South Australian Housing Authority v Rossiter

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
SOUTH AUSTRALIAN HOUSING AUTHORITY v ROSSITER
[2021] SASCA 113
Judgment of The Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Stanley)
14 October 2021
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES - INSPECTION AND REPAIR
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - CONSTRUCTION
This is an appeal by the South Australian Housing Authority of a decision made by a Deputy President of the South Australian Administrative Appeals Tribunal.
The respondent, James Rossiter, entered into a residential tenancy agreement with the appellant to occupy a unit on premises owned by the Crown and managed by the appellant in May 2016. In May 2020 the appellant wished to undertake works to upgrade the premises including replacing existing windows with new double glazed windows. The respondent refused access to the appellant’s contractors to replace the windows.
The appellant brought an application to the SACAT seeking an order for access.   On 10 December 2020, SACAT made an order requiring the respondent to provide access for the replacement of the windows. The respondent sought a review of that order. A deputy president of the SACAT granted leave to seek a review of the decision, set that decision aside, and dismissed the appellant’s application for an order requiring the respondent to allow the appellant access.
The issue on appeal to the Court of Appeal is whether the ordinary meaning of the word “repair” should be rejected in favour of a broader meaning so as to enable the appellant to undertake improvements. The appellant says that the ordinary meaning of the word “repair” is displaced by the statutory context under which it grants tenancies.
The appeal is dismissed:
1.      The ordinary grammatical meaning of “repairs” does not include the improvement or refurbishment of that which is not damaged or broken.
2.      The factual condition which enlivens the right of the tenant to carry out repairs is that the premises are in a state of disrepair likely to cause injury to person or property or undue inconvenience to the tenant. To extend the meaning of “repairs” in that clause to include carrying out improvements or refurbishments is unlikely to have been intended. The windows in the respondent’s unit did not require “repair”. They were not broken, decayed, damaged or unserviceable.
3. It is not open to the appellant to seek recourse to freestanding grants of statutory power in the SAHT Act to found a right to enter Trust premises for the purposes of undertaking improvement works where that power is not conferred by the terms of the tenancy agreement between the appellant and the tenant.
4. The appellant’s contention that there is an implied term in the tenancy agreement which empowered it to enter the respondent’s premises for the purposes of discharging its statutory functions and obligation is not accepted. There is no need to imply such a term in circumstances where the appellant is empowered by the SAHT Act to enter into tenancy agreements on terms fixed by it which includes the statutory power to undertake improvements.
South Australian Housing Trust Act 1995 (SA) s 5, s 6, s 7(1)(a)-s 7(1)f), s 21, s 34, s 34(3)(d), s 39A; Residential Tenancies Act 1995 (SA) s 5(2), s 65., referred to.
Water Board v Moustakas (1988) 180 CLR 491; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Electricity Generation Corporation v Woodside Energy (2014) 251 CLR 640; Byrnes v Kendle (2011) 243 CLR 253; South Australian Housing Trust v Pawelzik [2015] SASCFC 194; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR; R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134; Breen v Williams (1996) 186 CLR 71, applied.
Coulton v Holcombe (1986) 162 CLR 1; Lurcott v Wakeley & Wheeler [1911] 1KB 905; Proudfoot v Hart (1890) 25 QBD 42; Wincant v South Australia (1997) 69 SASR 126, considered.

SOUTH AUSTRALIAN HOUSING AUTHORITY v ROSSITER
[2021] SASCA 113

Court of Appeal - Civil: Livesey P, Lovell JA and Stanley AJA
THE COURT:
Introduction

