CLG v LKM [2024] SACAT 38

The respondents submitted that the decision under review should be affirmed on the basis of their submissions in the original hearing. The landlord remained unsupportive of the application in the review hearing but acknowledged that the relationship between the parties was so strained that it was not practicable for the applicant to remain in the property on a long term basis.

Held, granting leave and affirming the decision under review:

• The evidence establishes on the balance of probabilities, that the applicant's conduct interfered with the reasonable peace, comfort or privacy of the respondents;
• The conduct is sufficiently serious to support a finding of "exceptional circumstances" under Section 90(2a) RTA;
• Taking into account all relevant evidence, the tenancy should be terminated.

Internal review - Residential Tenancy - Interested person application - Person adversely affected by conduct of tenant -Tenant caused interference with reasonable peace, comfort or privacy - Exceptional circumstances

Residential Tenancies Act 1995 ss 90, 99

South Australian Civil and Administrative Act 2013 ss 43, 70

Goji v South Australian Housing Trust [2018] SACAT 43

Heaven v Rankine [2023] SACAT 23

Twist v Randwick Municipal Council [1976] HCA 58; (1976) 51 ALJR 193

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. This is an application for the internal review of an order made by the Tribunal on 30 January 2024 in matter number 2023/SH006551 (the original Order).
2. In the original Order, the Tribunal dealt with an application by the respondents, LKM (first respondent) and QWM (second respondent), seeking an order terminating the tenancy of the applicant, CLG, in the property in which he resided (the property) under Section 90 of the Residential Tenancies Act 1995 (the RTA) on the ground that the applicant's conduct at the property has caused an interference with their reasonable peace, comfort or privacy.
3. In the original Order, the Tribunal made an order terminating the tenancy and requiring the applicant to vacate the property on Monday 26 February 2024.
4. The applicant disagrees with the original Order and has sought a review.
5. The Tribunal conducted a directions hearing on 23 February 2024, and a further directions hearing on 29 February 2024.
6. The Tribunal conducted a full hearing of this matter on 16 April 2024, and adjourned the application to allow the applicant's legal representative, Mr Hill, to make final written submissions in the matter and for the respondents to provide a response.
7. This is the final determination of the applicant's application for internal review.

1. The original hearing process involved three Tribunal hearings - they were conducted on 12 December 2023, 13 December 2023 and 29 January 2024. In the written submissions lodged on behalf of the applicant, it has been argued that he was denied procedural fairness in the original hearing process because he did not participate in the hearing on 12 December 2023 and his legal representative, Mr Hill, had not been informed of the hearing on 29 January 2024, and did not participate in that hearing.
2. The applicant made a request for an adjournment of the hearing on 12 December 2023. The Tribunal refused this request. It is within the discretion of the Tribunal member conducting the hearing, to determine whether or not to grant an adjournment, and whether or not to proceed in the absence of a party.[1] In any event, I note that there was a further hearing on 13 December 2023, and Mr Hill participated in that hearing on behalf of the applicant.
3. In relation to the notice of the hearing on 29 January 2024, the parties had been informed that there would be another hearing. Notice of the hearing was sent to the applicant by post and email, and it was sent to the landlord - but not to Mr Hill. An SMS message was also sent to the applicant and to MVQ (who represented the landlord throughout the original hearing process) about the hearing. CLG should have informed Mr Hill of the hearing.
4. However, even if there has been a denial of procedural fairness in the original hearing process, the nature of the review process under Section 70 South Australian Civil and Administrative Tribunal Act, 2013 (the SACAT Act) has provided the applicant with an opportunity to state his case to the Tribunal.[2]

