Li v L J Hooker (St Peters, SA) - [2021] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
LI v L J HOOKER (ST PETERS, SA)
[2021] SADC 33
Judgment of her Honour Judge Deuter
22 December 2020
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
RESIDENTIAL TENANCY - Appeal against findings and order of Judicial Registrar of Magistrates Court that appellant vacate tenancy by 22 December 2020 – 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 arrears of rent had not been paid and previous orders not complied with.
Applicant has no family in Australia and no accommodation. He has approval for a bond guarantee from SA Housing Trust. Applicant has agreed to move out of the property but due to personal circumstances seeks that eviction be suspended until after Christmas.
Held: The decision of the Judicial Registrar of the Magistrates Court of the 26 November and 17 December 2020 for vacant possession is affirmed, save that the stay upon the order for possession is extended to midday 4 January 2021. Order for application of bond monies and payment orders made.
Residential Tenancies Act 1995 (SA); Magistrates Court Act 1991 (SA) s 38(8), s 39(1); South Australian Civil and Administrative Tribunal Act 2013 (SA) Part 3A, referred to.

LI v L J HOOKER (ST PETERS, SA)
[2021] SADC 33

MINOR CIVIL REVIEW
Introduction

Kaiwen Li, (‘the tenant’), has brought an application to review a minor civil decision of 17 December 2020 whereby an order was made that he vacate the residential premises of 11 Hilltop Avenue Felixstow (‘the premises’), by midday on 22 December 2020.
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 the legal technicalities.[2]
[1] Section 38(8) of the Magistrate Court Act 1991 (SA).
[2] Section 38(1) of the Magistrate Court Act 1991 (SA).
Background
On 21 April 2020, the tenant and the landlord entered into a residential tenancy agreement in relation to the premises for a fixed term of one year. The agreement was for rental at the rate of $280.00 per week, by payment of $560.00 each fortnight. In September 2020, the landlord, by the agent, LJ Hooker St Peters, served a notice of termination of the tenancy, requiring vacant possession of the premises for failure of the tenant to pay the required rent. A form 2 was served that was valid under the Residential Tenancies Act 1995 (SA) (‘the Act’).
Magistrates Courts Hearings
On 15 February 2020, a hearing was conducted before Magistrate Files 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 arrears of rent had not been paid. At that hearing it was noted that the rent was $950.00 in arrears. The tenant acknowledged this. The magistrate found that the amount in arrears did not warrant eviction. He ordered that the tenant could stay in the premises on the condition that he pay the landlord, via the agent, $660.00 by 5.00pm. 21 September 2020, and then continue to pay that sum every fortnight until the rent was two weeks in advance as per the tenancy agreement. If the tenant failed to make the required payments, the landlord could request a further urgent hearing from the court.
The tenant failed to comply with the order for payment made on 15 September 2020, and a hearing was listed in the Magistrates Court before Judicial Registrar Bakas on 26 November 2020. At that date, the rent arrears, without taking account of rent in advance was $1,190.00. On this occasion, the tenant gave evidence that when he had commenced the tenancy, he was working in his own business, which involved training people in the sport of fencing, and selling fencing equipment online. Due to the COVID-19 pandemic, this business had suffered a downturn, and he was now in receipt of Jobseeker payments. The landlord's agent acknowledged that when the tenant had applied for the property, he disclosed an annual income of $50,000.00 from working in his own business. The Judicial Registrar considered the matter as being finely balanced and adjourned the matter to allow the tenant to make further payments of $350.00 by 5.00p.m. on 1 December 2020, and $600.00 by 5.00pm. on 15 December 2020. She was clear that due to the tenant's poor payment history, he may be ordered to move out of the premises at the next hearing if the payments were not made in full.
The Judicial Registrar also directed that during the adjournment period the tenant was to investigate his eligibility to obtain a bond guarantee from the SA Housing Trust, so that the cash bond on the premises could be applied towards the rent arrears. The tenant was also directed to provide evidence of that application to the court, and to provide written submissions outlining how COVID-19 had impacted his employment income and provide documents to support his position. All documents were to be provided to the court by the next hearing, which was later set for 17 December 2020.
The tenant did not attend the hearing on 17 December 2020, and Judicial Registrar Bakas attempted to telephone him. He did not answer the call. The court was satisfied that the tenant had been served with notice of the hearing. The Judicial Registrar noted that a payment for rent had been made on 18 October 2020, of $370.00. However, the rent arrears at the date of hearing had increased to $2,030.00. The tenant had not provided any documents to the court regarding any application made to the South Australian Housing Trust, nor had he provided written submissions regarding his current financial circumstances, and the impact of COVID-19.
As a result, and considering his poor payment history, the Judicial Registrar decided that the tenant should move out of the premises and ordered that he was to do so by midday on 22 December 2020. The Judicial Registrar also ordered that:
(1)the bond of $1,680.00, (Bond No. 4342485-4), be paid to the landlord via the agent; and
(2)the tenant must pay the landlord, (via the agent), $550.00 within 14 days of the date of the order.
Notice of Review
The tenant filed a notice of review on the afternoon of 21 December 2020, the day before the order to vacate was to be complied with. He set out that he had approached SA Housing Trust and collected his financial papers, and was ready to attend court on 17 December 2020, but had had a technical difficulty with his phone. He had received notification from SA Housing Trust that they would provide a cash bond to him, but he had not yet found another rental and was unable to do so in such a short time.
The Review Hearing
On the hearing, both the tenant and the landlord's agent, Ms Rillotta, of LJ Hooker St Peters appeared in person. The tenant told the court that he had not yet obtained alternative accommodation, and given the time of year this was difficult, especially as he has a dog. He later told me that he has no family in Adelaide as they all live in China, and that because of having the dog, a Labrador, it was difficult to move in with friends. However, he had spoken to some property agents, and there was the possibility of some tenancies being available soon.
