach to be “sufficiently serious” and ordering vacant possession of the premises under s 87(1) of the Residential Tenancies Act 1995 (SA).
Held, per the Court, granting leave to appeal on Ground 1, but dismissing the appeal:
1.The findings of the President that the appellant breached cl 6(c) of the Agreement are upheld.
2.Observations as to the meaning of “good tenantable condition” in the context of a tenant with an excessive accumulation of possessions.
Held, per the Court, refusing leave to appeal on Ground 2:
1.There is no obvious merit, or point of general principle or importance, in the appellant's proposed challenge to the President's decision that the breach was “sufficiently serious” and warranted an order for termination and vacation.

Residential Tenancies Act 1995 (SA) ss 87(1), 87(1)(a), 87(1)(b) and 93(4); South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 70 and 71, referred to.
Abrahams v Shaw (1969) 72 SR (NSW) 225; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; BC v Public Advocate (2019) 133 SASR 587; Credit Suisse v Beegas Nominees Ltd [1994] 4 All ER 803; Fletcher v South Australian Housing Trust [2019] SACAT 36; Franklin v South Australian Housing Authority [2023] SACAT 21; GM v Department of Human Services [2024] SASC 23; Graham v Markets Hotel Pty Ltd (1943) 67 CLR 567; Henderson v South Australian Housing Trust [2023] SACAT 46; House v The King (1936) 55 CLR 499; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Lee v Leeds City Council [2002] 1 WLR 1488; Lurcott v Wakely [1911] 1 KB 905; Minister for Primary Industries and Regional Development v Scali [2024] SASC 4; Pipeclay Lawson Ltd v Brand Ventures Pty Ltd [2021] NSWSC 909; Pix v South Australian Housing Trust (2016) 125 SASR 10; Proudfoot v Hart (1890) 25 QBD 42; Re AKS [2016] SACAT 19; Schinckel v Registrar of Firearms [2020] SASC 236; Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140; Varricchio v Wentzel (2016) 125 SASR 191; Welsh v Greenwich London Borough Council [2000] 3 EGLR 41; Wincant Pty Ltd v South Australia (1997) 69 SASR 126, considered.

HENDERSON v SOUTH AUSTRALIAN HOUSING TRUST
[2024] SASCA 55
Court of Appeal – Civil: Lovell and Doyle JJA and Kimber AJA

THE COURT: The appellant, who has a hoarding disorder, leases premises from the respondent. The respondent alleged that the appellant breached the terms of the lease due to what was described as an excessive accumulation of possessions, or ‘clutter’, in the premises, and sought an order from the South Australian Civil and Administrative Tribunal (“SACAT”) for vacant possession of the premises.
The application before the SACAT had a tortured history. After eight hearings occurring over approximately two years, on 24 March 2023, a Senior Member of the SACAT ordered that the lease be terminated, and the property be vacated. The appellant sought an internal review challenging the decision. The review was conducted on 6 June 2023, and on 8 June 2023, the President of the SACAT affirmed the Senior Member’s decision.
During the appeal hearing, counsel for the appellant limited the grounds of appeal to two grounds. They are as follows:
(1) The President erred in finding that the appellant failed to keep the premises in good tenantable condition and therefore breached cl 6(c) of the conditions of the tenancy agreement (“the Agreement”) in that:
(a) the amount and distribution of her belongings meant she was unable to deliver up vacant possession of the premises within 90 days; and
(b) the amount and distribution of her belongings created a fire risk to the premises.
(2)The President erred in finding that the breach alleged was “sufficiently serious” enabling vacant possession of the premises to be ordered.
As the appellant seeks to appeal from a decision of the President to the Court of Appeal, she needs leave to appeal under s 71(1) of the South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA) (“SACAT Act”).
Background
The appellant has been a tenant of the respondent since 2007. In addition to some physical medical issues, the appellant suffers from numerous psychological conditions including post-traumatic stress disorder, major depression, a panic anxiety disorder with agoraphobia and a hoarding disorder. While the respondent may not be aware of the precise nature and extent of the appellant’s circumstances, it is aware that she is a person who has special needs.
On 19 October 2019, the appellant entered into a residential tenancy agreement with the respondent for a premises in Adelaide for a fixed term of three months. Thereafter it became a periodic tenancy.
There are two clauses of the Agreement relevant to this appeal. Clause 6(c) of the Agreement required the appellant to “keep the premises and any surrounding area clean and in good tenantable condition, free from vermin and clear of refuse”. Clause 8(b) required that the appellant at the expiration or termination of the tenancy give vacant possession of the premises to the respondent.
On 9 April 2021, the respondent served a Notice of Breach (“the Notice”) alleging that the appellant had breached cl 6(c) of the Agreement in that she had not kept the premises in “good tenantable condition”. The Notice did not specify the way the appellant had allegedly breached cl 6(c). The Notice stated that if the breach was not remedied within 14 days, the tenancy would be terminated by force of the Notice and the appellant must then give up possession of the premises on or before 27 April 2021.
The involvement of the SACAT
In order to understand the arguments on appeal, it is necessary to briefly set out the course of proceedings before the SACAT.
On 29 April 2021, the respondent applied to the SACAT for an order for vacant possession of the property relying on the Notice. The application stated that the “[t]enant has not kept premises and surrounding area clean and in good tenantable condition”.
The application was heard on 25 May 2021 before a Senior Member of the SACAT. At the hearing, the respondent’s representative informed the Senior Member that “the application before the Tribunal was simply to enable the landlord to access the property to ensure that it is being maintained in a clean and tenantable condition. In addition, [the South Australian Housing Authority] is seeking the right to take photographs at the property”. During the hearing the appellant advised the Senior Member that she had not received the Notice dated 9 April 2021. Further, she informed the Senior Member that the respondent had inspected her property “in early March 2021 and to date had not provided her with an inspection report as to what, if any work, needed to be undertaken at the property”.
Despite these submissions, the Senior Member found that the Notice was valid. Further, the Senior Member found that the appellant had failed to “[k]eep the premises and any surrounding area clean and in good tenantable condition, free from vermin and clear of refuse” and that the failure “terminated the tenancy”.