1. The applicant has lived at the property for 17 years.
2. The landlord owns the property. Throughout the Tribunal process, MVQ has participated in Tribunal hearings on behalf of the landlord. .
3. The landlord and the applicant entered into a tenancy agreement in relation to the applicant's occupancy of the property. There is no dispute that the agreement is a residential tenancy agreement within the meaning of the RTA.
4. The respondents moved into their property next door to the applicant's property approximately five years ago.
5. On 15 November 2021, the respondents obtained an intervention order against the applicant. That order remains current.
6. On 26 September 2023, the respondents brought an application in the Tribunal seeking an order terminating the applicant's tenancy under Section 90 RTA. The application was not supported by the landlord.
7. On 30 January 2024, the Tribunal made an order terminating the tenancy and requiring the applicant to vacate the property on 26 February 2024. This is the original Order of which the applicant has sought a review.
8. At the directions hearing of 29 February 2024, I made an order to stay the original Order, pending the outcome of the review process.

1. An application for internal review is made under Section 70 of the SACAT Act. Section 70 SACAT Act requires that on review, the Tribunal must make the correct or preferable decision taking into account the evidence available to the Tribunal at the original hearing, giving appropriate weight to the original Order and taking into account any other evidence which the Tribunal considers is relevant and appropriate to take into account in the review hearing. An application for review necessarily includes an application for leave.
2. Section 90 RTA relevantly states as follows:

(1) The Tribunal may, on application by an interested person, terminate a residential tenancy and make an order for possession of the premises if it is satisfied that the tenant has -

....

(c) caused or permitted an interference with the reasonable peace, comfort or privacy of another person who resides in the immediate vicinity of the premises.

(2) If the Tribunal terminates a tenancy and makes an order for possession under this section -

(a) the Tribunal must specify the day as from which the order will operate, being not more than 28 days after the day on which the orders are made; and

(b) the Tribunal may order the landlord -

(i) to take such action as is specified in the order for the purpose of taking possession of the premises; and

(ii) not to permit the tenant to occupy the premises (whether as a tenant or otherwise) for a specified period or until further order (and any agreement entered into in contravention of such an order is void).

(2a) However [where the application is not made by the landlord] -

(a) the Tribunal must not make an order under this section unless the landlord has been given a reasonable opportunity to be heard in relation to the matter; and

(b) if the landlord objects to the making of an order under this section, the Tribunal must not make an order unless the Tribunal is satisfied that exceptional circumstances exist justifying the making of the order in any event.

1. There is no dispute that the respondents are interested persons, for the purposes of Section 90 RTA (and so they were entitled to make the application).
2. The landlords' representative has made it clear throughout the original jurisdiction hearings and in the review process, that the landlord does not support the respondents' application. He participated in the original hearing process, but in the first directions hearing only in the internal review process. In that hearing, he stated the position of the landlord to be that the landlord does not support the application for termination of the applicant's tenancy. However, he acknowledged that the level of dispute between the respondents and the applicant, makes it impossible for the applicant to remain at the property on a long-term basis.
3. In dealing with an application for a tenancy to be terminated under Section 90(1)(c) RTA, the Tribunal will consider two broad issues:
   • Does the evidence establish on the balance of probabilities that the tenant has caused or permitted an interference with the reasonable peace, comfort or privacy of another person who lives in the immediate vicinity of the property;
   • If so, in all the circumstances of the matter, should the Tribunal make an order to terminate the tenancy.
4. In this matter, the Tribunal must apply the additional requirements of Section 90(2a) RTA. In doing so, I consider that an appropriate approach is to apply the requirement for there to be exceptional circumstances to each of the issues which arise from an application that is made under Section 90(1)(c) RTA.
5. This means that the questions for consideration are:

a) (i) Does the evidence establish on the balance of probabilities that the applicant's conduct[3] has caused an interference with the reasonable peace, comfort or privacy of the respondents? > > (ii) If so, is the conduct sufficiently serious to support a finding of exceptional circumstances?

b) Should the tenancy be terminated, and if so, what are the exceptional circumstances which justify that decision?

c) If the tenancy is to be terminated, should the Tribunal make any other order to require the landlord to take steps to take possession of the property?

