MARK STREATER In Person v SOUTH AUSTRALIAN HOUSING TRUST [2024] SASC 124

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (SENIOR MEMBER MCEVOY) 2024/SIR000200 Applicant: MARK STREATER In Person Respondent: SOUTH AUSTRALIAN HOUSING TRUST Counsel: MS V MONTANDON - Solicitor: CROWN SOLICITOR (SA) Interested Party: TAARNBY & TAARNBY PTY LTD In Person Hearing Date/s: 22/10/2024 File No/s: CIV-24-008834 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. STREATER v SOUTH AUSTRALIAN HOUSING TRUST [2024] SASC 124 Judgment of the Honourable Justice B Doyle 25 October 2024 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION LANDLORD AND TENANT - LEASES AND TENANCY AGREEMENTS Appeal before a single judge against a decision of the South Australian Civil and Administrative Tribunal to refuse leave for internal review. The applicant had sought internal review in respect of an earlier decision of the Tribunal, in which an order was made for possession of residential premises. Held, dismissing the application for leave to appeal: 1. The Tribunal did not act on any wrong principle in concluding that the application for internal review of the original order should be refused. 2. The applicant has not identified reasonably arguable grounds of appeal in relation to the order for possession or the period of the suspension of that order. Residential Tenancies Act 1995 (SA) ss 83 and 93; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 70 and 71; South Australian Housing Trust Act 1995 (SA) ss 5, 6, 7, 34, 39, and 39A, referred to. Henderson v South Australian Housing Trust [2024] SASCA 55; South Australian Housing Authority v Rossiter [2021] SASCA 113, considered. -- 1 of 16 -- -- 2 of 16 -- STREATER v SOUTH AUSTRALIAN HOUSING TRUST [2024] SASC 124 Single Judge Appeal – Civil 1 B DOYLE J: By a notice of appeal and interlocutory application filed on 16 September 2024, the applicant sought leave, pursuant to s 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘the Act’), to appeal against a decision made by a Senior Member of the South Australian Civil and Administrative Tribunal (‘the Tribunal’) on 6 September 2024. 2 The Senior Member refused the applicant leave under s 70(1a) of the Act to pursue an internal review of orders made by the Tribunal on 31 July 2024. Background 3 The earlier orders were made on the application of the South Australian Housing Trust (‘SAHT’) by its agent (‘Harcourts’) for an order for possession of residential premises at 19 Sherriff Street, Underdale under s 93 of the Residential Tenancies Act 1995 (SA) (‘the RTA’). 4 The reasons accompanying those orders record that the Tribunal found that: • SAHT’s agent Harcourts had issued two separate notices of termination to the applicant; • the first notice, given in February 2023, provided the requisite 60 days’ notice of termination applicable where the property was required by the landlord to be demolished, pursuant to cl 16 of the residential tenancy agreement between SAHT’s predecessor-in-title, the Commissioner of Highways, and the applicant (the ‘tenancy agreement’); • whilst arguably the second notice, issued in April 2024, did not provide a full 60 days’ notice of termination, the first notice had been valid and terminated the tenancy; • because SAHT was, at relevant times, the landlord, s 83 of the RTA did not apply;1 • SAHT having validly terminated the tenancy agreement and for the purpose of demolition of the premises, the only appropriate order was an order for possession of the premises. 5 The Tribunal was satisfied that the applicant had complex physical and mental health conditions that would cause an order for possession in seven days to result in relevant hardship within the meaning of s 93(4) of the RTA. On that basis, 1 See s 5(2) of the RTA. -- 3 of 16 -- [2024] SASC 124 B Doyle J 2 in exercise of the discretion available to it to do so, the Tribunal suspended the operation of the order for possession until 11 September 2024, subject to a condition that the applicant continue to pay rent in the interim. 6 The Tribunal made that order notwithstanding that the applicant had, by 31 July 2024, had in excess of 12 months’ notice to vacate the premises and had failed to do so, even while other properties surrounding his had been demolished in the interim. 7 During the hearing, the applicant indicated an intention to pursue a review of that decision. He was informed by the original decision-maker that he should act without delay. Section 70(2) of the Act required that he make any application for an internal review within one month of the order sought to be reviewed. 8 The applicant lodged an application for an internal review on 2 September 2024, although it was dated 30 August 2024. He was notified that the hearing was to be held on 6 September 2024. 