Rice & Dawson v Szlegel - [2009] SADC 27

District Court of South Australia
(District Court Administrative and Disciplinary Division: Appeal Under Residential Tenancies Act 1995)
RICE & DAWSON v SZLEGEL
[2009] SADC 27
Judgment of His Honour Judge Beazley (ex tempore)
19 March 2009
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
Residential Tenancies Act - appeal against orders of Tribunal - Tribunal orders reinstatement of tenancy on condition that back rent is paid. In the event of non-payment the landlord permitted to obtain possession by administrative procedure - tenants' application to vary orders for rental payments refused by Tribunal on basis that tenants did not satisfy "criteria" determined by Tribunal - in law the only criteria is whether there are "proper grounds for doing so" pursuant to s32(1)(f) of the Act. Held - proper grounds to vary the orders for rental payments - orders of Tribunal quashed - in lieu thereof orders made for conditional reinstatement of tenancy.
Residential Tenancies Act 1995 ss32, 37, 41, 110 and 111; Wright v Weston Raine & Horner [2004] SADC 16; McNickle v White & White [2006] SADC 18, referred to.

RICE & DAWSON v SZLEGEL
[2009] SADC 27
Introduction

Naomi Rice and Daniel Dawson (the tenants) appeal, pursuant to s41 of the Residential Tenancies Act 1995 (SA) against an order made by the Residential Tenancies Tribunal on 6 March 2009. As will appear hereafter from these reasons the tenants also in effect seek leave to appeal against an order of the Tribunal made on 16 February 2009. The tenancy arrangements have a long and somewhat unsatisfactory history. As the parties are stressed about the outcome of the appeal it is important that I deliver a judgment forthwith, these being my ex tempore reasons.
It should be said immediately that at all times the landlord, Maurizio Szlegel, and his agent, Sarah Minear, have acted both reasonably and equitably. It will also be apparent that after a major default in about October 2008, the tenants have consistently done their best to ensure compliance with orders of the Tribunal, and to reduce the arrears of rent accrued in 2008.
At all appropriate times they have sought orders for variation in the Tribunal. It was the decision of a member of the Tribunal on 6 March 2009 to decline an application for variation, which compelled the tenants to appeal to this Court. Whether it was appropriate for the Tribunal to direct the parties to this Court is an issue of general importance. I turn now to the orders of the Tribunal which are the subject of this appeal.
The orders
The formal orders of which the tenants complain are as follows:
“- 16 February 2009
(a)Pursuant to s32(1)(f) of the Act, I set aside the order of the Tribunal made on 6 January 2009 and substitute the following orders, which are made under ss80 and 111 of the Act:
The tenancy is reinstated on condition that the tenant:
Pays $350.00 by 5pm on Wednesday, 18 February 2009. If this payment…

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.

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Details

Case: [2009] SADC 27
Decision Date: 19 March 2009

CaseChat Overview and Summary

The case of Rice & Dawson v Szlegel involved a dispute between landlords and tenants over the termination of a tenancy under the Residential Tenancies Act. The tenants, Rice and Dawson, had been evicted from their property by the landlords, Szlegel. The tenants sought reinstatement of their tenancy, which was granted by the Tribunal on the condition that back rent was paid. The Tribunal also ruled that if the tenants failed to pay the back rent, the landlords could regain possession through an administrative procedure. The tenants then applied to the Tribunal to vary the orders for rental payments, which was denied. The tenants appealed to the court, arguing that the Tribunal had applied incorrect criteria in its decision. The central legal issues before the court were whether the Tribunal had correctly interpreted the criteria for varying the rental payment orders and whether the Tribunal had the authority to impose such criteria.

The court held that the only criterion specified by the Act for varying rental payment orders is whether there are "proper grounds for doing so" as per section 32(1)(f). The court found that the Tribunal had applied an incorrect legal standard in determining whether the tenants' application met the criteria for varying the rental payment orders. The court quashed the Tribunal's orders and made orders for the conditional reinstatement of the tenancy instead. The court concluded that the tenants had demonstrated proper grounds for varying the rental payment orders, as they had shown that they had a reasonable prospect of being able to pay the back rent within a reasonable time frame.

The final orders of the court were that the Tribunal's orders for the reinstatement of the tenancy on the condition that back rent was paid were quashed. In their place, the court made orders for the conditional reinstatement of the tenancy, subject to the tenants paying the back rent within a reasonable time frame. The court also ruled that the landlords could not obtain possession of the property through an administrative procedure unless the tenants failed to pay the back rent within the specified time frame. This decision clarified the legal criteria for varying rental payment orders under the Residential Tenancies Act and emphasised the importance of correct legal interpretation by Tribunals.

Orders