The issue on this appeal is whether the ordinary meaning of the word “repair” should be rejected in favour of a broader meaning so as to enable the South Australian Housing Authority (the appellant) access to public housing to undertake improvements. The appellant says that the ordinary meaning of the word “repair” is displaced by the statutory context under which it grants tenancies. It is accepted that taking access ostensibly conflicts with a tenant’s right to quiet enjoyment.
For the reasons that follow the appellant’s contentions should be rejected and the appeal dismissed.
Background
On 18 May 2016 the respondent, James Rossiter, entered into a residential tenancy agreement (described as Conditions of Tenancy) with the appellant to occupy premises at an apartment complex, Bonython Court, at Sussex Street, Hawthorn, owned by the Crown and managed by the appellant.
In May 2020 the appellant wished to undertake works described as building upgrades at Bonython Court. Those works included replacing existing windows with new double‑glazed windows. For that purpose the appellant issued a circular to the residents of Bonython Court dated 11 May 2020, advising tenants of this upgrade work and notifying them that they would need to vacate their home from 7 a.m. to 5 p.m. on an allocated day for that window replacement work to occur.
An officer of the appellant wrote to the respondent on 21 September 2020 seeking access to his unit to allow the windows to be replaced as part of the renewal project being undertaken at Bonython Court. The letter informed the respondent that the window replacement would take a full working day and due to the noise and the need for workers to enter the property, he was required to vacate the unit during the course of Friday, 25 September 2020. The letter informed him that his conditions of tenancy stated in clause 6(g):
THE TENANT AGREES TO:-
…
allow the Trust or any person authorised by it to enter the premises at any time in case of an emergency and at other times by arrangement with the tenant, to inspect any part of the premises, to carry out such repairs as the Trust considers appropriate, to remove rubbish or to move or prune any tree or shrub which is causing damage.
The letter warned the respondent that failure to provide access would result in the appellant making an application to the South Australian Civil and Administrative Tribunal (SACAT) for an Order of Access.
The respondent refused access to the appellant’s contractors for the purpose of replacing the existing windows in his unit with double‑glazed windows.
On 8 October 2020 the appellant served on the respondent a letter together with a notice of termination. The letter noted that according to the appellant’s records, the respondent had not complied with his conditions of tenancy by refusing to allow contractors to access the premises to replace windows as part of the renewal project at Bonython Court. It continued:
A tenant cannot be allowed to breach their Conditions of Tenancy and, in fairness to other tenants who comply with these conditions, arrangements have been made for the service of a Notice to Remedy Breach of Agreement and Notice of Termination on you and other tenants who have refused access to the property.
Together with this letter, you will be served with a Notice to Remedy Breach of Agreement and Notice of Termination. If, within 14 days from service of this letter, you do not contact your housing officer…to arrange a date and time for the work to be carried out, or if you fail to meet this appointment, then eviction proceedings will be initiated against you in the South Australian Civil and Administrative Tribunal.
The notice required the respondent to remedy the breach by providing access for the replacement of the windows. The respondent declined to do so.
The appellant brought an application to the SACAT seeking an order for access. On 10 December 2020, the SACAT made an order requiring the respondent to provide access for the replacement of the windows.
The respondent sought a review of that order. After a hearing, a deputy president of the SACAT granted leave to seek a review of the decision of the SACAT, set that decision aside, and dismissed the appellant’s application for an order requiring the respondent to allow the appellant access to his unit for the purposes of replacing the windows.
A judge of appeal granted leave to appeal from the decision of the Deputy President of the SACAT.
At issue on the appeal is whether the terms of the residential tenancy agreement between the appellant and the respondent permit the appellant to enter the respondent’s unit, without his consent, to undertake the work required to replace the windows. Whether the appellant is entitled to do so turns on the proper construction of clause 6(g) of the Conditions of Tenancy.
At issue is whether the replacement of the windows falls within the meaning of “repairs” in clause 6(g).
Reasons of the Deputy President of the SACAT
The Deputy President concluded that the replacement of the windows in the respondent’s unit did not constitute “repairs” within the meaning of clause 6(g) and accordingly the appellant was not entitled to access the unit for that purpose pursuant to clause 6(g) absent his consent. It followed that the order made by the SACAT requiring the respondent to allow access was wrongly made and the notice of termination was invalid.
Central to the reasons of the Deputy President was the conclusion that the concept of repairs connoted the fixing of something that was broken or defective. The windows in the respondent’s unit were not broken or defective. Their replacement with double-glazed windows constituted a refurbishment rather than repairs. The learned Deputy President said:
I do not accept that a refurbishment is a repair, I consider that a refurbishment may include a repair and vice versa, but they are two quite different concepts. A refurbishment is work undertaken to modernise a property. A refurbishment is not carried out only to address something which is problematic. A repair is necessary to remedy a problem or issue, or to reinstate something to a proper condition – in this scenario, that will be a defect. Refurbishment is a matter of choice. A repair is required.
Submissions on appeal
The appellant contends that the Deputy President erred in law in that she:
(i)Erroneously construed clause 6(g) arising from her failure to have regard to relevant provisions of the statutory scheme established by the South Australian Housing Trust Act 1995 (SA) (the SAHT Act);
(ii)Failed to have regard to the appellant’s enduring powers, including as to access generally, and to alter and improve properties, under the SAHT Act; and
(iii)In the absence of findings as to (i) or (ii), she failed to identify an implied term in the relevant residential tenancy agreement authorising the appellant access to the unit to discharge its statutory functions and obligations under the SAHT Act, including as to the maintenance of conditions, standards and safety of the property.
The appellant contends that the residential tenancy agreement is to be construed in its statutory context. Accordingly, work of the kind the appellant wished to carry out in the respondent’s unit was an alteration or improvement within the terms of s 7(1)(f) of the SAHT Act. Properly construed, that work constituted “repairs” within the meaning of clause 6(g).
The respondent contends that the term “repairs” in clause 6(g) is to be understood in its ordinary grammatical sense which was the approach adopted by the Deputy President. So understood, “repairs” means to remedy or make good a thing that is in some way broken, decayed, damaged or unserviceable. The respondent’s window was not broken, decayed, damaged or unserviceable. Accordingly there was nothing to repair.
