Timms v Saht No. Dcaat-99-455
[2000] SADC 37
•29 March 2000
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 the grounds that Lisa Timms had not complied with the notice sent on 20 September 1999. On 28 October the Tribunal posted out notices of a hearing of this application both to Lisa Timms and to “sub-tenants, if any, of Lisa Timms”. Both letters were addressed to the house. The appellant denied knowing of, or receiving, either such notice and claims that he would have redirected any letter addressed to Lisa Timms to her interstate. I cannot make any finding about whether the appellant did receive and/or know of the notices of hearing. The Trust in its dealings with the appellant did not give him any notice of its application or the hearing.
In accordance with the notices sent out by the Tribunal it held a hearing of the application for possession of the house on 11 November 1999. The Trust attended by one of its officers and there was no attendance by either Lisa Timms or the appellant. There is no transcript or formal record of what occurred at the hearing. A document was tendered by the Trust showing that there was an alleged balance of rent outstanding of $2,030. The Tribunal made an order which was subsequently sealed. The relevant parts of the sealed order are as follows:
“............
I am satisfied due notice of this hearing has been given.
............
I find that the residential tenancy has terminated under the residential tenancy agreement in that the landlord has given not less than fourteen days written notice of termination.
I have taken the following matters into account in making this order:
·.. the non-attendance of the tenant, or representative, at the Tribunal hearing
·.. the lack of contact by the tenant with the South Australian Housing Trust since the Notice of Termination/Notice to Remedy Breach was issued
·.. the fact that no rent has been paid in relation to the premises since 3 September 1999
·.. the fact that the debt has increased since the Notice of Termination was issued.
The Tribunal notes that the tenant failed to attend the pre eviction interview with the Regional Manager.
I will make the possession order sought.
ORDERS:
1...... Pursuant to Section 93 of the Act, I make an order in favour of the landlord for possession of the premises at 26 Ormiston Court, TAPEROO ON Thursday 18 November 1999 at 10 am.
IMPORTANT INFORMATION
If the tenant does not give up possession of the premises in compliance with the order for possession a bailiff of the Tribunal may evict the tenant immediately after the time in the order has passed without further notice or warning to the tenant.”
The Trust neither informed the Tribunal that the appellant was occupying the house as his home nor disclosed that there had been any dealings between him and the Trust about him becoming the tenant of the house.
The first the appellant says that he knew about any proceedings, or order, for possession of the house was when he arrived home at about 8pm on 24 November to find that the locks had been changed and there was a notice on the door signed by a bailiff of the Tribunal saying that the property had been entered and the locks changed in accordance with an order of the Tribunal and that the tenant was not permitted to re-enter the property without the Trust’s consent. The appellant was unable to enter the house and has not occupied it since.
On the following day, 25 November, the appellant took out an application in the Tribunal seeking to suspend the order made on 11 November. It is not clear whether the Tribunal refused to make the order sought or declined to hear the application on the grounds that the order for possession had already been carried into effect.
Later on 25 November the appellant instituted an appeal in this Court against the possession order made on 11 November on the grounds that no application for that order was served upon him. At the same time he issued an interlocutory application in this Court seeking an urgent order that the order of the Tribunal of 11 November “be stayed and suspended”. That interlocutory application came on for hearing later that day ex parte before Master Kelly who adjourned it to 29 November.
On 29 November the Master heard some argument and further adjourned the application to 13 December. On 13 December he adjourned the hearing to 20 December to enable evidence to be taken.
On 20 December there was an extended hearing before the Master at which he heard oral evidence from both the appellant and Mr Butler of the Trust. He then gave an ex tempore decision which was recorded on the Court certificate as, “I decline to set aside or in anyway vary the order made by the Tribunal.” During the proceedings before the Master the appellant appeared in person and the Trust appeared by one of its officers.