9 The reasons accompanying the order of the Senior Member on 6 September 2024 record that the applicant did not attend the hearing or participate in it. His telephone number was called a number of times. He was left a message to the effect that the hearing was proceeding and that he should return the call to participate. The Senior Member was satisfied that the applicant had received appropriate notice of the hearing and proceeded to determine it and to give consideration to materials that the applicant had lodged together with his application for internal review. 10 The reasons record that: • the applicant’s contention was that he had been unable to find alternative accommodation because of prevailing rental market conditions and his undetailed medical issues, and that he had not been provided with support from SAHT or Harcourts in obtaining alternative accommodation; • the respondents to the review (SAHT and Harcourts) advised that the premises were programmed for demolition in November 2024; • the respondents explained that the applicant was not a ‘SAHT tenant’ in the sense of having been classified as an eligible tenant. Rather, SAHT became the landlord after the land had been transferred by another government agency; • save for the applicant, all the other tenants living on the land in question had relocated or were to relocate within a week or two, and each had been assisted into a variety of alternative housing arrangements and demolition works had proceeded in respect of those premises; -- 4 of 16 -- [2024] SASC 124 B Doyle J 3 • the respondents advised the Tribunal that Harcourts had provided the applicant with property information relating to over 40 properties which were identified as within his price range, and that the applicant had rejected offers of assistance, saying that he did not want to be ‘harassed’ by anyone from Harcourts. 11 The Senior Member noted that the information provided by the respondents at the hearing was inconsistent with the contentions made by the applicant in his application, but noted that the applicant had not attended to support his assertions. 12 The Senior Member noted that at the original hearing it had been the applicant who had suggested the date for vacant possession of 11 September 2024. 13 Having reviewed the material before the original decision-maker and the further matters relied upon before her, the Senior Member was satisfied that the original decision under review was correct and was the preferable decision. The Senior Member observed: … Mr Streeter’s [sic] application was on the basis that he needed longer to vacate the premises because of the difficult rental market and his poor health. He has provided no evidence of his poor health, and I note he was not approved for Category 1 housing. I accept that the rental market is difficult, but I accept the evidence and submission relating to the length of time in which [he] has had to look for alternative housing (since February 2023), and the support and assistance which I accept was provided by SAHA and Harcourts. I do not accept [his] assertion that he was provided with no assistance: I am satisfied he did not avail himself of the assistance offered. In all the circumstances I find that there are no grounds to set aside the original order. However, I am satisfied that it is appropriate to vary the date for vacant possession, and in this respect I will vary the original order as set out below. 14 The Tribunal refused leave to apply for internal review. The effect of the variation described above was to extend the time by which the applicant was to vacate the premises until 12 noon on 16 September 2024. The applicant was informed by the reasons of the prospect that a Tribunal bailiff might secure the premises if he had not moved out by that date. 15 The Tribunal’s file contains an email from the applicant dated 6 September 2024 in which he writes that he was aware that the hearing was listed on 6 September 2024, but that he had gotten his ‘dates mixed up’ and was ‘thinking that the 6th was next Tuesday’. Proceedings in this Court 16 Unfortunately, the applicant did not make his application for leave to appeal to this Court, or make his interlocutory application seeking a stay of the Tribunal’s order pending the hearing of any such appeal, until 16 September 2024, the day that the order for possession (as varied) was due to take effect. -- 5 of 16 -- [2024] SASC 124 B Doyle J 4 17 The application for stay came before me in circumstances where it was not practicable to convene a hearing before the order for possession would take effect. Having regard to the possibility that the eviction of the applicant would severely restrict the applicant’s capacity to prosecute his application for a stay pending determination of the application for leave to appeal and because I considered that an interim stay for a short period would be very unlikely to cause significant prejudice to the respondents, I made an interim order staying the effect of the possession order and listed the matter for hearing the following morning. 