The reasons of the Senior Member were brief. There is no mention in the reasons as to what evidence she considered before terminating the tenancy. At this time, no photographs relating to the condition of the property were before the SACAT. The Senior Member ordered that the appellant could remain in the property on conditions that she provide access to officers of the respondent for the purpose of conducting an inspection and that they be permitted to take photographs.
Our comment about the absence of reasons regarding the termination of the tenancy is not intended as a criticism of the Senior Member. Members of the SACAT deal with many matters and need to deal with them quickly. The parties often do not have legal representation. It is not a jurisdiction that requires lengthy written reasons. However, the absence of reasons means that the precise basis of the termination is unknown. However, it is clear that the Senior Member was satisfied that the condition of the appellant’s premises was such as to be a breach of a condition of the Agreement.
It is also clear from the Senior Member’s brief reasons that the respondent was not seeking, at that time, to obtain an order for vacant possession, but rather was seeking to assist the appellant to remedy the alleged breach. The Senior Member ordered that the appellant could remain in the property on various conditions, particularly relating to the respondent conducting an inspection of the property and taking photographs. The matter was adjourned to 23 July 2021 for further consideration.
From then until 16 March 2023 the matter came back before the SACAT on six occasions. Photographs demonstrating the condition of the property were tendered and the respondent made submissions that the premises had not been kept in a good tenantable condition, including because the clutter created a fire risk.
For various reasons there was little or no progress towards decluttering the premises throughout this period of almost two years.
At the penultimate hearing before the Senior Member, on 4 August 2022, the respondent sought an order for vacant possession. During the course of submissions, the respondent asserted, and the Senior Member appeared to accept, that the state of the premises represented a fire hazard, given the difficulties in accessing the premises. In paragraph 10 of her reasons, the Senior Member reiterated her finding that the premises were not in a good tenantable condition, but considered it appropriate to continue to defer any order for possession so as to give the appellant “one final opportunity” to address the condition of the property.
On 16 March 2023 the Senior Member heard further submissions from both parties. Having earlier determined that the appellant breached cl 6(c) of the Agreement, the Senior Member did not revisit the finding. While noting that the appellant faced substantial challenges due to her ongoing medical issues, and in particular her hoarding disorder, the Senior Member found that “the seriousness of the breach, and condition of the property, make it appropriate to terminate the tenancy and order vacant possession”. The order for vacant possession was suspended for 90 days due to the appellant’s ongoing medical issues.
In other words, the Senior Member ultimately exercised her discretion to order vacant possession under s 87(1) of the Residential Tenancies Act 1995 (SA) (“RTA”), but then exercised her further discretion under s 93(4) of the RTA to suspend the operation of that order on the grounds of severe hardship.
The appellant sought an internal review of the decision.
The internal review
An internal review is conducted pursuant to s 70 of the SACAT Act. On an internal review, the SACAT must examine the original decision based on the evidence or material before the decision maker at that time, but may allow further evidence to be presented. The SACAT must reach the correct or preferable decision, but in doing so, must have regard to, and give appropriate weight to, the decision of the SACAT at first instance. In Re AKS,[1] Parker P described the nature of an internal review hearing as a review on the merits which, in some respects resembles a hearing de novo, but also has some features akin to those involved in an appeal by way of rehearing:[2]
The obligation to arrive at the correct or preferable decision makes clear that what is required under s 70 is a review on the merits. In a general sense that resembles a court considering an appeal de novo. However, the requirement that appropriate weight must be given to the decision at first instance distinguishes an internal review from an appeal de novo. In an appeal de novo the decision at first instance would not be relevant because the court decides the matter afresh and its role is not limited to the identification of error. The procedure followed by the Tribunal is analogous to that of a court deciding an appeal by way of rehearing in that it relies on the evidence received at first instance (subject to the discretion to admit further evidence) and must also have regard to the decision made at first instance. Most importantly, in contrast to a court deciding an appeal by way of re-hearing, when the Tribunal determines an internal review it may quash or vary a decision or remit the matter for re-hearing without having found any error of law or fact if it considers that the preferable decision was not made. Thus, the fundamental task of the Tribunal is always to arrive at the correct or preferable decision.
[1] Re AKS [2016] SACAT 19.
[2] Re AKS [2016] SACAT 19 at [35] (Parker P); applied in BC v Public Advocate(No 4) (2019) 133 SASR 587 at [22] (Parker J), GM v Department of Human Services [2024] SASC 23 at [54] (McIntyre J).
By reason of the fundamental task on an internal review being to arrive at the correct or preferable decision, there is no room for the application of the principles of appellate restraint in House v The King,[3] even when the review relates to the exercise of a discretion.[4]
[3] House v The King (1936) 55 CLR 499 at 504-505.
[4] Re AKS [2016] SACAT 19 at [32] (Parker P).
On 6 June 2023 the internal review was heard by the President. The appellant did not have legal representation at the hearing. There were many grounds of review, most of which are no longer relevant. We will only deal with those matters relevant to this appeal.
Before the President, the appellant submitted that it was not open to the SACAT to regulate the distribution of her possessions throughout the tenancy. That is, she submitted that the volume of her possessions and the way they were stored could not, without more, lead to a finding that she breached cl 6(c) of the Agreement. Further, the appellant submitted that she had mitigated the risk of fire by maintaining fire extinguishers, sand and woollen blankets in addition to smoke alarms.
On 8 June 2023, the President affirmed the decision of the Senior Member.[5] She found that the decision to terminate the tenancy and grant vacant possession was the correct and preferable decision.
[5] Henderson v South Australian Housing Trust [2023] SACAT 46 at [102] (Hughes P).
Whilst noting that the expression “good tenantable condition” had not been the subject of relevant judicial consideration, the President referred to her earlier consideration of the expression in Fletcher v South Australian Housing Trust.[6] In that case, her Honour had observed that the expression was to be understood by reference to the other obligations in the standard agreement between the respondent (the South Australian Housing Trust) and its tenants; that it required more than that the premises be kept in a clean and hygienic condition; and that it contemplated that the premises be kept in a condition such that they could, within a reasonable timeframe having regard to the terms of the lease, be restored to a condition resembling the premises at the outset of the tenancy (allowing for fair wear and tear). An excessive accumulation of possessions or goods may result in a breach of the obligation to keep premises in a good tenantable condition not only because it may affect the ability to ensure the cleanliness and hygiene of the premises, but also because it may make it impossible to vacate and restore the premises to an appropriate condition within a reasonable period of time.