It was the understanding of the Registry and the parties that the Master had dismissed the appeal against the possession order. I will return to this point later. On 10 January 2000 the appellant instituted an appeal against the order of the Master. That appeal was called on for hearing on 9 February, but apparently because of some confusion about what the Master had done the Registry had not notified the parties of the date. The appeal against the Master’s order was then further listed for hearing before me on 1 March. On that occasion I adjourned the hearing so that the appeal against the order of the Tribunal could also be listed and the two appeals dealt with together. Both appeals were argued before me on 8 March when I reserved my decision.
At all of the hearings before me the appellant appeared in person and the Trust appeared by one of its officers and without legal representation. Those appearing had no appreciation of the legal difficulties involved in the issues raised by the appeals. I decided to hear the submissions of the parties without first taking any evidence in the hope that the matters in issue could be resolved on the undisputed evidence. I indicated that if in the end result it became necessary to determine particular factual issues for my decision I would re-list the appeal for evidence on those matters.
I firstly deal with the appeal against the Master’s order of 20 December 1999. It is necessary to decide what was meant by his fiat of “I decline to set aside or any way vary the order made by the Tribunal.” It would seem this must refer to the order of the Tribunal of 11 November for possession of the house. This was clearly the order referred to in the interlocutory application of the appellant. No other order of the Tribunal was identified by the Master and it is doubtful if there was one of 25 November refusing to stay the possession order. In interpreting an order the Court may have regard to the reasons published for it: Yates Property Corporation v Boland (1998) 89 FCR 78. The following passages appeared in the reasons:
“........
I mention the time it has taken because, bearing in mind Mr Timms’ denial of receipt of communications from the Trust, and the tribunal, I thought it necessary to conduct a full hearing, not merely to determine whether the Trust had made an error; which would be the normal course of an appeal like this, but to determine whether it would have made any difference at all if Mr Timms had had the opportunity to attend before the tribunal to put his case. I’ve devoted so much time to the matter for that very reason, that is to deal with the possibility of an injustice to Mr Timms in the tribunal’s failure to notify him of the hearing.
.........
But to repeat; a full hearing has now been conducted and I consider that I’m in a position to determine whether it would have been made any difference at all, if Mr Timms had actually been present and been able to put his case fully to the tribunal. I have considered the case fully over the course of the time that has been allowed to this case, and I have come to certain conclusions.
......
I therefore make my final ruling and that is that I decline to set aside or in any way vary the order made by the tribunal.” (underlining added)
From these reasons I am satisfied that the Master was purporting to dismiss the appeal against the order for possession made on 11 November. He was not merely dealing with the interlocutory application which was before him which was for a stay and suspension of that order. Under s42 of the Residential Tenancies Act 1995 (“the RTA”) the District Court is not exercising an appellate jurisdiction in dealing with such interlocutory applications, but is merely considering whether itself to make an interlocutory order for a stay regardless of what the Tribunal may have done previously on any similar application before it. Such an interlocutory application does not require a full hearing or a determination of any of the issues involved in the appeal.
Section 20(1) of the District Court Act 1991 provides:
“......The Court, when sitting to adjudicate on any matter, may be constituted of - .........
(b)... if the matter lies within a jurisdiction of the Court conferred by statute or the rules on Masters - a Master ..........”
Section 41 of the RTA confers the appellate jurisdiction on the District Court and not on its Masters. There is no rule of this Court which confers jurisdiction on a Master to deal with appeals under the RTA. Thus the Master had no jurisdiction or power to make any order to dispose of the appeal. Therefore the appeal against the order of the Master of 20 December 1999 must be allowed and his order set aside. It is not necessary to deal with any of the other grounds of appeal raised against that order. As I am also disposing of the appeal against the possession order there is no need to make any order on the interlocutory application of 25 November 1999. In any event there was no proper basis to make any order on that application because by the time it was issued the possession order of the Tribunal had been carried into effect. Section 42 of the RTA only gave power to suspend the operation of the possession order. It did not give power to set aside the taking of possession of the house by the Trust and to reinstate the appellant in possession of it which is what he was seeking. As the Master was acting without jurisdiction it is not proper for me to act on any conclusions which he reached on disputed questions of fact. I have had regard to the evidence given before him only as to what were the contentions of the parties and for ascertaining what was not in dispute.