18 At the hearing on the morning of 17 September 2024, I was informed by counsel appearing for SAHT that there was housing available for the applicant in the form of a ‘walk up flat’ on the street on which he resides and that SAHT proposed to liaise with the applicant about that. SAHT was not opposed to a continuation of the stay to facilitate a practical resolution and, if that failed, to then return with a view to progressing the application for leave to appeal and any appeal. 19 I explained to the applicant that I would order that the stay of the possession order continue on an interim basis, but that if there came a need to resolve, on a contested basis, whether the stay should be continued, evidence and submissions to support his position would be required. 20 It was explained to the applicant that if leave to appeal were to be granted and if the Court were to be persuaded that a variation should be made to the period of suspension of the order for possession, the longest period contemplated by s 93(4)(a) of the RTA was 90 days, meaning that, on one view, the maximum period of time before he would, on any view, be required to vacate, would expire on or around 31 October 2024. 21 It was explained to the applicant that he might need to prioritise either pursuing alternative accommodation or, if he wished to focus his energies on the proceedings, give consideration to the evidence that would be relied upon before this Court. The applicant was alerted to the fact that he was required, in the first instance, to satisfy the Court that leave to appeal should be granted and that, if that were to involve reliance upon materials that were not before the Senior Member, evidence would need to be furnished, together with an explanation for why it was not relied upon below. It was also explained to the applicant that if part of his argument was that he was unable to attend before the Senior Member, he should support that assertion with evidence. 22 The matter was adjourned until 1 October 2024. To accommodate a respiratory illness issue on the applicant’s part, that hearing was, by consent, rescheduled for the morning of 4 October 2024. The applicant was requested, so far as his health permitted in the interim, to progress the preparation of his written materials. -- 6 of 16 -- [2024] SASC 124 B Doyle J 5 23 Late on the evening before that hearing, the applicant sent an email requesting to appear by telephone but foreshadowing that he was concerned, due to his sleep issues, that he may not wake for the hearing. 24 The applicant was permitted to appear via telephone, but he did not answer when numerous calls were made to his landline and mobile telephone number on that occasion. 25 The respondent sought that the application for leave to appeal and the appeal itself be progressed to a hearing date and did not oppose the continuation of the stay in those circumstances. 26 In the absence of the applicant, I considered it appropriate to identify tentative hearing dates in October but considered that the applicant should have a further opportunity to be heard about those dates. I listed the matter for further directions on the afternoon of 8 October 2024. The applicant was advised of the proposed dates and timetables, together with the hearing time, by email. 27 At the appointed time on 8 October 2024 the applicant originally answered his telephone line and appeared at the hearing, but the connection was seemingly lost and numerous attempts thereafter to contact the applicant on both telephone numbers were unanswered. I decided it was appropriate to list the appeal on 22 October 2024, the second of the two dates previously foreshadowed, and to make directions requiring the applicant to file his materials by 16 October 2024, but with the applicant being advised that if he wished to vary the timetable he should make application. 28 Counsel appearing for SAHT foreshadowed that in the event of non- compliance with those orders her client might apply for dismissal of the proceeding or discharge of the stay. The applicant was advised of this. 29 No application to vary the timetable was made by the applicant. The applicant did not file his materials on 16 October 2024. After SAHT made an informal application by email requesting that the matter be dismissed for non-compliance, the applicant sent an email saying he would file his materials by the end of 18 October 2024. He did not do so. Instead, he sent an email after business hours on that date indicating he would provide his materials on the morning of 21 October 2024. Again, he did not do so. During the course of 21 October 2024 he sent a further email indicating the materials would be provided the next morning. Again, he did not do so, and instead sent an email shortly