[6] Fletcher v South Australian Housing Trust [2019] SACAT 36 at [47]-[54] (Hughes P); she also referred to the discussion of a related issue in Franklin v South Australian Housing Authority [2023] SACAT 21 at [14] (Johns DP).
The President also referred to the useful discussion in Franklin v South Australian Housing Authority [7]of considerations that may arise in deciding whether to order termination of a tenancy agreement in cases involving an alleged breach of the obligation to keep the premises in a good tenantable condition by reason of a tenant’s hoarding. As Johns DP noted in that case:[8]
[7]     Franklin v South Australian Housing Authority [2023] SACAT 21.
[8]     Franklin v South Australian Housing Authority [2023] SACAT 21 at [12] (Johns DP).
Tenancy disputes involving hoarding usually involve complex circumstances such as:
·The principal issue will be an excessive accumulation of clutter and the amount of clutter will have reached a point at which the tenant is in breach of their obligations to maintain the property in a reasonable condition and reasonably clean.[9]
·While many households may have some clutter, in a matter involving hoarding, the accumulation of clutter is so extreme that the property is sometimes unsafe (for example, because Emergency Services may not be able to access the property, or electrical sockets are being obscured by clutter).
·Sometimes a property in which there is hoarding, may also be unsanitary because it is unclean (eg dirty dishes in the sink; unwashed clothing and other items lying around the house; perishable food left uncovered and unrefrigerated) which can lead to the risk of vermin.
·A tenant who is a hoarder may not acknowledge that the hoarding is problematic and has led them to be in breach of their obligations as a tenant or alternatively, the tenant will refuse to take responsibility for the issue by making numerous excuses as to why the condition of the property has reached the point of being so poor.
·A tenant who is a hoarder is quite likely to encounter multiple barriers in de-cluttering the property:
oThe tenant may well suffer from mental health issues and/or other health issues which are likely to be a contributing factor;
oDe-cluttering can be expensive and unaffordable for tenants;
oDe-cluttering can also involve significant physical work which may be beyond the physical capabilities of a tenant who has health issues;
oA tenant who is a hoarder may be suspicious of supports, and unwilling to properly engage with those offering assistance to de-clutter.
[9]     In the case of a SAHA tenant, their obligation is to keep the premises and any surrounding area clean and in good tenantable condition, free from vermin and clear of refuse – under their tenancy agreement.
Deputy President Johns later added:[10]
[10] Franklin v South Australian Housing Authority [2023] SACAT 21 at [14] (Johns DP).
The Tribunal must make an impartial and unbiased assessment of any dispute involving hoarding. In these matters, the Tribunal will generally have two primary issues to consider: first, is it likely that the tenant will be able to return the property to a reasonably clean and reasonable condition within a sensible time frame and second, is the tenancy likely to be viable on a long-term basis. In considering those issues, the Tribunal will usually take into account the following factors:
·Is the tenant genuine in acknowledging that the poor condition of the property is an issue – for example, has the tenant commenced de-cluttering or otherwise demonstrated a commitment to clean up the property.
·Is a tenant’s proposal to clean up of the property realistic – for example, is the hoarding so extreme, or are there conditions of squalor which make this submission unrealistic.
·Has the tenant actually engaged with supports – sometimes a tenant will say that they are willing to engage with supports, but then the tenant will refuse to allow others to work on the de-cluttering.
·Does the tenant have practical arrangements in place which are likely to achieve actual progress in a reasonable time such as –
oPractical support from others to assist in de-cluttering;
oA realistic clean-up plan which has been agreed by the landlord;
oStrategies to address the cost of de-cluttering (such as how to afford the cost of a skip).
·Is the tenant addressing health issues (including mental health issues) which are likely to have contributed to the poor condition of the property.
·What is the attitude of the landlord to the matter – the Tribunal would generally expect that where the landlord is SAHA or a Community Housing Provider, then the tenant is likely to be a disadvantaged person and so would usually require more time to address any hoarding issues, and also should be provided with support to do so (eg a referral to a Tenancy Practitioner).

Turning to the evidence before the SACAT in the present matter, the President observed that the respondent’s primary submission was that the accumulated goods created a fire risk. The President noted the absence of expert evidence on the issue of a potential fire risk and that the evidence about that issue was finely balanced. However, she found that it was open to the Senior Member to conclude that there was an increased fire risk:
[85] … even without a report from a fire control authority, I am satisfied that it was open to the Senior Member to conclude, at a superficial level, that the volume of goods at the premises increased the risk that the premises presented a risk to emergency services officers that they would not be able to have unimpeded access throughout the property if it were needed.
Leaving aside the issue of whether the appellant’s accumulation of possessions created a fire risk, the President also considered the question of whether the quantity and distribution of goods themselves justified a finding that the premises were not in “good tenantable condition” and therefore breached cl 6(c). In her view, the meaning of cl 6(c) fell to be considered in the context of the SACAT’s experience that where a person with a hoarding disorder leaves a premises, the landlord is invariably left with the cost of assisting in the removal or disposal of goods which the person cannot (for medical, psychological or financial reasons) arrange to be moved in a timely way, or at all.[11]
[11] Henderson v South Australian Housing Trust [2023] SACAT 46 at [86] (Hughes P).
The President considered that “good tenantable condition” envisaged that the tenant could vacate the property within the timeframes specified in the Agreement and the RTA, and that in light of the uncontested evidence and the proper construction of cl 6(c), it was open to the Senior Member to conclude that the appellant has not maintained the premises in “good tenantable condition”. In particular, the President reasoned:
[87] Ms Henderson has a periodic tenancy which means that (subject to SAHA policies), she is liable to be given 90 days’ notice by the landlord to vacate without a reason. Further, if an order for vacant possession is made in respect of the tenancy, 90 days is also the longest period of time that the operation of an order can be suspended. The evidence in this case was that Ms Henderson would not be able to do that, except with significant external assistance. During the proceedings, Ms Henderson referred to the last occasion on which she moved house, in 2019. On her own evidence, she was unable to do that without assistance. On her own case, she cannot move out within 90 days or, in her view, at all.
