PAUL LEON ELIX In Person via Telephone [2025] SASC 148

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (SENIOR MEMBER MCEVOY) 2025/SIR000113 Applicant: PAUL LEON ELIX In Person via Telephone Respondent: ANDREW WILLIAM ELIX In Person via AVL Hearing Date/s: 27/08/2025 File No/s: CIV-25-009779 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ELIX v ELIX [2025] SASC 148 Judgment of the Honourable Justice Gray (ex tempore) 27 August 2025 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION LANDLORD AND TENANT - LEASES AND TENANCY AGREEMENTS This matter is an appeal against orders of a senior member of the South Australian Civil and Administrative Tribunal (‘SACAT’) arising from a failure by the applicant to pay rent and the landlord seeking orders for vacant possession. The Senior Member allowed an internal review of a member in the original jurisdiction of SACAT. This was done on the basis that it was preferable to do so as the respondent had agreed to continue the tenancy on the basis the applicant paid rent and made some contribution toward arrears. Orders were made by consent. The applicant did not comply with the orders and was evicted from the property on 18 August 2025. The appeal to the Supreme Court sought orders permitting the applicant to return to the property and further time for payment of rent arrears. An interlocutory application seeking the appeal be heard urgently was also filed. Held, dismissing the application for leave to appeal and refusing an extension of time: 1. The appeal does not raise any reasonably arguable grounds, no error in the approach of the Senior Member has been identified, and it is not in the interests of justice to permit an extension of time: [24]-[26]. -- 1 of 8 -- Residential Tenancies Act 1995 (SA) s 39; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71, referred to. Aldridge v Registrar of Firearms (SA) [2022] SASC 5; Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1; Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10; Re AKS [2016] SACAT 19; Varricchio v Wentzel [2016] SASC 86; (2016) 125 SASR 191, considered. -- 2 of 8 -- ELIX v ELIX [2025] SASC 148 Civil: Single Judge Appeal 1 GRAY J (ex tempore): This matter concerns an appeal against the orders of a Senior Member of the South Australian Civil and Administrative Tribunal (‘SACAT’ or ‘the Tribunal’). The dispute in this matter is between two brothers, Mr Paul Elix, who was the applicant in SACAT and the tenant in a residential tenancy agreement (‘the tenant’); and his brother, Mr Andrew Elix (‘the landlord’). For ease of reference, I will refer to the parties by their first name. I mean no disrespect in doing so. 2 The matter before this Court concerns an application for leave to appeal to this Court brought by the tenant from a decision of a Senior Member of SACAT, made on 9 May 2025. 3 The Senior Member granted leave for an internal review of a decision of a member in the original jurisdiction of SACAT and varied the original order. The applicant also brought an interlocutory application seeking an urgent listing of the appeal. That application was filed on 20 August 2025. 4 On 21 August 2025, the parties were notified of the listing of the interlocutory application by email from the Registry, and that the matter would be listed at 9:30 a.m. on Wednesday, 27 August 2025. That notification occurred via email. Further notice that the appeal would be dealt with at the hearing was provided on 26 August 2025. 5 The matter was called three times this morning, and the applicant did not attend. The matter was then adjourned until 11:00 a.m. today to facilitate the applicant’s attendance, who was, it became apparent from the first hearing, in custody at the time. Background 6 The documents provided indicate that on 18 April 2024, Mr Paul Elix entered into a periodic residential tenancy agreement with his brother, Mr Andrew Elix. The effect of that agreement was that an amount of $440 per week would be paid every fortnight by Mr Paul Elix to Mr Andrew Elix. That agreement is governed by the Residential Tenancies Act 1995 (SA). The agreement provided for the issue by the landlord of a notice of breach. The tenancy agreement provided that, if the breach was not remedied within a specified period, then the tenancy will end.1 1 Periodic Residential Tenancy Agreement entered into 18 April 2024 between Andrew William Elix (landlord) and Paul Elix (tenant), cl 14. -- 3 of 8 -- [2025] SASC 148 Gray J 2 7 A notice of breach was issued on 31 March 2025. At that time, the amount of the outstanding rent was $4,840.00. The tenant was requested to remedy the breach by 8 April 2025. 8 The landlord, by application dated 10 April 2025, sought an order for vacant possession. The application was heard by a member of SACAT on 1 May 2025. The Member held that the notice of breach was valid, and that rent was paid until 30 January 2025, and that the rent in arrears at the day of the hearing was the amount of $5,720.00. The Member made an order that the tenant must move out of the premises by midday on Thursday, 8 May 2025. The Tribunal order provided that, if the tenant did not move out, the order may be enforced by the Tribunal bailiff, and that any rent owing at the date of vacant possession becomes immediately due and payable by the tenant. 