prior to the hearing indicating that he could not seem to articulate what he wanted to say. 30 Although there may have been grounds for me to dismiss the application for leave to appeal for want of compliance with procedural directions I had made, having regard to the suggestion in the materials that the applicant suffers from various health issues, I determined to maintain the hearing date so as to ensure that the applicant had every opportunity to present his case. -- 7 of 16 -- [2024] SASC 124 B Doyle J 6 31 In connection with his application for internal review, the applicant’s submissions stated that he suffers from complex post-traumatic stress disorder, anxiety disorder and major depressive disorder and that he sees a psychologist and sleep psychologist for treatment of the conditions. It was said that those conditions, among other things, hinder his ability to respond to pressurised situations and take steps to overcome obstacles. 32 The only medical evidence before me in relation to the applicant’s health conditions comprises the first page of a letter dated 12 September 2024 from the applicant’s psychiatrist Dr Kneebone. That letter does record that the applicant has a history of depression and anxiety and that he has poor motivation, poor concentration and difficulty completing tasks. It also indicates that he has sleep problems that require high dose sedatives. Whilst I indicated to the applicant at the first hearing that if medical evidence was to be relied upon on the application for leave of the appeal, complete rather than partial documents should be provided, I considered that that evidence was at least sufficient to persuade me not to exercise any discretion available to me to summarily dismiss the matter. Leave to appeal and grounds of appeal 33 In deciding whether to grant leave to appeal from the Tribunal to this Court, the ordinary principles governing leave to appeal in civil appeals apply. The overriding principle is the interests of justice, having regard to whether the appeal is reasonably arguable, whether it raises any matter of principle or general importance, and whether the subject matter involves a matter of sufficient substance. Further, where the proposed appeal relates to a matter involving an application of the Tribunal’s specialist knowledge, that may be a matter militating against a grant of leave.2 34 The grounds relied upon the applicant’s application for leave to appeal are stated to be: 1. SACAT not provided with correct information. 2. Because of mental health reasons. 35 The applicant’s notice of appeal identifies the following proposed grounds of appeal: 1. Mental health reasons. 2. Objection to incorrect information provided to SACAT. 3. To avoid homelessness. 2 Henderson v South Australian Housing Trust [2024] SASCA 55 at [40] (Lovell and Doyle JJA, Kimber AJA), referring, inter alia, to Pix v South Australian Housing Trust (2016) 125 SASR 10 at [3], [6] (Kourakis CJ, Bampton and Doyle JJ agreeing). -- 8 of 16 -- [2024] SASC 124 B Doyle J 7 36 In considering whether grounds of appeal are reasonably arguable, it is relevant to consider the nature of the Court’s function on appeal if leave is granted. That in turn may depend on the nature of the proposed grounds of appeal. Where the application for leave to appeal arises from a decision given in an internal review in which the matter has been reconsidered on its merits, the Court’s task on appeal (if leave is granted) turns on whether the aspect of the decision under challenge is one which must be considered according to the standard of correctness or, alternatively, because it involves a question of discretion in the true sense, is one which attracts the appellate restraint principles associated with House v The King.3 37 Here, strictly speaking, the decision on the internal review itself was to refuse leave to pursue the internal review, a decision which could be characterised as having a discretionary quality. On that view, the applicant must demonstrate that it is reasonably arguable that the Senior Member’s decision to refuse to grant him leave was affected by an error of the kind that is required under the approach in House v The King. 38 The Senior Member applied the correct principles to the question of whether to grant leave to internally review the original decision. It has not been shown that she erred in considering that the applicant had had proper notice of the hearing (indeed, his subsequent correspondence showed that he had) or that she erred in proceeding in his absence to consider the question of leave. 39 It has also not be shown that, in circumstances where the applicant had not on the application for leave supported with evidence any contention either that the notices of termination had not been validly served, or that SAHT or its agent had either failed to engage with him in relation to alternative accommodation or had done so in a manner that constituted harassment, she acted on any wrong principle in concluding that the application for leave, which itself had been made out of time, should be refused. 