Residential tenancies - South Australian Housing Trust - Trust's right to transfer - extent of Tribunal's power to review - suitability of property

South Australian Civil and Administrative Tribunal Act 2013 s 70

Residential Tenancies Act 1995 (SA) s 93

SAHT v Pawelzik; SAHT v Popczynski [2015] SASCFC 194

1. This is an application for the internal review of an order made by the Tribunal on Thursday 12 April 2018 (the original Tribunal order). The original Tribunal order allowed the tenant to remain in the property on condition that she accepts the property transfer to 18 Baru Street, Pooraka. It then stated that, even if the tenant accepts the property transfer, she would have to move out of the premises by midday on Wednesday 2 May 2018.
2. This application is made under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).
3. Section 70 of the SACAT Act provides that:

(a) On an internal review the Tribunal must examine the original decision of the Tribunal on the basis of the evidence or material before the Tribunal at that time but the Tribunal may allow further evidence or material to be presented to it;

(b) The Tribunal must make the correct or preferable decision having regard to the original decision;

(c) When dealing with an application for internal review the Tribunal may:

(i) Affirm the decision under review;

(ii) Vary the decision under review;

(iii) Set aside the decision under review and:

• Substitute a new decision; or
• Refer the matter back to the Tribunal as originally constituted in accordance with directions or recommendations;

(iv) Make interim, ancillary or consequential orders.

1. The tenant, in her written application dated 30 April 2018, stated that she does want to move out of the property as it has been classified as sub-standard. However, the property that has been offered to the tenant by the South Australian Housing Trust (SAHT) is, in the tenant's opinion, not suitable for her family as she has three children with disabilities. The tenant wrote that she has provided the SAHT with a list of preferred suburbs, of which Pooraka is not one. She has also engaged the assistance of support workers who have helped her draft a letter to the SAHT outlining the necessary characteristics of a suitable property for her and her family.
2. It is possible to summarise the tenant's position as seeking an order from the Tribunal that:

(a) Overturns the original Tribunal order made on 12 April 2018; and

(b) Allows the tenant to remain in the property at 30 Laurel Crescent, Parafield Gardens until the SAHT identifies a property that is, in the tenant's opinion, an appropriate alternative.

1. Clause 8(a) of the Residential Tenancy Agreement states:

If the accommodation provided [by the South Australian Housing Trust] becomes, in the opinion of the Trust, inappropriate to the requirements of the tenant, the tenant will upon request by the Trust transfer to more appropriate Trust accommodation.

2. Ms Sturt's argument is that the proposed property is not suitable. She is concerned about a range of issues that go beyond the matters for determination by the Tribunal today. It was evident in the hearing that she misunderstood the range of issues that were open to her to challenge. It was conveyed to Ms Sturt on several occasions that she needed to establish that the order made that she move out of the premises was not the correct or preferable decision, and that if she did not she would be liable to move out forthwith.
3. Clause 8(a) of the tenancy agreement is to be construed so as to confer on the SAHT the unilateral power to determine the adequacy of premises to the needs of a tenant in accordance with its policies and priorities. I reach this conclusion both on a textual and contextual analysis. The words "in the opinion of the Trust", indicate that the inappropriateness of the existing premises is a matter for the subjective determination of the SAHT, and not a matter for the tenant or to be assessed by an objective test. Further, whilst the words are not repeated later in the clause, it is reasonable to read those words as applying to the two assessments of appropriateness (i.e. the decision with respect to the current premises and the decision in relation to the proposed premises). The alternative conclusion requires that the SAHT left the question of whether the appropriateness of the proposed premises would be determined by the view of the landlord, or the tenant, or the objective bystander without signalling which. The preferable approach to the construction of clause 8(a) is that it conveys that the determination of the suitability of the existing and future premises is a matter for the SAHT.
4. This analysis is consistent with that of the Full Court of the Supreme Court in SAHT v Pawelzik; SAHT v Popczynski.[1] In interpreting a different clause in the standard SAHT tenancy agreement, the Chief Justice preferred an interpretation that provided contractual certainty. His Honour observed that,

The reasonable bystander has no objective criterion by which to choose between the inconsistent subjective positions of the parties.[2]

5. Having determined that the appropriateness of the current and proposed premises are matter for the SAHT does not mean that their decision can never be wrong, or that that such decisions cannot be challenged. Ms Sturt seeks the opportunity to challenge the decision.
6. However the effect of this analysis is that the decisions are policy decisions of the SAHT, which it has made after considering the variety of criteria it applies to such decisions. Without having taken evidence on the point, I would expect that these include matters such as the details of its housing stock, its understanding of Ms Sturt's needs, and the needs of all of the other tenants awaiting transfer or awaiting allocation of an SAHT house. I have speculated on these factors simply to convey to Ms Sturt that her particular needs are unlikely to be the only issues that the SAHT brings to its decision. I am not suggesting that these other factors are the appropriate factors. What those factors are may be contained in SAHT policy and that has not been put before the Tribunal in this hearing.
7. I am satisfied that the original Tribunal order made on 12 April 2018 that the landlord is entitled to vacant possession is legally correct. I acknowledge that, alongside the decision by the SAHT to seek vacant possession of the property at 30 Laurel Crescent, Parafield Gardens, is a decision that the SAHT has identified an appropriate property for the tenant to move into.
8. I understand that the tenant challenges the latter decision. However, the Tribunal is not the correct forum to review that decision. If the tenant wishes to pursue this matter regarding the appropriateness of the transfer property further, she may wish to do this through the SAHT's internal appeals forum. This was explained at the hearing.
9. In contemplating whether I should make an order allowing the tenant to remain in the property for a short period of time so that she can pursue this matter, I take into account if this dispute is not resolved swiftly, the tenant is at risk of losing the property that has been offered to her by the SAHT. The tenant has indicated to me that she understands this risk but that she is certain the property on offer is not suitable for her and her family.
10. However, I am of the opinion that requiring the tenant to vacate the property immediately will pose significant hardship on the tenant and her family. The Tribunal has the power to suspend an order for possession for up to 90 days if it is satisfied that immediate possession would cause severe hardship to the tenant.[3] I consider the tenant's situation to be one which enlivens this power.
11. I note that the original Tribunal order has been in place since 12 April 2018. Therefore, I will suspend the original Tribunal order for a further six weeks from the date of this order. This will enable the tenant challenge the decision as to the appropriateness of the premises identified for her to transfer to. I have made it clear, however, that the Tribunal's decision today is not conditional upon the completion of any challenge that Ms Sturt may wish to make to the Trust regarding its decision. Whether or not the matter is resolved, or resolved to Ms Sturt's satisfaction, she must vacate the premises within six weeks of this hearing. That decision takes into account the hardship to Ms Sturt that an order for vacant possession will cause.

1. The Tribunal sets aside the orders of the Tribunal made on 12 April 2018 and substitutes the following orders:

(a) The South Australian Housing Trust is entitled to vacant possession of the premises at 30 Laurel Crescent, Parafield Gardens from midday on Friday 15 June 2018.

(b) If the tenant does not move out of the premises, order 1 may only be enforced by the Tribunal bailiff.

[1] [2015] SASCFC 194 at [6]- [8] per the Chief Justice.

[3] Residential Tenancies Act 1995 (SA) s 93(4)(a).