Linke v SA Housing Trust Summary

District Court of South Australia
(Civil: Appeal Under Residential Tenancies Act 1995)
LINKE v SA HOUSING TRUST
[2012] SADC 187
Ruling of His Honour Judge Stretton (ex tempore)
17 December 2012
APPEAL AND NEW TRIAL
Appeal against an order by the Residential Tenancy Tribunal evicting the appellant on the grounds of non-payment of rent.
Held: In light of recent payments and an undertaking to strictly adhere to a payment plan, eviction order set aside.

LINKE v SA HOUSING TRUST
[2012] SADC 187

Very well, this is an appeal from a decision made by the Residential Tenancies Tribunal on 13 December 2012 which ordered the eviction of a tenant, the appellant, from premises he resides in at 11 Twyford Street, Elizabeth Grove by 11 am on Tuesday, 18 December 2012; that is tomorrow.
Unfortunately there has been a history of problems with payment of rent and I note from the materials before the tribunal which have been disclosed to both parties today, that there are a number of previous orders of the Residential Tenancy Tribunal throughout 2012 that reflect a very patchy rental payment history. On a number of those previous occasions the tribunal was persuaded to approve a payment plan, to allow Mr Linke to get back up to date. Unfortunately there has still been a patchy rental payment performance.
On 22 October there was a hearing that set in place a payment plan. Unfortunately that was not adhered to and Mr Linke has fallen further behind in the payment of his rent. Accordingly on 13 December the tribunal made an order for eviction as previously indicated.
Mr Linke was able to make a further payment on that day, that is on 13 December 2012. Mr McNulty for the Housing Trust indicates that since the previous hearing of 22 October the payment plan was adhered only to some degree, however and in light of some recent payments by Mr Linke he is only $120 behind in respect of the period between 22 October and today.
Today Mr Linke has attended and explained his financial situation. He relies on Centrelink plus one day a week working at Ray’s Outdoors. He has some money in his account enabling him to make a $240 payment tomorrow which will bring him up to date with the payment plan previously set in place by the tribunal.
In those circumstances, Mr McNulty, on behalf of the Housing Trust, does not pursue immediate eviction so long as Mr Linke undertakes to make the $240 payment tomorrow. Mr Linke has given that undertaking today. He has indicated to the court that he has the money in his account and that he will, without fail, deposit those moneys tomorrow. In those circumstances, I set aside, by consent, the tribunal’s order of 13 December 2002 for eviction.
The orders of 22 October therefore remain in place. Those orders require Mr Linke to pay $120 each week. Should he not do so prior to 27 December 2012 the Housing Trust may reapply by letter or fax to the tribunal for an urgent hearing to seek an eviction order. I remind the parties that order 3 is also still in place, that from 3 January if any of the payments are missed the landlord may still apply for eviction, but must do so by lodging a form 7.
I reserve the right to edit and settle these reasons. That concludes my ruling.

CaseChat Overview and Summary

The District Court of South Australia heard an appeal by Mr Linke against an eviction order issued by the Residential Tenancy Tribunal. The appellant, who resides at 11 Twyford Street, Elizabeth Grove, had been evicted due to non-payment of rent. The SA Housing Trust, who were the landlords, sought the eviction after a history of irregular rent payments despite several approved payment plans. The tribunal had set a new payment plan on 22 October, which was again not adhered to, resulting in the eviction order on 13 December. Mr Linke made an additional payment on 13 December and promised to make a further payment of $240 the next day to bring him up to date, which the landlord agreed to accept.

The legal issues in this case centred on whether the eviction order should be upheld given Mr Linke's recent payment and his commitment to adhere to the payment plan moving forward. The court had to consider the history of non-compliance with payment plans and the tenant's current financial situation and willingness to meet the obligations set out by the tribunal. The primary concern was whether Mr Linke's recent actions and promises demonstrated a genuine effort to resolve the ongoing issue of rent payments.

The court, in ruling on the appeal, considered the recent payment and the undertaking by Mr Linke to make the outstanding payment. His financial situation, reliant on Centrelink and part-time work, was also taken into account. The landlord agreed not to pursue eviction if Mr Linke adhered to the new payment plan, which he had committed to doing. The court set aside the eviction order by consent and allowed the previous orders for rent payments to remain in place. The court reminded both parties that the landlord could reapply for an eviction order if Mr Linke failed to meet the payment deadlines.

The court's decision was to set aside the eviction order issued by the tribunal, with the condition that Mr Linke made the promised payment of $240. The existing orders for weekly rent payments were left unchanged, with the landlord having the right to reapply for eviction if Mr Linke failed to meet the payment deadlines. The court reserved the right to edit and settle the reasons for the ruling.

Linke v SA Housing Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established