40 Whilst this may suffice to dismiss the application for leave to appeal the Senior Member’s decision, noting that the Senior Member in fact proceeded to vary the earlier orders, I will consider the matter more broadly. The applicant’s contentions at the hearing 41 On the hearing of the application for leave to appeal and the appeal, the applicant made oral submissions. 42 In respect of the procedural history of the matter: • he gave an account of communications with Tribunal staff preceding the original hearing which had led him to understand, for a period, that the application for possession might not be proceeding; 3 See the discussion in Henderson v South Australian Housing Trust [2024] SASCA 55 at [37]-[39] (Lovell and Doyle JJA, Kimber AJA), referring to House v King (1936) 55 CLR 499. -- 9 of 16 -- [2024] SASC 124 B Doyle J 8 • he stated that during the original hearing he was suffering the effects of having taken a high dose of sleeping tablets such that he had little if any recollection of the hearing; • in relation to the internal review hearing, he stated that he had wrongly recorded the hearing date in his diary as being on Tuesday 10 September 2024; • he stated that he had been led to believe, based on communications from the Tribunal following the refusal of leave by the Senior Member, that his only option was to contact RentRight SA, and that he was delayed in approaching the Legal Services Commission (SA) because he was led to understand it was only disappointed landlords who should do that; • he said that he had not filed evidence or written submissions because he found it difficult without support and resources to keep up with the fast pace of the proceedings and the numerous matters he needed to attend to. He explained that this was partly a reflection of his own personal difficulties in focusing on and attending to tasks. 43 In relation to the factual and legal merits of the matter, the applicant submitted that: • when he first entered into his tenancy agreement the landlord was the Commissioner of Highways and he did not have a clear understanding of the mechanism by which SAHT had come to be the landlord; • he did not expect that the land on which the premises were located would be redeveloped; • the approach being taken by SAHT in redeveloping the land on which his residence was located was contrary to general statements about public housing that had been made in the past by the Premier; • he had not been provided with appropriate alternative accommodation options; • the result of an order for possession in circumstances where he had not been provided alternative accommodation suitable to him would be inconsistent with Article 25 of the Universal Declaration of Human Rights.4 44 In relation to the procedural matters, I am not persuaded that the applicant has demonstrated a reasonably arguable contention that the original hearing 4 Article 25(1) provides that ‘[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’. -- 10 of 16 -- [2024] SASC 124 B Doyle J 9 proceeded in a way that was unfair to him. Whatever he may have at one point been told about whether the order for possession was being pursued, he participated in the hearing on 31 July 2024 and appears from the transcript to have been able to articulate much the same matters then as he sought to raise before me. 45 In relation to the reasons as to why the applicant did not participate in the internal review, there is a discrepancy between what he said by way of email on 6 September 2024 and what he told me during the hearing but, on either account, the applicant was told the correct date for the hearing and did not appear at it. 46 In relation to the delay following that hearing, it is of little moment to the issues I have to consider, but in any case, an email sent to the applicant clearly advised him that he could contact either Legal Services Commission or RentRight SA. 47 Turning to the substantive matters, the applicant did not dispute that his original tenancy agreement with the Commissioner for Highways contained a provision entitling the Commissioner to terminate the agreement on 60 days’ notice where a redevelopment was proposed, or indeed on 90 days’ notice for any reason. It is not clear to me on what basis he contends that the change in the identity of the registered proprietor has caused him any relevant prejudice. I am not persuaded there was any reasonably arguable representation made that his tenure would extend indefinitely. Nor is it reasonably arguable that any statement by representatives of the government about policy issues relating to public housing provides a basis to impugn the validity of the termination