Lane v MURUGESAN

[2020] SADC 174

District Court of South Australia

(Civil: Minor Civil Review)

LANE v MURUGESAN

[2020] SADC 174

Judgment of Her Honour Judge Deuter (ex tempore)

14 December 2020

LANDLORD AND TENANT - TERMINATION OF THE TENANCY

RESIDENTIAL TENANCY - Appeal against findings and order of Magistrates Court that appellant vacate tenancy by 14 December 2020 - whether tenancy validly terminated - damage to property - whether additional time should be provided to the tenant to vacate the property.

Held: The decision of the Magistrates Court of 24 November 2020 for vacant possession is affirmed, save that stay upon the order for possession extended to midday 18 January 2021.

Residential Tenancies Act 1995 (SA) ss 83A(2), 93(4); Magistrates Court Act 1991 (SA) s38; South Australian Civil and Administrative Tribunal Act 2013 (SA) Part 3A, referred to.
Simms v SA Housing Trust (2002) 226 LSJS 42, applied.

LANE v MURUGESAN
[2020] SADC 174

1. David John Lane (‘the tenant’), has brought an application to review a minor civil decision of 24 November 2020, whereby an order was made that he vacate residential premises at 39 Dennis Street, Whyalla Stuart (‘the premises’), by midday on 14 December 2020.

2. The decision was made by the Magistrates Court under Part 3A of the South Australian Civil and Administrative Tribunal Act 2013 (SA) as the landlord of the premises lives interstate. The decision is to be reviewed pursuant to s.38 of the Magistrates Court Act 1991 (SA). This provides that the decision on review is final and not subject to appeal.[1]  The hearing of the review is to take the form of an inquiry by the court and the court must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities.[2] 

   [1] s.38(8) Magistrates Court Act 1991.

   [2]s.38(1) Magistrates Court Act 1991.

   Background

3. On 13 November 2019, the tenant and the landlord entered into a residential tenancy agreement in relation to the premises for a non-renewable fixed term commencing on 13 November 2019 and ending on 10 November 2020.  The agreement was for rental to be paid at the rate of $150 per week by direct debit of $300 on the Wednesday of each fortnight.

4. On 28 September 2020 the landlord, by their agent, Ray White Whyalla, served a notice of termination of the tenancy requiring vacant possession of the premises on or before 10 November 2020. This notice was provided within the 28 day-notice period required by s.83A(2) of the Residential Tenancies Act 1995 (SA), ('the Act').

   Magistrates Court hearing

5. On 24 November 2020, a hearing was conducted before Magistrate Johns upon application of the landlord of the premises, seeking that the tenancy be terminated and the premises vacated.  The basis of the landlord's application was that the tenancy had been for a fixed term and that a valid notice had been served for vacant possession.  The tenant had not vacated the premises and a concern was raised that a substantial amount of damage had been caused and was continuing to be caused by the tenant.

6. The tenant gave evidence on oath that he had been unable to find another place to live in Whyalla, and did not have any family or friends with whom he could live for a short time.  He also gave evidence that he had made many applications for other tenancies but so far had not been successful.  He therefore sought to stay in the property until after Christmas.  He does not work and was in receipt of Jobseeker payments.

7. The landlord's agent gave evidence that the tenant was up to date in his rental payments but that the landlord was concerned about the condition of the premises and damage thereto.  The landlord would provide some additional time to the tenant to vacate but not until after Christmas.

8. The learned Magistrate considered all issues.  She noted that a valid notice of termination was served on 28 September 2020 and therefore the tenant had had almost two months notice to find another place to live. However, she accepted he needed some further time to clean up the premises including the yard and find alternative accommodation.  She confirmed termination of the tenancy and ordered that the tenant must leave the premises by midday on Monday, 14 December 2020, or the landlord could evict him.

   Notice of review

9. The tenant filed a Notice of Review on the morning of 14 December 2020, a matter of hours before the order to vacate was to be complied with.  He complained that he was being unfairly evicted and, as he still had no alternative place to live, he would be homeless.  He also complained that the claim that the premises was not being cared for and that there was substantial damage was incorrect, and that the premises were damaged when he moved in.  He sought an order extending the time that he was able to stay in the premises until at least 29 March 2020 under ‘Corona Virus hardship terms’.

   The Review Hearing

10. On the hearing both the tenant and the landlord's agent Mrs Lawrence appeared by telephone from Whyalla.  The tenant told the court that he had still not been able to obtain alternative accommodation despite multiple applications for private rental.  He explained that he is now almost 53 years old and that all of his family, including his parents and six children, reside in Western Australia.  He has lived in Whyalla for 10 years and has never worked during that time as he suffers from anxiety, depression and attention deficit disorder.  However, since March, he has received an extra $250 a fortnight by way of Jobseeker payments.  He has spent that money ‘in the community’ rather than using it to find accommodation.  He says he cannot afford to even live in a caravan park.

11. Mr Lane told the court that he has approached the Housing Trust and Emergency Housing run by charities in Whyalla.  He has been assessed as having a category 3 need, but no accommodation is currently available.  He does not own a car that he could live in, and he cannot currently return to live in Western Australia due to border restrictions resulting from the COVID-19 pandemic.

12. In relation to his claim that he could not be evicted due to COVID-19 hardship terms, Mr Lane claimed this was a Federal Government initiative applicable to the end of March 2021.  However, he did not explain or elaborate on how that initiative applied to his situation.

