Held, granting leave and affirming the decision under review:

• There is a residential tenancy agreement between the parties. While the arrangement between the parties lacked some of the usual characteristics of a residential tenancy agreement such as the payment of bond, routine inspections, and action taken relating to late payments of rent, this is unsurprising where there is such an arrangement between family members.
• A valid notice of termination had been served.
• There is little substantive evidence in support of the applicant's argument regarding a constructive trust and accordingly, it will not be taken into account in making the order for vacant possession.

Internal Review - Preliminary applications - Extension of time - Granted

Internal Review - Preliminary applications - Fresh evidence

Internal Review - Residential Tenancy - Landlord application - Termination and vacant possession - End of fixed term

Internal Review - Residential Tenancy - Jurisdictional matters - Existence of residential tenancy agreement

South Australian Civil and Administrative Tribunal Act 2013 ss 8, 70

Surveillance Devices Act 2016

Residential Tenancies Act 1995 ss 3, 53, 93

Re AKS [2016] SACAT 19

Tronnolone v Edwards and Bryan [2016] SACAT 27

Street v Mountford [1985] UKHL 4; [1985] 2 All ER 289

M Pangallo and Z Lewis appeared for the applicant who appeared in person

T Mellor and C Divakaran appeared for the respondents who appeared in person

1. This is an application for the review of an order made by the Tribunal on 13 July 2023 in matter number 2023/SH003574 (the original Order). The original Order dealt with an application by the respondents, Maria Banner and William Banner (Mr and Mrs Banner) seeking an order for vacant possession of the property situated at 125 The Esplanade, Thompson Beach (the Property) on the basis of the end of the tenancy.
2. In the original Order, the Tribunal made an order for vacant possession, but suspended the vacate date taking into account the personal circumstances of the applicant (Ms R Banner - the daughter in law of Mr and Mrs Banner).
3. Ms R Banner says that the original Order is not the correct or preferable order, and she has sought a review. The basis of Ms R Banner's application for review is that the Tribunal did not have jurisdiction to make the order for vacant possession as there was no residential tenancy agreement in relation to the Property. She says that she and her estranged husband, Mr A Banner (the son of Mr and Mrs Banner) have equitable rights of ownership in the Property.
4. An application for review is made under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act). Section 70 of the SACAT Act requires that on review the Tribunal must make the correct or preferable decision taking into account the evidence before the Tribunal at the original hearing, giving appropriate weight to the original Order and taking into account any other evidence the Tribunal considers is relevant and appropriate to take into account in the course of the review. An application for review necessarily involves an application for leave.

1. The original Order was made on 13 July 2023. Section 70(2) of the SACAT Act requires that an application for internal review must be made within one month of the decision under review but the Tribunal has a discretion to dispense with strict compliance with that requirement. According to the Tribunal file, the application for review was lodged on 14 August 2023.
2. In the review hearing, Ms R Banner said that she had actually lodged the application on 13 August 2023. Ms Pangallo submitted that even if the application was lodged a day late, the Tribunal should exercise its discretion to accept the application due to the significance of the matter.
3. Mr Mellor submitted that there was no reasonable excuse for the lateness of the application, and in the circumstances of the matter, the Tribunal should not accept the late application.
4. In my view the outcome of this application has significant implications for both parties and as the application was only one day late, I will exercise my discretion to allow it.