of the tenancy agreement or the appropriateness of an order for permission and, in any event, there was no acceptable evidence of these statements or the context in which they were made. 48 It is not open to the applicant directly to invoke Article 25 of the Universal Declaration of Human Rights. It is not an international treaty, although it expresses values shared by members of the international community and has given rise to a number of other international agreements that have been ratified such as the International Covenant on Economic, Social and Cultural Rights, Article 11 of which is in similar terms. Whilst there are circumstances in which the interpretation of domestic legislation may be informed by international obligations of this kind,5 I do not consider that determining the outcome of this application will be assisted by resort to Australia’s obligations under any international treaty or convention. 49 That leaves the contention that the applicant was not provided with appropriate assistance to locate alternative accommodation. 50 Although he did not advance before me any contention directed towards the provisions of the South Australian Housing Trust Act 1995 (‘the SAHT Act’), given the applicant’s status as a self-represented litigant and the risk that my 5 Cf Coleman v Power (2004) 220 CLR 1 at [18]-[24] (Gleeson CJ). -- 11 of 16 -- [2024] SASC 124 B Doyle J 10 refusing leave may result in the applicant finding himself unable to arrange alternative accommodation in the short term with the consequential risk that he may be rendered homeless, I have considered the applicant’s complaint about a lack of assistance in the context of that legislation. 51 In particular, I have considered the potential impact upon the question of whether an order for possession was appropriate (and, if so, the period of any suspension of that order that may have been appropriate) of the circumstance that the landlord is SAHT. 52 The interrelationship between the SAHT Act and the RTA was considered in South Australian Housing Authority v Rossiter.6 As the Court there observed:7 The functions of the appellant are set out in section 5 of the SAHT Act. The appellant is the principal property and tenancy manager of public housing in this State,8 and is entrusted with the responsibility of assisting people to secure and maintain affordable and appropriate housing by acting as a landlord of public housing in this State, as well as managing various forms of public housing.9 In exercising its statutory functions, the appellant is obligated to provide affordable, secure and appropriate housing to eligible clients, including ensuring that properties provided are of adequate size and condition, and meet reasonable standards of health, safety and security.10 This requires the appellant’s ongoing maintenance of the properties. In this respect, access to the properties managed by the appellant for the purposes of inspection, maintenance, renovation or other improvement, is necessary for the effective administration of the public housing scheme. Such access enables the appellant to discharge its statutory obligations. The SAHT Act provides for general and specific powers of the appellant to carry out its statutory functions.11 Relevantly, the appellant has express statutory powers to: • let public housing properties and fix the terms, covenants and conditions on which those properties are let;12 • exercise in relation to those properties the powers of a landlord;13 • build, alter, enlarge, repair and improve properties;14 • initiate, facilitate or participate in joint developments;15 6 [2021] SASCA 113 at [25]-[32], [37]-[48] (Livesey P, Lovell JA and Stanley AJA). 7 [2021] SASCA 113 at [39]-[47] (Livesey P, Lovell JA and Stanley AJA). 8 SAHT s 5(2). 9 SAHT Act s 5(1). 10 SAHT Act s 5(3) 11 SAHT Act s 6 and 7. 12 SAHT Act s 7(1)(b) and (c) 13 SAHT Act s 7(1)(b). 14 SAHT Act s 7(1)(f). 15 SAHT Act s 7(1)(i). -- 12 of 16 -- [2024] SASC 124 B Doyle J 11 • enter land to access properties, with at least 48 hours written notice to the tenant, for the purpose of carrying out necessary repairs or maintenance;16 and • require possession of properties to undertake redevelopment and renovations.17 The SAHT Act provides for a housing scheme that is accessible to persons who do not own other property and are in a situation of genuine need. The appellant administers the scheme in furtherance of its purpose by leasing properties to eligible persons on fair terms, which include rent that is below the market rate. To do so effectively, and in a manner that confers the greatest benefit to all eligible persons, the appellant is given powers that are broader than those of a private landlord. Given the fundamental divergence in objects and purposes of the two Acts, only a limited number of the RTA provisions apply to leases under which the appellant is the