South Australian Housing Trust v Popczynski; South Australian Housing Trust v Pawelzik

[2015] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

SOUTH AUSTRALIAN HOUSING TRUST v POPCZYNSKI; SOUTH AUSTRALIAN HOUSING TRUST v PAWELZIK

[2015] SASCFC 4

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)

22 January 2015

LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - GENERALLY

The South Australian Housing Trust applied to the Residential Tenancies Tribunal for the possession of the premises of each of the respondents on the ground that the tenant failed to comply with Notices of Termination for outstanding water costs. The Tribunal found that there was a debt owing by the respondents to the Trust and ordered payment at certain rates per fortnight. The Tribunal further found that if payment was in default the Trust could apply to the Tribunal to terminate the tenancy without serving a Notice of Termination.

The applicants appealed to the District Court which rescinded the orders of the Tribunal. The applicants applied to this Court for permission to appeal insofar as the notice of appeal raised a question of fact.

Held per Full Court:

1.       Permission to appeal granted on grounds of appeal 3(g) and 3(h).

SOUTH AUSTRALIAN HOUSING TRUST v POPCZYNSKI; SOUTH AUSTRALIAN HOUSING TRUST v PAWELZIK
[2015] SASCFC 4

Full Court:  Kourakis CJ, Blue and Stanley JJ

1. THE COURT:     This is an application for permission[1] to include a ground of appeal on a question of fact in a notice of appeal otherwise raising questions of law.

   [1]    Required under the District Court Act 1991 (SA) s 43(3).

2. Mr Popczynski and Mr Pawelzik are each tenants of a unit in a block of 70 units owned by the South Australian Housing Trust. There being no separate water meter for their individual units, the Trust charged them 1/70^th of the cost of all water used in the unit block.[2]

   [2]    The Trust itself bore 30 percent of the total charges rendered by SA Water, but this can be ignored for present purposes.

3. The Trust brought proceedings in the Residential Tenancies Tribunal for possession of the two units after purportedly terminating tenancies for failure to pay the charges on account of water. The tenants claimed that the water charges by the Trust were invalid. Regulation 9(b)(ii) of the South Australian Housing Trust Regulations 2010 (SA) provided as from 1 September 2010 that:

   the tenant is responsible … if no … separate meter is fitted to the premises—for the proportion (as determined by SAHT in respect of each financial year) of all water rates (other than the supply charge) payable in respect of the premises.

4. Evidence was given before the Tribunal by a Trust engineer that water supplied to the unit block was measured by 13 water meters but it was not known which units were serviced via which meters.[3]

   [3]    There was evidence that SA Water had been wrongly charging the Trust for water measured by a fourteenth meter which did not supply water to the unit block at all. This raised an additional issue that is the subject of ground (f) in the notice of appeal, which raises a question of law and can be ignored for present purposes.

5. The Tribunal member held that the charges, and the consequential notice of termination, were valid. A Judge of the District Court in its Administrative and Disciplinary Division allowed the tenants’ appeals, holding that, on its proper construction, regulation 9 did not permit the Trust to charge for any proportion of water not supplied exclusively to the unit subject of the individual tenancy or alternatively only permitted the Trust to charge a proportion of the water that actually passed through the meter (or metres if more than one) to the individual tenant’s unit through which water passed.

6. The Trust appeals as of right against the Judge’s judgment on questions of law, including the proper construction of regulation 9. The Trust in its summary of argument in support of its application for permission to appeal on a question of fact refers to passages in the Judge’s reasons for judgment which are arguably ambiguous and which the Trust perceives might be argued by the tenants on appeal as making findings of fact that several of the 13 meters are not connected to the two tenants’ units at all. Whether the Judge made such a factual finding (the contended finding) is likely to be an issue on the appeal and we express no opinion on that question but proceed on the assumption that there is likely to be argument by the tenants on appeal that the Judge did so. On that assumption, the Trust wishes to argue on appeal that the Judge erred in law in making the contended finding because there was no evidence and, in the alternative insufficient evidence, to support such a finding (ground 3(g)), and, in the further alternative, that the Judge erred in fact in making such a finding (ground 3(h)).

7. The Trust is entitled as of right to appeal on the ground that there was no evidence to support the contended finding. Very little or no time would be added to the hearing of the appeal by permitting the Trust to argue in the alternative that there was insufficient evidence to support such a finding (which may or may not raise a question of law) or that the Judge erred in fact in making such a finding. There is an inextricable connection between the question of law raised by the first part of ground 3(g) whether there was any evidence to support the contented finding and the second part of ground 3(g) and ground 3(h) insofar as they raise a question of fact in relation to the self-same evidence. The costs incurred by both parties arguing the question of permission at the hearing of the appeal would exceed the costs of arguing the substantive issue. The applicant has agreed not to seek costs of the appeal if successful. 

8. The questions raised on the appeal are important because they raise the validity of the practice of the Trust in charging tenants in numerous properties for water. 

9. Permission is given to appeal on grounds 3(g) and 3(h).