Howard v Brennan Rosser Real Estate

[2010] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Appeal Under Residential Tenancies Act 1995)

HOWARD v BRENNAN ROSSER REAL ESTATE

[2010] SADC 116

Judgment of His Honour Judge Tilmouth

1 September 2010

LANDLORD AND TENANT - TERMINATION OF THE TENANCY

Tenant's appeal against order to give up possession dismissed.  Turns on own facts.

Residential Tenancies Act 1995 (SA) s32(2), s87, s112, referred to.

HOWARD v BRENNAN ROSSER REAL ESTATE
[2010] SADC 116

1. This is an appeal from a decision of the Residential Tenancies Tribunal, delivered on 30 August 2010.  The Tribunal made orders that the appellant (tenant) give vacant possession of the subject residential premises, by 12.00 noon on Wednesday 1^st September 2010.

2. Those orders flowed from an application by the respondent (landlord) to terminate the tenancy on the grounds of damage caused by the tenant to the subject premises.  The application was twice adjourned by the Tribunal (on 13 and 20 August 2010) to facilitate the ability of the appellant to attend.

3. The Tribunal dealt with each item of alleged damage said to have been caused by the tenant. It directed its attention to the requirements of s 87 of the Residential Tenancies Act 1995, which permits the Tribunal, on the application of a landlord, to terminate a residential tenancy where the tenant has committed a breach of the tenancy agreement and the breach is “sufficiently serious to justify termination”.

4. For relevant purposes the Tribunal found there was damage to a front door jamb, a sliding back flyscreen door and a laundry door, caused by the tenant. In each instance it noted that when occupancy was first taken in late December 2009, the inspection reports revealed no such damage. Nor was such damage evident in an inspection report some three months later. More significantly, the Tribunal took a view of the subject premises on 18 August 2010 in order to better inform itself as to the matters in dispute, as it was entitled to do: s 32(2).

5. With respect to the door jamb, the Tribunal observed this to be appropriate to the premises.  It rejected the tenant’s explanation for the damage, namely that he fell against it in once instance and later that wind had blown it off.  The Tribunal considered that if it had been damaged in the way claimed “there would have to be some evidence of splintering or marking of the jamb itself”.  It observed no such damage.  The tenant for his part claims that this and the other damage was fair wear and tear and should be repaired by the landlord.  The reasoning of the Tribunal however is logical and convincing.  The tenant’s explanation is inherently unlikely and contradicted by the physical attributes of the door surrounds itself, as noted by the Tribunal on its site visit.

6. As to the sliding screen door, the Tribunal was able to slide this door effectively, despite what it considered to be “some minor damage at the top of the screen”.  Coupled with the fact that when the tenant himself in its presence slid the door “with some force” to the extent “it came off the tracks completely”, the Tribunal not unreasonably concluded on the balance of probabilities any damage was due to his own inappropriate use.  It reached the same conclusion that he was responsible for the damage to the sliding laundry door, for precisely the same reasons.  It was not on the other hand prepared to attribute damage to the toilet to him and concluded, incidentally, on viewing a kitchen sink, that it “worked effectively and without excessive splashback if used appropriately”.

7. The Tribunal went further than this and proceeded to find that the tenant interfered with the reasonable peace comfort and privacy of his neighbours, contrary to paragraph 3.2.7 of the subject lease.  By this clause he covenanted not to “cause or permit a nuisance or any interference with the reasonable peace, comfort or privacy of any person who resides in the immediate vicinity of the property”.  It also concluded, for reasons that will become apparent, that the potential for physical harm to the agent of the landlord “would be a real risk if he was ever to be at the premises alone in the company of” the tenant.

8. Finally the Tribunal considered the breaches were of their nature incapable of remedy and were serious enough to make the order stated.

9. No reason has been demonstrated to indicate these findings were wrong, inappropriate or inapplicable to the facts.  The order with respect to the breach of peace and quiet agreement with respect to neighbours, was based on evidence contained in statutory declarations as well as sworn evidence before the Tribunal.  The tenant himself during the course of the hearing before the court, conceded the neighbours had taken the side of the landlord, so there was clearly sound reason to be apprehensive with respect to his relationship with them.  The same may be said with respect to the likelihood of physical harm to the landlord or the landlord’s agent on the basis of the same material, in view of past dealings with the tenant during which he had become abusive, animated and threatening, although he had not resorted to actual physical force.

10. There is another significant matter.  The way in which the tenant conducted himself before the Tribunal, in sliding the flyscreen door off as described above in front of the Tribunal, and then pulling the laundry door with “great force, shouting loudly and standing in very close proximity to Mr Andrews [the landlord’s agent] causing the door to dislodge completely and crash onto the floor almost hitting Mr Andrews”, is highly symptomatic of the very sort of person he is claimed to be in his dealings with them.  The Tribunal observed that when Mr Andrews demonstrated how he had previously seen the tenant handle the two sliding doors, the tenant’s “demeanour changed totally”, he “began to shout loudly, manhandle both doors violently and knock the laundry door off its setting with great force”.

11. Based on all the material before the Tribunal, including its own observations of the tenant, and its own apprehension for the safety of the landlord’s agent, the findings of the Tribunal were not only therefore well founded on the evidence, but strengthened by the conduct of the tenant himself in front of the Tribunal.

12. There was a further matter however.  The findings of the Tribunal and the intimidating attitude of the tenant, not to mention his highly inappropriate and offensive emails, demonstrate the relationship of landlord and tenant had broken down.  The tenant himself effectively conceded as much, accepting that it had gone beyond “the point of no return” during the course of the hearing before the court.  I take the Tribunal’s considered view that the breaches were not capable of remedy, to mean that the situation had been rendered so by the tenant himself.  It was impractical for any further remedial work or inspections to be carried out, because of the risk to the landlord’s agent.  The fact that Mr Andrews was not prepared to attend except in the presence of at least two other people, rendered these tasks impracticable, unworkable and too expensive.

13. The court was at first inclined to consider whether there might be alternative remedies available, such as placing the tenant under restraint, pursuant to s 112 for instance. However his own conduct as described above, demonstrate that he has disentitled himself to any alternative disposition. It can be accepted that presenting his case personally creates anxiety and stress, but his consistently unacceptable conduct tells a great deal about the sort of person he has become in his dealings with respect to this particular tenancy. The Disability Discrimination Act has nothing to do with this.  It provides no excuse for objectionable behaviour.  The Trade Practices Act is completely irrelevant.

14. The order of the Tribunal dated 30 August 2010 is therefore effectively affirmed, except that it will be varied in the following ways to enable a reasonable time for the tenant to vacate the premises:

    1.The residential tenancy agreement between the parties dated 23 December 2009 is terminated.

    2.Vacant possession of the premises at 13 Riverside Grove Dernancourt is to be given to the landlord (via the agent) by not later than 4.00 pm on Monday 6 September 2010.

    3.The tenant is to pay one weeks overdue rent of $330, by not later than 4pm on Friday 2 September 2010.

    4.     The order that the tenant pay a lodgement fee of $35 is otherwise affirmed.

    5.     There will be no order as to costs of the appeal.