landlord. They are prescribed by s 5(2) of the RTA. This enables the appellant, under the SAHT Act, to exercise greater control over the terms of its leases, to discharge its statutory functions, and exercise its statutory powers, unencumbered by restrictions contained within the excluded provisions of the RTA, or otherwise at common law, which would otherwise limit the appellant’s capacity to satisfy its statutory purpose. The functions and powers of the appellant are inconsistent with a large number of the provisions of the RTA, the statutory scheme which otherwise governs private residential lease agreements in this State. … The RTA scheme is structured to “remove any perceived disparity that exists between the position of landlord and tenant”,18 in circumstances where both the landlord and tenant are freely operating in an open market and for their mutual benefit. An important feature of the scheme of the SAHT Act is s 7(1)(c) which provides that the appellant fixes the terms, covenants and conditions on which houses are let by it. There is no scope for a tenant of the appellant to negotiate the terms of his or her tenancy agreement. 53 The Court in Rossiter considered and rejected a submission that certain of the powers or functions conferred on SAHT by the SAHT Act suggested that its right to enter premises to effect ‘repairs’ should be widely construed. One of the provisions considered was s 39A. That section provides that: Where— (a) SAHT is the landlord of residential property; and (b) SAHT requires possession of the residential property for redevelopment or renovations, SAHT must take reasonable steps— (c) to consult with any tenants occupying the residential property (the tenants) about their housing options; and 16 SAHT Act s 34(3)(d). 17 SAHT Act s 39A. 18 Second Reading Speech, Legislative Council, Thursday 23 February 1995, page 1291 (the Hon K.T. Griffin). -- 13 of 16 -- [2024] SASC 124 B Doyle J 12 (d) to arrive at an outcome that is fair and reasonable in the circumstances after paying particular attention to the age, health and any special needs or circumstances of the tenants and to the nature and availability of housing (being an outcome which may include relocating the tenants to other premises on an ongoing basis or proceeding on the basis that the tenants will return to the same site or locality after the redevelopment or renovations are completed). 54 The Court went on to say:19 … the appellant’s reliance upon s 39A is also misplaced. Section 39A imposes obligations upon the appellant in prescribed circumstances. Those circumstances are where the appellant is the landlord of residential property and requires possession of the residential property for redevelopment or renovations. Its operation is confined to the type of redevelopment or renovation that would require the tenant to be dispossessed on a medium to long term basis pending the undertaking of those redevelopment or renovation works. Accordingly, s 39A is not engaged in this case. In any event, there is nothing in the terms of s 39A which requires the more expansive construction of the term “repairs” in clause 6(g) for which the appellant contends. 55 Those observations serve to emphasise that whilst SAHT has certain powers in respect of residential properties that may distinguish it from other landlords of residential premises governed by the RTA, s 39A also imposes obligations. 56 An issue arises as to whether s 39A applies to a tenancy agreement to which SAHT becomes a party as landlord only by reason of the subsequent transfer to it of the freehold title and where there are existing, previously-negotiated terms with respect to rent and termination. 57 This issue was not, on my review of the transcript of the two hearings in the Tribunal, squarely addressed below, albeit submissions were made to the effect that the applicant was not a ‘Housing Trust tenant’. I infer that it was being submitted by the respondent that the applicant had not been granted his tenancy on the basis of an assessment by SAHT. 58 It is not obvious to me from the text of the relevant legislation that the operation of the SAHT Act (and the disapplication of some provisions of the RTA) depends upon whether, at the time of entry into the residential tenancy agreement, SAHT was the landlord and had assessed the tenant for eligibility. 59 Assuming, without deciding, that s 39A applies in respect of the applicant’s tenancy agreement, it would nevertheless remain for the applicant to demonstrate: • first, that on proper construction of the relevant provisions, a failure to comply with s 39A either renders ineffective the giving of an otherwise valid contractual notice to vacate, or has a material bearing on the exercise of any discretion that the Tribunal may have in relation to the making of, or period of suspension of, an order for possession under s 93 of the RTA; 19 [2021] SASCA 113 at [80] (Livesey P, Lovell JA and Stanley AJA). -- 14 of 16 -- [2024] SASC 124 B Doyle J 13 • secondly, that SAHT failed to comply with its statutory obligation. 