The respondent contends that while the appellant may not be able to offer rental of public housing on terms inconsistent with the SAHT Act, that did not occur in this case. On the contrary, it is the appellant which contends for a construction of the tenancy agreement which requires the adoption of an unusual, strained and ungrammatical meaning to the term “repairs”. It was open to the appellant to have leased the unit to the respondent on terms which permitted it reasonable access for the purposes of undertaking alterations or improvements to the unit, but it did not do so. In those circumstances, the Court should not adopt a construction that is contrary to the text of the tenancy agreement, not required by the terms of the SAHT Act, and for which there is no proper basis to imply such a term into the agreement.
Court’s approach on appeal
The appellant accepts that it is putting an argument as to the construction of the lease based on its statutory context that was not put to the Deputy President. Generally an argument available to a party at first instance, but not put in the court or tribunal below, should not be raised for the first time on appeal.[1] However, in Water Board v Moustakas[2] the High Court recognised an exception to this principle where all the facts have been established beyond controversy or where the point is one of construction of law, a court of appeal may find it expedient and in the interests of justice to entertain the point.[3]
[1] Coulton v Holcombe (1986) 162 CLR 1 at [7]-[10].
[2] [1988] HCA 12, (1988) 180 CLR 491.
[3] [1988] HCA 12 at [13]-[14], (1988) 180 CLR 491 at 497.
The respondent took no point about the argument being raised for the first time on appeal. In the circumstances, we consider that it is in the interests of justice for this Court to entertain the argument which involves a pure question of construction.
Accordingly, given the different approach adopted by the appellant on appeal to this Court from that taken before the SACAT, it is unnecessary to descend into consideration of whether the Deputy President of the SACAT fell into error. Rather, the issue to be decided is the proper construction of clause 6(g). That issue can be decided without recourse to the approach taken by the Deputy President given the different manner in which the argument was presented on appeal to this Court, recognising that the principal submission of the appellant is that the correct construction of the term “repairs” within clause 6(g) permissibly includes undertaking the upgrade works, for which the appellant had required access to the property. Ultimately this was the fundamental contention put by the appellant to the Deputy President.
Relevant provisions of the tenancy agreement
Apart from clause 6(g) the relevant provisions of the tenancy agreement are:
·Clause 8(a) which provides:
THE TENANT FURTHER AGREES THAT:
(a)    If in the opinion of the Trust, the accommodation provided becomes inappropriate to the requirements of the tenant, because of the size of the premises or some other factor associated with the premises, the tenant will upon request by the Trust transfer to more appropriate Trust accommodation;
·Clause 8(h) which provides:
If the Trust wishes to develop other accommodation in the area, the tenant will:
(i)      not object to the Trust’s application for development approval to the development, including any necessary land division; and
(ii)     not object to a reduction of the land he/she occupies, to facilitate the development; provided that the Trust gives the tenant at least three (3) months written notice of any such reduction of the land occupied by the tenant, and the Trust agrees to: provide fencing (at least equivalent to that already in existence) on any new boundary of the land occupied by the tenant; and relocate or replace any outbuilding/s which now exist or which are built by the tenant with the written permission of the Trust onto the land to be occupied by the tenant, if they would otherwise be outside of that land; or
(iii)    not object to transferring to other Trust accommodation; provided that the Trust gives the tenant at least three (3) months written notice that the premises are required for the purposes of the Trust’s development and the Trust agrees to: provide the tenant with other Trust accommodation of a standard at least equal to that of the premises, and in the same area or nearby area; and pay the tenant’s reasonable expenses of transferring to the other Trust accommodation;…
·Clause 3 which provides:
THE TRUST AGREES:
3. THAT:
…
(b)     Where the premises are in a state of disrepair likely to cause injury to person or property or undue inconvenience to the tenant, the tenant may, in accordance with Trust policies, carry out such repairs as are reasonably required to overcome the risk of injury and/or the inconvenience;
5.    To keep the premises in suitable repair at its cost, subject to paragraph 3 above and the conditions of tenancy.
Relevant provisions of the SAHT Act
Section 5 provides:
(1) The functions of SAHT include—
(a)     to assist people to secure and maintain affordable and appropriate housing by—
(i) acting as a landlord of public housing in the State; and
(ii) managing various forms of public housing in the State; and
(iii) providing private rental assistance; and
(iv) providing advice and referral on housing options and housing related issues; and
(v) supporting initiatives (within the various sectors) to increase the supply of affordable housing;
(b)     to provide houses to meet housing needs, or to support or promote programs or other initiatives within the private or not-for-profit sectors to meet housing needs;
(c)     to facilitate support for South Australians so as to increase their ability to achieve successful housing outcomes;
(d)     to provide advice to the Minister on—
(i)issues, initiatives or programs associated with the housing needs of the community; and
(ii) any other issues as the Minister or SAHT thinks fit;
(f)      to carry out any other functions conferred on SAHT by or under this Act or other Acts, by the Minister or by delegation under an Act.
(2) SAHT will be the principal property and tenancy manager of public housing in the State.
(3) SAHT should—
(a)     provide affordable, secure and appropriate housing that meets the needs of its clients; and
(b)     ensure that rental housing provided by SAHT is well located, of adequate size and condition, and meets reasonable standards of health, safety and security; and
(c)     ensure that housing built by or for SAHT after the commencement of this Act incorporates modern standards of energy efficiency; and
(d)     aim to provide housing that provides reasonable access to community services.
(4) In conducting its affairs and after taking into account the policies of the Government, SAHT should meet its aims and objectives through the most appropriate and effective mechanisms available to it (which mechanisms may include engaging or funding other bodies or persons to provide or deliver programs or services so as to result in the best use of the resources available to SAHT).
(5) In addition, in conducting its affairs, SAHT must establish consultative arrangements with groups and organisations with an interest in the housing sector, including (but not limited to) groups or organisations that represent the interests of tenants or the providers of community or Aboriginal housing.