[88] In light of the uncontested evidence and the proper construction of “good tenantable condition”, it was open to the Senior Member to conclude that the tenant has not maintained the premises in “good tenantable condition”. The Tribunal made that finding on 4 August 2022 (paragraph 10). The Tribunal found that the extent to which the tenant’s possessions crowded the rooms and hallways was such that the premises were “a long way” from meeting the requirement of “good tenantable condition”. The finding was based on the Tribunal’s examination of photographs and the evidence of witnesses.
[89] The outcome of that hearing was not the subject of any application for review by Ms Henderson. That finding remains correct, albeit that it may have been more accurately attached to the accumulating evidence that Ms Henderson had no prospect of reducing the volume of her possessions to a level that was consistent with being able to move out in a reasonable timeframe in light of the nature of her tenancy, or maintaining her possessions at that level. It is for this reason that, although it did not attract any attention during the hearing, the finding that the breach was “sufficiently serious to justify termination” for the purposes of s 87 must also be upheld. An ongoing breach that cannot be remedied that affects safety and places a financial burden on the landlord for rectification is one that is sufficiently serious to justify termination.
(citations omitted)
Having upheld the Senior Member’s decision that the appellant had breached cl 6(c) of the lease (s 87(1)(a) of the RTA), and that the breach was sufficiently serious to justify termination of the tenancy (s 87(1)(b)), the President turned to address the exercise of the Senior Member’s discretion under s 87(1) to make an order for termination and vacant possession.[12]
[12] Henderson v South Australian Housing Trust [2023] SACAT 46 at [92]-[99] (Hughes P).
The President noted that there were in fact two limbs to the Senior Member’s discretion. The first required consideration of whether to order termination and vacant possession under s 87(1), and the second required consideration of whether to suspend the operation of any such order under s 93(4). The President explained that while the personal circumstances of the appellant were relevant to both, in the context of the first limb they were subordinate to considerations such as the seriousness of the breach, the length of the tenancy, whether the breach has been rectified or will be within a reasonable period of time, and the likelihood of the breach recurring.[13] In her Honour’s view, there was no basis for impugning the Senior Member’s decision on the first limb:
[97] … There is no basis upon which it has been established that the Senior Member did not consider these factors when making orders on 16 March 2023. Looking at the history of the matter, it is clear that the Senior Member explored alternatives to an order for termination and vacant possession for just under two years before concluding that the tenancy was not viable. …
[98] Where the landlord is the primary provider of public housing, the exercise of the discretion takes into account that special role and the obligation on the landlord to explore alternatives to termination that private landlords are not obliged to consider. There was no lack of evidence that both the landlord and the Tribunal had given consideration to those alternatives over a lengthy period of time.
[99] Accordingly, the decision to terminate and grant vacant possession was the correct and preferable decision.
(citations omitted)
[13] Henderson v South Australian Housing Trust [2023] SACAT 46 at [97] (Hughes P).
It followed that the Senior Member’s decision under review was affirmed.
The appeal
The appellant appeals the President’s decision to affirm the Senior Member’s decision to order termination and grant vacant possession. As mentioned, she does so on two grounds. First, that the President erred in her interpretation of the expression “good tenantable condition” under cl 6(c) of the Agreement and in finding that there was a breach of that clause. Secondly, even if there was a breach, that the President erred in concluding that any breach was “sufficiently serious” to justify an order for termination and vacant possession under s 87(1) of the RTA.
The appeal to this Court, brought pursuant to s 71 of the SACAT Act, is by way of rehearing. It is effectively a trial over again on the evidence relied upon in the Tribunal, together with such additional evidence as may be received on appeal. The Court must independently review the evidence and carefully consider the findings made at first instance. Significantly, where the matter involves a question of judicial discretion, the Court is not entitled to substitute its own decision unless an error is identified in the exercise of that discretion.[14]
[14] Schinckel v Registrar of Firearms [2020] SASC 236 at [8]-[9] (Bleby J); Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140 at [202]-[203] (Blue J); Minister for Primary Industries and Regional Development v Scali [2024] SASC 4 at [44] (Kimber J).
The first ground of appeal raises a question of mixed fact and law (as to the construction of cl 6(c) and its application to the facts of the present case). As no discretion is involved, this aspect of the challenge to the President’s decision falls to be considered according to the standard of correctness.
The position is less clear in relation to the second ground of appeal. Insofar as the challenge is to the President’s conclusion that the breach of cl 6(c) was “sufficiently serious” for the purposes of s 87(1)(b) of the RTA, it does not seem that this involved the exercise of any discretion. It was in the nature of an evaluative judgment, to be reviewed according to the standard of correctness rather than the principles of appellate restraint in House v The King. However, to the extent that the appellant challenges the President’s decision to affirm the orders for termination and vacant possession under s 87(1), then this did involve the exercise of a discretion, to be reviewed in accordance with the strictures of House v The King.
However, before considering the merits of the appeal in detail, it is relevant to address the issue of leave to appeal. In deciding whether to grant leave to appeal from the SACAT to this Court, the ordinary principles governing leave to appeal in civil appeals apply. The overriding principle is the interests of justice, having regard to whether the appeal is reasonably arguable, whether it raises any matter of principle or general importance, and whether the subject matter involves a matter of sufficient substance. Further, where the proposed appeal relates to a matter involving an application of the SACAT’s specialist knowledge, this may be a factor militating against a grant of leave.[15]
[15] See, for example, Schinckel v Registrar of Firearms [2020] SASC 236 at [8]-[9] (Bleby J); GM v Department of Human Services [2024] SASC 23 at [37], [49] (McIntyre J); Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19]-[20] (Parker J); Pix v South Australian Housing Trust (2016) 125 SASR 10 at [3], [6] (Kourakis CJ, Bampton and Doyle JJ agreeing); Varricchio v Wentzel (2016) 125 SASR 191 at [37] (Doyle J).
The first ground of appeal is not only arguable, and of significant substance so far as the appellant is concerned, but also raises an issue of principle and of some general importance. It is appropriate that the appellant be granted leave to appeal on this issue.
Different considerations apply in relation to the second ground of appeal. Whilst the matter is of significant substance so far as the appellant is concerned, it is bound up in case-specific factual considerations which fall squarely within the SACAT’s expertise in relation to tenancy disputes. In circumstances where it does not have any obvious merit, we would decline to grant leave to appeal in relation to the second ground of appeal.
Ground 1
Did the appellant keep the premises in ‘good tenantable condition’?