Question 1a) Does the evidence establish on the balance of probabilities that the applicant's conduct has caused an interference with the reasonable peace, comfort or privacy of the respondents?

1. In his oral and written submissions in the review process, Mr Hill submitted that the evidence was not adequate to support a finding that the applicant's conduct had caused an interference with the respondents' reasonable peace, comfort or privacy.
2. I agree with the finding in the original Order that the evidence establishes on the balance of probabilities, that the applicant's conduct interfered with the reasonable peace, comfort or privacy of the respondents.
3. I refer to the following evidence in support of this conclusion:

a) The applicant has engaged in generally disruptive behaviour which has impacted on the respondents. In the original order, the Tribunal summarised that behaviour as follows:[4] > > "... engaged in a persistent campaign of harassment against the applicants. He is reported to have:

• Revved the engine of his motorcycle for extended periods of time during the day and early hours of the morning and without an apparent need to do so;
• Played loud music in the early hours of the morning in what the applicants believed was a deliberate effort to harass and annoy them - he would turn it up very loud and then some 15 seconds later turn it off;
• Frequently yelled angry abuse at them and made threats to harm their property on other occasions."[5]

In relation to the issue of abusive yelling, LKM said that between 17 December 2023 and 19 January 2024, the applicant was outside the respondents' property "ranting" on about nine occasions, on one of which his yelling included the following abusive comments directed at them:[6]

• Fucking dog
• Fucking pig
• Fucking whore
• Gotta watch what comes to your door
• If the bike is missing (after he returns from hospital) then you're dead
• If he comes home and he Harley is missing "say goodbye to this world"
• [Second respondent] Fuckhead
• Fucking [second respondent]
• Going to fucking pull the Mental Health Act
• Fucking snap your neck cunt
• You're fucked.

b) The applicant has repeatedly made threats of injury to the respondents, their friends and family. He has:

• made threats to their safety such as "You're playing with the wrong people";[7]
• made a gesture at their friends which indicates that their throats will be cut;[8]
• made threats that the second respondent will leave the house "in a box";[9]
• made physical threats such as pointing his fingers at them in the shape of a gun;[10]
• he has frightened, intimidated or harassed them by regularly screaming abuse at them from inside his house;[11]
• made a threat "You have three children, I have been doing my homework";
• made a threat "Fuck off ...a big fucking knife";
• said: "go back to Sydney because you are a dead dog".[12]

In particular, the respondents' granddaughter gave evidence that she had lived with the respondents from when she was 16 years old for about four years and on one occasion, the applicant said to her that he would rape her and her twin brother, and he said that once certain people in prison were done with him, then he would "turn out to be a poof."[13] She said that she understood this to mean that the applicant would arrange for her brother to go to jail and for him to be raped in jail.

1. The applicant was found to have assaulted QWM when he threw a water bottle at QWM.[14] On 23 December 2022, the applicant pleaded guilty to a range of charges against him arising from incidents involving the respondents (including the water bottle incident). Those charges were:
   • Aggravated assault against the second respondent on 28 September 2021;
   • Breach of intervention order and breach of bail on 15 October 2021 and 16 October 2021;
   • Breach of intervention order and breach of bail on 4 December 2021;
   • Aggravated assault against the second respondent on 16 January 2022;
   • Breach of intervention order and breach of bail on 16 January 2022;
   • Breach of intervention order and breach of bail on 16 January 2022 and 17 January 2022;
   • Breach of intervention order and breach of bail on 1 August 2022.

Question 1b) If so, is the conduct sufficiently serious to support a finding of exceptional circumstances?

