Mooney & Mooney v Scheffler

[2008] SADC 124

District Court of South Australia

(Civil: Appeal Under Residential Tenancies Act 1995)

MOONEY & MOONEY v SCHEFFLER

[2008] SADC 124

Decision of His Honour Judge David Smith (ex tempore)

24 September 2008

LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION

Appeal against order of Residential Tenancies Tribunal to District Court pursuant to Section 41 of the Residential Tenancies Act, 1995 - application pursuant to Section 42 to "..... suspend the operation of the order ....." - discussion of the relevance of the merits of the appeal in any such stay application - held - appellant must establish, in a summary way at least, that the proposed appeal is arguable.

Jackamarra v Krakouer (1998) 153 ALR 276; Reeves v Leyland Motor Corporation of Australia Limited (No 2) (1984) 115 LSJS 62; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; House v The King (1936) 55 CLR 499, applied.

MOONEY & MOONEY v SCHEFFLER
[2008] SADC 124

1. This is an application pursuant to s42 of the Residential Tenancies Act to stay an order of possession made by the Residential Tenancy Tribunal pending an appeal.

2. On 10 September 2008, after a contested hearing, the Tribunal ordered that the Appellant tenants give possession to the Respondent landlord of the residential property occupied by them in Port Lincoln by 11 am on Friday, 19 September 2008.

3. In their appeal, the Appellant tenants intend to argue that the Tribunal erred in rejecting the evidence of the second Appellant that the Respondent landlord had, in December 2006 or January 2007, agreed to give them a tenancy until 2012.

4. At the first hearing of this application on 17 September 2008, which was adjourned for full argument until today, I made a stay order until further order but it was intended to be subject to the argument today.

5. I confirm that I then made it clear to the Appellant’s counsel that obtaining a stay order pending the determination of an appeal, is not a mere formality.  The merit of the appeal is a relevant matter.  There must be some arguable merit in the appeal to justify “a stay” order.  The principles applied in applications such as:

   ·to extend time to appeal (Jackamarra v Krakouer (1998) 153 ALR 276);

   ·to set aside judgments (Reeves v Leyland Motor Corporation of Australia Limited (No 2) (1984) 115 LSJS 62 per Cox J at 63); and

   ·to obtain injunctive relief (Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57)

   can be applied broadly to the statutory discretion set out in s42 to require an Appellant seeking a stay to establish, in a summary way, that there is some arguable merit in the appeal.

6. The Appellants submit that there is arguable merit in their appeal in that there was evidence available to them at the Tribunal hearing relating to their retirement plans which did not emerge at the hearing, and which, if adduced, would have bettered their prospects of resisting the order for possession. The Appellants intend to lead this evidence, if permitted to do so, on the appeal. The recently Amended Notice of Appeal and supporting affidavit of Mrs Mooney particularises this evidence.

7. Counsel for the respondent, Mr McCusker, contends that the so-called new evidence was available at the time, and in any event, is not compelling. He contends that no arguable error of the sort canvassed in House v The King (1936) 55 CLR 499 at 507, has been demonstrated such as to provide a foundation for an order under s42. He makes the same compelling point, that his client made at the hearing before the Tribunal, namely, that the contended for oral agreement is caught by the provision of s30 of the Law of Property Act.

8. A number of other matters arose in the course of argument before me which arguably impact on the enforceability of the claimed oral agreement, including for instance, whether, if it escapes the clutches of s30, the alleged agreement is a certain and complete agreement, bearing in mind that nothing is said about rent. However, these are perhaps matters best left for full argument.

9. What particularly concerns me, however, is the absence in the reasons of the Tribunal of any articulation of why the Tribunal member accepted Ms Scheffler’s evidence that she ‘..... never agreed to a fixed term tenancy agreement until the year 2012’ in preference to that of Mrs Mooney. I could infer that the Tribunal member disbelieved Mrs Mooney, or that there was some other basis upon which she exercised a preference. The probabilities are that it was one or the other, but which one it was and why is not clear.

10. So it is on that basis, I think, that this court should entertain this appeal.  However, such a point could only be resolved by a re‑hearing of the evidence, particularly as to that central issue. That can either be done here or by remitting the matter to the Residential Tenancies Tribunal. Remitting the matter, in my view, is always unsatisfactory. So that will not be my order.

11. There is a sufficient basis for me to make an order preserving the status quo and so I leave the order, I have already made, in place.

12. Further, pursuant to s41(2) of the Act, I direct that a re‑hearing take place. It is better that the re‑hearing not be confined in any way.  So the matter should be heard afresh using the present evidence as the parties see fit.  I am mindful of the urgency of the matter and so I have made arrangements for an early hearing. I can offer the parties a hearing time before the next short notice list judge on Wednesday 22 October 2008 at 11.30 to continue throughout the day.

13. So the order I made on the last occasion stands and I direct, under s41(2), that there be a re‑hearing of the matter at 11.30am on Wednesday, 22 October 2008.