The first issue on appeal was whether the appellant committed a breach of the Agreement. There were two allegations of breach; first, that the number of belongings stored and their distribution through the premises was such that the appellant could not vacate the property within the timeframes envisaged by the Agreement; and secondly, that the distribution of the appellant’s belongings created a fire risk by restricting access to various parts of the property. It appears from the President’s reasons that she concluded that both allegations of breach had been made out.
The appellant did not dispute that she had numerous personal possessions in the premises including furniture, clothing and other belongings. The appellant also accepted that her possessions were distributed throughout the premises including outside. The premises could be described as cluttered. However, the appellant submitted there had never been a suggestion that she kept rubbish in the house or that vermin were a problem. That is, there was no suggestion that the state of her premises was a risk to health or hygiene.
The appellant submitted that how she organised her home with furniture and personal belongings, including the volume of her belongings, can have no bearing upon whether she maintained the premises in “good tenantable condition”. Absent a problem with hygiene or vermin, the fact that the premises could be described as cluttered did not mean the premises were not in “good tenantable condition”.
The appellant accepted that she could be criticised for being slow to unpack and organise her belongings. She accepted that she could be criticised for being “recalcitrant” in the way in which she had dealt with the respondent. Despite those matters, the appellant submitted that she could not be said to have breached the Agreement.
On the question of the fire risk, the appellant submitted that this allegation was not the initial basis of the respondent’s position. The allegation of the premises being a fire risk was a “throw away line” in one of the hearings and no expert evidence was produced to substantiate the allegation. The respondent, if it wished to make good the allegation, should have called evidence from the fire services to establish the allegation. The appellant sought to tender before this Court further photographs of the premises as “fresh evidence” relating to the issue of access to the premises.
For the reasons which follow, we reject the appellant’s submissions.
The meaning of ‘good tenantable condition’
There is surprisingly little case law of assistance in determining the meaning and content of a tenant’s obligation to keep premises in good tenantable condition, and in particular whether (and, if so, in what circumstances) an excessive accumulation of possessions may involve a breach of that obligation.
In Proudfoot v Hart,[16] Lord Esher MR considered the meaning of an obligation to keep premises in “tenantable repair”. His Lordship considered that it meant much the same thing as “habitable repair” and “good repair”.[17] He endorsed an earlier authority to the effect that these expressions “import such a state as to repair that the premises might be used and dwelt in not only with safety, but with reasonable comfort, by the class of persons by whom, and for the sort of purposes for which, they were to be occupied”.[18] He then expressly endorsed the definition of “good tenantable repair” proffered by Lopes LJ in his concurring reasons:[19]
Lopes LJ has drawn up a definition of the term “tenantable repair” with which I entirely agree. It is this: “‘Good tenantable repair’ is such repair as, having regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely take it.” The age of the house must be taken into account, because nobody could reasonably expect that a house 200 years old should be in the same condition of repair as a house lately built; the character of the house must be taken into account, because the same class of repairs as would be necessary to a palace would be wholly unnecessary to a cottage; and the locality of the house must be taken into account, because the state of repair necessary for a house in Grosvenor Square would be wholly different from the state of repair necessary for a house in Spitalfields. The house need not be put into the same condition as the tenant took it; it need not be put into perfect repair; it need only be put into such a state of repair as renders it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it.
[16] Proudfoot v Hart (1890) 25 QBD 42.
[17] Proudfoot v Hart (1890) 25 QBD 42 at 51 (Lord Esher MR).
[18] Proudfoot v Hart (1890) 25 QBD 42 at 51 (Lord Esher MR).
[19] Proudfoot v Hart (1890) 25 QBD 42 at 52-53 (Lord Esher MR); referring to the reasons of Lopes LJ at 55.
A number of subsequent decisions have invoked these observations in considering similarly worded obligations: see, for example, Lurcott v Wakely,[20] Credit Suisse v Beegas Nominees Ltd,[21] Abrahams v Shaw,[22] and Wincant Pty Ltd v South Australia.[23]
[20] Lurcott v Wakely [1911] 1 KB 905 at 921 (Fletcher Moulton LJ).
[21] Credit Suisse v Beegas Nominees Ltd [1994] 4 All ER 803 at 821-822 (Lindsay J).
[22] Abrahams v Shaw (1969) 72 SR (NSW) 225 at 229 (Sugerman JA, Herron CJ and Walsh JA agreeing).
[23] Wincant Pty Ltd v South Australia (1997) 69 SASR 126 at 134-135 (Matheson J, Doyle CJ agreeing).
In Alcatel Australia Ltd v Scarcella,[24] the New South Wales Court of Appeal considered the meaning of an obligation to keep premises in “good and substantial repair”. In that context, Sheller JA (with whom Powell and Beazley JJA agreed) had regard to not only the passage extracted above from Proudfoot v Hart, but also Starke J’s reference in Graham v Markets Hotel Pty Ltd[25] to such expressions connoting an obligation to keep premises “in such a state of repair as that in which they would be found if managed by a reasonably minded owner having regard to their age, their character, their ordinary use and the requirements of the tenants likely to take them at the time of the demise or sub-letting”.[26]
[24] Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349.
[25] Graham v Markets Hotel Pty Ltd (1943) 67 CLR 567.
[26] Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 at 355 (Sheller JA, Powell and Beazley JJA agreeing), referring to Starke J’s application of Lurcott v Wakely [1911] 1 KB 905 in Graham v Markets Hotel Pty Ltd (1943) 67 CLR 567 at 585.
Similarly, in Pipeclay Lawson Ltd v Brand Ventures Pty Ltd,[27] White J applied the above passages from the reasons of both Lord Esher MR in Proudfoot v Hart and Starke J in Graham v Markets Hotel Pty Ltd in construing an obligation to keep premises in “good repair”.
[27] Pipeclay Lawson Ltd v Brand Ventures Pty Ltd [2021] NSWSC 909 at [49]-[58] (White J).
There is also authority which suggests that an obligation to keep premises in good or tenantable condition imposes an additional or greater obligation than an obligation to keep premises in good or tenantable repair.[28]
[28] Lee v Leeds City Council [2002] 1 WLR 1488 at [61] (Chadwick LJ), applying Welsh v Greenwich London Borough Council [2000] 3 EGLR 41 at 43 (Walker LJ) and 44 (Latham LJ).
