Kayembe v Ruis - [2020] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
KAYEMBE v RUIS
[2020] SADC 125
Decision of His Honour Judge O'Sullivan
2 September 2020
LANDLORD AND TENANT - RENT
LANDLORD AND TENANT - LEASES AND TENANCY AGREEMENTS
The applicant tenant entered into a one year, fixed-term lease on 23 August 2018 at a rental of $580.00 per fortnight. The respondent landlord alleges that rent was paid by the applicant to 24 July 2019, when the applicant vacated the property and moved interstate, leaving arrears in the amount of $1242.86.
The minor civil action was referred by the South Australian Civil and Administrative Tribunal (SACAT) to the Magistrates Court. At a compulsory conference in the Magistrates Court there was no appearance on behalf of the applicant, and an order was made in favour of the respondent in the sum of $1457.84 for the outstanding rent, water usage and supply charges and compensation for damage to the kitchen benchtop, to be paid out of the bond of $1,740.00. The balance of the bond in the sum of $282.16 was to be paid to the South Australian Housing Trust.
The applicant makes an application pursuant section 38 of the Magistrates Court Act 1991 seeking that this Court review the judgment.
Held:
1. The judgment of the Magistrates Court dated 12 December 2019 is rescinded.
2. In substitution there will be a judgment for the respondent in the sum of $1,357.84.
3. The sum of $1,357.84 is to be paid to the respondent from the bond of $1,740 and the remaining balance of the bond in the sum of $382.16 is to be paid to the South Australian Housing Trust.
4. No order as to costs.
Magistrates Court Act 1991 (SA) s 38; South Australian Civil and Administrative Tribunal Act 2013 (SA) part 3A, referred to.
Harradine v District Court of South Australia [2012] SASC 96, considered.

KAYEMBE v RUIS
[2020] SADC 125
Introduction

This is an application by Kazadi Cedric Kayembe (“the applicant”) pursuant to s 38 of the Magistrates Court Act 1991 seeking that this Court review a judgment entered against him in the Magistrates Court on 12 December 2019.
The dispute arises out of a tenancy agreement. Mr Leigh Ruis (“the respondent”) is the owner and landlord of a property located at Andrews Farm, South Australia (“the property”) in which the applicant was a tenant. The applicant entered into a one year, fixed-term lease on 23 August 2018 at a rental of $580.00 per fortnight. The respondent alleges that rent was paid by the applicant to 24 July 2019 leaving arrears in the amount of $1242.86.
In the Magistrates Court, the respondent claimed $1,457.84, including the unpaid rent, together with water usage and supply charges in the sum of $64.98 and compensation for damage to the kitchen benchtop in the sum of $150.00. The Court ordered that $1,457.84 of the bond of $1,740.00 be paid to the landlord and the balance of $282.16 be paid to the South Australian Housing Trust. The bond was originally paid by the South Australian Housing Trust.
The Magistrates Court action
The matter was referred to the Magistrates Court by the South Australian Civil and Administrative Tribunal (“SACAT”) under Part 3A of the South Australian Civil and Administrative Tribunal Act 2013 (“the SACAT Act”). It did so on the grounds that it did not have jurisdiction to determine the application given that the tenant resides interstate. The Magistrates Court was satisfied that it was appropriate for the matter to be heard in that Court and under s 38C(3) of the SACAT Act, the Magistrates Court assumed all the powers and functions in relation to the proceedings that SACAT would have had in determining the dispute.
The hearing took place in the form of a compulsory conference on 12 December 2019. The respondent was represented by his real estate agent Ms Emily Jaworek (“the agent”), who appeared via telephone. The Court was unable to contact the applicant on the telephone number provided and the applicant did not contact the Court. The Tribunal Member who conducted the compulsory conference found that notice of the hearing had been given to all parties and noted that the notice of hearing forwarded to the parties stated that if any party fails to attend the conference, a decision may be made in their absence.
As the Court was unable to contact the applicant and the Tribunal Member was satisfied that the respondent’s claims were substantiated, an order was made in favour of the respondent in the sum of $1457.84.
The nature of minor civil actions
Section 38 of the Magistrates Court Act 1991 deals with minor civil actions, and their review by a Judge of the District Court. The section provides:
38—Minor civil actions
(1)     The following provisions are applicable to the trial of a minor civil action:
(a)     the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b)     the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)     the Court may itself call and examine witnesses;
(d)     the parties are not bound by written pleadings;
(e)     the Court is not bound by the rules of evidence;
(f)     the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2)At or before the trial of a minor civil action, the Court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
(3)After giving judgment in a minor civil action, the Court—
(a)     should advise the unsuccessful party of his or her right to apply for review of the proceedings by the District Court; and
(b)     should give the successful party any advice or assistance as to the enforcement of the judgment that the Court considers appropriate in the circumstances; and
(c)     if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any further action that appears appropriate in view of the results of that      investigation.
