McVicars v South Australian Housing Trust (No 2)

[2025] SASCA 56

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

MCVICARS v SOUTH AUSTRALIAN HOUSING TRUST (No 2)

[2025] SASCA 56

Decision of the Honourable President Livesey  (ex tempore)

22 May 2025

EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS

This is an interlocutory application by the applicant seeking an urgent injunction to restrain the respondent from re-tenanting the property in which the applicant formerly resided.

The substantive appeal concerns the decision of the Deputy President of the South Australian Administrative Tribunal who, on internal review, upheld the decision of the Tribunal to terminate the applicant’s tenancy with the respondent. After the dismissal of a stay application pending the appeal by a judge of this Court, the applicant vacated the property.

The application for an injunction seeks a remedy that is similar to, although ultimately different from, the stay pending the appeal that was previously sought by the applicant.

The applicant’s application for an injunction is made under s 29 of the Supreme Court Act 1935 (SA). As the injunction sought is prohibitory and not mandatory, it is not precluded by s 7 of the Crown Proceedings Act 1992 (SA).

Held, dismissing the application with costs:

1.In accordance with well-recognised principles, the applicant must show that there is a serious question to be tried in the sense that a prima facie case for the relief the applicant seeks exists and that the balance of convenience favours the grant of interlocutory relief.  It is usual for the applicant to offer an undertaking as to damages.

2.There is no reason to doubt the decision made by a judge of this Court concerning the stay pending the appeal and, in the circumstances, it is not appropriate to go behind that decision.

3.In the circumstances of this case, it is doubtful whether it would be an appropriate exercise of discretion to preserve the property.

Crown Proceedings Act 1992 (SA) s 7; Residential Tenancies Act 1995 (SA) ss 87 and 90; Supreme Court Act 1935 (SA) s 29; Uniform Civil Rules 2020 (SA) r 212.5(1), referred to.
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Brackenridge v Bendigo and Adelaide Bank Ltd [2022] SASCA 4; Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464; Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; Cayne v Global Natural Resource Plc [1984] 1 All ER 225; Chimaera Capital Ltd v Pharmaust Ltd (2007) 64 ACSR 332; Commonwealth of Australia v Sanofi (2024) 99 ALJR 213; European Bank Ltd v Evans (2010) 240 CLR 432; Hackney Tavern Nominees v McLeod (1983) 33 SASR 590; McVicars v South Australian Housing Trust [2025] SASCA 52; Miroslawski v Housing Choices SA [2024] SASCA 4; NWL Ltd v Woods [1979] 1 WLR 1294; Teachers Registration Board of South Australia v Kourlas [2024] SASCA 88, considered.

MCVICARS v SOUTH AUSTRALIAN HOUSING TRUST (No 2)

[2025] SASCA 56

Court of Appeal – Civil – Application

LIVESEY P (ex tempore):

Introduction

1. On 20 May 2025, the applicant applied for an urgent injunction to restrain the respondent from re-tenanting the property in which she formerly resided in Salisbury North. 

2. That application was made even though I am yet to finally rule on the respondent’s application seeking a stay of proceedings pending the appointment of a litigation guardian for the applicant.[1]  The respondent opposed the injunction, reiterating a number of the arguments made at the time it successfully opposed an urgent application for a stay pending the appeal.[2]

   [1]     McVicars v South Australian Housing Trust [2025] SASCA 52. The resolution of that application has been adjourned pending evidence from the applicant’s psychiatrist, who has said that she cannot provide a report nor give evidence for about six weeks.

   [2]     Ex tempore reasons of Bleby JA delivered 31 March 2025.

3. This substantive appeal in this matter concerns the decision of the Deputy President of the South Australian Administrative Tribunal who, on internal review, upheld the decision of the Tribunal to terminate Ms McVicars’ tenancy with the respondent.  After the dismissal of the stay application pending the appeal, the applicant vacated the property and, according to an affidavit filed in support of today’s application, it has consistently been her express preference to return to her former home. 

   Relevant background

4. Notwithstanding the unresolved application for a stay pending the appointment of a litigation guardian, the respondent did not object to the Court hearing the injunction application today. 

5. Whilst the respondent has, on a hearing-by-hearing basis, consented to Ms Louise O’Brien assisting the applicant, the respondent has made it clear that it may not continue to give that consent.  Were that to occur it would be necessary for me to make a ruling about the representation of the applicant.  As I mentioned in my earlier reasons, I am concerned that the applicant has not been attending Court before me. 

   The injunction application

6. Where this Court makes an order by way of injunction pursuant to s 29 of the Supreme Court Act 1935 (SA), it does so pursuant to well-recognised principles.

7. First, it is necessary for the applicant to show that there is a serious question to be tried in the sense that a prima facie case for the relief the applicant seeks exists and, second, that the balance of convenience favours the grant of interlocutory relief.[3] 

   [3]     Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153 (Mason ACJ); Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, 217-218 (Gleeson CJ); Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [65] (Gummow and Hayne JJ).

