Jackson v Lepp Investments Pty Ltd

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Supreme Court of South Australia

(Miscellaneous Appeal: Permission to Appeal)

JACKSON v LEPP INVESTMENTS PTY LTD

[2016] SASC 62

Judgment of The Honourable Justice Parker (ex tempore)

18 March 2016

LANDLORD AND TENANT - TERMINATION OF THE TENANCY - GENERALLY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT - SCOPE AND EFFECT OF APPEAL

Application for permission to appeal under s 71 of the South Australian Civil and Administrative Tribunal Act 2013 against orders made in the South Australian Civil and Administrative Tribunal (SACAT). On 4 March SACAT made a decision in its original jurisdiction ordering that the applicant must vacate her rental premises. The rental agency, on behalf of the landlord company, had applied for vacant possession on the basis of the applicant's abusive and offensive behaviour towards other tenants and agency employees. SACAT made an order for vacant possession within seven days on the more pragmatic basis that the applicant was in arrears of rent and had failed to make payment after a notice of breach had been served on her. The applicant then applied to SACAT to internally review the matter based, among other things, on hardship grounds. On the internal review SACAT found that in all of the circumstances, including the applicant's abusive behaviour, it would not be fair to the landlord to set aside the order for vacant possession. The applicant made an application to appeal to this Court. Leave was given for the application to be amended to an application for permission to appeal. The grounds asserted were that the service of the notice of breach was invalid, that inadequate time to vacate the premises had been given and that the applicant faced severe hardship if she was required to vacate.

Held, dismissing the application for permission to appeal:

(1)  The agents for the landlord company were permitted to appear on its behalf on the basis that it was convenient in the interests of justice.

(2)  The landlord company should be substituted as the respondent for the real estate agency, which had been named in the application.

(3)  In deciding whether to grant permission to appeal from SACAT the ordinary principles with respect to permission for a civil appeal should be followed; namely, permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration.

(4)  The SACAT member had the benefit of seeing and hearing the witnesses and considering the corroborative evidence and it was not reasonably arguable that he made a mistake in relation to his finding that the serving of notice was valid.

(5)  It was not reasonably arguable that there was any outcome error in the exercise of the tribunal member’s discretion. The member noted the various matters that favoured an exercise of the discretion in favour of the applicant but concluded that these were outweighed in the particular circumstances by the countervailing considerations in the favour of the…

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Details
Case
[2016] SASC 62
Decision Date

CaseChat Overview and Summary

In Jackson v Lepp Investments Pty Ltd, Ms Jackson, the tenant, sought permission to appeal against a decision of the South Australian Civil and Administrative Tribunal (SACAT) which ordered her to vacate her rental property. The landlord had applied to SACAT for an order to terminate the tenancy due to Ms Jackson's alleged aggressive behaviour towards neighbours and staff, as well as non-payment of rent. SACAT, in the initial decision, found that the tenancy had been validly terminated due to non-payment of rent and ordered Ms Jackson to vacate the premises within seven days. Ms Jackson applied for internal review under section 70 of the SACAT Act, arguing that the seven-day notice to vacate was too short and that the Form 2 notice had not been properly served. The internal reviewer, Mr Stevens, dismissed the application for review, concluding that the notice period was reasonable and that there was no error in the service of the Form 2 notice. Ms Jackson then sought permission to appeal against Mr Stevens' decision.

The central legal issues were whether the internal reviewer's decision contained an outcome error, and if the grounds of appeal were reasonably arguable. The Court had to determine whether the internal reviewer had exercised his discretion appropriately and whether there were any grounds to permit an appeal against the decision. The Court found that the internal reviewer had properly exercised his discretion, considering both the tenant's severe hardship and the landlord's concerns about behaviour and non-payment of rent. The Court concluded that the grounds of appeal were not reasonably arguable, as they essentially sought to reargue the merits of the decision rather than identify any error in the exercise of discretion.