(4)     The following provisions govern representation in minor civil actions:
(a)     representation of a party by a legal practitioner will not be permitted unless—
(i)    another party to the action is a legal practitioner; or
(ii)     all parties to the action agree; or
(iii)the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
(ab)   however, the Court may, in its discretion, permit representation of a party by a legal practitioner at the hearing of an interlocutory application;
(b)     if a party to the action is a body corporate, the Court must, if the party seeks to be represented by an officer or employee who is not a legal practitioner, permit such representation;
(c)     if a person is subrogated to the rights of a party, the Court will permit that person to appear in the proceedings on behalf of that party and to be represented in the same way as if that person were a party;
(d)     the Court will permit a party, or a person subrogated to the rights of a party, to be assisted by a person who is not a legal practitioner but only if that person is not acting for fee or reward.
(5)In a minor civil action costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)The following provisions apply to such a review by the District Court:
(a)     subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab) if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)    affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)     in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8)A decision of the District Court on a review is final and not subject to appeal.
(9)However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
The legislative history of minor civil actions was outlined by Blue J in Harradine v District Court of South Australia.[1]His Honour noted the intention of Parliament to develop a simple system whereby persons with small claims are given the opportunity to bring them to court using a method that is both less thorough and less expensive.[2] His Honour also emphasised the inquisitorial nature of trials of minor civil actions, stating that the Magistrate has an obligation to ‘inquire actively into the facts and issues’ of the trial, rather than the onus resting on the parties themselves.[3]
[1] [2012] SASC 96.
[2] Ibid, [44].
[3] Ibid, [49].
As to the role of a District Court Judge upon review of a matter, his Honour said:[4]
It can be seen that several of the provisions which apply to a trial under s 38(1) also apply to a review under s 38(7): the court is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; the court is not bound by the rules of evidence; and generally a party is not to be represented by a legal practitioner. On a review of a judgment of a magistrate following trial, the District Court does not have the option of remitting the matter back to the Magistrates Court for rehearing but must, if it rescinds a magistrate’s judgment, substitute its own judgment.
The provisions of s 38(7) in the context of s 38 as a whole and in particular s 38(1) suggest that the following principles apply to a review by a District Court judge of a minor civil action.
1.   The review is not in the nature of an appeal stricto sensu.
2.   The review is not necessarily a hearing de novo in that the court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence.
3.   The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4.   The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5.   If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6. To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by s 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because s 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
[4] Ibid, [52]-[53].
The hearing of the review
At the hearing, both the applicant and the respondent appeared in person. The respondent had prepared a booklet of documents including written submissions. Those submissions, along with numerous annexures, were received by the Court and marked Exhibit R1. This was the only exhibit received by the Court.
Both parties were sworn at the beginning of the hearing. The applicant gave evidence disputing the respondent’s claim. The respondent gave little oral evidence, relying primarily on Exhibit R1.
The applicant’s case
The applicant disputes the respondent’s claim on numerous grounds.
First, the applicant alleges that the respondent made a “fraud/false claim”. The applicant alleges that he told the respondent that his situation had changed and that he could no longer afford to live at the property. He said that the respondent told him that he could terminate the lease one-month prior to the lease ending. He said that he also said to the respondent that he was suffering from a medical condition and that it was risky for him to live alone, and further that his employment had ceased.
He said that the respondent had told him that he had been a good tenant and was willing to assist with the lease termination. He said that two months prior to him vacating the property, the agent held multiple inspections showing the property to potential new tenants.
Second, the applicant alleges that the respondent or the agent neglected to repair or service the air-conditioner fan and that the filter was dirty and not working properly. He said the air-conditioner produced a lot of dust which polluted the air and, as a result of inhaling the dust, he suffered from shortness of breath and palpitations on multiple occasions and was taken to hospital by ambulance. He said that he was left weak and sick for many months, and this medical condition resulted in him being unable to go to work or generate an income.
Third, the applicant alleges that photos were taken of the inside and outside of the property when he vacated it on 24 July 2019, and that these photos showed no damage. He said that the agent attended at the property, where he signed the handover paperwork. He said that it wasn’t until some weeks later that he received notice by the agents that the landlord planned to confiscate the bond money. He clarified that the bond had originally been paid by the South Australian Housing Trust.
The respondent’s case
The respondent said that he never had a conversation with the applicant in relation to a change in the applicant’s situation and him no longer being able to afford to live at the property. The respondent also said that at no point did he speak to the applicant in relation to terminating the lease early, nor in relation to him being a good tenant nor about assisting the applicant with the one month lease termination. I understood the last point to be in relation to not charging rent for the remainder of the term.
The respondent referred to a text message[5] sent from the applicant to the respondent’s managing agent on 1 July 2019, in which the applicant informs the agent that he has started a new job in Melbourne and had resigned from his previous job. The applicant inquires as to the ‘ways around’ terminating the lease and what notice he must give as he cannot afford to pay rent in two places. The applicant acknowledged in the message that the lease was due to expire in late August.