Section 6 provides:
Subject to a limitation imposed by or under an Act, SAHT has all the powers of a natural person together with the powers specifically conferred on it by or under this Act or other Acts.
Section 7(1)(a)-(f) provides:
(1) In addition to the powers conferred on SAHT by or under this Act or other Acts, SAHT may—
(a)     lease houses from an agent or instrumentality of the Crown or any other person;
(b)     let houses under its ownership, management or control for such periods as SAHT thinks fit, and exercise in relation to those houses the powers of a landlord;
(c)     subject to this Act (or any other Act), fix the terms, covenants and conditions on which houses are let by it;
(d)     pay bonuses or allowances to tenants who show special diligence and care;
(e)     divide, or subdivide, land for the development of houses;
(f)      build, alter, enlarge, repair and improve houses or enter into contracts under which houses will be built, altered, enlarged, repaired or improved on behalf of SAHT;
Section 21(1) provides:
(1) Without limiting another provision of this Act, but subject to a limitation or condition imposed by the Minister in relation to SAHT, SAHT may—
(a)     sue and be sued;
(b)     acquire, hold, deal with and dispose of real and personal property (or an interest in real or personal property), and grant or hold a lease or licence;
(c)     with the approval of the Minister or as authorised by regulation—acquire, hold, deal with and dispose of shares in, or securities issued by, another body corporate, or participate in the formation of another body;
(d)     with the approval of the Minister or as authorised by regulation—borrow money and obtain other forms of financial accommodation;
(e)     establish and operate ADI accounts and invest money;
(f)      enter into any kind of contract or arrangement;
(g)     exercise other powers conferred by regulation;
(h)     exercise other powers that are necessary, expedient or incidental to the functions of SAHT.
Section 34 provides:
(1) A person authorised in writing by the Minister to do so may enter land (other than residential property occupied by a tenant of SAHT) and conduct a survey, valuation, test or examination that the Minister considers necessary or expedient for the purposes of this Act.
(2) A person must not enter land under subsection (1) unless the person has given reasonable notice of his or her intention to do so to the occupier of the land.
(3) A person authorised by SAHT may enter residential property occupied by a tenant of SAHT if (and only if)—
(a)     the entry is made in an emergency; or
(b)     the tenant has been given written notice stating the purpose and specifying the date and time of the proposed entry not less than seven days and not more than 14 days before the entry is made; or
(c)     the entry is made at a time previously arranged with the tenant (but not more frequently than once in every four weeks) for the purpose of inspecting the property; or
(d)     the entry is made for the purpose of carrying out necessary repairs or maintenance at a reasonable time of which the tenant has been given at least 48 hours written notice; or
(e)     the entry is made with the consent of the tenant given at, or immediately before, the time of entry.
(4) A person must not, without reasonable excuse, hinder a person in the exercise of a power under this section.
Maximum penalty: $2 500.
(5) This section does not limit a power conferred by or under an agreement or mortgage, or by or under another Act or law.
Section 39A provides:
Where—
(a)     SAHT is the landlord of residential property; and
(b)     SAHT requires possession of the residential property for redevelopment or renovations, SAHT must take reasonable steps—
(c)     to consult with any tenants occupying the residential property (the tenants) about their housing options; and
(d)     to arrive at an outcome that is fair and reasonable in the circumstances after paying particular attention to the age, health and any special needs or circumstances of the tenants and to the nature and availability of housing (being an outcome which may include relocating the tenants to other premises on an ongoing basis or proceeding on the basis that the tenants will return to the same site or locality after the redevelopment or renovations are completed).
Relevant provisions of the Residential Tenancies Act 1995 (SA) (RTA)
Section 5(2) of the RTA limits the application of the RTA to South Australian Housing Trust (Trust) tenancies as follows:
(2) The following provisions of this Act (and only those provisions) apply to residential tenancy agreements under which the South Australian Housing Trust or a subsidiary of the South Australian Housing Trust is the landlord, to residential tenancies arising under those agreements and to related disputes—
(a)     Part 3 (South Australian Civil and Administrative Tribunal);
(ab) Section 65 (Quiet enjoyment);
(b)     Section 66 (Security of premises);
(c)     Section 71 (Tenant's conduct);
(ca)    Section 87 (Termination on application by landlord);
(cb) Section 89A (Termination based on domestic abuse);
(d)     Section 90 (Tribunal may terminate tenancy where tenant's conduct unacceptable);
(e)     Section 93 (Order for possession);
(f)      Section 99 (Enforcement orders for possession);
(g)     Division 3 of Part 8 (Powers of the tribunal);
(h)     Division 4 of Part 8 (Representation).
Section 65 provides:
(1) It is a term of a residential tenancy agreement that—
(a)     the tenant is entitled to quiet enjoyment of the premises without interruption by the landlord or a person claiming under the landlord or with superior title to the landlord's title; and
(b)     the landlord will not cause or permit an interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of the premises; and
(c)     the landlord will take reasonable steps to prevent other tenants of the landlord in occupation of adjacent premises from causing or permitting interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of the premises.
(2) If the landlord causes or permits interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of the premises in circumstances that amount to harassment of the tenant, the landlord is guilty of an offence.
Maximum penalty: $5 000.