9 The tenant applied for an internal review of the decision of the Member at first instance. The Senior Member granted leave for an internal review of a decision of a member in the original jurisdiction of SACAT, and varied the original order. The decision of the Senior Member the subject of this appeal and enforcement 10 The Senior Member determined, applying the approach set out by Parker P in Re AKS2 that leave should be granted as the tenant proposed and the landlord agreed to an order which was suggested as preferable to the order made at first instance.3 11 At the time of the hearing before the Senior Member, the landlord had not enforced the order and the tenant remained in occupation of the premises. The tenant indicated to the Tribunal that he had not yet looked for other accommodation. He had lost his job in August 2023 and had not worked since that time. The tenant indicated that his marriage had broken up and he was pursuing custody of his young son. The tenant indicated that he and his son have medical issues and these incur expenses. The tenant wanted to stay in the premises, and he recently accessed a lump sum from his superannuation, and so has money to pay rent, but he also has bills and other expenses.4 12 The landlord indicated at the Tribunal hearing before the Senior Member that he was reliant upon the income from the rent to meet the mortgage repayments from the property, and that if there was no income from the property, he would be unable to keep the house and would have to sell it. The landlord indicated that the house had been purchased for investment purposes, but he was now experiencing financial hardship due to the lack of rental income. The landlord indicated that the tenant was he brother and he had offered him the house to live in when the tenant 2 Re AKS [2016] SACAT 19 at [14] (Parker P). 3 Decision of Senior Member McEvoy in Paul Elix v Andrew Elix (South Australian Civil and Administrative Tribunal, 2025/SIR000113, 9 May 2025) at [7] (‘SACAT Decision’). 4 SACAT Decision at [10]. -- 4 of 8 -- [2025] SASC 148 Gray J 3 separated from his wife, and whilst he did not want to see his brother without a home, he did not want to come back to the Tribunal and he could not afford not to be receiving rent.5 13 The reasons of the Senior Member record that, after some discussion, it was agreed that the tenant could remain in the premises until 30 August 2025 on the basis that full rent was paid, and some payments were made towards the arrears. 14 The Senior Member indicated that, although the order at first instance was the correct order, it was preferable to vary the original order to reflect the agreement reached at the hearing held on 9 May 2025. 15 The Senior Member made the following orders: 1. The Tribunal grants leave to apply for internal review. 2. I vary the order of the Tribunal made on 1 May 2025 by setting aside and deleting orders 1 and 2, and substituting the following orders instead. 3. The tenant may remain in the property on condition the tenant pays to the landlord $980.00 (ordinary rent of $880 per fortnight, + $100 toward the arrears of rent), by 5:00pm on Friday 16 May 2025. If this payment is not made the tenant must move out of the premises by midday on Monday 19 May 2025. 4. The tenant must make payments of $980.00 to the landlord by the following dates, and if the payments are not made, the tenancy will terminate, and the tenant must move out of the premises by 12 noon on the following Monday after the default in payment: a. 30 May 2025, or the tenant must move out by midday Monday 2 June 2025 b. 13 June 2025, or the tenant must move out by midday Monday 16 June 2025 c. 27 June 2025, or the tenant must move out by midday Monday 30 June 2025 d. 11 July 2025, or the tenant must move out by midday Monday 14 July 2025 e. 25 July 2025, or the tenant must move out by midday Monday 28 July 2025 f. 8 August 2025, or the tenant must move out by midday Monday 11 August 2025 g. 22 August 2025, or the tenant must move out by midday Monday 25 August 2025 5. If the tenant misses any of the above payments and does not move out of the premises by the time stated, the landlord may lodge a statutory declaration to that effect and an up-to-date rent record. If the Tribunal is satisfied that the payment was not made, the bailiff may be instructed to evict anyone remaining at the premises without delay. 6. The tenancy will in any event terminate on Saturday 30 August 2025. If the tenant does not move out of the premises by that date, the landlord may advise the Tribunal and ask for the Tribunal bailiff to enforce this order. 5 SACAT Decision at [11]. -- 5 of 8 -- [2025] SASC 148 Gray J 4 16 The material before this Court indicates that the SACAT bailiff enforced the orders of the Tribunal of 9 May 2025 on 18 August 2025 by entering the premises and changing the locks. Information was also provided to the tenant on that occasion to assist with any homelessness.6 Relevant legal principles 17 An appeal to this Court from a decision of a Senior Member requires leave.7 The time for instituting an appeal is one month.8 18 This Court should only grant leave to appeal from a SACAT internal review decision where the appeal is reasonably arguable, and the subject matter is of sufficient substance to justify consideration.9 19 It is important that leave is not granted as a matter of routine. SACAT is a specialist tribunal, and the granting of leave too readily would undermine the legislative intention to establish SACAT as a specialist tribunal.10 20 The overarching consideration is the interests of justice.11 Submissions of the parties 21 The applicant is self-represented on this appeal. He indicated in submissions that he had accepted that he had agreed to the orders before the Senior Member. He sought a payment plan for his arrears. The applicant also brought an urgent interlocutory application seeking an urgent hearing, because he had been evicted from the property. He seeks urgent orders permitting him to return to the property, but as he is now in custody, he no longer pursues those orders. The applicant made a submission on appeal that he would like a new payment plan, and that when he was released from custody, he would like to enter into such an arrangement. 