I now turn to the appeal against the order of the Tribunal. The first issue to be resolved is the legal scope of an order for possession under s93 of the RTA. The issue is whether such an order of the Tribunal is enforceable against whoever might be in possession of the premises at the time at which it is executed or whether it only entitles the landlord to require the tenant to give up possession of the premises and does not affect anyone else who may be in possession of them. It is a question of the proper interpretation of the RTA. Section 93(2) of the RTA provides:
“(2) If the Tribunal is satisfied that the tenancy is terminated or has been terminated, the Tribunal may make an order for possession of the premises.”
It does not say that the Tribunal can order the tenant to hand over possession to the landlord. Section 96(1) of the RTA provides:
“(1) A person cannot take possession of residential premises subject to the Residential Tenancy Agreement so as to defeat the tenant’s right to possession under the Residential Tenancy Agreement unless an order for possession of the premises is made by a Court or the Tribunal.”
(By virtue of s5(2) of the RTA s96 does not apply to the Trust, but I am only referring to it for the purposes of interpreting s93 and 99 which do apply to the Trust.) This suggests that an order for possession is not merely concerned with a tenant. Section 99 of the RTA provides:
“99.(1) If an order for possession of premises is made by the Tribunal and the person in whose favour the order was made advises the Tribunal that the order has not been complied with, a bailiff of the Tribunal must enforce the order as soon as is practicable thereafter.
(2) A bailiff enforcing an order for possession of premises may enter the premises, ask questions and take all steps as are reasonably necessary for the purpose of enforcing the order.
(3) A member of the police force must, if requested by a bailiff, assist the bailiff in enforcing an order for possession.
(4) In the exercise of the powers conferred by this section a bailiff may use the force that is reasonable and necessary in the circumstances.
(5) A person must not hinder or obstruct a bailiff in the exercise of the powers conferred by this section.
Maximum penalty: $1,000. ..........
(8) A bailiff or a member of the police force assisting a bailiff incurs not civil or criminal liability for an honest act or omission in carrying out or purportedly carrying out official functions under this section.”
This section does not expressly confine the bailiff to enforcing the order only against a tenant and is general enough in its terms to encompass anyone who the bailiff finds in possession of the premises.
In interpreting the RTA on this point regard can be had to the common law on the question. A judgment in ejectment, which directed that a plaintiff recover possession of land, enabled the Sheriff executing a writ of possession under the order to turn out 3rd parties who he found in possession of the land and who had not been before the Court: Plowman v Palmer (1914) 18 CLR 339 at 346-7. This is to be contrasted with the old Order 47 Rule 2 of the Supreme Court Rules 1947 which referred to an order for a person to deliver up possession of land to some other person, which was not enforceable against persons in possession who were not named in the order. Here the terms of the RTA are similar to the common law order for ejectment and are to be construed in a similar fashion. Thus the order for possession made by the Tribunal was efficacious to give possession of the house as against the appellant even though he was not a party to the proceedings before the Tribunal. (I need not go into the question whether a person so evicted had a cause of action in trespass against the landlord who procured the possession order.) While the scheme of the RTA is that it generally deals with the relationship between landlords and tenants this is not sufficient to displace this interpretation of “order for possession”.
It is not necessary for me to go into whether there was a Residential Tenancy Agreement, as defined in s3 of the RTA, between the appellant and the Trust. “Tenant” in s3(1) of the RTA is defined to mean “the person who is granted a right of occupancy under a Residential Tenancy Agreement or a person to whom the right passes by assignment operation of law and includes a prospective tenant or a former tenant”. It is a moot point whether the appellant was a “prospective tenant” of the Trust, but because only limited parts of the RTA apply to the Trust by virtue of s5(2), here the point is of no consequence. All that matters is that the appellant was in possession of the house at the relevant times. That is undisputed. The dispute is as to his legal entitlement to remain in possession of it.