1. Ms Pangallo requested that the Tribunal accept the following additional evidence as part of the review process:
   • an audio recording of a phone call between Ms R Banner and Mr A Banner which she said contained statements that are directly relevant to the issues in dispute;
   • text messages between Ms R Banner and other members of the family concerning issues in relation to the Property;
   • oral evidence of Emma Micklethwaite;
   • evidence concerning Ms R Banner's medical conditions.
2. Ms Pangallo also attached to her submission, an affidavit of Ms R Banner and evidence of proceedings which Ms R Banner has initiated in the Family Court which include claims about rights of ownership of the Property.
3. Mr Mellor opposed the request and submitted that:
   • the statements contained in Ms R Banner's affidavit have not been tested, and therefore the affidavit should not be relied upon by the Tribunal;
   • the audio recording was made without the knowledge of Mr A Banner and it was part of a longer conversation (i.e. the context of the conversation is lacking);
   • the text messages are self-serving as they were all from Ms R Banner to Mrs Banner without any replies that advanced the case of Ms R Banner;
   • the oral evidence of Emma Micklethwaite is irrelevant and in any event, the Tribunal had her statutory declaration, and that should be sufficient.
4. Mr A Banner opposed the admission of the audio recording on the basis that he was not aware the conversation was being recorded, at the time he and Ms R Banner were in the process of separating, and he was under significant pressure in relation to that issue and generally.
5. Mr Mellor requested that the Tribunal accept additional evidence as part of the review process being an advertisement on social media by Ms R Banner concerning escort services currently being offered by her.
6. Ms Pangallo did not oppose the admission of the evidence concerning Ms R Banner provided that it was only taken into account in relation to submissions concerning the issue of the vulnerability of Ms R Banner. Mr Mellor agreed that would be an appropriate approach and I will admit the evidence on that basis. I will now consider the requests in relation to the other evidence.
7. Section 70(4) of the SACAT Act provides:

On a review, the Tribunal will examine the decision of the Tribunal at first instance on the evidence or material before the Tribunal at that time but the Tribunal may, as it thinks fit, allow further evidence or material to be presented to it."

8. In dealing with requests for the admission of further evidence in the course of an internal review, the Tribunal will generally apply the approach taken by his Honour Justice Parker in Re AKS,[1] which in summary is that:
   • The Tribunal should turn its mind to whether the material was reasonably available at the original hearing;
   • The Tribunal should take a more flexible approach than that which would ordinarily be taken in the courts;
   • The most important consideration is whether the material would assist the Tribunal in arriving at the correct and preferable decision - if so, then it is likely that the Tribunal should admit the new material.

1. I accept Mr Mellor's submission that the information in Ms R Banner's affidavit has not been tested in these proceedings. I do not intend to rely on the material in that affidavit other than as confirmation of Ms R Banner's submissions about her views concerning the legal relationship between the parties in relation to the Property.

1. I accept Mr A Banner's submission that the audio recording of his phone conversation with Ms R Banner was made without his consent. Accordingly, I accept that I must deal with this evidence with caution, particularly noting the provisions of the Surveillance Devices Act 2016. I also accept Mr A Banner's submissions concerning his emotional state at the time of the conversation, and the fact that the recording is only part of a longer conversation. However, I will allow the evidence as I consider it is relevant to Ms R Banner's case. The evidence was produced immediately prior to the review hearing, and accordingly, I allowed Mr and Mrs Banner and Mr A Banner a further opportunity to make written submissions about the recording, and I will take those submissions into account.

1. I will not accept the text messages into evidence. They should have been provided as part of the evidence at the original hearing. In my assessment, they are of little, if any, assistance to Ms R Banner in that they are predominantly a record of messages from her to other members of the family. They contain no responses which I consider are material[2].

1. Senior Member Ward declined to allow Ms R Banner to call Ms Micklethwaite to give evidence as part of the original hearing process. In the review process, Ms Pangallo has submitted that this was a denial of procedural fairness and Ms Micklethwaite should have been called as she would have been able to give evidence which supports Ms R Banner's position that she and Mr A Banner have rights of ownership in the Property.
2. I disagree with Ms Pangallo's assessment of the usefulness of any evidence which could be provided by Ms Micklethwaite. Her evidence is about discussions she had with Ms R Banner and Mr A Banner concerning the Property and relates to inferences she has drawn from those conversations concerning the legal ownership of the Property. Any views of Ms R Banner and Mr A Banner concerning their rights about the Property as expressed to Ms Micklethwaite rely on her accurate memory of the discussions but even if her memory is accurate, any views of Mr A Banner and Ms R Banner may not have been legally correct, and they may not have accorded with the views of Mr and Mrs Banner. I agree with the approach of Senior Member Ward, that it was sufficient for the Tribunal to take into account the statutory declaration provided by Ms Micklethwaite.