Principles of construction of the tenancy agreement
The tenancy agreement is a contract. The general principles of contractual interpretation apply to it. Those principles are well settled.
In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[4] Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:[5]
This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
[citations omitted].
[4] [2004] HCA 52, (2004) 219 CLR 165.
[5] [2004] HCA 52 at [40], (2004) 219 CLR 165 at 179.
In Electricity Generation Corporation v Woodside Energy Ltd[6] French CJ, Hayne, Crennan and Kiefel JJ said:[7]
… [T]his Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties … intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”.
[citations omitted].
[6] [2014] HCA 7, (2014) 251 CLR 640.
[7] [2014] HCA 7 at [35], (2014) 251 CLR 640 at 656-657.
In Byrnes v Kendle[8] Heydon and Crennan JJ emphasised that contractual construction depends on finding the meaning of the language of the contract i.e. the intention which the parties expressed, not the subjective intentions which they may have had but did not express.[9]
[8] [2011] HCA 26, (2011) 243 CLR 253.
[9] [2011] HCA 26 at [98], (2011) 243 CLR 253 at 284.
Statutory Scheme of the SAHT Act
Given that the character of the appellant as a statutory body is fundamental to the grounds of appeal, it is necessary to consider the relevant statutory functions, obligations and powers of the appellant.
The appellant administers the Trust, which continues in existence under the SAHT Act. The purpose of the Trust is reflected in the second reading speech of the SAHT Act as follows:[10]
It is the Government’s intention to provide the best possible housing opportunities for tenants of public housing and receivers of housing assistance, in response to need and consistent principles of equity, that it can with the available resources
[10] House of Assembly, Thursday 26 October 1995, page 443 (the Hon J.K.G. Oswald).
The functions of the appellant are set out in section 5 of the SAHT Act. The appellant is the principal property and tenancy manager of public housing in this State,[11] and is entrusted with the responsibility of assisting people to secure and maintain affordable and appropriate housing by acting as a landlord of public housing in this State, as well as managing various forms of public housing.[12]
[11] SAHT s 5(2).
[12] SAHT Act s 5(1).
In exercising its statutory functions, the appellant is obligated to provide affordable, secure and appropriate housing to eligible clients, including ensuring that properties provided are of adequate size and condition, and meet reasonable standards of health, safety and security.[13]
[13] SAHT Act s 5(3)
This requires the appellant’s ongoing maintenance of the properties. In this respect, access to the properties managed by the appellant for the purposes of inspection, maintenance, renovation or other improvement, is necessary for the effective administration of the public housing scheme. Such access enables the appellant to discharge its statutory obligations.
The SAHT Act provides for general and specific powers of the appellant to carry out its statutory functions.[14] Relevantly, the appellant has express statutory powers to:
·let public housing properties and fix the terms, covenants and conditions on which those properties are let;[15]
·exercise in relation to those properties the powers of a landlord;[16]
·build, alter, enlarge, repair and improve properties;[17]
·initiate, facilitate or participate in joint developments;[18]
·enter land to access properties, with at least 48 hours written notice to the tenant, for the purpose of carrying out necessary repairs or maintenance;[19] and
·require possession of properties to undertake redevelopment and renovations.[20]
[14] SAHT Act s 6 and 7.
[15] SAHT Act s 7(1)(b) and (c)
[16] SAHT Act s 7(1)(b).
[17] SAHT Act s 7(1)(f).
[18] SAHT Act s 7(1)(i).
[19] SAHT Act s 34(3)(d).
[20] SAHT Act s 39A.
The SAHT Act provides for a housing scheme that is accessible to persons who do not own other property and are in a situation of genuine need. The appellant administers the scheme in furtherance of its purpose by leasing properties to eligible persons on fair terms, which include rent that is below the market rate. To do so effectively, and in a manner that confers the greatest benefit to all eligible persons, the appellant is given powers that are broader than those of a private landlord.
Given the fundamental divergence in objects and purposes of the two Acts, only a limited number of the RTA provisions apply to leases under which the appellant is the landlord. They are prescribed by s 5(2) of the RTA. This enables the appellant, under the SAHT Act, to exercise greater control over the terms of its leases, to discharge its statutory functions, and exercise its statutory powers, unencumbered by restrictions contained within the excluded provisions of the RTA, or otherwise at common law, which would otherwise limit the appellant’s capacity to satisfy its statutory purpose.
The functions and powers of the appellant are inconsistent with a large number of the provisions of the RTA, the statutory scheme which otherwise governs private residential lease agreements in this State. Nonetheless, one of the provisions of the RTA which applies to the appellant pursuant to s 5(2) is s 65 which provides for the tenant’s quiet enjoyment of the rental property.
The RTA scheme is structured to “remove any perceived disparity that exists between the position of landlord and tenant”,[21] in circumstances where both the landlord and tenant are freely operating in an open market and for their mutual benefit.
[21] Second Reading Speech, Legislative Council, Thursday 23 February 1995, page 1291 (the Hon K.T. Griffin).
An important feature of the scheme of the SAHT Act is s 7(1)(c) which provides that the appellant fixes the terms, covenants and conditions on which houses are let by it. There is no scope for a tenant of the appellant to negotiate the terms of his or her tenancy agreement.
The appellant is currently a party to tenancy agreements with approximately 34,000 tenants residing in public housing properties across South Australia. The terms of many of those tenancy agreements are substantially similar to this tenancy agreement, being in the nature of a pro forma document drawn by the appellant, and operate similarly for a fixed term of up to 10 years.