[5] Exhibit R1, p 74.
The respondent referred me to a text message exchange[6] between the agent and the applicant on 19 July 2019 at 1.06pm. The applicant states he is ‘outside’ to which the agent replied, saying ‘Come into the office’. The respondent said that the agent then informed him that the applicant had dropped the keys off.
[6] Exhibit R1, p 75.
The respondent points out that the first house inspection was not conducted until 25 July 2019, nearly a week after the applicant had vacated the property on 19 July 2019.
The respondent said that he was unaware of any medical condition from which the applicant was suffering and at no point was it ever raised that the applicant was taken to a hospital emergency department for shortness of breath and heart palpitations due to the air-conditioner blowing dust. The respondent also said that at no point did the applicant raise with him that he was unable to work due to being weak and sick for many months.
In relation to the air-conditioner, the respondent submits that no maintenance request was submitted, and that pursuant to the term of the lease, it is the responsibility of the tenant the clean the internal air-conditioning filters.
The respondent referred to the outgoing inspection which revealed a burn mark on the kitchen bench top [7] and a photograph[8] of the mark taken at the outgoing inspection. He also referred to a photograph[9] taken at the ingoing inspection on 23 August 2018, where no mark is depicted. The outgoing inspection was completed by the agent and was emailed by her to the applicant on 29 August 2019. No response was received.
[7] Exhibit R1, p 49.
[8] Exhibit R1, p 59.
[9] Exhibit R1, p 60.
The applicant was sent an arrears notice for late rent on 3 August 2019 and the bond was then put through Bonds Online for the claim of rent, water and damage to the kitchen bench on 3 September 2019.
Consideration
Unpaid rent
Clause 6.5 of the Terms and Conditions under the Lease states:[10]
If the tenant breaches this Agreement during its Term, and the Landlord re-lets the Property, then the Tenant will pay the Agent the Landlord’s reasonable re-letting costs including advertising, letting fee and any out of pocket expenses, together with the Rent to the date on which the Tenant is released (if applicable) from this Agreement.
[10] Exhibit R1, p 22.
I am not satisfied that the applicant and the respondent had a conversation whereby the respondent agreed to assist with an early lease termination by not charging rent. The applicant entered into a fixed-term lease for a period of one year to commence on 23 August 2018 and was to conclude that same date the following year.[11] I am satisfied that the applicant vacated the property and handed over the keys to the agent on 19 July 2019.
[11] Exhibit R1, p 18.
In my view, there is no doubt that the applicant was obliged to keep paying rent for the balance of the fixed term and I find that the respondent is entitled to unpaid rent in the sum of $1,457.84.
The air-conditioner

Nothing turns on this issue but I deal with it for completeness.
There is no evidence that a maintenance request was lodged in relation to the air-conditioner, or that a conversation occurred between the applicant and the respondent or agent in relation to the air-conditioning. Accordingly, I do not accept this occurred.
In any event, clause 15 of the Additional Conditions[12] under the Lease states that it is the tenant’s responsibility to clean the internal air-conditioning filters.
The burn mark
[12] Exhibit R1, p 20.
I am satisfied from the photos taken at the ingoing and outgoing inspections that the burn mark on the bench top was caused during the time that the applicant was a tenant in the property. The burn mark is not extensive. It is a straight line and I am told has the length of about the diameter of a five-cent piece. The amount of $150.00 to repair it seems excessive. The respondent did not know how the amount of compensation for the burn mark was determined and could not point me to any quotation for this sum.
I was told by the respondent at the hearing that the bench top was vinyl and that the respondent believed the entire bench top would have to be replaced.
In the circumstances, I am not prepared to find that the reasonable cost of repairing the benchtop is $150.00. In the absence of any evidence, I am unable to find how much the cost of repairing the benchtop is, however doing the best I can, I award the respondent $50.00 for the repair costs of the burn mark.
Water usage and supply
I am satisfied from the SA Water Invoice dated 14 August 2019[13] that the respondent is entitled to the sum of $64.98 for water usage and supply up until the applicant vacated the property on 19 July 2019.
[13] Exhibit R1, p 56.
Costs
Pursuant to s 38(5) of the Magistrates Court Act, costs for getting up the case for trial, or by way of counsel fees, will not be awarded in a minor civil action unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
I am not satisfied in this case that there are any special circumstances justifying the award of such costs.
Conclusion
In the circumstances, I allow the applicant’s application to the extent of reducing the amount payable for the repair costs of the burn mark by $100.00.
Orders
1I allow the applicant’s application and rescind the judgment of the Magistrates Court dated 12 December 2019.
2I substitute a judgment for the respondent in the sum of $1,357.84.
3I order that $1,357.84 be paid to the respondent from the bond of $1,740.00. and the remaining balance of the bond in the sum of $382.16 be paid to the South Australian Housing Trust.
4No order as to costs.