1. There is currently an intervention order in place between Ms R Banner (as the protected person) and Mr A Banner. For this reason, I conducted the hearing with Ms R Banner as the applicant, together with her legal representatives and support persons in the primary hearing room. Also in the primary hearing room were the legal representatives for Mr and Mrs Banner and Ms R Banner. Mr Banner and Mr A Banner were in another hearing room but connected by phone with the primary hearing room.

1. Mr and Mrs Banner bought the Property in early 2009. At the time, they were living in Port Lincoln and managing a hotel there. They paid a deposit of $30,000 for the Property. They paid stamp duty and conveyancing costs for the Property. They are the registered proprietors of the Property. They obtained a loan in order to purchase the Property.
2. Ms R Banner and Mr A Banner commenced a relationship in 1999 and were married on 31 December 2007. They rented a property in Findon from about 2000. Prior to moving into the Property, their rent was $330 a week. Mr A Banner experienced some financial difficulties in relation to a nightclub business. They moved into the Property in April 2009.
3. Ms R Banner and Mr A Banner agreed to pay Mr and Mrs Banner an amount of $300 per week in return for being given the right to live in the Property. There was no residential tenancy agreement signed between the parties when Ms R Banner and Mr A Banner moved in. A residential tenancy agreement was prepared in October 2013. Mr and Mrs Banner and Mr A Banner say that agreement was signed by Mr and Mrs Banner as landlords and Ms R Banner and Mr A Banner as tenants. Ms Banner disputes the authenticity of the signature on the agreement purporting to be her signature. She says it is fraudulent and she did not sign the agreement.
4. There was no bond paid by Mr A Banner and Ms R Banner. They paid for electricity use for the Property. The Property is not connected to mains water and so there were no charges in that regard.
5. Mr and Mrs Banner established an account into which payments by Mr A Banner and Ms R Banner were made. They called it "Rent Account". Their records were that Mr A Banner and Ms R Banner were falling behind with their weekly payments and in about 2011 they lent a lump sum to Mr A Banner to assist him to repay some of his debts.
6. Mr A Banner and Ms R Banner separated on 23 September 2022. Mr A Banner has moved out of the Property. Ms R Banner continues to reside in the Property. She resides there on her own.
7. Mr and Mrs Banner served a Form 3 Notice of Termination on 9 December 2022. The notice required Ms R Banner and Mr A Banner to vacate the Property on 9 February 2023 and stated that 60 days' notice was provided because Mr and Mrs Banner required possession of the Property for repairs to be carried out, and for their family to reside in it.
8. Mr and Mrs Banner served a further Form 3 Notice of Termination on 20 January 2023 which required Ms R Banner and Mr A Banner to vacate the Property on 1 May 2023.
9. On 19 May 2023 Mr and Mrs Banner applied to the Tribunal seeking an order for vacant possession of the Property. The matter was listed for a directions hearing on 8 June 2023. Both parties were directed to lodge submissions and supporting evidence.
10. The Tribunal conducted a hearing in the matter on 13 July 2023, and the original Order was made. Ms R Banner sought a review of the original Order.

a) Ms R Banner was not provided with procedural fairness in the hearing process because: > > * Mr and Mrs Banner provided documents at short notice, and she was not given a proper opportunity to consider those documents and respond to them; > * The Tribunal did not allow Ms R Banner a proper opportunity to state her case; > * The Tribunal gave too much weight to the evidence of Mr and Mrs Banner and insufficient weight to the evidence of Ms R Banner; > * Due to the seriousness of the allegations about fraud (in relation to Ms R Banner's signature on the tenancy agreement), the Tribunal should not have proceeded with the hearing, but should have adjourned the proceedings and allowed Ms R Banner a reasonable opportunity to obtain the evidence of a handwriting expert. > > b) The original Order is not the correct or preferable order because the Tribunal exceeded its jurisdiction in making a determination that no constructive trust arises. > > c) The finding in the original Order that there is overwhelming evidence in support of the existence of a residential tenancy agreement is inconsistent with the evidence. > > d) The Tribunal failed to properly take into account the vulnerability of the applicant and the significant implications of any order for vacant possession for her.