In relation to the arrears owing, after some discussion, the tenant did not dispute the amount of arrears which were $2,230.00 at 17 December 2020.
The tenant explained to me that he had complied with the order of the Judicial Registrar to obtain the documentation sought. He had approached the South Australian Housing Trust and had been advised that they would provide the bond moneys to him. He did not have written submissions regarding his financial situation but told me that before COVID-19 struck he conducted a business as a fencing instructor with most of his business coming from China. He would conduct two seminars in China each year and made enough money from these to see him through the year. He presented no evidence of this and told me that he had not lodged any tax returns. He did hand me his phone that contained copies of his bank records between mid-2019 and mid-2020. These confirmed a regular and ongoing bank balance over that period of between $2,500.00 and $4,000.00 in credit. No business documents were provided.
The tenant did not tell me, in any detail, what efforts he had made to find further accommodation. He did give evidence that he did not have time to pack up his belongings and move to a new house. At this time of year, it was difficult to obtain removalists. The tenant indicated that he no longer wanted to stay in the premises, as the relationship with the landlord had broken down. He needed a few more days to pack up his belongings.
Ms Rillotta, for the landlord, maintained the position taken in the Magistrates Court. The landlord required vacant possession and was concerned that the arrears continued to grow. It was agreed between the parties that the tenant now receives an income of $964.10 from Centrelink as a Jobseeker payment. The tenant, again, showed me his phone to confirm this payment.
Discussion
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 does not have vacant possession of the property despite a valid notice of termination of the lease and the growing arrears of rent. There is also sympathy for Mr Li who finds himself in a very difficult situation and facing having nowhere to live from this afternoon.
The court's role is to review the decision of the Judicial Registrar, so as to determine whether any error has been made. The ultimate issue to be decided in a minor civil review, which is what I am now considering, is whether any error has been demonstrated in the Judicial Registrar’s conclusion.
I have reviewed the Judicial Registrar’s findings of both 26 November 2020 and 17 December 2020 and do not find any error in the way that the law has been applied. It was clearly open to her to reach the conclusions that she did and I, accordingly, affirm the decision and order of 17 December 2020.
The order made by the Judicial Registrar suspending the tenant's eviction until 22 December 2020 expires today. In her brief reasons, the Judicial Registrar 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 a termination of a lease and for vacant possession, the Judicial Registrar 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 and, as a result, the requirement to pay rent continues.
The Judicial Registrar did extend the time for vacant possession to be provided to Mr Li. She gave him further time to enable him the opportunity to find housing and pay the arrears of rent. She also gave him time on 26 November 2020 to prove to the court why he could no longer pay his rent and to get help from the South Australian Housing Trust. Mr Li has not helped himself by not filing documents in court, as requested. I do find that, although she did not make specific reference to s.93(4), the Judicial Registrar did consider the issue.
On this review before me, I need to consider afresh the discretion in s.93(4) of the Act, particularly given the material that Mr Li has put before the court. I have to balance the question of a stay against any prejudice to the landlord.
In this regard, I cannot overlook the fact that the tenant has been in arrears of his rent since at least June 2020. Those arrears have continued to grow, particularly more recently. Mr Li was aware of the risk that he would be ordered to leave the property if he did not pay those arrears and he has done little to help himself. He has ignored court orders and provided no information to assist my consideration, bar referring to very basic email communication from SA Housing Trust and a few bank statements on his telephone.
In balancing the discretion, I take into account that the landlord is justifiably anxious to obtain possession of the premises as soon as possible and recover the unpaid rent. Against this, Mr Li will suffer severe hardship if an order for immediate possession is made. I accept his evidence that he has nowhere else to go. He has told me he is only seeking a few more days, and he has agreed to move out of the property.
Taking all those matters into account, and given the time of year including the difficulties with closure of emergency housing organisations, I do find the discretion under s.93(4) favours Mr Li. I am, therefore, prepared to grant the relief set out in that section of the Act and order the time for him to vacate the premises be extended until midday, Monday 4 January 2021. This is the date Mr Li asked me to extend the rental agreement to.
I am advised that if Mr Li makes no further payments on the rental agreement then the total owing at 4 January 2021 will be $3,160.00. After money held in hand of $370.00 and the bond of $1,680.00 are applied this will leave a balance owing of $1,100.00.
Orders
1.That the order made by the Judicial Registrar on 17 December 2020 for vacant possession of the premises is generally affirmed, save, that I vary the stay of the order by extending it until midday Monday 4 January 2021.
2.That if the tenant, Mr Li, fails to give vacant possession pursuant to Order 1, then the landlord is permitted to request the Court Bailiff to enforce the order for possession.
3.That my order extending the stay order as per Order 1 herein is subject to the tenant continuing to pay the weekly rent of $280.00.
4.The order of the Judicial Registrar that the bond of $1,680.00, (being Bond No.4342485-4), is to be paid to the landlord via the agent is affirmed.
5.The order of the Judicial Registrar that the tenant must pay to the landlord (via the agent) $550.00 within 14 days of the date of her order is affirmed. This is therefore payable by 31 December 2020. If the tenant does not pay this sum, this order may be enforced in the Magistrates Court.
6.That the remaining $550.00 owing by the tenant be paid on or before midday 4 January 2021. If the tenant does not pay this sum, this order may be enforced in the Magistrates Court.