Knight & Mathews v Malinko - [2014] SADC 193

District Court of South Australia
(Civil: Appeal Under Residential Tenancies Act 1995)
KNIGHT & MATHEWS v MALINKO
[2014] SADC 193
Judgment of His Honour Judge Beazley (ex tempore)
18 November 2014
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
RESIDENTIAL TENANCY - Appeal against findings and orders of the Residential Tenancies Tribunal - whether tenancy validly terminated - whether grant of order for immediate possession of the premises would cause severe hardship to the tenants under s 93(4) of the Residential Tenancies Act, 1995.
Held: Determination by Tribunal that arrears had not been paid by tenants, and that tenancy was properly terminated clearly correct. Tribunal decision and orders made on 5 November 2014 and 14 November 2014 affirmed.
Residential Tenancies Act 1995 ss 41, 93; Timms v South Australian Housing Trust (2003) 226 LSJS 42, referred to.

KNIGHT & MATHEWS v MALINKO
[2014] SADC 193
Introduction

Ryan Knight and Jessica Mathews, (‘the tenants’) appeal, pursuant to s 41 of the Residential Tenancies Act, 1995, (‘the Act’) from orders made by the Residential Tenancies Tribunal, firstly on 5 November 2014, and secondly on 14 November 2014 when its initial orders were effectively affirmed. The relevant orders of the Tribunal were that the Tenancy Agreement dated 7 August 2014, between the tenants and Rina Malinko (‘the landlord’) was validly terminated.
The Tribunal further ordered on 5 November 2014 that the tenants must leave the premises at Unit 3, 9 Constance Street, Brooklyn Park, by 11.00am on 12 November 2014. It later varied that order on 14 November 2014, to require the tenants to leave by 12 noon on 17 November 2014.
It directed that in the event that the tenants had failed to comply with that order, it could only be enforced by the Tribunal’s bailiff.
The Background
On 7 August 2014, the tenants and the landlord entered into a Residential Tenancy Periodic Agreement.
The Agreement provided for rental to be paid at the rate of $270 per week, on each Thursday by direct debit.
In accordance with its terms, the Housing Trust paid, on behalf of the tenants, a bond in the sum of $1,080.
Unfortunately the tenants have merely paid their rent up to 20 August 2014 – that is for about two weeks.
It must be said that the landlord had been particularly caring and indeed sympathetic to the tenants notwithstanding their ongoing failure to pay the rent.
On 6 October 2014, a cheque in the sum of $2,000 purportedly drawn by Mr Knight, and payable to the landlord, was dishonoured. Accordingly on 9 October 2014, the landlord served a Notice of Termination. On 5 November 2014, the Tribunal heard the matter. Mr Knight admitted his breaches in failing to pay rent however submitted that he would suffer severe hardship if he was required to vacate the premises before 29 November 2014.
He explained that he was on Home Detention Bail conditions, and that his release from those conditions, were dependent upon him residing in stable accommodation.
Jessica Mathews said that there had been some arrangement entered into between the landlord and Mr Knight whereby if he did some work for the landlord, he would be credited with moneys that would be offset against arrears of rent. There did not appear to be any dispute about such an arrangement; however it is plain that the arrears of rent by 5 November 2014 stood at $2,970.00.
Whatever work had been done by Mr Knight for the landlord, it was clearly miniscule when contrasted with the total arrears. Not one cent had been paid by the tenants since 20 August 2014.
The Residential Tenancies Tribunal made an order that the tenants move out by 11.00am on 12 November 2014. The landlord at that stage, very charitably, it must be said, agreed that all she would seek is the bond monies in the sum of $1,080.00 in full satisfaction of the debt, in other words, writing off about $2,000.00, of the arrears of rent.
Unfortunately the tenants did not comply with that order. They did not vacate the premises. They issued a further application in which they sought a variation of that order on 14 November 2014. The Tribunal permitted the tenants extra time to vacate, namely until 17 November 2014, at 12.00 noon, but otherwise affirmed the orders made on 5 November 2014. The arrears had blown out to $3,047.14.
Notice of Appeal
The tenants again did not vacate the premises. They did not pay any of the arrears. They filed a Notice of Appeal on 17 November 2014. They sought an urgent hearing which was listed for this day. The landlord regards the Notice of Appeal as being an abuse of process.