1. Ms R Banner seeks the following orders from the Tribunal:

a) The application for vacant possession to be dismissed. > > b) Alternatively, the order for vacant possession to be stayed pending the outcome of the proceedings in the Federal Circuit and Family Court. > > c) Alternatively, the order for vacant possession to be stayed pending the provision of the evidence of a handwriting expert concerning Ms R Banner's decision on the tenancy agreement. > > d) If the Tribunal determines that there is a residential tenancy agreement and that an order for vacant possession should be made, then the order should be suspended for the maximum period taking into account the medical conditions and vulnerability of Ms R Banner.

1. Ms R Banner says that the parties understood from the outset that Mr and Mrs Banner bought the Property for her and Mr A Banner, and ultimately the Property would be transferred into their names - when they were in a financial position to take it over.
2. In summary, Ms R Banner submits that:

a) It was not for this Tribunal to make a determination as to whether or not there is a constructive trust between the parties concerning the Property and to do so exceeded the Tribunal's jurisdiction. > > b) The decision that there is a residential tenancy agreement between the parties is not supported by the evidence because: > > * The only residential tenancy agreement which is in existence came into existence well after she and Mr A Banner moved into the Property and her signature on that agreement is fraudulent; > * The document provided to the Tribunal is merely a copy - if Mr and Mrs Banner seek to rely on it, they should have provided the original; > * The arrangement between the parties did not have the usual characteristics of a residential tenancy agreement such as a bond and routine inspections; > * The payments made to Mr and Mrs Banner by Mr A Banner on behalf of her and Mr A Banner did not have the usual characteristics of rent - they were not made regularly, they did not gradually increase (as rent usually would); when they fell behind, Mr and Mrs Banner did not initiate proceedings as a landlord usually would; it was irrelevant that the title of the account into which the payments were made was "Rent Account"; the payments were actually payments towards the mortgage; > * Mr and Mrs Banner did not include the rent in their tax returns.

1. There is substantial evidence to support Ms R Banner's position that the arrangement between the parties was an arrangement which created an equitable interest of ownership in the Property for Ms R Banner and Mr A Banner and in this regard the following evidence is relevant: * The statements made by Mr A Banner and Ms R Banner to Ms Micklethwaite, as stated by her in her statutory declaration; * The phone conversation between Mr A Banner and Ms R Banner at around the time of their separation is strong evidence of Mr A Banner's belief that he and Ms R Banner have an equitable interest in the Property; * She and Mr A Banner paid for maintenance and improvements to the Property - this is consistent with a view that they have an equitable interest in the Property; * She and Mr A Banner have paid for council rates for the Property; * Mr and Mrs Banner requested that she and Mr A Banner keep documents concerning the purchase of the Property in their safe custody - because of their equitable interest in the Property.
2. Mr and Ms Banner say that they bought the Property with a view to living in it when they retired. They had always lived in the hotels where they worked and did not own a house. At the time, Mr A Banner and Ms R Banner were in financially straitened circumstances, and so they agreed to rent the Property to them at a rent which was lower than the rent they had been paying. There was never an agreement that the Property would be transferred to Mr A Banner and Ms R Banner.
3. In summary, Mr and Mrs Banner submit that:

a) The decision that there is a residential tenancy agreement is supported by the following evidence: > > * Rent - > * at the time they entered into the arrangement with Mr A Banner and Ms R Banner, the arrangement was that they would pay $300 per week rent; > * they established an account which they called "Rent Account" because they viewed the arrangement as a residential tenancy agreement; > * they did not increase the rent because they wanted to provide financial assistance to their son and his wife; > * they did not take action to evict Mr A Banner and Ms R Banner when they fell behind with rent because of their personal relationship; > * rent payments were erratic because Mr A Banner and Ms R Banner would pay when they could afford it - however, rent payments were not aligned with the mortgage payments and in fact, at times they were lower than the mortgage payments; > * the payments made by Mr A Banner increased at one point as he was repaying a loan they gave him to assist with his debts; > * Bond and inspections - they did not require payment of a bond or conduct routine inspections because of the relationship between the parties and because Mr A Banner and Ms R Banner were under financial stress when they moved into the Property and could not afford a bond; > * A written agreement - they did not require Mr A Banner and Ms R Banner to enter into a written agreement at the commencement of the tenancy because of their personal relationship but when they were refinancing, it was suggested to them that they should do so - there has been no fraud involved. > > b) The evidence supports Mr and Mrs Banner's position that they are the owners of the Property, and Mr A Banner and Ms R Banner have no equitable interest in it because: > > * Mr and Mrs Banner are the registered proprietors, and they paid for all costs associated with the purchase of the Property; > * Mr and Mrs Banner have continued to pay for all council rates for the Property (with the exception of one); > * Mr and Mrs Banner have continued to pay for insurance of the Property; > * Mr and Mrs Banner have paid for improvements to the Property;

• The evidence concerning the phone conversation between Mr A Banner and Ms R Banner can be regarded as evidence that Mr and Mrs Banner were the owners of the Property and if the Property were to be sold, it would be their decision and there is other evidence of Mr A Banner consistent with this[3];
• They asked Mr A Banner and Ms R Banner to hold documents concerning the sale of the house while they were residing in Port Lincoln.

1. In my view the correct approach to this dispute is to address the following questions:

a) Does the evidence provided to the Tribunal by Mr and Mrs Banner support a finding on the balance of probabilities, that a residential tenancy agreement exists? > > b) If so, has a valid notice of termination been served? > > c) If so, should an order for vacant possession be made and if so, when?

2. In my view, the question of the constructive trust is relevant to the final question - if the Tribunal considers there is a reasonable argument that a constructive trust may exist, then the Tribunal may consider whether any other orders should be made, for example, to suspend any order for vacant possession for as long as possible, to allow Ms R Banner the opportunity to pursue her rights in this regard.

Question 1: Is there a residential tenancy agreement between the parties?

1. A residential tenancy agreement is merely a special form of contract and so ordinary principles of contract law apply subject to the provisions of the Residential Tenancies Act 1995 (the RTA)[4].
2. The essential elements of a binding contract are:
   • An agreement between the parties on the essential terms of the agreement;
   • Consideration;
   • An intention to create legal relations.
3. Where an arrangement is between family members, there is a presumption that the arrangement is not intended to be legally binding (in the absence of evidence to the contrary). In this matter, it was agreed that there was an intention to create legal relations - the dispute is about the nature of the agreement.
4. The term "residential tenancy agreement" is defined in s 3(1) of the RTA to mean "an agreement ... under which a person grants another person, for valuable consideration, a right ... to occupy premises for the purpose of residence".[5]
5. In this matter Ms R Banner says that the evidence does not support a finding that the arrangement constitutes a residential tenancy agreement (and the true nature of the arrangement created an equitable interest in the Property for her and Mr A Banner). Mr and Mrs Banner say that the evidence supports a finding that the arrangement constitutes a residential tenancy agreement.
6. In this scenario, I consider that the correct approach is an objective analysis of the evidence and in this regard, I refer to the case of Street v Mountford,[6] in which Lord Templeman made the following observations in a matter which was a dispute as to whether a right to reside in a property amounted to a tenancy or a licence, and both parties had described the relationship as a licence:-

In the present case the agreement dated 7 March 1983 professed an intention by both parties to create a licence and their belief that they had in fact created a licence. It was submitted on behalf of Mr Street that the court cannot in these circumstances decide that the agreement created a tenancy without interfering with the freedom of contract enjoyed by both parties. My Lords, Mr Street enjoyed freedom to offer Mrs Mountford the right to occupy the rooms comprised in the agreement on such lawful terms as Mr Street pleased. Mrs Mountford enjoyed freedom to negotiate with Mr Street to obtain different terms. Both parties enjoyed freedom to contract or not to contract and both parties exercised that freedom by contracting on the terms set forth in the written agreement and on no other terms. But the consequences in law of the agreement, once concluded, can only be determined by consideration of the effect of the agreement. If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence. The manufacture of a five-pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.