Construction of the term “repair” in clause 6(g) of the tenancy agreement
The appellant contends that clause 6(g) must be understood in its statutory context. One of the purposes of the SAHT Act is to assist the socially or economically disadvantaged to secure and maintain appropriate housing at an affordable rental. Unlike a private landlord, the appellant does not function to make a profit. In order to fulfil that purpose, the appellant is required to maintain public housing properties, and is empowered to do so by altering and improving those properties pursuant to s 7(1)(f) of the SAHT Act. It has express power to enter properties for the purposes of carrying out necessary repairs or maintenance pursuant to s 34(3)(d) of the Act. The appellant, as a statutory body rather than a private landlord, must act in accordance with its functions and obligations as set out in s 5(1) and s 5(3) of the SAHT Act. The appellant submits the SAHT Act confers it with power to meet those functions and obligations including, relevantly in this case: s 7(1)(f), s 34(3)(d) and s 39A. Accordingly, the tenancy agreement should be construed in a manner that is compatible with the character of the appellant as a statutory body with these functions and obligations. The appellant contends that the proper construction of clause 6(g) is informed by the appellant’s functions and obligations and the powers conferred upon it to fulfil them. On that basis the appellant submits that clause 6(g) entitles it to access properties it leases to its tenants for the purposes of a “repair” and, accordingly, the Court should shrink from adopting an unnecessarily narrow construction of “repair”. Such a narrow construction is not warranted when the circumstances and purposes of the tenancy agreement are properly and objectively understood.
The appellant contends that the term “repairs” must be read broadly to encompass all works that the appellant considers, in its discretion, to be reasonably necessary for the performance of its statutory functions, including the provision of housing that is “appropriate” and of “adequate condition”[22] to meet the housing needs of all South Australians. The appellant submits this construction is consistent with the obligation in clause 5 prescribing its obligations under the tenancy agreement which require it to “keep the premises in suitable care at its cost”.
[22] SAHT Act s 5(1).
The appellant submits that when clause 6(g) of the tenancy agreement is construed in the context of the SAHT Act as a whole, the term “repair” may encompass a refurbishment for the purpose of maintaining or improving the condition of the property. Accordingly, it authorises the appellant to access the property for the purpose of installing new windows to replace old, albeit undamaged, windows, so as to improve the amenity of the property.
We do not accept these submissions.
At issue is the meaning of the singular term “repairs” in clause 6(g) of the tenancy agreement. That meaning must be ascertained from a consideration of the text, the surrounding circumstances and the purpose or object of the agreement. But like a statute, the task of construction begins with the language of the agreement.[23] It is the text of the contract which evidences the bargain struck. This reflects the objective approach adopted in determining the rights and obligations of parties to a contract. The parties’ intention is to be found in the language they use to express their intention.
[23] Byrnes v Kendle [2011] HCA 26 at [98], (2011) 243 CLR 253 at 284.
The ordinary grammatical meaning of “repair” does not include to refurbish or improve.
The Macquarie Dictionary identifies eight meanings of the term “repair”: four verbs and four nouns. The sixth and eighth meanings of the noun “repair” are an instance or operation of repairing and the good condition resulting from repairing. The verb forms of “repair” are to restore to a good or sound condition after decay or damage, mend; to restore or renew by any process of making good, strengthening etc.; to remedy, make good, make up for.
The Australian Oxford Dictionary defines the verb “repair” as to restore to a good condition after damage or wear, and the noun as act or instance of restoring to sound condition.
We accept the respondent’s submission that the common theme in these dictionary definitions is the notion that the thing to be repaired is in some way broken, decayed, defective, damaged or unserviceable.
The appellant sought support from the definition in the Macquarie Dictionary that one of the meanings of the verb “repair” is “to … renew by any process of making good, strengthening etc”. It submits that this dictionary meaning encompasses the sort of refurbishment the appellant wishes to undertake in the respondent’s unit. We do not accept this submission. While that part of the definition provides the basis for an argument in support of the appellant’s construction of the meaning of “repairs” in clause 6(g), in context we do not consider it extends the meaning of the verb “repair” or the noun “repairs” beyond fixing that which is in need of repair, for example, because it is broken. Words take their meaning from the context in which they appear. The meaning of the verb “to renew” in the definition is qualified by the phrase that immediately follows, namely, “by any process of making good, strengthening etc”. That qualifying phrase limits the concept of renewal to a process of restoration of something that is broken, defective or damaged. In any event, even if this dictionary meaning is wider than we understand it to be we do not consider it was used in clause 6(g) in the sense for which the appellant contends. That meaning is not consistent with the other dictionary meanings which we consider conform to the common understanding of the word. Finally, to the extent there is ambiguity in the meaning of “repairs” in clause 6(g), that ambiguity is to be resolved in favour of the tenant in accordance with the contra proferentem principle.[24]
[24] South Australian Housing Trust v Pawelzik [2015] SASCFC 194 per Kourakis CJ at [8].