1. Mr Hill disagrees with the finding in the original Order that the applicant's conduct was sufficiently serious to support a finding of "exceptional circumstances". In relation to the issue about the seriousness of the conduct, Mr Hill submitted that:

a) There is insufficient evidence to support a finding that there was any real danger of injury to others by the applicant, or that there was any real danger of him causing damage to property. > > b) The Tribunal erred in finding that the respondents had suffered psychological harm as a result of the applicant's behaviour, and in this regard, he submitted that the Tribunal should not have relied on their medical reports as they would not disclose the reports to the applicant, and so he was denied procedural fairness - he was not able to properly respond. > > c) The Tribunal erred in placing insufficient weight on the provocative behaviour of the respondents - the fact that they had called police on an excessive number of occasions (and he submitted that if the police had thought that the applicant's conduct was dangerous, then they would have arrested him); QWM having called the applicant a paedophile more than once; having told him to fuck off and QWM's behaviour in walking down the side of the house out of sight of the security cameras to provoke the applicant. > > d) The Tribunal erred in placing too much weight on the evidence of the respondents because it was unreliable - particularly in relation to the audio recordings; and it was not supported by other neighbours. > > e) The Tribunal erred in placing too much weight on the fact that the applicant pleaded guilty to the charges against him in relation to the intervention order. He said that at least one of the charges resulted from a relatively minor incident in which the applicant threw a water bottle at the second respondent. He submitted that the penalty was disproportionate and likely at least partly attributable to the fact that the applicant did not have independent representation.

2. The respondents relied on the findings in the original Order that the applicant's conduct was sufficiently serious to support a finding of exceptional circumstances.

1. In the original Order, the Tribunal found that the applicant's conduct was sufficiently serious to support a finding of exceptional circumstances because:[15]
   • The applicant's conduct was serious, it involved an assault, and it caused the respondents emotional anguish over a number of years;
   • His conduct resulted in psychological harm to QWM;
   • The conduct has continued notwithstanding the intervention orders and the Tribunal process.

1. In my view, conduct may be sufficiently serious for these purposes if:
   • The conduct has caused serious injury or created a risk of serious injury to the complainant, or persons at their house;
   • The conduct has caused serious damage or created a risk of serious damage to the complainant's property or the property of persons at their house;
   • On an objective assessment, the nature and frequency of the conduct is such that it must have a significant adverse impact on the quality of life of the complainant.
2. I have summarised the evidence of the applicant's disruptive conduct at paragraph 29 above. I make the following comments about the nature of his conduct:

a) It is clear that the applicant's general disruptive conduct is not merely selfish behaviour engaged in with disregard for its impact on neighbours, and with the unintended consequence of causing inconvenience and distress to the respondents. The behaviour is directed at the respondents. It is intended to make them uncomfortable and upset. It is intended to disrupt their lives and to make them miserable. The applicant's excuses are inadequate: > > * he plays loud music because he has a hearing impairment;[16] > * he has made an effort to reduce any noise that might impact on the respondents, for example, by selling his drumkit; > * he lost his drivers' licence for drink driving and so he needs to rev his motor bike at home so that the battery does not go flat;[17] > * he can make any noise he likes inside his own house.[18] > > b) In relation to the threats the applicant has made to the respondents and their family members, I agree with Mr Hill that it is probably unlikely that the applicant would act on the threats he has made to the respondents and members of their family. Nevertheless, the threats are vicious, personalised threats. They can only be intended to cause fear, intimidation and harassment. Even if the applicant has no intention of carrying out those threats, in themselves, the threats are vile and must have a destructive impact on the mental health of the recipient and their quality of life. The threats of rape to the respondent's granddaughter are particularly abhorrent. > > c) The applicant was sentenced to 8 months, 3 weeks and 10 days' imprisonment in relation to the charges mentioned above. Even if the sentence was inappropriate, nevertheless, the charges demonstrate a pattern of harassment. However, I accept Mr Hill's submission that the incident in which the applicant threw a water bottle at the second respondent would not meet the test of exceptional circumstances.

