White v South Australian Housing Trust - [2009] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WHITE & ANOR v SOUTH AUSTRALIAN HOUSING TRUST
[2009] SADC 98
Judgment of His Honour Judge Soulio
10 September 2009
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
RESIDENTIAL TENANCIES ACT - Appeal against findings and orders of Tribual. Tenancy terminated pursuant to s87 of the Act.
Residential Tenancies Act 1995 ss 32, 41, 87, referred to.
Grey v Stephens unreported judgment of Duggan J delivered 26 August 2002; Timms v South Australian Housing Trust (2003) LSJS 42; Annetts v McCann (1990) 170 CLR 596; Kozlowski v Murray, Creevy, Blott, Bassett and South Australian Housing Trust [2001] SADC 129 per Smith J delivered 18 September 2001, considered.

WHITE & ANOR v SOUTH AUSTRALIAN HOUSING TRUST
[2009] SADC 98
The Tenancy Agreement

Ms White has been a tenant of the South Australian Housing Trust (‘the Trust’) for a period of some five years at 4 Gullyview Court Wynn Vale South Australia pursuant to a Residential Tenancy Agreement on periodic terms.
During the course of the tenancy a problem arose with respect to two retaining walls in the premises. Extensive repair work was required to make the premises safe and to prevent damage being caused to adjoining premises.
The tenant sought to have the repair work performed, and made application through the Public Housing Appeals Panel for an order that the work be performed. The Trust arranged to undertake the work, which it let out to tender. An entity described as Fieldquip was the successful tenderer. Fieldquip in turn subcontracted the work to a Mr Errol Daniels (‘the subcontractor’) who commenced the work on 20 July 2009.
On 23 July 2009 a dispute arose between the subcontractor and Ms White and her partner, Mr Peterson. Thereafter Ms White refused to allow the subcontractor access to the premises to complete the repair work.
On 27 July 2009 the Trust sought an order from the Residential Tenancy Tribunal (‘the RTT’) granting access to the premises so that the work could be completed.
Upon the hearing before the RTT on 27 July 2009 Ms White said that she was annoyed at the language used by the subcontractor and his workers. She complained that several of the workers smoked. She said that Mr Peterson had been assaulted by one of the workers on 23 July 2009. She agreed that she had refused to allow the subcontractor back onto the premises but was also concerned that the site was not safe given that there were holes and trenches dug in the yard as part of the work.
Although Ms White was, as was described by Ms Patrick, the presiding member of the RTT, “far from keen to have the same contractors return to the premises”, ultimately agreement was reached between the parties and consent orders (‘the Access Orders’) were made in the following terms:
(i)Ms White shall give such access as is necessary to the landlord or its contractors on Wednesday 29 and Thursday 30 July 2009 to either erect a temporary fence around the work area at 4 Gullyview Court, Wynn Vale or to make the area safe by placing plywood (or the like) over any holes in the work area and to cover the plywood with dirt on condition that if Fieldquip is contracted to do this work they will be accompanied at all times by a security guard arranged and paid for by the Trust.
(ii)Ms White shall allow access to the work site at 4 Gullyview Court, Wynn Vale to Fieldquip and its contractors between 9.00am and 5.00pm on each working day from Monday 3 August 2009 to Tuesday 11 August 2009 inclusive for the purposes of erecting a temporary fence (if not erected pursuant to clause (i)) and completing the removal of the existing retaining wall and erecting a new retaining wall, provided that at any time Fieldquip or its contractors are on site they will be accompanied by a security guard arranged and paid for by the Trust.
(iii)The Trust shall instruct Fieldquip to request any contractor at the work site not to swear and not to smoke on site. If a contractor wishes to smoke they will be instructed by Fieldquip to smoke away from 4 Gullyview Court, Wynn Vale.
(iv)The Trust shall instruct Fieldquip to request any contractor working at the premises not to approach or attempt to communicate with Ms White or her visitors and Ms White agrees not to approach or attempt to communicate with any contractor working at the premises.
(v)In the event that Ms White is concerned about activities at the work site she will initially endeavour to have her concern addressed by the security guard provided by the Trust and in the event that is not successful she will contact Mr Jeff Knight, Maintenance Field Manager at the Trust on the telephone number provided and put her concern to him for resolution;
(vi)In the event that a further dispute arises which cannot be settled under clause (v) above then either party may request an urgent hearing before the Tribunal.