7. In that case it was held that the intention of the parties, as manifested in the agreement, that they only intended to create a licence (and expressed the agreement to be a licence) and that they agreed not to be bound by the Rent Acts was irrelevant. The effect of the agreement between the parties was to grant the appellant exclusive possession for a fixed term at a stated rent, and there were no circumstances to negative the presumption of a tenancy, therefore, it was clear that the agreement between the parties was a tenancy agreement, and not a mere licence.

1. The requirement for valuable consideration is further refined by s 53 of the RTA which in broad terms, states that a person must not require from a tenant a payment other than rent or a bond; and the term "rent" is defined in s 3(1) of the RTA to be the "amount payable under a residential tenancy agreement for the right to occupy premises for a period of the tenancy."
2. For the reasons outlined above, Ms R Banner argues that the amount payable under the arrangement was not rent, and Mr and Mrs Banner say that is rent.
3. Payments have been made inconsistently and of erratic amounts. However, I am satisfied that the amounts payable under the agreement are rent for the following reasons:
   • Payments were made for the duration of the agreement and it is clear that Mr A Banner and Ms R Banner were required to make payments in return for the right to live in the Property;
   • The amounts required were not linked to the amount to be paid for the mortgage;
   • The amounts paid were not paid directly into the mortgage, but paid into an account called "Rent Account";
   • The increase in the payments made is explained as the repayment of a personal loan by Mr Banner.

I do not consider it is material that Mr and Mrs Banner did not take action when rent fell behind - in my experience, this is a fairly typical scenario when there is an agreement of this kind between family members.

I agree that it is noteworthy that Mr and Mrs Banner did not declare the income from the rent in their tax returns. However, not everyone discloses of all their assessable income in their tax returns. In my view this does not change the essential character of the payments. Ms R Banner submitted that this practice denied her the opportunity to obtain Rent Assistance. In my view it is unlikely that Mr and Mrs Banner were thinking in those terms. They may not even be aware of the Rent Assistance scheme.

1. In my view, if there was a residential tenancy agreement, that agreement was in place from the outset of the arrangement - the written agreement is not especially important other than as a written confirmation of the arrangement between the parties, and documentary evidence of the common intention of the parties. I make these observations also bearing in mind Mrs Banner's evidence that a written agreement was only produced when they were refinancing - the implication being that the principal significance of the agreement was not to establish a residential tenancy agreement, but to record the agreement to assist with their financial arrangements.
2. I do not consider that the Tribunal was in error in not adjourning the application to allow an opportunity for a handwriting expert to give evidence about the signature of Ms R Banner on the document. I accept that it is not for the Tribunal to form its own conclusion about the authenticity of such a signature, but I consider it is appropriate for the Tribunal to determine whether or not there is anything about the circumstances of the execution of the document or the signature which raises a serious doubt as to its authenticity. If so, then in that situation the Tribunal may choose to proceed differently. I do not consider that is the case here. The Tribunal deals with allegations of fraud reasonably frequently. It would be unusual for the Tribunal to require expert evidence and in this regard, I refer to the objects of the Tribunal as stated in s 8 of the SACAT Act which require the Tribunal to deal with matters expeditiously. In any event, Ms R Banner was on notice of the matter from a point prior to the lodgement of the original application on 19 May 2023, and so she has had a reasonable opportunity to seek that evidence.

Nor do I consider it material that only a copy of the agreement was provided to the Tribunal - this is relatively common in the Tribunal, and as the Tribunal is not bound by rules of evidence or procedure, it will be for the Tribunal to determine in any particular matter, what weight is to be applied to the fact that an original agreement was not produced.

The other characteristics of a tenancy agreement

1. I do not consider that the absence of a bond or routine inspections are significant factors to take into account in a dispute of this kind. Mrs Banner's explanations were reasonable in this regard.
2. Taking into account all of the evidence, I agree with the finding in the original Order that the arrangement between the parties is a residential tenancy agreement.