3. I accept that there is insufficient evidence in support of the respondents' claims the applicant has actually caused damage to the property of the respondents by slashing the tyres on their car. Even so, the applicant subsequently threatened to burn their cars[19] and was seen taking photos of their cars.[20]
4. However, I do consider that there is a risk of psychological injury to the respondents if the tenancy continues. It is accepted that psychological harm is a form of physical injury for the purposes of the RTA.[21]
5. I acknowledge Mr Hill's submission concerning the fact that the respondents' medical reports were not provided to the applicant raises an issue of procedural fairness. However, even without relying on the medical reports provided by the respondents, in view of the protracted abusive and threatening behaviour, I am satisfied that it is likely that they would suffer mental health issues as a result of the conduct. Even if their mental health issues are not serious now, I consider there is a risk of that occurring in the future.
6. In my assessment, it is the cumulative impact of the applicant's conduct on the day to day lives of the respondents which makes the conduct serious. This is illustrated by the following evidence of LKM:[22]

"Oh, some days I just sit and cry. It's just like, been going on for 4 years, and it's just getting near to the point where I don't know how much more I can take of it. It's just - it's bullshit. No-one should have to live like that. I mean, I cannot ask my family around for any social gatherings. We used to have Christmas at our house every year before we moving in there. I'm not game enough to now, because, like, as much as my son and son-in-law are good people, they would not put up with the verbal abuse that he dishes out. So for their safety, and his too we don't have any social gatherings s at our house, We haven't had a birthday party, Easter, Christmas, nothing, because we're worried about the consequences if he decides he doesn't like it and starts."

7. I accept that the second respondent has engaged in conduct which has been provocative towards the applicant, and that conduct has exacerbated the situation. However, it is unreasonable to suggest that such provocative behaviour excuses the applicant's conduct or lessens it to an acceptable level. I do not consider that this matter is similar to the matter of Heaven v Rankine[23] in this regard (in which I found that there were not exceptional circumstances, and the provocative conduct of Mr Rankine was a significant factor). In this matter, I am not satisfied that the provocative behaviour of QWM is such as to change the way in which I would characterise the applicant's conduct - the extent of his abusive and threatening behaviour is manifestly disproportionate to an appropriate response.
8. I accept Mr Hill's submission that the audio recording evidence is unsatisfactory. However, I consider that the oral evidence of the witnesses for the respondents is sufficient to support their evidence in this regard.
9. In the review hearing both parties submitted that the other's case was weak due to the lack of support by neighbours. There can be many reasons why neighbours choose not to become involved in a dispute of this kind. I also observe that the applicant does not have neighbours on one side of his house. I do not find either party's submissions in this regard helpful.
10. For these reasons, I have concluded that the applicant's conduct has created a risk of serious injury to the mental health of the respondents; and on an objective assessment, the nature and frequency of the conduct is such that it must have a significant adverse impact on the quality of life of the respondents. Therefore, I am satisfied that the conduct is sufficiently serious to support a finding of "exceptional circumstances" under Section 90(2a) RTA.

Question 2: Should the tenancy be terminated and if so, what are the exceptional circumstances which justify that decision?

1. Mr Hill made the following submissions in relation to this issue:

a) The use of Section 90 in these circumstances is inappropriate - it has been used as a "blunt instrument" to deal with a neighbourhood dispute. The applicant accepts that his situation is not sustainable from a long-term perspective, because of the issues with the respondents, but he should be permitted a fair opportunity to achieve a move without being put under the unreasonable restrictions of an order from the Tribunal. > > b) In making the original Order, the Tribunal gave too much weight to the evidence of the respondents concerning the impact of the applicant's conduct on them, and their situation if the tenancy was not terminated, and failed to give appropriate weight to the applicant's circumstances, and his situation if the tenancy is terminated.

In particular, the Tribunal erred in finding that the respondents had suffered psychological harm as a result of the applicant's behaviour, and in this regard, the Tribunal should not have relied on their medical reports for the reasons discussed above.

1. If the tenancy is terminated, the applicant is likely to be homeless and for a person with his mental and physical health issues, he will be particularly vulnerable.