In effect, the only ground of appeal before me, although it is not phrased that way, is that relief ought to have been granted under s 93(4) of the Residential Tenancies Act.
That section provides:
(4)However, if the Tribunal, although satisfied that the landlord is entitled to an order for possession of the premises, is satisfied by the tenant that the grant of an order for immediate possession of the premises would cause severe hardship to the tenant, the Tribunal may –
(a) suspend the operation of the order for possession for up to 90 days; and
(b) extend the operation of the residential tenancy agreement until the landlord obtains vacant possession of the premises from the tenant.
Submissions
Mr Knight very properly conceded that the landlord had been very generous. He explained that he had been under severe pressure financially. He simply could not afford to pay the rent. He apologised to the landlord. He explained that he suffers from mental health problems. He had been attempting to obtain employment. He was currently on Home Detention Bail. It had restricted his ability to work. He had complied strictly with his bail. He said that if he lost the tenancy he would be returned to custody because he had no other available accommodation. He said that if he could stay until 29 November 2014, it would increase his chances of having the Home Detention Bail conditions removed.
The landlord submitted that while she had been sympathetic to the tenants, enough was enough. She had lost other tenants who complained of noise from the tenants unit. She sought possession forthwith.
Discussion
I listened very carefully to those submissions. One can feel a great deal of sympathy, firstly for the landlord who gave the tenants about three months, without rental payments having been received. She did so time to give them ‘a chance’. One can also feel sympathy for these two tenants who find themselves in a very difficult financial position, being out of work with no money, with real difficulties surviving day-to-day.
Conclusion
The court’s role is to review the decision of the Residential Tenancies Tribunal, so as to determine whether there has been any error by the Tribunal. The ultimate issue is whether any such error has been demonstrated. See Timms v SA Housing Trust (2002) 226 LSJS 42. It is true that the Tribunal made no specific reference to s 93(4) of the Act nor to the question of severe hardship. However, I do not regard that as being an error by the Tribunal in this case. These tenants have been on notice since at least 20 August 2014 that they would be likely to be evicted. Certainly by 9 October 2014, when the Notice of Termination was served upon them, they were well aware that they were in occupation on a day-to-day proposition. They did not pay a cent in arrears. They abused the goodwill of the landlord.
The landlord is quite justifiably anxious to obtain possession of the premises as soon as possible. While the tenants will suffer severe hardship if an order for immediate possession was made, the position in which they find themselves is one of their own making. While the court retains a discretion to grant relief under s 93(4) of the Act, all of the discretionary factors are in favour of the landlord. She has already been without rent since 20 August 2014. She has lost tenants and faces the loss of other tenants in the event that the tenants are not evicted. The tenants have no prospect of paying any rent let alone the arrears. In my opinion the tenants are not entitled to the relief set out in s 93(4) of the Act. I decline to grant them such relief.
In my opinion the orders of the Tribunal were, with respect, entirely justified. No error has been demonstrated. I agree with the respective conclusions and orders. Accordingly I affirm those decisions and orders.
The effect is that the tenants were obliged to vacate the premises by 12.00 noon on 17 November 2014. That order remains in force. It is now in the hands of the landlord as to when she requests the Tribunal’s bailiff to act.
I raised this matter with the landlord in the course of her submissions. It is entirely a matter for the landlord as to whether she permits the tenants some short period of time to leave the premises before requesting the bailiff of the Tribunal to act. The landlord indicated that she had in mind permitting the tenants some 24 hours to leave before the bailiff is directed. That is entirely a matter for her.
Formal orders
In all the circumstances, I make the following orders:
1. That the decisions and orders of the Tribunal made on 5 November 2014 and 14 November 2014 are affirmed;
2. That the appeal by the tenants is dismissed.