13. Regarding damage to the premises Mr Lane said that the property was in very poor condition when he rented it, with holes in doors, paint chipped, gutters falling off etc.  He admitted that there had been old appliances and other junk items around the property, but he had had these removed.  He had also attended to some repairs inside, where damage had been caused during the tenancy.  He said that the damage was not as bad as suggested by the landlord.  Mr Lane pleaded with the court for more time to stay at the premises, as he would be homeless if he was ordered to leave.

14. Ms Lawrence for the landlord maintained the position taken before the Magistrate.  When asked, she agreed that there was a shortage of residential housing in Whyalla.  Although she sympathised with Mr Lane's position the landlord was very concerned as to the level of damage occasioned to the property and is of the view that Mr Lane has had ample opportunity to find alternative accommodation, given a notice was validly served on 28 September 2020.  She did not indicate if there was another tenant waiting to move into the premises.

15. Ms Lawrence explained that the State Government initiatives introduced to assist landlords and tenants impacted by the COVID-19 pandemic, only applied where incomes had been affected and rent or mortgages could not be paid.  In Mr Lane's case, his income had increased on Jobkeeper, and would continue to be $100 a fortnight higher than regular Centrelink, even after the current Jobkeeper program ceased in December 2020.  In summary, the landlord required vacant possession of the premises forthwith.

    Discussion 

16. I have listened very carefully to all submissions.  The matter was listed today because of its urgency.  One can feel a great deal of sympathy for both parties.  Firstly, for the landlord who has not had vacant possession of the property despite a valid notice of termination of what is a fixed term tenancy. There is also sympathy for Mr Lane, who finds himself in a very difficult situation and facing homelessness.

17. The court's role is to review the decision of the Magistrate so as to determine whether any error has been made.  The ultimate issue to be decided in a minor civil review such as this is whether any such error has been demonstrated in the magistrate's conclusion.[3]

    [3]    See Timms v SA Housing Trust (2002) 226 LSJS 42.

18. I have reviewed the Magistrate’s findings and do not find any error in the way the law has been applied.  It was clearly open to her to reach the conclusions that she did.  I accordingly affirm the decision and order of 24 November 2020.

19. The order made by the Magistrate suspending the tenant’s eviction until 14 December 2020 expires today. In her brief reasons, the Magistrate did not make any specific reference to the relief that can be granted under s.93(4) of the Act.  That section provides that in relation to a notice for termination of a lease and for vacant possession, the Magistrate and this court is empowered to grant a further stay whenever an order for immediate possession of the premises would cause severe hardship to the tenant.  When a stay is granted the residential tenancy agreement is extended until the landlord obtains vacant possession of premises from the tenant.

20. The Magistrate did extend the time for vacant possession to be provided to Mr Lane. She gave him a further 34 days to enable him the opportunity to find housing. I find that although she did not make specific reference to s.93(4), the Magistrate did consider the issues set out therein.

21. In the new circumstances before me, I need to consider afresh the discretion in s.93(4) of the Act.  I have to balance the question of a stay against any prejudice to the landlord.  In doing so, I cannot overlook the fact that the landlord informed Mr Lane, now over two months ago, of the need to leave the property under what was a fixed term lease.  Mr Lane has also been on notice since 24 November 2020 that the date of the eviction was today, yet he left it until the morning of the eviction date to lodge an appeal.

22. In balancing the discretion, I take into account that the landlord is justifiably anxious to obtain possession of the premises as soon as possible given the damage to the property.  That some damage has occurred is not disputed, although I acknowledge that Mr Lane says he repaired that damage and has cleaned up the property.  That is noted by the landlord, but it is not agreed that all damage was repaired.  There also remains a dispute as to the extent to which the property has been cleaned up.  I have not however been told what other loss the landlord will suffer it vacant possession is not provided today. 

23. Mr Lane will suffer severe hardship if an order for immediate possession is made.  I accept his evidence that he has nowhere else to go, and cannot find even emergency housing in Whyalla.  I accept that he has made attempts to find accommodation but has not been successful even with a doctor’s letter that sets out that he needs urgent housing.  He has been told there is nothing available until after the Christmas period.  He is facing homelessness.

24. Taking all matters into account, given the time of year and the difficulties of closure with emergency housing organisations, I find that the discretion under s.93(4) favours Mr Lane. I am therefore prepared to grant the relief set out in s.93(4) of the Act and order that the time for the tenant, Mr Lane, to vacate the premises be extended until midday, Monday 18 January 2021.

25. The order made by the Magistrates Court on 24 November 2020 for vacant possession of the premises is affirmed, save that I vary the stay of the order by extending it until midday on 18 January 2021.  I make the following orders:

    1.I vary the order made by the Magistrates court on 24 November 2020 such that the tenant, Mr David Lane, must deliver vacant possession of the premises at 39 Dennis Street, Whyalla Stuart to the landlord by no later than midday Monday 18 January 2021.

    2.If the tenant fails to give vacant possession at that time, then the landlord is permitted to request the Court Bailiff to enforce the order for possession.

    3.The order in paragraph 1 hereof extending the stay order is subject to the tenant continuing to pay the weekly sum of $150.00, payable the Wednesday of each fortnight to, Ray White Whyalla.