22 The respondent, who is also self-represented on the appeal, has indicated that he is willing to discuss a payment plan with the applicant, and that there is still outstanding a few thousand dollars in respect of the arrears on the property, but that since the enforcement of the orders of SACAT by the SACAT bailiff, the applicant has not returned to the property. The respondent indicated that he was reliant on the payment of rent to meet the mortgage repayments on the property. 6 Review Grounds, attached to Notice of Appeal (FDN 1) at 7 (Notice from SACAT Bailiff dated 18 August 2025). 7 South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(2). 8 Residential Tenancies Act 1995 (SA) s 39. 9 See, as to being reasonably arguable: Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1 at 5-6, [19]-[20] (Parker J); Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at 11, [3] (Kourakis CJ, with Bampton and S Doyle JJ agreeing). See, as to substance: Aldridge v Registrar of Firearms (SA) [2022] SASC 5 at [33] (Parker J). 10 Varricchio v Wentzel [2016] SASC 86; (2016) 125 SASR 191 at 198, [37] (S Doyle J). 11 Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1 at 5, [19] (Parker J); Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at 11, [3] (Kourakis CJ, with Bampton and S Doyle JJ agreeing). -- 6 of 8 -- [2025] SASC 148 Gray J 5 Consideration 23 As the applicant was advised during this hearing, an appeal to this Court is not a review of the merits.12 Many of the matters raised by the applicant at this hearing concern matters which do not directly arise on the question of whether there was error in the decision of the Senior Member on internal review. 24 I do not consider that the applicant has raised any reasonable arguable grounds in the notice of appeal. The applicant has not demonstrated error in the approach that the Senior Member took. The applicant on this review accepted that he had agreed to the orders proposed by the Senior Member, it was just that he had not been in a position to comply with those orders and had missed payments. This Court should only grant leave to appeal from a SACAT internal review decision where the appeal is reasonably arguable, and the subject matter is of sufficient substance to justify consideration.13 The applicant has not raised any reasonably arguable grounds. 25 SACAT is a specialist tribunal, it is clear from the Senior Member’s decision that the orders made on 9 May 2025 were the subject of agreement between the parties, and that was confirmed by the applicant on the appeal. It is difficult to ascertain in these circumstances how the granting of leave would be in the interests of justice. Regard needs to be had to the role of SACAT as a specialist tribunal, and the role of that Tribunal in assisting the parties to reach the agreement that was reached.14 26 Whilst I accept that the enforcement of the Tribunal’s orders occasioned hardship to the applicant, in considering the interests of justice, regard must also be had to the position of the respondent. The overarching consideration is the interests of justice.15 There is no basis demonstrated on this appeal as to why the applicant should be granted leave to appeal, particularly having regard to the financial hardship that would be occasioned to the respondent if there was interference with the orders made by SACAT. It is also not in the interests of justice to extend time. In relation to the question of the arrears, that will be a matter for the parties to determine.16 Conclusion and orders 27 In listing this matter for hearing today, both in respect of the interlocutory application and the appeal itself, I have in effect granted the applicant’s 12 Aldridge v Registrar of Firearms (SA) [2022] SASC 5 at [54] (Parker J). 13 See, as to being reasonably arguable: Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1 at 5-6, [19]-[20] (Parker J); Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at 11, [3] (Kourakis CJ, with Bampton and S Doyle JJ agreeing). See, as to substance: Aldridge v Registrar of Firearms (SA) [2022] SASC 5 at [33] (Parker J). 14 Varricchio v Wentzel [2016] SASC 86; (2016) 125 SASR 191 at 198, [37] (S Doyle J). 15 Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1 at 5, [19] (Parker J); Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at 11, [3] (Kourakis CJ, with Bampton and S Doyle JJ agreeing). 16 Subject to the orders of SACAT and insofar as the parties indicated at this hearing a willingness to have discussions. -- 7 of 8 -- [2025] SASC 148 Gray J 6 interlocutory application to the extent that an urgent hearing was sought; however, I would otherwise dismiss the interlocutory application. I would not extend time. I would also dismiss the application for leave to appeal. I make no order as to costs. -- 8 of 8 --