60 The first of those propositions is reasonably arguable but, in respect of the second, there is no sufficient evidentiary foundation for the contention that any obligation arising under s 39A was not complied with. 61 That section does not require SAHT to secure alternative accommodation. It requires the taking of ‘reasonable steps’ directed towards a fair and reasonable outcome. No doubt, where it applies, the obligation imposed by s 39A requires an approach which has regard to any disclosed mental health or other health condition that may affect the premises suitable for the applicant. Those matters may even bear on the manner of engagement about those options. But merely to point to mental health difficulties is not to demonstrate a failure to discharge the statutory obligation. 62 The first notice of termination served in February 2023 explained that Harcourts had been appointed by SAHT to help and support the applicant to a new alternative housing option, and advised that Ms Carolyn Neal would phone to make a one-on-one time to discuss the options and opportunities available to the applicant. The notice enclosed material about public housing options and financial assistance and it provided contact details for a number of community organisations and services that assist in providing or securing accommodation. 63 The second notice of termination given in March 2024 referred to the fact that 48 appropriate alternative property options had been provided since the initial letter and that, since 12 August 2023, the applicant had stopped responding to Harcourts’ communications. Nevertheless, the letter invited urgent contact with a view to providing assistance. 64 I recognise, of course, that there may be more to the circumstances than emerges from that correspondence and, also, that the applicant’s personal circumstances may have made it difficult for him to engage with Harcourts. But the question for me is whether I consider on the material before me there is a reasonably arguable basis for a contention that SAHT did not meet any obligation it owed under s 39A. I do not consider there are such grounds. 65 Nor do I consider it appropriate to further adjourn the matter to provide the applicant with an additional opportunity to bring forward evidence of those matters. 66 At the first hearing of this matter in this Court, the applicant was informed that evidence, rather than assertion, that SAHT or Harcourts had misled the Tribunal about their engagement with the applicant, would be important to establishing a reasonably arguable contention in relation to this issue, and that, if and when he adduced such evidence, the respondent and interested party would then have an opportunity to respond. Unfortunately, the applicant has not done so. To the extent that his failure to do so reflects his own personal difficulties and lack -- 15 of 16 -- [2024] SASC 124 B Doyle J 14 of resources, I am not satisfied that those circumstances are likely to change in the near term. 67 I do not consider the applicant has identified reasonably arguable grounds of appeal. Further, unless he were to demonstrate that no order for possession was appropriate, any successful contention that a longer period of suspension should have been allowed would only, in my view, see the order for suspension extended or deferred for a period of a further week or so, given the 90-day outer limit in s 93(4)(a) of the RTA. That is because I would not regard it as appropriate to ‘remake’ the order for possession simply for the purpose of then suspending that order for a further 90 days. I consider that to do so would be inconsistent with the scheme of the RTA. 68 It also follows from that reality that a refusal of leave to appeal has, at least so far as it relates to the length of any period of suspension on the possession order, a limited effect on the applicant. He has, by reason of the stay I granted upon the institution of this proceeding, already had the benefit of a further period of possession of over one month, and, in combination with the orders made in the Tribunal, for a period very close to the maximum period available under s 93(4)(a). 69 In those circumstances, I dismiss the application for leave to appeal. 70 I will hear the parties as to costs. 71 In view of the self-evident hardship for the applicant that will arise if possession is effected immediately, I will invite SAHT to undertake not to enter into possession for a further short period. If that undertaking is not forthcoming I will hear further from the parties as to whether any ancillary or incidental order is appropriate in the interests of justice to avoid extreme hardship to the applicant. -- 16 of 16 --