The ordinary grammatical meaning of “repairs” does not include the improvement or refurbishment of that which is not damaged or broken. While this case may be distinguished from the case of a commercial tenancy it should be noted that this understanding of the meaning of “repair” is of longstanding in the case of commercial tenancies.[25]
[25] Lurcott v Wakeley & Wheeler [1911] 1KB 905 at 915 per Fletcher Moulton LJ; Proudfoot v Hart (1890) 25 QBD 42 at 55 per Lopes LJ; Wincant v South Australia (1997) 69 SASR 126, 135-137 per Matheson J with whom Doyle CJ agreed.
A consideration of context does not suggest a different construction.
The terms “repair” and “repairs” are also used in that part of the tenancy agreement concerned with the appellant’s obligations. Clause 3(b) enables the tenant to carry out repairs where the premises are in a state of disrepair, and clause 5 obliges the appellant to keep the premises in “suitable repair”. There is no reason to construe the term “repairs” in clause 6(g) differently from the meaning of the same term in clause 3(b). Likewise there is nothing in clause 5 to suggest that the term “repair” should be given a meaning inconsistent with the meaning to be attributed to the term “repairs” in those other clauses so as to extend its meaning beyond an obligation to fix things that are broken or damaged. The extended concept of “suitable repair” does not impose any greater obligation on the appellant than to maintain the premises as opposed to improving them. Likewise, the factual condition which enlivens the right of the tenant to carry out repairs is that the premises are in a state of disrepair likely to cause injury to person or property or undue inconvenience to the tenant. To extend the meaning of “repairs” in that clause to include carrying out improvements or refurbishments is unlikely to have been intended.
There was no evidence of circumstances prevailing at the time of entering into the tenancy agreement which would displace the ordinary grammatical meaning of “repairs” in clause 6(g).
The windows in the respondent’s unit did not require “repair”. They were not broken, decayed, damaged or unserviceable. The circumstance was that the appellant wished to replace single-glazed with double-glazed windows. That involved an upgrade, improvement or refurbishment. It did not involve a repair.
A consideration of purpose does not avail the appellant. There is nothing in the purpose or object of the agreement that would displace the ordinary grammatical meaning of “repairs”. The purpose or object of the agreement was to enable the respondent to occupy suitable premises managed by the appellant at an affordable rent.
A consideration of the purpose of the statute does not require a different conclusion. While it can be accepted that the appellant can only lease premises it manages to tenants on terms which are consistent with the SAHT Act,[26] it does not follow that the term “repairs” in this tenancy agreement should be construed to afford the concept of “repairs” a meaning different from its ordinary grammatical meaning. One of the purposes of the statutory scheme established by the Act is to assist South Australians to secure and maintain affordable and appropriate housing. Section 5(1)(a) lists five ways in which the appellant may fulfil this function. One of those is acting as a landlord of public housing in the State. Section 7 confers powers on the appellant to enable it to fulfil that function. One of the powers conferred upon the appellant to effect that function is found in s 7(1)(f) which confers power upon the appellant to build, alter, enlarge, repair and improve houses, or enter into contracts under which houses will be built, altered, enlarged, repaired or improved on behalf of the appellant. The terms of s 7(1)(f) only serves to reinforce the ordinary grammatical meaning of “repairs” in the tenancy agreement. In s 7(1)(f) “repair” is used in contradistinction to “build, alter, enlarge, … and improve, houses”. While there is scope for some overlap between these concepts, each word in the statute must have been intended to have work to perform.[27] It is plain that the Parliament intended the word “repair” in s 7(1)(f) to convey a different meaning from build, alter, enlarge and, critically for the purposes of this appeal, improve. “Repair” is not a synonym for “improve”.
[26] South Australian Housing Trust v Pawelzik [2015] SASCFC 194 at [120].
[27] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Hayne JJ.
The appellant’s submission that there was no need for the tenancy agreement to include exhaustively all the prescribed acts in s 7(1)(f), because the term “repair” includes “improve”, must be rejected. If that were so, there would be no need for the express stipulation of “improve” in s 7(1)(f).
The offering of a tenancy on standard terms reserving the landlord’s right of access to undertake repairs is consistent with the appellant’s function under s 5(1)(a). The statutory context permits, but does not oblige, the appellant to enter into tenancy agreements which invoke exhaustively the full panoply of powers the Act confers upon it. While it was within the powers conferred on the appellant pursuant to s 7(1)(f) to have included in the respondent’s tenancy agreement a clause permitting the appellant access to his unit for the purpose of undertaking improvements, it did not do so.
The terms of s (7)(1)(f) tend to undermine the appellant’s contention that “repairs” in clause 6(g) extends to include improvement and refurbishment of houses under the appellant’s management. Section 7(1)(f) evinces a legislative intention that the appellant is empowered to enter into leases with tenants, as the landlord of public housing in the State, under which the appellant can undertake works to build, alter, enlarge, repair and improve houses. However, in this instance,[28] the appellant entered into a tenancy agreement where it reserved to itself the right to carry out repairs as it considers appropriate. It failed to reserve to itself the right to undertake works to alter, enlarge or improve the respondent’s premises.
[28] And apparently in tens of thousands of other tenancy agreements.
The appellant seeks to rely upon the obligation imposed on it pursuant to s 5(3)(a) to provide affordable, secure and appropriate housing that meets the needs of its clients. That reliance is misplaced. There is no evidence that the replacement of the existing windows in the respondent’s unit with double-glazed windows is needed to provide affordable, secure and appropriate housing that meets his needs. Neither is there evidence that the replacement of the windows in the respondent’s unit is necessary to ensure that the premises, at least to him, are in an adequate condition that meets reasonable standards of health, safety and security.
There is no justification for giving the term “repairs” in clause 6(g) a strained or artificial meaning where the statute conferred on the appellant a power to fix the terms on which the premises were let to the respondent which could have incorporated a right of access to effect improvements, but the appellant failed to do so. The problem is one of the appellant’s own making. The problem is not to be fixed by adopting a construction of the tenancy agreement which its plain language does not support.
This construction leaves room for the appellant to undertake refurbishment work with the consent of the tenant otherwise the tenant is entitled to quiet enjoyment of his or her rental property pursuant to s 65 of the RTA.
Enduring statutory powers of the appellant
The appellant contends that the enduring statutory powers of the appellant permit the appellant to require access to the respondent’s premises for the purpose of necessary maintenance, improvements and repairs encompassing installation of the upgraded windows. This ground largely is a refinement of ground 1 with its reliance upon construing the tenancy agreement in its statutory context. Central to ground 2 are the statutory powers of the appellant.
Specifically, the appellant sought to rely on three provisions conferring statutory powers on it, s 7(1)(f), s 34(3)(d) and s 39A. It submits that the exercise of these powers is at its sole discretion. It submits the exercise of those powers is not contingent upon agreement or acquiescence of the tenant. So much can be accepted but that does not establish the primary contention.