In summary, it seems to us that an obligation to keep premises in good tenantable condition connotes a requirement that the premises be kept in a condition fit for occupation by a tenant. It certainly entails an obligation to ensure that the premises are maintained in a clean, hygienic and safe condition. However, it extends beyond this. It extends beyond an obligation to ensure merely that the premises are fit for human habitation. It encompasses an obligation that the premises be fit for letting to another tenant. Noting the passages from Proudfoot v Hart and Graham v Markets Hotel Pty Ltd extracted above, it encompasses an obligation to keep the premises in a condition suitable for the use and comfort of a reasonably-minded tenant of the type who would be likely to rent such premises, having regard to their age, nature, character and locality.
Of course, the precise meaning and content of the relevant obligation must ultimately be determined having close regard to the particular words used, in the context of the particular rental agreement.
Clause 6 of the Agreement in the present case contained a list of (largely prescriptive) obligations imposed upon the tenant. The list included obligations to personally live in the premises (and not to allow other unauthorised persons to do so); to develop and maintain the garden areas; to keep plumbing fixtures, pipes, any water tanks and the drainage system in a clean and sanitary condition; to give prompt notice to the Housing Trust of any damage, breakage or defect in the premises; to permit the Housing Trust (or persons authorised by it) to enter the premises in the case of emergency or for inspection, repairs or removal of rubbish; to pay for water and utilities; to comply with legal requirements of local authorities in relation to the collection and removal of rubbish and refuse; to keep any common garden areas, passages, stairways and windows clean and free from obstruction; to use drying facilities provided and refrain from throwing, hanging or placing clothing or similar items on balconies, in front gardens or in communal areas; and on vacating the premises, to pay a proportion of the costs of redecorating the premises.

Several of these obligations may be seen as obligations imposed in order to maintain the standard and quality of the premises, and hence to protect the value of the Housing Trust’s interest in these premises.
Clause 7 contained a further list of (largely proscriptive) obligations imposed upon the tenant. These included obligations not to permit the premises to be used other than as a private residence; not to sublet the premises; not to carry on any business or trade on the premises; not to interfere with the peace, comfort or privacy of others in the vicinity; not to keep anything on the premises which causes nuisance, annoyance or danger to other persons; not to keep animals on the premises other than those permitted by the local authority; not to make alterations, additions or improvements without permission; and not to damage the premises.
Again, several of these obligations may be seen as assisting to ensure the premises are used and maintained in a way that protects the value of the Housing Trust’s interest in the premises.
Included within the above obligations was the cl 6(c) obligation to “keep the premises and any surrounding area clean and in good tenantable condition, free from vermin and clear of refuse”. In our view, the references in this context to keeping the premises “clean” and “free from vermin and clear of refuse” are not to be understood as confining the obligation to keep the premises in good tenantable condition to an obligation to keep the premises clean and hygienic. Rather, they suggest that the obligation to keep the premises in a good tenantable condition extends beyond this. Consistently with the nature of several of the other listed obligations, they suggest that the obligation is of the broader nature outlined above; that is, an obligation intended not merely to ensure that the premises are fit for human habitation, but also that they are fit for the reasonable use and comfort of another tenant (being a reasonably-minded tenant of the type who would be likely to rent such premises). Such an obligation is consistent with the overall intention that the tenant be obliged to assist in maintaining the standard or value of the premises as rental stock and not do anything which might compromise their standard or value.
When considering the meaning of “good tenantable condition” for the purposes of cl 6(c), the respondent argued that regard should also be had to cl 8(b), which requires the tenant on termination to give vacant possession of the property.[29] The respondent submitted that cl 6(c) and cl 8(b) are complementary obligations, with the latter being focused upon ensuring the premises are fit for re-tenanting at the point at which the tenancy comes to an end, and the former being an obligation directed towards ensuring that the premises are maintained in this way throughout the period of the tenancy. In other words, the terms of the Agreement demonstrate a deliberate choice to impose an obligation on the tenant to continuously maintain the premises in a good tenantable condition, and not simply an obligation to vacate and restore the premises to that condition at the conclusion of the tenancy.
[29] It is perhaps also noteworthy that cl 8(c) provides that any property or goods left at the premises after vacating shall be deemed to have been abandoned by the tenant and may be removed and dealt with by the Housing Trust.
Turning to address more directly whether an excessive accumulation of possessions, or clutter, may involve a breach of the obligation to keep the premises in a good tenantable condition under cl 6(c), it is clear from the discussion above that that may be so where the accumulation is of a nature or extent that materially compromises the cleanliness, hygiene or safety of the premises. Thus, if the accumulation consists of items that may fairly be described as rubbish or refuse, then this may involve a failure to keep the premises in a good tenantable condition.
In the present case, it appears that some of the items accumulated by the appellant were in the nature of rubbish (at least in the sense of being broken or apparently worthless items). However, the case was not presented as one involving an accumulation of rubbish or refuse, or as one otherwise involving an accumulation that gave rise to a concern about the general cleanliness or hygiene of the premises. It was presented on the basis that the items accumulated could fairly be described as possessions of the appellant, with the suggested breach consisting of the volume and distribution of those items and/or the associated fire risk.
Excessive accumulation of possessions as a breach of cl 6(c)
If an excessive accumulation of possessions gives rise to a materially increased risk of fire, then this may give rise to a safety concern that represents a breach of the obligation to keep the premises in good tenantable condition. We address this issue in the context of the present case below. But in our view, even in the absence of such a risk, an excessive accumulation of possessions may of itself give rise to a breach of that obligation. In our view, where the accumulation is of such a volume and distribution that the premises are no longer in a condition suitable for the use and occupation by another tenant, then there may be a breach of that obligation. Whether that will be so in a particular case will be a matter of degree, and depend very much upon the circumstances of the particular case. If the tenant’s accumulation of possessions has reached a state where he or she is unlikely to be able to restore the premises to a suitable condition within a reasonable timeframe having regard to the duration of the tenancy, then this may be a good indication that there has been a breach.[30]
[30] This will also be relevant in determining whether any breach is “sufficiently serious” to justify termination for the purposes of s 87(1)(b) of the RTA.
