Sims v South Australian Housing Trust - [2013] SADC 1

District Court of South Australia
(Civil: Appeal Under Residential Tenancies Act 1995)
SIMS v SOUTH AUSTRALIAN HOUSING TRUST
[2013] SADC 1
Judgment of His Honour Judge Beazley (ex tempore)
4 January 2013
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
RESIDENTIAL TENANCY - Appeal against findings and orders of the Residential Tenancies Tribunal that appellant vacate tenancy by 4 January 2013 - long term tenant - whether the Tribunal erred in failing to give additional time to the appellant to pay outstanding rental payments - whether any merit in the appeal - whether stay should be granted in consequence of severe hardship to the appellant pursuant to s.93(4) of the Act.
HELD: Determination by Tribunal that arrears had not been paid by tenant, and that tenancy ought be terminated clearly correct. Tribunal decision and orders made on 28 December 2012 affirmed, save for short stay upon right of respondent to evict the appellant.
Residential Tenancies Act 1995 (SA) ss 32, 41 and 93, referred to.
Wright v Weston Raine & Horne [2004] SADC 16; Rice & Dawson v Szlegel [2009] SADC 27; Antoniou v Locker [2012] SADC 28, considered.

SIMS v SOUTH AUSTRALIAN HOUSING TRUST
[2013] SADC 1
Introduction

Michael James Sims, (“the tenant”) appeals, pursuant to s 41 of the Residential Tenancies Act 1995, from orders made by the Residential Tenancies Tribunal, ultimately, on 28 December 2012. I use the word, “ultimately,” because it was one of a large number of orders made by the Residential Tenancies Tribunal, over many years upon applications by the SA Housing Trust (“the Housing Trust”) in respect of a Residential Tenancies Agreement first executed by the tenant on 6 April 2000.
The order, the subject of the appeal, was that the tenant must give up vacant possession of the premises on or before 4 January 2013.
The Court heard the appeal on 4 January 2013 because of the urgency of the application by the tenant.
Background
On 6 April 2000 the Housing Trust and the tenant entered into a residential tenancy agreement for the subject premises at 111 Halifax Street, Adelaide.
There is no suggestion that the tenant has been other than a good tenant over the subsequent 12 years, save that he has had difficulties in meeting his rental commitments over many years. These failures had resulted in many applications being made by the Housing Trust for possession of the premises since 2006.
Orders have been made on many occasions by the Tribunal varying previous orders and providing time to the tenant to make payments of arrears by instalments. Such orders made on 10 August 2006, 3 July 2012, 6 August 2012, 24 August 2012, 19 October, 12 and 26 November 2012, and 4 December 2012, have undoubtedly reflected a compassionate approach by the Tribunal to the tenant’s financial difficulties and the fact that he has been a long term tenant.
Amongst those financial problems have been the accumulation of fines by the tenant, and, extended periods of unemployment.
On each occasion, prior to the subject order on 28 December 2012, the Tribunal has permitted the tenant to remain in the premises so long as payments were made in accordance with specified schedules. On each occasion the Tribunal had warned the tenant that if payments were not made in accordance with the schedule, the Housing Trust could apply forthwith to terminate the tenancy without serving a notice.
On those occasions where the tenant has failed to make payments pursuant to the schedule, the Housing Trust has applied for orders for possession. The rental sum is $140.90 per week. Critically, the arrears of rent have not been reduced. By way of example, the arrears, which stood at $1,382.90 as at August 2012, had grown to the sum of $3,576.00 as at early December 2012.
Tribunal Hearings
Very properly the Tribunal did not make self executing orders. See Wright v Weston Raine and Horne [2004] SADC 16. It also very properly treated the respective hearings as applications to vary orders for rental payments pursuant to s 32 of the Act. See Rice & Dawson v Szlegel [2009] SADC 27.
On 4 December 2012 the Tribunal heard an application by the tenant to again vary the schedule of payment of arrears. It may be that the tenant had assumed that because of previous indulgences, the Tribunal would grant a further indulgence. The Tribunal noted that the arrears had grown. It nonetheless ordered a variation as sought by the tenant. It did however warn the tenant in clear and forceful terms that he must make payments in accordance with the revised schedule or would face eviction. As it transpired, the tenant failed to make consistent payments pursuant to the revised schedule.
On 28 December 2012 the Tribunal heard sworn evidence from the tenant. It concluded that in light of the consistent breaches, an order be made obliging the tenant to give up vacant possession by 11.00am and 4 January 2013.
Notice of Appeal
By notice dated 3 January 2013 the tenant asserted that the Tribunal had failed the take into account a charge in his financial circumstances. He asserted that he had been forced to purchase new tyres for his vehicle which would otherwise have been defected, and that he had been forced to wait for Centrelink payments.
He expressed the hope that he would regain employment in the short future.
Nature of the Appeal
I respectfully adopt the reasons of Smith DCJ in Antoniou v Locker [2012] SADC 28 at [12]-[15] as follows:
The material portions of the appeal provision Section 41 provide:
(1)    An appeal lies to the District Court from a decision or order of the Tribunal made in the exercise (or purported exercise) of its powers under this Act.
(2)     On an appeal, the District Court may (according to the nature of the case)—