First, the appellant sought to rely upon the terms of s 7(1)(f) of the SAHT Act. We have already addressed the effect of this provision at length. There is no need to repeat what has been said. The terms of the tenancy agreement between the parties must, in accordance with s 7(1)(c) be fixed by the appellant. The power to fix the terms, covenants and conditions on which the appellant lets its properties is expressed to be subject to the SAHT Act or any other Act. While nothing in the SAHT Act derogates from the appellant’s power to reserve to itself a right of access to effect repairs or improvements, nothing in the SAHT Act requires the appellant to reserve to itself the power to exercise a right of access to effect improvements. Section 7(1) confers powers. It does not impose duties. The power may be exercised as and when required, or not at all, as the occasion warrants. It is perfectly consistent with the objects of the SAHT Act that where adequate premises are let for a term on conditions that reserve a right of access for repairs, but not a right of access for improvements, then that particular property will not be improved until the end of the tenancy, unless the tenant agrees to that work being undertaken.
Second, the appellant sought to rely upon the terms of s 34(3)(d) of the SAHT Act which permits a person authorised by the appellant to enter residential property occupied by a tenant of the appellant on the condition that the entry is made for the purpose of carrying out necessary repairs or maintenance at a reasonable time of which the tenant has been given at least 48 hours written notice. That reliance is misplaced. The subject matter of s 34(3)(d) is confined to repairs and maintenance. There is no basis for construing the powers extending to improvements. As has been observed, s 65 of the RTA confers an entitlement on a tenant of the appellant to quiet enjoyment of its rental property. As a statutory provision that derogates from vested proprietary rights, s 34(3)(d) will be construed as narrowly as the language of the statute reasonably allows.[29]
[29] R & R Fazzolari Pty Ltd v Paramatta City Council [2009] HCA 12 at [40]-[44], (2009) 237 CLR 603 per French CJ at 619-620.
In R & R Fazzolari v Parramatta City Council[30] French CJ said:[31]
Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretive approaches where statutes are said to affect such rights.
The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights. It was expressed by Griffith CJ in Clissold v Perry, a land resumption case, thus:
“In considering this matter it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing, that they are not to be construed as interfering with vested interests unless that intention is manifest.”
The presumption has been restated on more than one occasion in this Court. That does not, of course, authorise the court to put to one side “the unambiguous effect of the words which the Parliament has seen fit to use”.
The terminology of “presumption” is linked to that of “legislative intention”. As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. That approach resembles and may even be seen as an aspect of the general principle that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. It operates in the United Kingdom as a manifestation of a “principle of legality” and has been described in Australia as an aspect of the rule of law.
[30] [2009] HCA 12, (2009) 237 CLR 603.
[31] [2009] HCA 12 at [40], [42]-[43], (2009) 237 CLR 603 per French CJ at 618-619.
There is no warrant for any expansive interpretation of s 34(3)(d) particularly where the appellant has chosen in the tenancy agreement to fix its own rights of access in accordance with s 7(1)(c) in terms that accord with a narrow construction of the statutory power.
The appellant seeks to distinguish Fazzolari on the basis that it was a case concerned with compulsory land acquisition. We do not accept that submission. Fazzolari is not confined to cases of compulsory land acquisition. Fazzolari states a well established approach to statutory construction where legislation interferes with vested property rights. Of course, the presumption can be displaced by the clear and unambiguous terms of the statute.[32] However, the presumption has room to operate in this case.
[32] Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 146.
While the word “maintenance” must have work to perform beyond the reach of “repairs” the replacement of the windows in the respondent’s unit could not constitute “maintenance”. In the circumstances, it is not necessary for the disposition of this appeal to decide the correct meaning of “maintenance” in s 34(3)(d).
Third, the appellant’s reliance upon s 39A is also misplaced. Section 39A imposes obligations upon the appellant in prescribed circumstances. Those circumstances are where the appellant is the landlord of residential property and requires possession of the residential property for redevelopment or renovations. Its operation is confined to the type of redevelopment or renovation that would require the tenant to be dispossessed on a medium to long term basis pending the undertaking of those redevelopment or renovation works. Accordingly, s 39A is not engaged in this case. In any event, there is nothing in the terms of s 39A which requires the more expansive construction of the term “repairs” in clause 6(g) for which the appellant contends.
Finally, it is not open to the appellant to seek recourse to freestanding grants of statutory power in the SAHT Act to found a right to enter trust premises for the purposes of undertaking improvement works where that power is not conferred by the terms of the tenancy agreement between the appellant and the tenant, given the terms of s 7(1)(c) and s 7(1)(f). For the reasons already given, those provisions empower the appellant to enter into a tenancy agreement permitting it to undertake improvement work on its premises.
Implied terms
The appellant contends that there is an implied term in the tenancy agreement which empowered it to enter the respondent’s premises for the purposes of discharging its statutory functions and obligation. This included a right to access the property to install new windows. On the hearing of the appeal the appellant conceded that there was insufficient evidence to support a finding in favour of an implied term as a matter of fact. However, it contended that such a term was implied as a matter of law. The term was necessary to preserve the effective operation of the tenancy agreement.
A term implied as a matter of law arises from the nature, type or class of contract in question. Some terms are implied by statute in contracts of a particular class. Such terms give effect to social and economic policies which the legislature thinks are necessary to protect or promote the rights of one party to that class of contract. Many of these terms are implied to prevent the enjoyment of the rights conferred by the contract being rendered nugatory or seriously undermined. The notion of necessity is central to the rationale for such implications.[33]
[33] Breen v Williams (1996) 186 CLR 71 at 103.
The appellant contends that its ability to administer the scheme of public housing established by the SAHT Act is seriously undermined if there is not a right to enter premises during the term of the agreement to effect improvements implied in its tenancy agreement. This would impermissibly inhibit or abrogate the appellant’s ability to ensure that public housing premises are maintained at an adequate standard and condition, observing reasonable standards of health, safety and security. Otherwise, the appellant could be restricted to performing appropriate refurbishment work only after the termination of a tenancy agreement which might hinder the continuity of tenant succession to public housing resulting in periods where public housing might be left unoccupied.
We do not accept this submission. The submission fails because the notion of necessity is central to the rationale for the implication of an implied term at law. There is no need to imply such a term in circumstances where the appellant is empowered by the SAHT Act to enter into tenancy agreements on terms fixed by it which includes the statutory power to undertake improvements. While we accept that it might be implied in a tenancy agreement between the appellant and a tenant that the appellant enjoy a right of entry for such a purpose if the right of entry was not expressly included in the tenancy agreement, but only on the basis that the agreement included the express right to undertake improvement works. That is not this case.
Conclusion
We would dismiss the appeal. We would hear the parties as to costs.

[2021] SASCA 113

14 October 2021

Key Legal Topics

Areas of Law

Administrative Law

Property Law

Statutory Interpretation

Legal Concepts

Statutory Construction

Appeal

Remedies

Contract Formation

Jurisdiction

Natural Justice