Question 2: If so, has a valid notice of termination been served?

1. I agree with the original Order that a valid notice of termination has been served.

Question 3: Should an order for vacant possession be made, and if so when and what consideration should be given to the argument about a constructive trust and Ms R Banner's circumstances?

1. In broad terms, when the Tribunal has found that a notice of termination is valid, the Tribunal's approach is that an order for vacant possession must be made because to make any other order is an unreasonable interference with the contractual autonomy of the parties, and the only issue is whether or not to exercise its discretion under s 93 of the RTA to suspend the order for possession on the grounds of hardship due to the circumstances of the tenant, and if so to what extent.
2. However, in this matter, I consider that the argument about the existence of a constructive trust should be considered in relation to this aspect of the decision. If I considered there was a reasonable argument about the existence of a constructive trust, then this may impact on my decision.
3. I have considered the evidence in this regard and in particular the following evidence:
   • Mr and Mrs Banner remain the registered proprietors of the Property;
   • They paid all conveyancing costs for the Property;
   • They have paid the vast majority of council rates for the Property and they have paid insurance premiums;
   • The payments made by Mr A Banner and Ms R Banner are not consistent with the mortgage payments;
   • Both parties have made improvements to the Property;
   • There is no documentary evidence in support of Ms R Banner's assertions concerning her rights of ownership.
4. I acknowledge that there is a lack of clarity concerning the arrangements between the parties. However, I have concluded that there is very little substantive evidence in support of Ms R Banner's argument about a constructive trust. Therefore, I will not take this factor into account when making my orders.
5. I now turn to a consideration of the order for vacant possession. Ms Pangallo has provided significant medical evidence in support of a submission that Ms R Banner is a vulnerable person and she has submitted that this should be taken into account in making an order. Mr Mellor has provided evidence to the contrary.
6. Mr A Banner and Ms R Banner separated just over a year ago. There were discussions between them then about the possibility of the Property being sold. The initial Form 3 Notice of Termination was served in December 2022. Ms R Banner has been on notice that Mr and Mrs Banner wanted her to vacate since then. The original Order required her to vacate on 7 September 2023.
7. Even with Ms R Banner's medical issues and vulnerability, I consider that she has had a reasonable opportunity to pursue her rights and to find alternative accommodation. I will vary the original Order and I will require Ms R Banner to vacate the Property on Friday 6 October 2023. I note that this is five days short of the maximum period of suspension permissible under s 93 of the RTA (from the date of the original hearing).
8. I will make no order for a stay or anything of that kind. If Ms R Banner wishes to pursue her claims about an equitable interest in the Property she will need to take action elsewhere to protect her rights.

1. The Tribunal extends the time for instituting an application for review of the decision of the Tribunal in the exercise of its original jurisdiction to 14 August 2023.
2. The Tribunal grants leave to apply for internal review.
3. Subject to Order 4, the Tribunal affirms the decision under review.
4. I vary the Tribunal order made on 13 July 2023 in matter number 2023/SH003574 by deleting Orders 2 and 3 and substituting the following orders instead.
5. The tenancy will terminate on Friday 6 October 2023 and the tenants must vacate by midday on that date. If the tenants do not vacate, this order is enforceable by the Tribunal bailiff.
6. All outstanding rent becomes immediately due and payable on 6 October 2023.
7. The stay made in the directions of 8 September 2023 is revoked.

[1] [2016] SACAT 19.

1. [2] In her Outline of Argument, Ms Pangallo submitted that the text messages were important because they contain assertions by Ms R Banner about her equitable rights of ownership over the property, which were not refuted by other family members - I disagree with that assessment. I do not accept that Ms R Banner is entitled to rely on silence as agreement with her assertions in those messages.

[3] Such as an email he sent to Ms R Banner on 30 June 2015 about looking at another property to buy.

[4] Tronnolone v Edwards and Bryan [2016] SACAT 27 at paragraph 14.

[5] A residential tenancy agreement does not need to be in writing.

[6] [1985] UKHL 4; [1985] 2 All ER 289 at pages 295 - 296.