Legal Research
Cases
Wright v Weston Raine & Horne

Wright v Weston Raine & Horne

Case [2004] SADC 16 6 February 2004

Appeal

Orders

Self-Executing Orders

Reinstatement of Tenancy

Civil Litigation & Procedure

Property Law

No judgment structure available for this case.

Type to search within this case.

NEIL WRIGHT v WESTON RAINE HORNE – NORWOOD ANOR
[2004] SADC 16
Judge Lunn
Civil

On 31 October 2001 the appellant entered into a tenancy agreement with the respondent Weston Raine and Horne (“the Agent”) as agent for the landlord Cocks for Unit 10, 81-85 Windsor Grove, Klemzig. There have been several extensions of the tenancy and under those it runs until 27 May 2004 unless earlier determined. The rent has always been $100 per week.
On 24 November 2003 the Agent served a notice on the appellant for unpaid rent which on 3 December 2003 terminated the tenancy under s80 of the Residential Tenancies Act 1995 (“the Act”). The validity of this termination was not disputed.
On 4 December 2003 the Agent lodged an application with the Residential Tenancies Tribunal (“the Tribunal”) seeking an order for possession of the premises and payment of the security bond. The application was heard by the Tribunal on 15 December 2003. The appellant and a representative of the Agent attended and all gave evidence. The Tribunal considered whether it was just and equitable for it to reinstate the tenancy under s80(5) of the Act. It decided to reinstate the tenancy upon conditions. It gave written reasons for doing so which have not been challenged.
The relevant parts of the sealed order of the Tribunal were as follows:
“ORDERS:
1.Pursuant to Section 80(5) of the Act, I order that the tenancy be reinstated on the condition that the tenant makes the payments listed in clause 2 below. If the payments are not made by the times stated in clause 2 then the tenancy will terminate and the landlord will be entitled to possession of the premises at 10/81-85 Windsor Grove, Klemzig at the respective times stated in clause 3 ON CONDITION THAT if the tenant fails to give up possession then the order for possession may only be enforced by the Tribunal bailiff.
2.The tenant shall make the following payments to the landlord (via the agent):
a.      $67.50 on or before 9 January 2004 (making payment of 2 quarterly water supply charges of $33.75 each)
b      $200.00 by 5.00 pm on Friday 12 December 2003
c      $160.00 by 5.00 pm on Friday 19 December 2003
d      $160.00 by 5.00 pm on Monday 29 December 2003
e      $160.00 by 5.00 pm on Friday 2 January 2004
f       $160.00 by 5.00 pm on Friday 9 January 2004
g      $160.00 by 5.00 pm on Friday 16 January 2004
h      $160.00 by 5.00 pm on Friday 23 January 2004
i       $160.00 by 5.00 pm on Friday 30 January 2004
j       $160.00 by 5.00 pm on Friday 6 February 2004
(paying rent to 17 February 2004 with a credit of $35.00 – fortnightly rent is payable under the agreement from 20 February 2004)
3.In default of payments 2a-2i the landlord will be entitled to possession of the premises at the following times:
a       10.00 am on Monday 12 January 2004
b      10.00 am on Monday 15 December 2003

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.

Continue reading Wright v Weston Raine & Horne

Details

AGLC: Wright v Weston Raine & Horne [2004] SADC 16
Case: [2004] SADC 16
Decision Date: 6 February 2004

CaseChat Overview and Summary

The appellant, Neil Wright, appealed against a decision of the Residential Tenancies Tribunal which reinstated his tenancy of a unit at Klemzig on conditions that he make regular payments of rent. The Tribunal made the reinstatement conditional on self-executing orders for possession of the premises if the payments were not made. The respondent, Weston Raine and Horne, who was the agent for the landlord, served a notice for unpaid rent, terminated the tenancy and sought possession of the premises. The Tribunal reinstated the tenancy on condition of the payment of arrears and self-executing orders for possession in the event of default in payment of each instalment. Wright paid some of the arrears but failed to pay the amount required by 5pm on 2 January 2004. The Agent applied to the Tribunal for a warrant for possession which was issued and executed on 5 January 2004. Wright appealed against the order of the Tribunal on the ground that the Tribunal should not have made the self-executing orders. The Commissioner of Consumer Affairs intervened in the appeal. The court held that an appeal under s41 of the Act was a strict appeal to be determined on the evidence before the Tribunal at the time of its order together with any further evidence which the District Court in its discretion takes on matters bearing on the determination at first instance. It was not an appeal by way of a rehearing on which this Court should make the appropriate orders on the facts as they exist at the present time or whether it is some hybrid of these two. The court held that the Tribunal should not have made the self-executing orders for possession in the event of default in payment of each instalment of the arrears. It was not appropriate in the circumstances to impose such draconian sanctions on the appellant. It was open to the Tribunal to require the agent to come back to it for a short hearing before any warrant was issued for breach of a reinstatement condition. If the breach was contested, or if the appellant had some grounds for seeking to be excused from the breach, this could then have been dealt with by the Tribunal before the warrant issued. The order of 15 December 2003 was quashed. Because of the lapse of time there was no point in this Court varying that order. The effect of the quashing was that the reinstatement of the tenancy was no longer operative and it was open to the landlord to apply again to the Tribunal for a further possession order based on the previous default.

Orders