Miroslawski v Housing Choices SA - [2024] SASCA 4

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MIROSLAWSKI v HOUSING CHOICES SA
[2024] SASCA 4
Judgment of the Honourable President Livesey (ex tempore)
31 January 2024
SOCIAL WELFARE – HOUSING SCHEMES – PUBLIC HOUSING
Following review proceedings in the Tribunal, the applicant failed to obtain leave to appeal from a single judge and then from the Court of Appeal concerning an order for vacant possession of residential property, Miroslawski v Housing Choices SA [2023] SASCA 136.
The applicant then applied for a stay pending leave to appeal after the Deputy President of the South Australian Civil and Administrative Tribunal refused to order a further stay.
HELD (the Court) dismissing the application for a stay:
1.Even if it could be said that there was an arguable error made by the Tribunal, the purpose of the application was to enable the applicant to find alternative accommodation and the evidence before the Tribunal and this Court demonstrated that accommodation is available to the applicant.
2.It has not been demonstrated that it is in the interests of justice to grant a stay.
3.Observations made about the contention that the Tribunal did not have power to make orders following the disposition of review proceedings and appeal proceedings in the Supreme Court.
4.Order for costs fixed in the amount of $400, with execution stayed pending the further order of this Court.

South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 71, 73; Residential Tenancies Act 1995 (SA) ss 87, 93; Uniform Civil Rules 2020 (SA) r 212.5(1), referred to.
Lesses v Maras (No 2) [2016] SASC 140; Georganas v Georganas [2024] SASCA 1; Flowers v Finlayson (No 2) [2023] SASCA 12; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; Elliot v R (2007) 234 CLR 38; McAdam v Robertson (1999) 73 SASR 360; Duke Group Limited (in liq) v Pilmer and Ors (No 5) (2003) 87 SASR 325, considered.

MIROSLAWSKI v HOUSING CHOICES SA
[2024] SASCA 4
Court of Appeal – Civil
LIVESEY P (ex tempore):
Introduction

This is an urgent application for the stay of an order for vacant possession. On 17 January 2024, the Deputy President of the South Australian Civil and Administrative Tribunal (the Tribunal) refused a stay in circumstances where a judge of the Supreme Court had already stayed the order for vacant possession until 5.00 pm on 19 January 2024.[1]
[1] Miroslawski v Housing Choices SA [2023] SASCA 136, [2] (Livesey P and Doyle JA).
In the course of the hearing before the Deputy President, the respondent gave an undertaking that it would not seek an order for the bailiff to evict the applicant before 1 February 2024. That undertaking was reiterated in this Court.
The Deputy President doubted whether she had jurisdiction to vary the date on which the order for vacant possession would operate. As her Honour explained, proceedings in the Tribunal (including review proceedings) had been finalised and the appeal process…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Miroslawski v Housing Choices SA and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] SASCA 4
Decision Date: 31 January 2024

CaseChat Overview and Summary

This matter concerned an application for a stay of a South Australian Civil and Administrative Tribunal (SACAT) order for vacant possession of residential premises. The applicant, Mr Miroslawski, was the tenant, and the respondent was Housing Choices SA, the landlord. The Tribunal had made an order for vacant possession pursuant to section 93 of the Residential Tenancies Act 1995 (SA) following a notice of termination for breach.

The legal issue before the court was whether to grant a stay of the order for vacant possession. This required the court to consider whether the applicant had established the necessary factual foundation for the application, particularly in relation to the availability of alternative accommodation, which was central to any claim of severe hardship under section 93(4) of the Act.

The court reasoned that the applicant had not established the factual foundation for the application for a stay. While the applicant's case was predicated on the assertion that he remained without alternative accommodation, the evidence before the Tribunal, including an email from the applicant's social worker, indicated that alternative accommodation was available in the form of residential care respite, with a view to permanent care. The social worker's email detailed discussions with the applicant about this option, his agreement to it, and efforts to secure an admission date. The court found that this evidence demonstrated that accommodation was available to the applicant, undermining the basis of his application for a stay.

Consequently, the application for a stay was dismissed. The court also made an order for costs fixed at $400, with execution of that order stayed pending further order.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the factual foundation for the application has not been established and the application for a stay should be dismissed.Relevant background Following service of a notice of termination for breach, the Tribunal made an order for vacant possession on the landlord’s application pursuant to s 93 of the Residential Tenancies Act 1995 (SA) (the RTA Act). The same order could have been made under s 87(1) on the grounds of the tenant’s serious breach of the obligation to keep the premises in good tenantable condition and free from refuse. As the Deputy President explained, where the Tribunal determines that a residential tenancy has been terminated, it may then exercise a discretion as to whether to order vacant possession under s 93 of the RTA Act. That discretion is exercised after taking into account a range of factors which include the seriousness of the breach and whether it can be remedied. If the breach is capable of being remedied, the Tribunal will consider whether the tenant has had an opportunity to remedy the breach and taken steps to do so and, where the breach remains unremedied, whether there is a prospect that the breach will soon be remedied. Where the Tribunal determines to make an order for possession, the order will “take effect on a date specified …, being a date not more than seven days after the date of the order unless the operation of the order for possession is suspended”, see s 93(3) of the RTA Act. Nonetheless by s 93(4), where the Tribunal is satisfied by the tenant that an order for immediate possession “would cause severe hardship to the tenant”, the Tribunal may “suspend the operation of the order for possession for up to 90 days”, and “extend the operation of the residential tenancy agreement until the landlord obtains vacant possession”.[4][4] Miroslawski v Housing Choices South Australia (SACAT, Deputy President Johns, 17 January 2024), [25]. The applications before the Deputy President and before this Court were based on the proposition that the applicant remained without alternative accommodation. The evidence before the Deputy President, however, included an email from the applicant’s social worker which suggested that there was alternative accommodation:[5]I have discussed the outcome of the application to the retirement village with Mr Miroslawski, and advised his best option at this time is to move into residential care respite. I have been able to source respite with a view to permanent care at the Infin8 Care Hahndorf residential facility. That location is close to Mr Miroslawski’s son Sev. They are also offering 1 month of free respite at the present time, which Mr Miroslawski would be eligible for. I discussed at length with Mr Miroslawski the option of residential care, be it temporary or permanent, and he was agreeable. … I am awaiting confirmation of an admission date for Infin8 Care, however I have requested admission on Thursday the 18th January… [5] Miroslawski v Housing Choices South Australia (SACAT, Deputy President Johns, 17 January 2024), [19].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In these circumstances, it has not been demonstrated that it is in the interests of justice to grant a stay. Even if it could be said that there was an arguable error, the purpose of the application was to enable the applicant to find alternative accommodation and the evidence before the Tribunal and this Court demonstrates that accommodation is available to the applicant. Conclusion The application for a stay must be dismissed. There will be an order for costs fixed in the amount of $400, with execution of that order stayed pending the further order of this Court.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.