Appeal Against the Access Order
Despite the fact that the Access Orders were made by consent, on 5 August 2009 Ms White lodged an appeal against the orders.
Her grounds of appeal set out in considerable detail complaints made about the performance of the works and damaged caused to the property by the subcontractor, and include allegations that the subcontractor’s staff were smoking marijuana on the site, and that the workers attended when intoxicated, and further that the subcontractor or his staff had assaulted Mr Peterson.
As part of the appeal document, obviously drawn by Ms White, she asserted that:
The Housing Trust and P Patrick threaten me if I don’t agree and allow what they want they will definitely kick me out and break my tenancy so they wouldn’t listen to me or the carer so I had no choice as I was scared and couldn’t let my children live on the streets like they threaten me with. (Spelling errors corrected).
Application by Trust to Terminate Lease
Pursuant to the orders made by Ms Patrick on 30 July 2009 the Trust engaged a security guard to attend on site to regulate dealings between Ms White and Mr Peterson and the subcontractor. The security guard, Mr Blake, attended at the premises on 6 August 2009. A further dispute arose, to which I will refer in a moment, and access to the premises was denied.
The Trust lodged an application on 6 August 2009 seeking an order terminating the tenancy pursuant to s87(2) of the Residential Tenancies Act 1995 (‘the Act’).
Section 87(2) provides:
The Tribunal may, on application by a landlord, terminate a residential tenancy and make an order for immediate possession of the premises if the tenant or a person permitted on the premises with the consent of the tenant has, intentionally or recklessly, caused or permitted, or is likely to cause or permit—
(a) serious damage to the premises; or
(b) personal injury to—
(i) the landlord or the landlord's agent; or
(ii) a person in the vicinity of the premises.
Evidence Before the RTT
The hearing of that application took place on 7 August 2009, at which time the RTT heard evidence from Mr McNaulty and Mr Knight, employees of the Trust, and from Mr Blake, the security guard. Ms White did not attend the hearing and her General Practitioner sent a note to the Tribunal stating that he was of the opinion that she “was not in the right frame of mind to attend court today”. Mr Peterson however attended and gave evidence.
It appears that following the making of the Access Orders the subcontractor did attend at the premises to carry out work from time to time accompanied by Mr Blake.
Mr Blake gave evidence that on 6 August 2009 he attended at the premises at about 8.10am. Ms White was present. She said to Mr Blake that she did not want the subcontractor to come on to the site that day. She told Mr Blake that the subcontractor had stolen paint and a spoiler from the premises on the previous day. Mr Blake gave evidence that Ms White had said to him if Errol (the subcontractor) came back on site she “would put a bullet in his head.” That threat was conveyed by Mr Blake to the Trust. The subcontractor refused to return to the site.
Mr Peterson gave evidence that he had a collection of guns at the premises. He said they were kept in a purpose-built gun locker and said that Ms White would not use his guns, in part, because she was not a licensed gun holder.
Mr Peterson gave evidence that Ms White did not have a conversation with Mr Blake at the house on 6 August 2009. Mr Peterson said that Ms White was not at the house at all and that she had gone to the Golden Grove police station to report the damage caused and the theft committed by the subcontractor. He said that she had left at 8.00am, ten minutes before Mr Blake alleged the conversation took place.
The Tribunal found that:
Mr Blake was an impressive witness giving his evidence clearly and without any apparent bias. He was clear about his recollection of the timing of his meeting with Ms White. He told that the Tribunal the threat was made in a serious way.
The Tribunal concluded:
I do not accept the version of events given to the Tribunal by Mr Peterson. I prefer the evidence given by Mr Blake.
I accept that Ms White made the serious threat alleged by Mr Blake. Given that guns are held on the premises I accept that the Housing Trust now has a credible concern that Ms White may cause personal injury to a Housing Trust representative or one of the contractors engaged by the Housing Trust to complete the work at the property.
The Tribunal accepted that the Trust had satisfied the onus it carried pursuant to s87(2) of the Act.