(a)     re-hear evidence taken before the Tribunal, or take further evidence;
(b)     confirm, vary or quash the Tribunal's decision;
(c)     make any order that should have been made in the first instance;
(d)     make incidental and ancillary orders.
The nature and scope of an appeal under s 41 of the Act was examined by Lunn DCJ in Wright v Weston Raine Horne [2004] SADC 16 at [9] to [23]. I adopt His Honour’s conclusion that s 41 creates “… an appeal strictly so called …”.
At [22] His Honour said:
For these reasons I construe s41 to create an appeal strictly so called which is to be determined on the evidence before the Tribunal at the time of its order together with any further evidence which the District Court in its discretion takes on matters bearing on the determination at first instance. This construction does not produce an unjust result in that it does not deprive a party of a just determination of the issues where circumstances subsequently change. Under s32(1)(f) of the Act there is power for the Tribunal to “vary or set aside an order if the tribunal considers there are proper grounds for doing so”. A similar power is also contained in s37). That is generally a more expeditious and economical way of dealing with relevant subsequent changes in circumstances than an appeal under s41.
I consider that the principles generally applicable to the considerations of appellate courts, have guiding application to the exercise, by this Court, of the powers in s 41 of the said Act. If the Tribunal errs in fact or law, if it fails to take into account some material consideration, if it arrives at a finding which had no evidence to support it, if it draws an inference which does not reasonably arise from proven facts, if it takes into account some extraneous matter, then its decision should be varied or quashed (see House v The King (1936) 55 CLR 449 at 505; State Rail Authority of NSW v Earthline Constructions (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118).
The Appeal and discussion
I heard the appeal on 4 January 2013 because of the urgency of the matter.
The tenant appeared in person. The Housing Trust was represented by Mr T Wierenga.
Very properly the tenant conceded that he could not say that the Residential Tenancies Tribunal had made any error of law nor that it had failed to consider his financial circumstances. He did, however, repeat that he had been in possession of these premises for a long period of time. He was justifiably concerned that he would become effectively homeless if he were removed from the premises.
The tenant very properly conceded that he had been given various indulgences by the Tribunal over the years. He repeated the submissions that he had made to the Tribunal. I have no doubt that the tenant has been under a great deal of financial pressure for a long time. He elected however to pay for his vehicle tyres rather than pay his rental obligations. The Housing Trust was obliged to take the course it did in the circumstances.
I have great sympathy for the position in which the tenant has found himself. The subject premises have been his home for some 12 years. I repeat that in all other respects he has been an excellent tenant. In my opinion, somewhat reluctantly, I conclude that it was obviously open to the Tribunal to make the orders it did on 28 December 2012. Indeed, save for one matter I will now address, the orders were inevitable.
In this respect I note that the Tribunal did not specifically refer to s 93(4) of the Act. That section empowers the Tribunal to grant a stay upon the order for possession whenever an order for immediate possession would cause severe hardship to a tenant.
It may be that the Tribunal did consider its power in that respect and declined to order a stay. It may well be that the Tribunal had reached a conclusion that the tenant had been on notice for many years that he would be likely to be evicted if payments were not made.
It must be said however that in respect of a man who has been living at these premises for some 12 years, it is obvious that it would cause severe difficulty for him to be required to leave the premises within 7 days. That is effectively the result of the order of the Tribunal made on 28 December 2012. In my opinion a seven day period in such a case is entirely unreasonable.
Indeed the representative of the Housing Trust, Mr Wierenga, conceded very properly, that it would be reasonable for me to make an order staying the order for vacant possession, for a period of 28 days from today.
Conclusion
For the above reasons, save for the question of a stay, in my opinion there is no proper basis to interfere with the decision of the Tribunal made on 28 December 2012. Accordingly the appeal will be dismissed.
In my opinion however it is appropriate that I stay that part of the order of the Tribunal that possession be given by the tenant pursuant to s 94(3) of the Act. I make it clear that this is the only part of the order made on 28 December 2012 which is to be stayed.
The formal orders are:
1.   That the decision and the order of the Tribunal made on 28 December 2012 be affirmed, save for the order in paragraph 2 hereof.
2.   That the order that the tenant deliver up possession by 11.00 am on Friday, 4 January 2013 be varied and that vacant possession be delivered up by the tenant by 11.00 am on Friday, 1 February 2013.
3.   That in the event that possession is not delivered up by the tenant by 11.00 am on Friday 1 February 2013 possession may only be taken by the Tribunal bailiff.
4.   That the appeal otherwise be dismissed.
The effect of these orders is that unless other arrangements are made between the tenant and the Housing Trust, the latter will be at liberty to engage the Tribunal bailiff to take possession on or after 11.00 am on Friday, 1 February 2013.