1. The following additional information was provided about the applicant's circumstances, in written submissions lodged on his behalf:

a) The applicant is 61 years of age. He was an orphan at the age of 16 when the landlord's family[24] commenced to look after him. They provided him with work and somewhere to live. He describes a particular family member as his foster parent. > > b) The applicant suffers from the following medical conditions: > > * ADHD for which he takes dexamphetamine and for which he is treated by a psychiatrist; [25] > * Anxiety and depression for which he takes Valium; [26] > * High blood pressure which he associates with his stressful life living next to the respondents. He takes medication for his high blood pressure;[27] > * The applicant also suffers from reflux and gout for which he takes medication.[28]

1. The applicant suffered an injury after he fell down seven flights of stairs. He was on Workcover for about three years. He will not return to work. The applicant is on the disability support pension. He is in constant pain. He takes Tramadol to assist in the management of his pain.[29]
2. In the review hearing, the applicant said that he has been informed that if he is required to vacate at short notice, the only realistic option for him in terms of accommodation, is a men's shelter, and that is not suitable for him due to his mental health issues.
3. Mr Hill also submitted that this matter is similar to that of Heaven v Rankine[30] in which the Tribunal found that there were not exceptional circumstances to support a decision to terminate the tenancy.
4. The respondents' evidence about the impact of the applicant's conduct on them (and the likely continued impact if the tenancy is not terminated) may be summarised as follows:

a) The applicant's conduct has had a significant impact on their family relationships. For example, the respondents' granddaughter gave evidence that even though she liked living with her grandparents, she had moved out after she had her own child due to the applicant's behaviour. She said that she was frightened of him if she was at home on her own with the baby.[31] > > b) The applicant's conduct has had a significant impact on their social life. In addition to the evidence of LKM at paragraph 38 above, one of the witnesses called by the respondents gave evidence that she visits the respondents three or four times a week, and as she smokes, she will go outside the back of the house to have a cigarette but when she does so, she is unable to have a conversation with the respondents because of the applicant's yelling and screaming. [32] Another one of their friends described the applicant's behaviour as follows: > > "I've heard yelling, swearing, screaming, loud music playing, doors banging, slamming I should say, he revs his bike out in the carport, like half in the carport half out on the driveway, which then fills their house up with, like fumes."[33]

1. The applicant's conduct has impacted on the most routine aspects of their life - for example, QWM says that he is unable to mow the front lawn unless he is aware that the applicant has left his house.[34]

d) They both said that they have each been diagnosed with mental health conditions.

1. The Tribunal considered the following factors to be of significance in this regard:[35]
   • The number of years for which the conduct has continued;
   • The conduct has continued even despite an intervention order, a suspended sentence and the Tribunal process;
   • QWM is particularly vulnerable due to his heart condition;
   • The applicant's conduct continued between the hearings conducted in December 2023 and the hearing in January 2024.[36]

1. This question has several components:
   • What are the circumstances which need to be taken into account in making the decision about whether or not to terminate the tenancy?
   • On balance, do those circumstances support a decision to terminate the tenancy?
   • Are those circumstances "exceptional circumstances" for the purposes of Section 90(2a)?
   • Should the tenancy be terminated?
2. I have taken into account the following factors in relation to this question:

a) The impact of the applicant's behaviour on the respondents - I have found that the applicant's conduct has created a risk of serious injury to the mental health of the respondents; and on an objective assessment, the nature and frequency of the conduct is such that it must have a significant adverse impact on the quality of life of the respondents. In my assessment, the applicant's conduct has made the ordinary day to day lives of the respondents almost unbearable. I accept that their family relationships have been damaged and their social lives have been significantly curtailed, so that it is difficult for them to undertake simple arrangements such as to have a friend over, without being impacted by the applicant's conduct. > > b) The likely consequences for the respondents if the tenancy continues - Despite the intervention order and the Tribunal proceedings, the applicant's conduct has continued. It is possible that he will move out in the future, but there is no certainty about that and when that would occur. The respondents' day to day lives would continue to be impacted by the applicant's presence in the property. > > c) The likely consequences for the applicant if the tenancy is terminated - I accept that the applicant has significant physical and mental health issues. I accept that he is a vulnerable person who comes from a disadvantaged background. I also accept that an order terminating his tenancy will have significant adverse consequences for the applicant. He may be homeless. He may have to live in temporary accommodation which is not suitable for him. > > d) Whether or not all other avenues for resolving the dispute have been explored - I consider that all other avenues of solving this dispute have been exhausted. The respondents have attempted to resolve the dispute by the following actions: > > * they have made multiple reports to the police when the applicant is engaging in disruptive behaviour;[37] > * they have modified their house by installing one way vision fly wire on external doors and block out curtains at the back of the house;[38] > * they have installed security cameras at their house;[39] > * they have elected not to have social gatherings at their house which may trigger the applicant; > * they took out an intervention order, but that has been ineffective. > > e) Whether or not the applicant has been provided with a fair opportunity to address the issues - the applicant has been given multiple warnings about the potential consequences if he did not change his conduct, but he has been unable to manage his behaviour towards the respondents appropriately even during the Tribunal process.[41]

3. I have concluded that there are exceptional circumstances in this matter - the circumstances are out of the ordinary, special or uncommon.[42]
4. I have concluded that on balance, the tenancy should be terminated.
5. Finally, I note Mr Hill's submission that the Tribunal found that there were not exceptional circumstances within the meaning of Section 90 RTA in Heaven v Rankine,[43] and that decision is similar to this matter.
6. There are two significant differences between the Heaven matter and this matter. The first is that in Heaven, I found that Mr Rankine's provocative behaviour was a significant contributing factor to the conduct of Mr Heaven. Secondly, the landlord for both Mr Heaven and Mr Rankine, was the South Australian Housing Trust, and the Trust had said that they would find alternative accommodation either for Mr Rankine or Mr Heaven.
7. In this matter, even though the landlord's representative has said that is his goal, it has yet to be achieved, and during the hearing process, he has acknowledged the barriers to that objective.

Question 3 Should the Tribunal make any other order to require the landlord to take steps to take possession of the property?

1. The landlord had not applied to the Tribunal for the bailiff to enforce the original Order prior to this application for internal review having been lodged in the Tribunal. In the first directions hearing in this matter, he agreed that he would not do so before this application had been finally dealt with.
2. The landlord's position has been consistent - that it is no longer viable for the applicant to live in the property, but it is difficult for them to arrange alternative accommodation for the applicant.
3. In the matter of Heaven v Rankine I made the following comments about the consequences of making an order to terminate a tenancy under Section 90 RTA in circumstances where the order is not supported by the landlord:
   1. However, any order for possession will be made in favour of a landlord and whether or not the order is enforced will be a question for the landlord as the landlord is the person/entity entitled to request for a bailiff to evict any tenant who remains in possession of a property beyond the possession order of the Tribunal.[44] Where a landlord does not support an application for termination of a tenancy at their property, then the Tribunal is on notice that the landlord may not enforce the order.
   2. In order to avoid a situation in which the Tribunal makes an order which is not enforced, under Section 90(2), the Tribunal has the power to :-
      • require a landlord to take such action as the Tribunal may require, to ensure that the landlord takes possession of the property, and
      • not allow the tenant to occupy the property for a particular period.
4. The applicant continues to remain in the property. The first Tribunal hearing in this process was conducted in December 2023. The original Order was made on 30 January 2024. Even in this difficult accommodation market, I consider that the applicant and the landlord have been provided with a reasonable opportunity to make arrangements for alternative accommodation for the applicant. However, in recognition of the applicant's difficult personal circumstances, I will vary the vacate date so that it is 28 days from the date of this order.
5. In my view, if the Tribunal has decided that the "exceptional circumstances" test under Section 90 RTA has been satisfied, and the tenancy should be terminated, then the Tribunal should be prepared to make directions requiring practical action by the landlord to enforce the Tribunal order. Therefore, I will make directions which require the landlord to seek for the bailiff to attend to evict the applicant if he does not move out.
6. I remind the landlord that under Section 99 RTA, a landlord has 14 days from the date of vacant possession (or such other period as the Tribunal may allow), to make a request for the bailiff to enforce the order for vacant possession.