The Deputy Presiding Member provided reasons detailing the evidence upon which the decision was made, granted the application and made an order, (‘the Termination Order’) in the following terms:
Pursuant to Section 87(2) of the Act, I order that this agreement terminate and I make an order in favour of the South Australian Housing Trust for possession of the premises at 4 Gullyview Court Wynn Vale SA 5127 at 9.00am on Monday 10 August 2009 ON CONDITION THAT only the Tribunal bailiff may enforce this order.
Appeal Against the Termination Order
Ms White immediately lodged an appeal on 7 August 2009.
Bearing in mind that the Termination Order made by the RTT required the tenant to vacate the property by 9.00am on Monday 10 August 2009, I called both appeals on for mention at that time.
After negotiations between the parties, I made orders by consent in the following terms: That the tenant temporarily vacate the premises and undertake that she, her children and Mr Peterson will not attend at the premises between 10.00am Tuesday 11 August 2009 and 5.00pm Friday 14 August 2009.
2.That the security guard appointed by the South Australian Housing Trust photograph the areas of the premises containing the retaining wall and any structures in the grounds of the premises before and after the remedial work on the retaining wall is carried out.
3.That the South Australian Housing Trust notify the tenant when the work has been completed.
4. That the appeals be listed for hearing on 26 August 2009 at 10.00am
5.Liberty to parties to call matter back on in the event there is any difficulty in completing the work.
The effect of that was that the necessary work on the retaining wall to prevent damage to the trust property and to neighbouring properties, could be carried out.
The matter then came on for the hearing of both appeals on 26 August 2009 as envisaged.
At that time I was informed that the repair work had been carried out and was completed by 4.30pm on Friday 14 August 2009. Accordingly the appeal against the Tribunal’s orders of 29 July 2009 is rendered otiose and can be dismissed.
Ms White maintained her appeal against the order terminating the tenancy. The Trust maintained its position that the tenancy had been terminated and that the decision of the Tribunal should be affirmed.
Nature of the Appeal
The appeal is brought pursuant to s41 of the Residential Tenancies Act 1995. The powers of this Court on appeal are set out in s41(2) of that Act and are as follows:
(2)     on an appeal, the District Court may (according to the nature of the case) –
(a)     re-hear evidence taken before the Tribunal, or take further evidence;
(b)     confirm, vary or quash the Tribunal’s decision;
(c)     make any order that should have been made in the first instance;
(d)     make incidental and ancillary orders.
The appeal to this Court is not an appeal to the District Court in its Administrative and Disciplinary Division.[1]
[1] Grey v Stephens (unreported judgment of Duggan, J delivered 26 August 2002); Timms v South Australian Housing Trust (2003) LSJS 42.
Section 41(2)(a) specifically empowers a “re-hearing of evidence taken before the Tribunal”, or the taking of “further evidence”. The RTT is in the nature of an expert Tribunal and so some regard ought to be accorded to its determination. The power to re-hear, in the way provided for by s41(2)(a) should only be invoked by this Court when no other course is reasonably open to enable an appeal to be fully and properly conducted. In other words, there should not be a duplication of the primary hearing process unless justice cannot be done without doing so.[2]
[2] Kozlowski v Murray, Creevy, Blott, Bassett and South Australian Housing Trust [2001] SADC 129 per Smith J delivered 18 September 2001.
Submissions and Evidence Upon Appeal
Section 32 of the Act provides that:
The Tribunal's proceedings must be conducted with the minimum of formality and in the exercise of its jurisdiction the Tribunal is not bound by evidentiary rules but may inform itself as it thinks appropriate.
As the Tribunal’s determinations affect the legal rights and interests of persons appearing before it, it is nevertheless obliged to comply with the rules of procedural fairness.[3] By implication this Court in exercising its entitlement to re-hear evidence, or take fresh evidence, is similarly not bound by evidentiary rules and is entitled to inform itself as it thinks appropriate.
[3] Annetts v McCann (1990) 170 CLR 596.
There was no application to re-hear evidence or to lead further evidence. Rather both parties relied on material before the Tribunal and evidence from the Bar table.
As I apprehend the argument of counsel for the appellant, first, Ms White submits, in broad terms, that the Tribunal should not have found that the threat was made particularly given that Ms White did not give evidence.
