Mcnickle v White & White
[2006] SADC 18
•14 February 2006
District Court of South Australia
(Civil)
MCNICKLE v WHITE & WHITE
Reasons for Decision of His Honour Judge Tilmouth (ex tempore)
14 February 2006
LANDLORD AND TENANT
Residential tenancies legislation - Recovery of possession.
Tribunal orders payment of back-rent with order for possession in default. Appellant appeals for stay of proceedings and reinstatement of tenancy.
Held: Stay of proceedings is affirmed upon condition of payment of back-rent. In the event of default of conditions, order for possession by Tribunal is affirmed. Powers of the Residential Tenancies Tribunal to vary or set aside a previous order, considered.
Residential Tenancies Act 1995 (SA) ss 41, 80(2)(a), 110, referred to.
Autodesk Inc v Dyason (1993) 176 CLR 300; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672, considered.
MCNICKLE v WHITE & WHITE
[2006] SADC 18
This is an appeal pursuant to s41 of the Residential Tenancies Act 1995 (SA) (“the Act”) from a decision of the Residential Tenancies Tribunal of 7 February 2006, by which it affirmed an earlier decision of the Tribunal of 1 February 2006, when it made certain orders for the payment of back-rent by the appellant tenant, on condition that in the event of the failure to make those payments as specified in that order, the landlord would have possession of the property, the subject of the residential tenancy, by no earlier than 1 pm on Wednesday, 8 February 2006.
The parties were in dispute as to the amounts owing at the time the Tribunal considered the matter, particularly on 1 February, but also on 7 February. It has been impossible for this Court to resolve those disputes. In any event, it seems somewhat idle now to try and piece together what might have been the position at relevant times when those two decisions were made, because the parties are in substantial agreement now as to what is necessary to keep the tenancy on foot and recover the back payments.
In short, they agree $570 is currently owing by way of rent. There is a credit admitted by the landlord of $110, which brings the rent outstanding to $460. It is agreed by the appellant tenant that $190 will be paid to the landlord tomorrow by way of a regular payment through Centrelink.
In the result, we have then the question of the appeal, but also before the court is the adjourned hearing of an application for a stay of the order for possession by the appellant, the court having made orders on 8 February staying proceedings pending the hearing of this matter on condition that the tenant pay $110 by 9 February (which has been paid), and on further condition that $330 be paid to the landlord on 15 February 2006, which is tomorrow.
That being the case, and the tenant agreeing to the proposed regime to put the arrangement back on foot, and agreeing with the figures by which it is said that the tenant remains in default in payments of rent due, there will be an order that the stay ordered by this Court on 8 February 2006 be affirmed on the condition, that the tenant do pay to the landlord the sum of $325 by 4 pm on 15 February 2006, and an additional sum of $135 on 23 February 2006, in default of which the landlord will have the right to resume possession of the premises pursuant to the original orders of the Tribunal, if in default of the 15 February payment by no earlier than 4 pm on that day, and if in default of the 23 February payment, by no earlier than 4 pm on that day.
Otherwise there will be an order pursuant to s41 of the Act invoking in turn s110(f), reinstating the residential tenancy agreement as between the parties with respect to the premises at 20 Browning Street, Tea Tree Gully in the State of South Australia, a residential tenancy commenced on 30 June 2005.
The court makes no orders with respect to prospective payments due by the tenant as and from 16 February this year, because those payments have not yet accrued and there is a 14 day period before the default mechanism of the Act comes into play.[1] The landlords retain their full rights under the Act to pursue the matter in the Tribunal, should there be a further default in relation to those prospective payments of rent.
[1] Section 80(2)(a) of the Act.
On the other hand, the tenant should clearly understand that the conditions of reinstating the tenancy, coupled with the order for a stay the court has made, means that if she is in default of that order, pursuant to the stay in making the two payments referred to, then it is not a question of going back and seeking variation of those orders before the Tribunal; those orders will take force according to their tenor and would automatically reinstate the right of the landlords to possession of the property, as originally ordered by the Tribunal.
Finally, because of the way the matter was conducted by the parties, and the agreement they reached as to the amount of unpaid rent as of the date of this hearing, there was no need for the court to further consider the reasons of the Tribunal on 7 February 2006. However, it should be pointed out that the Tribunal apparently reads its power under s37 of the Act, as requiring an applicant seeking a variation or the setting aside of a previous order of the Tribunal, to satisfy certain criteria, based in part on the decision of the High Court in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672.[2] It is sufficient for the moment, to point out that case is a decision of the High Court, as a court of record, sitting at the apex of the hierarchy of courts in this country, exercising a purely appellate jurisdiction, concerning powers it has to re-open previous decisions of its own. That jurisdiction does not have very much to do with the powers of a Tribunal charged with hearing matters in an informal way, unconstrained by such principles. The only statutory consideration the Tribunal must consider when entertaining such an application under s37, is that there could be “proper grounds for doing so” as prescribed by s32(1)(f).
[2] Refer to Autodesk Inc v Dyason (1993) 176 CLR 300.
There will be no order as to costs.
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