8. It is for the applicant to show “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo” pending a final hearing.[4]  There is a recognised inter-relationship between the strength of the serious question and the balance of convenience or, as it is sometimes described, “the risk of doing an injustice”.[5]  That is to say, an apparently strong prima facie case may warrant an injunction even where there is scant evidence of prejudice or the balance of convenience is finally balanced.[6]  By contrast, even if there were room to doubt the strength of the serious question, an injunction may be appropriate where the balance of convenience strongly favours making the order.[7]

   [4]     Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [65] (Gummow and Hayne JJ).

   [5]     Cayne v Global Natural Resource Plc [1984] 1 All ER 225, 237, citing NWL Ltd v Woods [1979] 1 WLR 1294, 1306 (Lord Diplock), concerning the approach taken to the balance of convenience.

   [6]     Cf, Chimaera Capital Ltd v Pharmaust Ltd (2007) 64 ACSR 332, [83]-[84] (French J), citing Bullock vThe Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464, 472 (Woodward J).

   [7]     Cf Teachers Registration Board of South Australia v Kourlas [2024] SASCA 88, [9]-[10] regarding a stay pending appeal, where additional considerations were recognised as operating where the case involved the public interest.

9. Third, it is usual for an applicant to offer an undertaking as to damages.[8]  That has not been done.  Whilst I have no evidence, even if there had been an undertaking as to damages, there must be at least some doubt about whether the applicant could cover the respondent’s loss of rental income were an injunction to be granted. 

   [8]     European Bank Ltd v Evans (2010) 240 CLR 432, [17] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); Commonwealth of Australia v Sanofi (2024) 99 ALJR 213, [14]-[16] (Gordon ACJ, Edelman and Steward JJ).

10. To some extent, these considerations mirror those considered by the Court when determining a stay pending appeal.[9]  For example, proper cause must be shown by the party seeking an injunction or a stay to justify the favourable exercise of the Court’s discretion.[10]  The application for an injunction seeks a remedy similar to, though ultimately different from, the stay pending the appeal.  Whereas the stay sought to keep the applicant in her home, the injunction seeks to keep the home available for her, in the event of success on appeal.

    [9]     Miroslawski v Housing Choices SA [2024] SASCA 4, [14] (Livesey P).

    [10]   Hackney Tavern Nominees v McLeod (1983) 33 SASR 590, 594 (White J).

11. The applicant relied on s 29 of the Supreme Court Act 1935 (SA), asking me to exercise power under that provision so as to prevent the respondent from dealing with its own property after the residential tenancy has come to an end and the tenant has given up vacant possession. The evidence shows that the respondent is in the process of re-letting the property.

12. The respondent acknowledged today that power could be exercised under s 29 of the Supreme Court Act 1935 (SA). The injunction sought is prohibitory and not mandatory, and s 7 of the Crown Proceedings Act 1992 (SA) does not preclude a prohibitory injunction.

13. As to whether there are serious questions, I have the applicant’s notice of appeal, and the argument presented today.  When refusing the stay pending appeal, a judge of this Court held that the applicant had failed to identify any arguable error in the decision of the Deputy President, and he was not persuaded that the appeal had any reasonable prospect of success. 

14. Where we both sit as single judges considering interlocutory and ancillary orders pending an appeal to the Court of Appeal under r 212.5(1) of the Uniform Civil Rules 2020 (SA), I am not hearing an appeal against that earlier determination.  The applicant has given me no reason to doubt the decision earlier made and, in the circumstances, it is not appropriate for me to go behind it. 

15. As for the balance of convenience, the serious prejudice confronting the applicant was carefully reviewed in connection with the refusal of the stay pending appeal in March 2025.  The judge took into account the applicant’s problems with her mental health and her general wellbeing consequent upon losing her home.  Nothing has been put before me by way of evidence to demonstrate what further prejudice has or may be sustained were the injunction to be refused. As matters stand, I have the prejudice that was apparent in March this year.[11]

    [11]   Cf Brackenridge v Bendigo and Adelaide Bank Ltd [2022] SASCA 4, [9] (Livesey P).

16. Perhaps more importantly, the reason for the termination of the tenancy concerned the ongoing dispute between the applicant and a neighbour.  That led to a situation where the Tribunal found, amongst other things, that though the applicant had been provoked by her neighbour, in response, she had caused or permitted interference with the reasonable peace, comfort or privacy of another residing in the immediate vicinity of her home.[12] 

    [12]   Residential Tenancies Act 1995 (SA), ss 87 and 90.

17. Whilst there was evidence that the applicant’s neighbour had caused her a number of difficulties, the Tribunal found that the applicant had a long history of being unable to manage her behaviour and had responded with violence on her neighbour.  It was in those circumstances thought appropriate to terminate the tenancy notwithstanding the risk of the applicant self-harming or committing suicide.

18. Given those findings, it is doubtful whether it would be an appropriate exercise of discretion to preserve the property for the applicant in circumstances where, as best I can tell, the neighbour with whom the applicant has had difficulty remains living in a neighbouring property. 

    Conclusion

19. In all of these circumstances, it is necessary to dismiss the application for an injunction. 

20. Accordingly, the order of the Court will be that the application dated 20 May 2025 is dismissed.  The applicant must pay the respondent’s costs fixed at $250.