Timms v Saht No. Dcaat-99-455 - [2000] SADC 37

ROWAN TIMMS v SOUTH AUSTRALIAN HOUSING TRUST
[2000] SADC 37

Judge Lunn

This matter has an unfortunate history. Regrettably, it is unlikely to inspire public confidence in the administration of justice in this State. In these reasons I confine myself to the issues which are necessary to decide the two appeals which are before me.
I now set out a brief history of the relevant events. It is based on matters which were not in dispute.
The appellant was married to Lisa Timms and they had four children. In 1993 he and his wife separated. Shortly after the separation Mrs Timms entered into a tenancy agreement with the South Australian Housing Trust (“the Trust”) in respect of premises at 26 Ormiston Court, Taperoo (“the house”) on 7 August 1993. The tenant in the agreement was named as Lisa Timms only. The Trust only had the right to terminate the tenancy if the tenant was in breach of the written conditions.
In about July 1996 the appellant and his wife reconciled and he went to live in the house which became the family home. The Trust were aware that he was living there and did not raise any objection.
In about mid June 1999 the appellant went interstate to be with his sick mother. When he returned in late July he found that his wife had left the house with the children and had gone interstate. He then resumed occupation of the house and used it as his home. There were a number of dealings between the appellant and officers of the Trust concerning him becoming the tenant of the house. There are major disputes about these dealings and I am not in a position to make any findings about them. It was undisputed that since about August 1999 the Trust were aware that the appellant was occupying the house and that his wife and children were living elsewhere. Shortly after 1 September 1999 the Trust accepted $300 for rent for the house which it was aware came from the appellant.
On 20 September 1999 the Trust posted to Lisa Timms at the address of the house a notice requiring her to pay arrears of rent and charges of $1,098 within fourteen days or give up possession of the premises on 8 October 1999. The appellant denies that any such amount was owing on the basis that while he was in occupation of the house he was entitled to a substantially reduced rental because of his poor financial position. He denies having received, or knowing of, this letter and says that if it had come to the house through the post he would have redirected it to his wife. Nothing further was paid after 20 September. After this date there were some dealings between the appellant and officers of the Trust but their nature is disputed.
On 15 October 1999 the Trust lodged an application with the Residential Tenancies Tribunal (“the Tribunal”) for an order for possession of the house on…

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.

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Details

Case: [2000] SADC 37
Decision Date: 29 March 2000

CaseChat Overview and Summary

The case of Timms v South Australian Housing Trust [2000] SADC 37 concerns the dispute over the validity of an order for possession made by the Residential Tenancies Tribunal against Lisa Timms, who had entered into a tenancy agreement with the South Australian Housing Trust (the Trust). Rowan Timms, Lisa's former husband, who had been living in the house since reconciling with Lisa, sought to challenge the order for possession. The legal issues before the court were whether the Master of the District Court had jurisdiction to hear the appeal against the order of the Tribunal, and if the order for possession was valid. The court found that the Master lacked jurisdiction to hear the appeal, and that the order for possession was invalid as it was made without proper notice to Rowan Timms, who was in possession of the house at the time. The court quashed the order for possession and set aside the order of the Master. The court declined to make any further orders on either appeal, but noted that the parties could be heard on any order for costs that should be made.

Orders