At common law in proceedings for an order for possession by way of ejectment, which is the equivalent of an order for possession under the RTA, it was usually required that all persons in possession of the subject land should be made parties to the proceedings or at least be given formal notice of them: Minet v Johnson (1890) 63 LT(NS) 507; Commissioner of Works v Hull [1922] 1 KB 205; Leicester Permanent Building Society v Shearley [1950] 2 All ER 738. (I need not go into the cases which suggest that notice may not need to be given to sub-tenants of a defendant because the appellant, as mentioned below, does not claim to be a sub-tenant.) There is no express requirement in the RTA or its Regulations that an applicant for an order for possession inform the Tribunal of who may be in possession of the premises apart from the tenant. It is not necessary to go into the question of what, if any, inquiry a landlord is obliged to make on the point, or what might be the effect if there is someone in possession outside the knowledge of the landlord, because here the Trust well knew that the appellant was in possession of the house, and that he was the only person then in possession of it. The Trust had a duty to inform the Tribunal of this relevant matter because the Tribunal could not do justice between all parties who would be affected by its order for possession if it did not know that the appellant was in possession of the house. This obligation of the Trust goes beyond what is expressly required by the Regulations and the form of the application, although it may be helpful in future if they are amended to make this obligation clear to landlords.
Section 25(2)(b) of the RTA required the Tribunal to give notice of the hearing of the application to “any other party”. “Party” is not defined in the RTA. I consider that it means not only persons who are expressly named as parties, but also persons who should be parties to the application. It would be surprising if s25(2) had the effect of depriving a person who should be a party of his or her right to be heard. This statutory requirement for notice to be given to the appellant was not complied with.
Rules made under s47(2) of the RTA provide, inter alia:
“1.1.. This rule shall only apply in relation to residential tenancy agreements under which the South Australian Housing Trust is the landlord, to residential tenancies arising under those agreements and to related tenancy disputes.
1.2... This rule shall only apply to notices or documents required or authorised to be given to a person by the Tribunal under the Residential Tenancies Act, 1995.
1.3... Service.
1.3.1.. Subject to the Act, the Regulations and any order of the Tribunal, a notice or document required or authorised to be given to a person under the Act may be:
(a).... given to the person, or an agent of the person, personally; or
(b).... sent by post addressed to the person, or an agent of the person, at the last known place of residence, employment or business of the person or agent; ............”
These rules are similar to s120 of the RTA, but by s5(2) that section does not apply to the Trust. The only significance of these rules in this matter is that they authorised service by post. From their para 1.1 it may well be that these rules do not apply in this matter depending upon whether there was a Residential Tenancy Agreement, as defined in s3(1), between the appellant and the Trust. In any event the rules, even if they apply, do not overcome the failure to comply with s25(2) in not giving notice to the appellant.
I do not consider that the notice sent by the Tribunal addressed to “sub-tenants if any of Lisa Timms” was sufficient service of the notice of the hearing on the appellant in the absence of evidence that he actually received it. His contention is not that he was a sub-tenant of his wife, but that there was a tenancy directly between himself and the Trust. Sub-tenants are those who claim under some transaction between themselves and the tenant, but here the appellant does not suggest that his wife in some way granted a tenancy to him. However, in any event as the identity of the appellant was known any notice should have been addressed to him by his proper name. No mode of non-personal service which may have been available under the Rules can operate against the appellant where the chances of him receiving it were diminished by his proper name not being shown on it. The use of a designation such as “sub-tenants” could only be effective where the applicant had no reasonable means of ascertaining their identities.
The next question is whether this appellant has any right of appeal. Section 41 of the RTA provides:
“41.(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. ...........”
As s41 is in Part 3 of the Act it is within the sections which apply to the Trust under s5(2). On its face s41 does not say anything about who may bring an appeal. Hence the common law position applies that an appellant may be anyone who shows that they have been hurt by the order of the Tribunal; Peter v Shipway (1908) 7 CLR 232 at 259. The appellant satisfies this test in that the order for possession has deprived him of his continued occupation of the house.