This view of the obligation to keep the premises in a good tenantable condition is consistent with its rationale being to protect the Housing Trust’s interest in maintaining the standard and value of the rental premises. Whilst an accumulation of possessions that jeopardises the cleanliness, hygiene or safety of the premises obviously compromises the standard and value of the premises, even absent such associated concerns, an excessive accumulation of possessions may itself have that effect. We have made reference to the SACAT’s experience that in cases such as the present, tenants with an excessive accumulation of goods are often unable to restore their premises to a good tenantable condition at the conclusion of their leases. It is also to be expected that if an excessive accumulation is not able to be addressed during the currency of a lease, then the risk to the landlord through a deterioration in the standard and value of the property, and the likely cost associated with restoring the premises at the end of the lease, is only likely to increase.
As mentioned, whether an excessive accumulation of possessions results in a breach in any particular case will be a matter of degree, and depend very much on the circumstances of the particular case. For example, an antique collector who has filled his premises with items he has collected may be able to meet any allegation of breach with the response that not only is there no concern with the cleanliness, hygiene or safety of the premises, but also he has the ability to fairly promptly restore the premises to their usual state in the event that that became necessary. The same may be true of other collectors, or a tenant who has filled her premises with fitness or gym equipment.
But different concerns may arise in the case of persons with an excessive accumulation of possessions for other reasons, including where that person has a hoarding disorder. In such a case, a conclusion may more readily be reached that the accumulation is not only such that the premises are not in a state fit for the use and occupation of a reasonable tenant, but also that the person does not have the ability (that is, the mental, financial or other resources) to restore the premises to that state within a reasonable timeframe having regard to the terms of the tenancy. Relevant considerations in this context will include those addressed in the SACAT decisions of Fletcher v South Australian Housing Trust and Franklin v South Australian Housing Authority, mentioned in the President’s reasons in the present case, and summarised above.
Turning to the facts of this case, we have reviewed the evidence before the SACAT and the President. Whilst the steps taken to ensure the appellant’s privacy have meant that it has not been possible to discern the nature of most of the possessions accumulated by the appellant, the evidence nevertheless reveals a very significant accumulation of possessions throughout virtually the entirety of the premises. Whilst some effort has been made to clear the passageways and entrances to the rooms, the premises are not in a state to function as ordinary residential premises. The premises have essentially been converted into a storage facility rather than a residence. Even having regard to the relatively modest standard to be expected of social housing provided by the Housing Trust, the premises are not in a state that another reasonably-minded tenant could reside in the premises with a reasonable level of comfort.
Importantly, the undisputed history of events before the SACAT also establishes that even with external assistance, the appellant could not restore the premises to that state, or otherwise provide vacant possession, within any reasonable timeframe given the short-term (90 day) period of the tenancy. The appellant, before the SACAT, conceded that given her psychological and physical issues, she could not deliver vacant possession within 90 days, let alone any shorter period.
In our view, the evidence establishes that the appellant has not kept the premises in good tenantable condition. The appellant breached cl 6(c) of the Agreement.
Fire risk as a breach of cl 6(c)
We turn now to the question of whether the evidence before the SACAT was sufficient to support the President’s additional basis for concluding that the appellant was in breach of her obligation under cl 6(c) to keep the premises in a tenantable condition, namely her conclusion that the volume and distribution of the appellant’s possessions created a “fire risk”.
On review, the President stated:
[82] The primary basis upon which the SAHT argued that accumulated goods jeopardise the “good tenantable condition” of the premises is the creation of a fire load and the risk that people will not be able to get in, or out, of the premises in the event of fire. It is for this reason that the first direction to hoarders is usually to clear pathways from doors to windows and between doors.
[83] In this case, the SAHT did not provide any expert evidence about this. It should do so in such cases. It should either provide generic information about fire hazards from accumulated goods, and preferably a specific report about particular premises. However, the Senior Member considered that she was able to conclude that safety was compromised by inspecting the photographs of the premises.
[84] On internal review, Ms Henderson submitted that she mitigated fire risks by maintaining two domestic fire extinguishers, sand and woollen blankets at the premises, and that the premises had two smoke alarms (upstairs and downstairs).
[85] However, even without a report from a fire control authority, I am satisfied that it was open to the Senior Member to conclude, at a superficial level, that the volume of goods at the premises increased the risk that the premises presented a risk to emergency services officers that they would not be able to have unimpeded access throughout the property if it were needed. However, the evidence about that issue was finely balanced.
The appellant emphasised that there was no expert evidence to the effect that the amount or type of the appellant’s possessions created a fire risk. The only basis put forward by the respondent was that access to the premises was restricted and this may cause difficulties for fire authorities attending the premises. The photographs, the appellant submitted, did not establish restricted access sufficient to cause a fire risk.
The appellant also submitted that the President erred in her approach to this issue when she stated that it was “open” to the Senior Member to conclude that the volume of goods at the premises increased the risk to emergency services officers as they would not be able to have unimpeded access throughout the property if it were needed. The appellant submitted that the President’s obligation was to review the findings, and reach her own conclusion, not simply accept that a finding may have been “open” to the Senior Member. She contended that this approach was particularly problematic in circumstances where the Senior Member had not ever made any express written finding as to the risk of fire.
The respondent, on the other hand, submitted that the issue involved a matter of lay opinion, and it was open to the SACAT to conclude the accumulation of goods at the premises presented an increased fire risk. Given the informal manner in which hearings before the SACAT are to be conducted, expert evidence was not required to support the findings made. The lay evidence and the SACAT’s examination of the photographs presented by the parties was sufficient for that purpose.
The respondent submitted that there was evidence from the respondent’s representatives at the various SACAT hearings about the fire risk created by the amount and distribution of the appellant’s belongings. Photographs were tendered which supported the submission. The submission was repeated in some hearings in the context of the appellant’s lack of progress in decluttering the premises.
The respondent accepted that there was no specific finding by the Senior Member about the potential fire risk; that the Senior Member made a finding that the appellant breached cl 6(c) of the Agreement without specifying a particular reason for the breach in her written reasons. However, the respondent submitted that a proper reading of the Senior Member’s reasons from each of the eight hearings clearly demonstrates that the potential fire risk from the appellant’s belongings formed part of the ultimate decision of the Senior Member. In any event, in the context of the internal review, the President’s observations about the fire risk should be understood as a finding or conclusion of her own that the risk was established. The respondent relied in this regard upon not only the President’s observations about the fire risk in paragraphs [82]-[85] of her reasons (set out above) but also her Honour’s further reference to the breach affecting safety in paragraph [89] of her reasons (set out earlier).