Next she submits that the Tribunal ought to have found that, even if the threat were made, it was insufficient to support a finding that:
The tenant has, intentionally or recklessly, caused or permitted, or is likely to cause or permit—
(b) personal injury to—
(i) the landlord or the landlord's agent; or
(ii) a person in the vicinity of the premises.
Finally, she submitted that in the alternative, I could have regard to the fact that the situation has now changed in that the work has been completed, there was no longer a need for the subcontractor to attend at the premises, Ms White is back in the premises, Mr Peterson is no longer a licensed gun holder, and his guns have been seized.
As to the first submission, whilst it is true that Ms White did not give evidence her position was put through Mr Peterson. As I have said Mr Peterson gave evidence that there was no conversation between Ms White and Mr Blake. Upon the appeal the appellant maintained the position not that there was some misinterpretation of the words said to constitute the threat, nor that the threat should not have been taken seriously, but rather that she was simply not present at the property. She did so through the submissions of her counsel. There was no application to call her to give that evidence.
The Tribunal formed a favourable impression of Mr Blake. The Tribunal found that he had made contemporaneous notes of the conversation and accepted him as a fair and independent witness. I do not consider that there is any basis upon which I should overturn that finding of the Tribunal. I proceed then on the premise that the threat was made.
As to the next point, Mr Blake formed the view that the threat was made seriously. He took it seriously. There were guns in the premises. In my view the Tribunal was entitled to find that the tenant was likely to cause or permit harm within the meaning of s87(2).
Am I entitled to have regard to the changed circumstances? There was no direct evidence before me, but rather uncontested submissions, that the guns had been seized by police, and that Mr Peterson’s licence had been revoked. Further of course, it was common ground that the work had been carried out and that there was no present need for the subcontractor or other tradespeople to return to the premises. Further, it appears that Ms White suffers from at least emotional problems. She has three young children at least one of whom has intellectual disabilities and Ms White’s partner apparently suffers from a serious illness.
Counsel for the Trust made uncontested submissions, again without sworn evidence, that further work needs to be carried out on the premises, and that the tenant had refused previous attempts to inspect the interior of the premises. In any event, quite obviously there will need to be periodic inspections of the premises by an employee or agent of the Trust.
The Trust is unable to make another property available. The appellant has previously qualified for a home loan through HomeStart and had entered into some preliminary discussions regarding the possible purchase of the present premises from the Trust. That home loan has lapsed. At the time of the hearing of the appeal she was apparently in the process of renewing her application. I have since been informed that she has been successful in obtaining finance through a finance broker for $207,000 which incorporates an amount of $50,000 said to be provided by the State Government to purchasers of Trust property. She has savings of almost $80,000.
The Trust has a policy of carrying out remedial work on premises prior to sale to former tenants. The Trust is concerned that further conflict will develop between the tenant and any contractor appointed to carry out such work. I was informed again in submissions without evidence that there were also ongoing disputes between the tenant and her partner, and neighbours in the vicinity. I will not have regard to that latter submission.
The appellant, by a written submission yesterday, asserted that once evicted the appellant would be precluded from ever renting. I cannot accept that that is so. In any event were that to be a bar to the termination of a Trust tenancy no tenancy could ever be terminated.
The Trust is prepared to provide assistance by way of a bond guarantee, in order to enable the appellant to move into private rental accommodation.
Conclusion
Ultimately I have come to the difficult decision that the nature of the threat to shoot the Trust’s subcontractor, conveyed to the security agent engaged by the Trust, did constitute evidence of a risk of injury upon which the Tribunal properly terminated the tenancy. The Tribunal was not in error in so doing. The nature of the threat has also, not surprisingly, fundamentally affected the relationship between the Trust and the appellant.
I conclude that the decision of the Tribunal was correct. I dismiss the appeal. I revoke my previous order suspending the operation of the order of the Tribunal and I make the following order: I confirm the order of the Residential Tenancy Tribunal that the Residential Tenancies Agreement entered into between the appellant and the South Australian Housing Trust be terminated and I order that the appellant give up possession of the premises at 4 Gullyview Court Wynn Vale South Australia to the South Australian Housing Trust within 28 days of today’s date.

I am concerned that Ms White not be left without accommodation. However I draw to the parties’ attention that the Act does not allow a greater period of time than 28 days for the tenant to be relocated.