As the appellant was a person who was entitled to be heard by the Tribunal before it decided whether to exercise its discretion under s93(2) of the RTA to make a possession order for the house the order should not have been made without proper notice being given to him. It was a denial of natural justice to him in the circumstances. If he had been able to show some legal or equitable entitlement to a tenancy of the house as a result of his dealings with the Trust, the Tribunal would not have made an order for possession of the house which would have had the effect of excluding him from it. I am not in a position to say whether he could have established any such right, but there is some possibility of it. Even if he could not have established a legal right, it was still within the discretion of the Tribunal under s93(2) to make any possession order on terms which would have been fair to all parties to enable the appellant to vacate the house in a reasonable manner. The reasoning processes which led the Tribunal to make the order as it did, which are recited in its formal Order as quoted above, are not a proper consideration of all of the relevant factors as they objectively existed. Furthermore as s25(2) of the RTA had not been complied with, as set out above, there was no proper basis under the RTA for the Tribunal to conduct any hearing or to make the order.
On this appeal it is appropriate that this Court should quash the order for possession made on 11 November 1999. It can be done even though it has already been carried into effect: Minet v Johnson (above); United Starr-Bowkett Co-operative Building Society v Clyne [1968] 1 NSWR 134. While this Court has a discretion not to entertain appeals against judgments which have already been carried into effect: Marriner v Smorgon [1989] VR 485, it can, and should, do so where it would achieve a practical and beneficial result: Ahlburg v Police, Olsson J, 13/2/97, Jud No S6009, unreported. The Trust should not be permitted to benefit from having not disclosed to the Tribunal the appellant’s occupation of the house of which it was well aware.
The quashing of the order does not invalidate the execution of it on 24 November or entitle the appellant to resume possession of the house. The quashing is only to take effect from today, and it does not make the order a nullity: Legal and General v Stateliner (1982) 31 SASR 157. It is a difficult point, which I need not resolve, whether there is power under s41 of the RTA for this Court to set aside an order of the Tribunal ab initio. The quashing merely means that the order no longer stands as a bar to the appellant otherwise enforcing any legal rights which he has against the Trust in respect of the house.
Section 41(2)(d) of the RTA empowers the Court to make incidental and ancillary orders. I am not sure that this extends to ordering the Trust to put the appellant back into possession of the house, but, even if there is such a power, it is not appropriate to exercise it on this appeal. There is a major factual dispute about what occurred between the appellant and the Trust prior to 11 November 1999 and whether in law that can give the appellant any proprietary, contractual or other legal rights in relation to the house. It may be that the appellant has a right to damages, but not one which is enforceable in law by an order for possession of the house. It may be that some special considerations apply in favour of the appellant from the Trust being a public housing authority: Redfern & Cassidy “Australian Tenancy Practice”, Vol 1, para 17-30. I can make no comment on this. There are a number of major procedural and jurisdictional problems about how the appellant might pursue any such rights as he has against the Trust. I am not certain that the Tribunal has jurisdiction under s24(1)(e) of the RTA or otherwise in a claim for damages for wrongful eviction or the like, and particularly if there is not found to be a tenancy between the appellant and the Trust but some other form of contract or estoppel. It is desirable that any further proceedings should be in a jurisdiction, if it exists, where all possible grounds of claim can be adjudicated upon concurrently by the one Court or Tribunal. For that reason it is not appropriate to refer the matter back to the Tribunal for it to re-hear the application for possession as it could then do no more than decide whether the order had been properly made. Similarly it would not be appropriate for this Court in this appeal to conduct an inquiry as part of any consequential relief as it could not then necessarily deal with all the alternative issues which could arise. Mr Timms will need to seek his own legal advice about what further legal proceedings he might now pursue.
The orders of the Court are as follows:
That the order of the Master of 20 February 2000 be set aside.
That the order of the Tribunal of 11 November 1999 be quashed.
That there be no further orders on either appeal except that I will hear the parties on what, if any, order for costs should be made.
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