Ried v Daken & Daken Real Estate - [2006] SADC 17

District Court of South Australia
(Civil: Appeal Under Residential Tenancies Act 1995)
RIED v DAKEN & DAKEN REAL ESTATE
Reasons for Decision of His Honour Judge Tilmouth (ex tempore)
16 February 2006
LANDLORD AND TENANT
Residential Tenancies legislation - Recovery of possession - Generally
Residential Tenancy Tribunal makes order to give up possession of rooming-house agreement, such agreement having terminated upon arrears of rent. On appeal and application for stay of proceedings and reinstatement.
Held: Stay temporarily extended in interests of justice.
Tribunal decision affirmed. Legislation provides no power to Tribunal, or Court on appeal, to reinstate rooming house agreement once validly terminated.
Residential tenancies Act 1995 (SA) ss 3, 32(1)(f), 41, 93(a), 100; Residential Tenancies (Rooming House) Regulations 1999 (SA) r 13(2), referred to.

RIED v DAKEN & DAKEN REAL ESTATE
[2006] SADC 17

This is an appeal by Samantha Ried from a decision of the Residential Tenancy Tribunal dated 7 February 2006.
There was also an initial application by notice for directions, seeking a stay of an order for possession in favour of the landlords; this Court granted such a stay on 9 February this year pending the hearing and determination of the matter.
It appears that the parties to these proceedings are parties to what is entitled a “Share House Agreement”, which was dated 12 December 2005, with respect to premises at 69 Gregory Street, Brahma Lodge, in the State of South Australia.
There is some history to the matter, but for relevant purposes, an application was made by the landlords, and heard by the Residential Tenancies Tribunal on 2 February 2006, at which the tenant did not appear, following which the Tribunal made an order pursuant to s110(1)(j) of the Residential Tenancies Act, 1995 (SA) (“the Act”) in favour of the proprietor for possession of the premises, Room 5, 69 Gregory Street by Monday, 6 February 2006.
Subsequently, an application was brought by the tenant on 6 February 2006 seeking an order varying or setting aside the order made by the Tribunal on 2 February 2006, in which, in the ultimate result, it made an order setting aside the order of the Tribunal of 2 February 2006, re-instating an order in similar terms in favour of the proprietor for possession of the room by 8 February 2006.
In the course of the proceedings on 7 February, the Tribunal determined it could only make an order for variation or setting aside a previous order, if there were “proper grounds” for doing so pursuant to s32(1)(f) of the Act. It found such grounds did not exist. It also held there had been a valid notice, dated 19 January 2006, seeking to terminate on the basis of $600 unpaid rent, issued pursuant to r13(2) of the Residential Tenancies (Rooming House) Regulations 1999.
It is admitted that the said rent was unpaid, but the case for the tenant was that $300 of that $600 was paid on 19 January - that is, the same day as the notice - and a further $450 comprising the remaining balance of $300 and a further week’s rent, was paid on 29 January 2006, in total $450.
The Tribunal, however, went on to find that the notice being duly given, the payments mentioned did not cure the default, and that therefore, the agreement between the parties had been validly terminated.
The Tribunal also proceeded to observe that:
The Residential Tenancies Act 1995 does not empower the Tribunal to reinstate a rooming house agreement once terminated.
It did not identify why it reached that conclusion, so it has been necessary to consider the Act for that purpose.
If there was no power to reinstate the agreement, then, whatever the merits, the tenant had no remedy. If there was a power to reinstate, then the Tribunal had the jurisdiction and the power to go on to determine whether it should reinstate the boarding house agreement, and if so, on what terms and conditions, if any.
It is clear that, amongst other distinctions the Act draws, there is a difference between what is defined in s3 as a “residential tenancy agreement” and a “rooming house agreement”. As stated, there was a finding by the Tribunal the arrangement between the parties in this case was clearly the latter, and as noted, the agreement, although entitled “Share House Agreement” was undoubtedly, within the terms of the definitions under the Act, “a rooming house agreement”, and the Tribunal so found.
When it comes to the powers of the Tribunal, which powers can be exercised in this Court on appeal where they apply under s41 of the Act, the ability to do justice between the parties by altering the strict contractual terms of agreements reached between them within the ambit of the Act, are contained in s110. It is noticeable that under s110(1)(a)-(d), there are various powers to restrain, order compliance, order payments to be made and to relieve the parties of obligations, those powers being given with respect to both residential tenancy agreements, and rooming house agreements. When it comes to further powers in ss10(1)(e) and (f) to terminate an agreement, or reinstate rights under an agreement, those latter two powers are restricted to a residential tenancy; it is significant that in those two sections the reference in the preceding four subsections to “rooming house agreements” are omitted.
It follows that it must have been the intention of Parliament, when it came to the powers of the Tribunal, that a distinction was drawn with respect to those powers when it came to altering the rights of the parties under residential tenancy agreements, as opposed to rooming house agreements. In the case of the former, the powers of the Tribunal were wider than they were in the case of the latter. The former extend to terminate an agreement and to substitute another under a determined agreement. This is understandable, because a rooming house agreement involves a rather different occupancy and tenancy situation, one at close quarters so to speak, as distinct from a residential tenancy agreement, which involves, in the ordinary case anyway, an agreement for the letting of a self-contained premises.
This conclusion is reinforced when one returns to the definition of ‘residential tenancy agreement’ in s3, which is defined to mean ‘an agreement (other than a rooming house agreement)’.
Obviously, that definition, when coupled with the various powers in s110 of the Act, as they are distributed between residential tenancy agreements on the one hand, and rooming house agreements on the other, reinforces the preliminary view that the power of the Tribunal to reinstate rights under a residential tenancy agreement, is one excluded to the Tribunal when it comes to rooming house agreements.
It must follow then, that whatever the breach of the tenant was, and whether there were other proper grounds for it to be excused, the Tribunal was correct when it determined that it did not have the power to reinstate a rooming house agreement, once validly terminated. That being so, there was no power in the Tribunal to adjust the rights of Ms Ried in relation to this matter, even if it had wanted to do so, and even if proper grounds had otherwise existed.
In those circumstances, this Court only has the power and no more than the power, the Tribunal had. Accordingly, the Court is forced to the conclusion that the Tribunal was correct in so ruling and that this Court, itself, has no power to reinstate the rooming house agreement once validly terminated.
As pointed out above, the Tribunal expressly found there was a valid termination and the facts which underpin that were not disputed in the hearing.
Accordingly, there will be an order pursuant to s41 of the Act confirming the decision of the Tribunal below.
There is one further matter. Although the Court does not have jurisdiction to adjust the rights of the parties under the rooming house agreement, it does have general jurisdiction to do justice, so far as it can, by way of stay.[1] It might also exercise the power to suspend the operation of an order for possession in the case of residential tenancies[2].
[1] S42D District Court Act 1991 (SA)
[2] S93(a) of the Act.
It is agreed between both parties that the rent applicable to this agreement is paid up until 18 February this year. Accordingly, although the landlords have the right to immediate possession since the order of the Tribunal is reinstated, the Court nevertheless orders a stay or alternatively suspends that order until 9 pm on the evening of 18 February this year; that is Saturday, 18 February 2006.
There will be no order as to costs. I also make orders that the payments into court by Ms Ried of $150 respectively on 9 February 2006 and 13 February 2006 and any interest thereon, be paid out to the landlords (respondents) in this matter.