The Court refused permission to appeal, noting that even if permission was not required by legislation, the appeal would have been dismissed on its merits. The Court emphasised the importance of deference to the internal reviewer's decision, as he was a senior member of an expert tribunal dealing with numerous tenancy disputes annually. The Court underscored that an appeal by way of rehearing is not a trial over again but an opportunity to determine whether any error has been made in the exercise of discretion. In this case, no such error was found.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I now turn to consider the application for permission to appeal under s 71 of the SACAT Act. Before doing so, I need to state briefly the history of the matter. Background Ms Jackson entered into a tenancy agreement with respect to a property at Mawson Lakes on 5 June 2015 for a period of 12 months at a weekly rent of $255.00 payable fortnightly in advance. She also paid a bond of $1,530.00, which equates to six weeks rent. On 16 February 2016 Property Link, on behalf of the landlord, applied to SACAT for an order to terminate the tenancy agreement and to take vacant possession of the property occupied by Ms Jackson. The grounds stated in that application were that the surrounding tenants were frightened for their safety and wellbeing. The police had been called many times, it was alleged, due to the aggressive behaviour of Ms Jackson towards neighbouring tenants and owners. She had behaved unacceptably and used inappropriate language towards staff of the agency, visiting tradespersons and neighbours. The matter was said to be urgent because the neighbouring tenants wanted to break their leases and vacate the premises because they were frightened for their safety and wellbeing. On 4 March 2016 the matter came on for hearing in SACAT before Mr Georgiadis. That application was supported by a number of letters and email messages from neighbours and tradespersons complaining about the conduct of Ms Jackson. Copies of a number of text messages and email messages sent by Ms Jackson were also supplied. Much of the content of those messages written by Ms Jackson was abusive and offensive and used highly inappropriate language. The agent also supplied a copy of the rent record to SACAT. Member Georgiadis did not decide the matter on the basis of the complaints about behaviour but perhaps on a more pragmatic basis simply dealt with the issue on the basis of the rent arrears. He found that a notice of breach (that is a Form 2 under the Residential Tenancies Regulations 2010) had been served on Ms Jackson on 12 February 2016 by being placed in her letterbox. He found that the notice was valid and that Ms Jackson had failed to pay the outstanding rent within the time allowed, ie by 20 February 2016. He found that this failure to pay rent had terminated the tenancy. He also noted, but did not decide upon, the allegations made about the conduct of Ms Jackson. After taking into account the evidence of non-payment of rent and the submissions of the parties, Mr Georgiadis made an order requiring Ms Jackson to vacate the premises by midday on Friday, 11 March 2016. At that time he noted that the arrears of rent would be $1,596.42 on the assumption that no further rent payments were made in the meantime. Mr Georgiadis ordered that the bond of $1,530.00 be paid to the landlord via the agent after 11 March 2016 and that Ms Jackson must pay the further sum of $66.42 within 14 days. If she failed to pay that sum, the order was enforceable in the Magistrates Court. On 9 March 2016 Ms Jackson applied to SACAT under s 70 of the SACAT Act for internal review of the decision made by Mr Georgiadis. She stated that the time allowed for her to vacate the property - being seven days - was too short. She also alleged that the agent had not served the Form 2 on her correctly and had merely thrown it on the footpath and not handed it to her. She also complained of bullying by the agent and stated that she would be lodging a claim for compensation with SACAT. As I explained during the course of submissions, that compensation claim is not before this Court. It is to be dealt with separately and in due course by SACAT, so it is not a matter that I can take into account today.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I turn to the question of whether it was reasonably arguable that Mr Stevens’ decision displayed an outcome error. In considering that matter it is necessary for me to take into account that the discretion was exercised by a senior member of an expert Tribunal that deals with over 10,000 tenancy disputes each year. Mr Stevens noted the various matters that favoured an exercise of the discretion in favour of Ms Jackson but concluded that these were outweighed in the particular circumstances by the countervailing considerations in the favour of the landlord. I do not consider it reasonably arguable that there was any outcome error. It is not relevant that some other person might take a different view. The fact of the matter is that I must give due deference to Mr Stevens’ decision. In that context I note that the purpose of an appeal by way of rehearing and after considering any further evidence that may be admitted is to determine whether any error has been made. Mr Stevens was within the reasonable exercise of his discretion to refuse to extend the time for possession.Conclusion I have found that the grounds of appeal advanced by Ms Jackson are not reasonably arguable. In my view, Ms Jackson in her submissions today was merely seeking to reargue the matters decided against her by Mr Stevens in SACAT. That is not a basis for this Court to grant permission to appeal. I therefore refuse permission to appeal. I further note that if the grant of permission was not required by the legislation, I would have dismissed the appeal in any event.

Ratio Decidendi

Legal Principle Established

Rule 286 of the Supreme Court Civil Rules provides that, if permission is granted, the appeal is to be by way of a rehearing. An appeal by way of rehearing is effectively a trial over again on the evidence used in the Court or Tribunal below, together with such additional evidence as may be received on the appeal. The Court must independently review the evidence and carefully scrutinise 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.Consideration Regrettably, Ms Jackson was more intent on argument rather than submissions. What emerged from her submissions was, firstly, a contention that Mr Stevens was mistaken in his finding as to the valid service of the Form 2 notice. Second, she also contended that she should have been allowed substantially greater than the ordinary period of seven days to vacate the premises. The third issue raised by Ms Jackson was the matter of severe hardship. I did not really need to hear her upon that as my reading of Mr Stevens’ decision is that he did accept the severe hardship point but decided against Ms Jackson on the basis that he was not satisfied that it was just and equitable in all the circumstances, given the concerns about her behaviour and her failure to pay rent for a substantial period, to allow her to stay longer in the property. I have already referred to the grounds of appeal which set out the basis upon which Ms Jackson contends that she is suffering severe hardship. In essence the grounds are her mental illness, the need to care for her child, a lack of support systems and one other matter which I do not regard as relevant and which was not referred to in oral submissions today. The evidence of Ms Jackson’s psychiatric condition is contained in the report of Dr Cheng dated 19 January 2016, which was annexed to her affidavit. Ms Jackson also annexed to that affidavit a bail agreement with SA Police which had a condition that she continue to reside at the subject property at Mawson Lakes. I will first deal with the question of the bail agreement. Regrettably, due to the urgency of the matter, SACAT has been unable to provide to this Court a transcript of the hearing conducted in that Tribunal, both at first instance and on appeal. Neither of the SACAT members referred to the bail issue in their reasons. Ms Jackson also did not refer to it today although it is mentioned in her application for permission to appeal. Even if Ms Jackson had raised the bail issue before Mr Stevens and earlier before Mr Georgiadis, I do not consider that the requirement under the bail agreement that she continue to reside at the Mawson Lakes address has any relevance to this appeal. It is quite clear that a bail agreement with the police cannot prevent SACAT making an order for vacant possession. The person who entered the bail agreement with the police needs to tell the police that because of an order of SACAT, or ultimately this Court, they have been required to leave the address and therefore request the police to vary the bail agreement. The bail agreement cannot stop the landlord enforcing its legal rights.