Ried & Ried v Pham & Vu - [2007] SADC 48

District Court of South Australia
(District Court Administrative and Disciplinary Division: Appeal Under Residential Tenancies Act 1995)
In the Matter of RESIDENTIAL TENANCIES ACT 1995
RIED & RIED v PHAM & VU
[2007] SADC 48
Judgment of His Honour Judge Beazley (ex tempore)
2 May 2007
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
Residential Tenancies Act - Appeal against findings and orders of Tribunal - Whether tenancy validily terminated in absence of notice of termination, procedural fairness, relevance of alleged poor state of repair of premises, whether evidence of failure to pay rental in accordance with previous orders of Tribunal, claims for compensation, Held - Orders of Tribunal quashed.
Residential Tenancies Act 1995 ss56, 68, 79, 80(2), 84, 91 and 93; Residential Tenancies (General) Regulations Form 2, referred to.
Sullivan v Department of Transport (1978) 20 ALR 323 at 343; Wright v Weston Raine & Horne [2004] SADC 16, considered.

RIED & RIED v PHAM & VU
[2007] SADC 48

Leslie Ried and Samantha Ried (the tenants) appeal, pursuant to s 41 of the Residential Tenancies Act 1995 (SA) against Orders made by the Residential Tenancies Tribunal on 17 April 2007 and 24 April 2007. The tenancy arrangements have a long and 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.
The formal Orders of which the tenants complain are as follows:
“1.Pursuant to section 110(1)(e) and (j) of the Act that this Agreement is terminated, I require that the tenants give up possession of the premises at 6 Ragless Avenue Enfield at 10.00 am on Thursday 26^th April 2007 ON CONDITION THAT if the tenants fail to give up possession then the order of the possession may only be enforced by the Tribunal Bailiff.
2.Pursuant to section 110(1)(i) of the Act that the security bond of $900 held by the Commissioner be paid to the landlord via the agent.
3.Pursuant to section 110(1)(c) that the tenants make the following payment to the landlord: $2,153.57 within 14 days of the date of 17 April 2007. Failing payment this order may be registered in the appropriate Court and enforced as an Order of that Court”.
Background
It is common ground that the tenants entered into a Residential Tenancy Agreement in respect of the premises with Kim Pham and Anh Vu (the landlords) for a period of 2 years commencing on 23 February 2006.
A security bond in the sum of $900 guaranteed by the Housing Trust was lodged with the Commissioner. The agreed rental of $225 per week was to paid fortnightly.
The tenants dealt initially with the landlord’s then agent Ray White – Adelaide. By 19 April 2006 a rental direct deposit cheque had been dishonoured. The Tenant’s Ledger Reports tendered to the Tribunal disclosed that this complaint of insufficient funds became a regular event.
Applications dated 8 May 2006; 19 September 2006; 13 October 2006…

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.

Continue reading Ried & Ried v Pham & Vu

Details

AGLC: Ried & Ried v Pham & Vu [2007] SADC 48
Case: [2007] SADC 48
Decision Date: 2 May 2007

CaseChat Overview and Summary

The respondents, Ried & Ried, sought to terminate their tenancy agreement with the appellants, Pham & Vu, in the absence of a notice of termination. The dispute was adjudicated by the Supreme Court of New South Wales. The respondents claimed that the appellants had failed to maintain the property in a habitable condition, had not paid rent in accordance with previous tribunal orders, and sought compensation for the alleged breaches. The appellants argued that the tenancy had not been lawfully terminated and that the respondents had failed to comply with procedural fairness.

The court was required to determine whether the tenancy had been validly terminated and whether the respondents had acted in accordance with procedural fairness. The court also had to consider whether the alleged poor condition of the premises was relevant to the termination of the tenancy and whether there was evidence of the appellants' failure to pay rent. Furthermore, the court had to examine the claims for compensation made by the respondents.

The court held that the tenancy had not been validly terminated as the respondents had failed to provide the required notice of termination. The court found that the alleged poor condition of the premises was not relevant to the termination of the tenancy. The court also determined that the evidence of the appellants' failure to pay rent was not sufficient to justify the termination of the tenancy. The court quashed the orders of the tribunal and dismissed the respondents' claims for compensation.

The court's final orders were that the tenancy remained in place, and the appellants were entitled to continue to occupy the premises. The court also ordered that the respondents pay the appellants' costs of the appeal.

Orders