We have viewed the photographs tendered before the SACAT. There are limited photographs available due to the appellant’s reluctance to allow photographs to be taken. As the appellant deposed in her affidavit of 2 August 2022, she “cannot cope with photographs being taken” of her possessions and that she feels “raped by that invasion”. We have also had regard to the submissions made to the Senior Member about the fire risk created by the accumulation of the appellant’s possessions.
As the respondent submitted, the SACAT hearings are to be conducted with a minimum of formality. The SACAT is not bound by the rules of evidence and may inform itself as it thinks fit. The SACAT must act according to equity, good conscience, the substantial merits of the case, and without regard to legal technicalities and forms.
As the President noted, in some cases it may be desirable for the respondent to call expert evidence on such an issue. However, given what can be seen in the photographs and from the observations of the respondent’s representatives, the fire risk is obvious. While the evidence does not reveal much about the nature of the appellant’s belongings, and hence the extent to which there was an increased fuel load, the photographs nevertheless reveal that access by fire authorities to various parts of the property would be severely, and in some areas, totally restricted. The appellant’s accumulation of possessions presented a significant potential for a fire which would be more destructive of the premises, and more dangerous to its occupants and emergency services personnel, than might otherwise be so.
As mentioned earlier, the Senior Member did not make a specific finding about the fire risk created by the appellant’s belongings. It may be that this was in part because the Senior Member made a finding at the first hearing that the appellant was in breach of cl 6(c) without specifying the nature of the breach, and that the focus thereafter shifted to attempts by the appellant to remedy the situation, rather than the factual basis for that breach. That said, as outlined earlier in these reasons, the Senior Member reiterated her finding of breach in her reasons of 4 August 2022, after a hearing at which the respondent had made submissions in support of the fire risk, and the Senior Member appeared to accept those submissions.
Further, whilst the President at times expressed herself in terms merely that it was “open” to the Senior Member to conclude that there was an increased fire risk, we are satisfied that the President reached her own conclusion to that effect. Given the nature of the internal review hearing, and the fact that the President ultimately concluded that the Senior Member had reached the correct and preferable conclusion, her reasons should be understood as including that conclusion.
In any event, we have reviewed the evidence and photographs. We would reach the same conclusion, namely, that the appellant’s accumulation of possessions presented an increased risk of a destructive and dangerous fire, and hence involved a breach of cl 6(c) of the Agreement.
Conclusion
We reject the challenges to the President’s decision to uphold the findings of breach of cl 6(c) by reason of both the appellant’s excessive accumulation of possessions, and the associated fire risk. While we would grant leave to appeal, we would dismiss this ground of appeal.
Ground 2
Was the breach sufficiently serious such as to require vacant possession to be ordered?
Section 87 of the RTA relevantly states:
87 – Termination on application by landlord
(1) The Tribunal may, on application by a landlord, terminate a residential tenancy and make an order for possession of the premises if satisfied that –
(a) the tenant has committed a breach of the residential tenancy agreement; and
(b) the breach is sufficiently serious to justify termination of the tenancy.
(footnotes omitted)
There are thus two pre-conditions to the SACAT’s exercise of its discretion to order termination and vacant possession under s 87(1). Firstly, whether the appellant has breached the Agreement and secondly, whether the breach is sufficiently serious to justify termination of the Agreement.
The President concluded that the appellant’s breach of cl 6(c) was sufficiently serious to justify termination of the tenancy (s 87(1)(b)) (in paragraph [89]) and upheld the Senior Member’s exercise of her discretion to order termination and vacant possession under s 87(1) (in paragraphs [97]-[99]). The President’s essential reasoning in support of these conclusions has been set out earlier in these reasons.
We do not think there is any merit in the challenges to these conclusions.
As to the conclusion that the breach was “sufficiently serious” to justify termination, the President was entitled to rely upon the cumulative effect of the two aspects of the breach identified; namely, the breach by reason of the excessive accumulation of goods, and the breach by reason of the associated increase in the risk of a destructive and dangerous fire. Given the cumulative effect of these breaches, and the significant period of time over which they have existed, we see no difficulty in characterising the breach as one satisfying the precondition in s 87(1)(b) of the RTA.

It is accepted that the separate decision as to whether it was appropriate to order termination and vacant possession under s 87(1) involved the exercise of a discretion. In our view, the appellant has not identified any basis for impugning the exercise of that discretion by the Senior Member, or the President’s conclusion that this was the correct and preferable decision. Once it is accepted that the Senior Member and President correctly construed cl 6(c), and correctly held that the breach of that clause was sufficiently serious to justify termination, it cannot be said that either of them otherwise fell into error. They took account of all relevant considerations, including those relating to the appellant’s personal circumstances and the respondent’s role as a provider of public housing. We note in this respect, not only the President’s reference to these considerations in paragraphs [97]-[99] of her reasons, but also her earlier reference to the detailed consideration of the types of matters which might be relevant in the reasons of Johns DP in Franklin v South Australian Housing Authority.[31]
[31] Franklin v South Australian Housing Authority [2023] SACAT 21 at [12], [14] (Johns DP).
Importantly, the matters relevant to this aspect of the SACAT’s exercise of its jurisdiction in relation to tenancy disputes are matters that fall within its specialist expertise. Bearing this in mind, and the absence of any obvious merit in this aspect of the appellant’s challenge to the decision below, we would refuse leave to appeal on this ground.
Conclusion
We conclude by noting that at the commencement of the oral hearing of the appeal, the appellant sought to adduce fresh evidence consisting of a series of photographs said to show that there was now greater access to the premises, including for fire authorities. It was said that this evidence should be received and considered in support of the appellant’s challenge to the conclusion that any breach of cl 6(c) was sufficiently serious to justify termination, and an exercise of the discretion to order termination and vacant possession. We are not persuaded that it is appropriate to receive the photographs. In our view, they are of little, if any, assistance in addressing the matters in issue, not least because they are confined to photographs of areas outside and a stairwell. We would refuse the application to adduce fresh evidence.
For the reasons given, we would grant leave to appeal on Ground 1, but dismiss the appeal. We would refuse leave to appeal on Ground 2.