1. The Tribunal grants leave to apply for internal review.
2. Subject to order 3, the Tribunal affirms the decision under review.
3. I vary the Tribunal order made on 30 January 2024 in matter number 2023/SH006551 by deleting the orders contained in paragraphs 80 - 82 inclusive, and substituting the following orders instead:

The tenancy is terminated and the tenant must vacate the property by midday on Thursday 20 June 2024. If the tenant does not vacate, this order may be enforced by the Tribunal bailiff. > > If the tenant does not vacate by midday on Thursday 20 June 2024, the landlord is directed to request the Tribunal for the bailiff to attend to evict the tenant by Thursday 4 July 2024, unless the Tribunal has directed for the period within which the bailiff may be requested, to be extended.

[1] Section 43(2)(f) of the South Australian Civil and Administrative Tribunal Act 2013.

[2] See Re AKS (2016) 19 and also: Twist v Randwick Municipal Council [1976] HCA 58; (1976) 51 ALJR 193 in which Mason J said that departures from the principles of procedural fairness may be adequately cured by a full review hearing on the merits (at 197).

[3] There was no suggestion by either party that the conduct of which the respondents complained, was the conduct of visitors to the applicant's property.

[6] At paragraph 50 and see pages 10 - 16 of the transcript of hearing from 29 January 2024.

[7] Page 37 of transcript of 12 December 2023.

[8] Page 74 of transcript of 12 December 2023.

[9] Page 76 of transcript of 12 December 2023.

[10] Page 28 of transcript of 12 December 2023.

[11] Page 27 of transcript of 12 December 2023.

[12] Page 7 of transcript of 13 December 2023.

[13] Page 80 of transcript of 12 December 2023.

[14] Page 57 of transcript of 12 December 2023.

[15] At paragraph 76 of the original Order.

[16] Page 14 of transcript from 13 December 2023.

[17] Page 12 of transcript from 13 December 2023.

[18] Page 19 of transcript of 29 January 2024.

[19] Page 76 of transcript of 12 December 2023.

[20] Page 73 of transcript of 12 December 2023.

[21] Goji v South Australian Housing Trust [2018] SACAT 43 - although I note, that matter involved an application under Section 87 RTA.

[22] Page 46 of transcript of 12 December 2023.

[23] [2023] SACAT 23.

[24] Although the landlord is a corporate entity, due to the anonymisation of this decision to protect the identity of those concerned, I am using that description as a shorthand reference to the family which controls that corporate entity, and effectively owns the property.

[25] Page 15 of transcript from 13 December 2023.

[26] Page 6 of transcript from 13 December 2023.

[27] Page 7 of transcript from 13 December 2023.

[28] Page 7 of transcript from 13 December 2023.

[29] Page 6 of transcript from 13 December 2023.

[30] [2023] SACAT 23.

[31] Page 82 of transcript of 12 December 2023.

[32] Page 72 of transcript of 12 December 2023.

[33] At page 68 of transcript of 12 December 2023.

[34] Page 57 of transcript of 12 December 2023.

[35] At paragraph 76 of the original Order.

[36] Page 4 of transcript of 29 January 2024.

[37] Page 51 of transcript of 12 December 2023.

[38] Page 58 of transcript of 12 December 2023.

[39] Page 61 of transcript of 12 December 2023.

40 Page 46 of transcript of 12 December 2023.

[42] Minister for Primary Industries and Regional Development v Scali [2024] SASC 4.

[43] [2023] SACAT 23.