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Resolving Tenancy Disputes

The South Australian Civil and Administrative Tribunal (SACAT)

Disputes arising in relation to residential tenancy agreements are predominantly heard by the South Australian Civil and Administrative Tribunal (SACAT).

The Tribunal does not have to follow the rules of evidence and can take evidence in whatever manner it thinks fit [South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39]. Parties present their own cases.

The Tribunal generally will not allow a person to be represented by a lawyer unless all parties agree [Residential Tenancies Act 1995 (SA) s 113(2)]. If the property is managed by a land agent, the agent will usually appear for the landlord. Where a land agent appears, the tenant can be represented by a lawyer if he or she so wishes [s 113(2)].

Generally parties must bear their own costs but the Tribunal can make an order for costs if they think it appropriate [South Australian Civil and Administrative Tribunal Act 2013 (SA) s 57].

The Tribunal can arrange a free interpreter if one is needed. However, the Tribunal registry should be informed prior to the hearing so that the necessary arrangements can be made.

Applications for orders of the Tribunal can be lodged either personally, by post or online on the SACAT website. Wherever possible, applications are heard within two weeks and no later than six weeks after lodgement. The Tribunal has the power to make binding orders on any aspect of residential tenancy agreements.

The Tenancies Branch of Consumer and Business Services has a telephone advisory service that operates during work hours (131 882).

How applications are heard

The Tribunal can hear any application for an order relating to a residential tenancy agreement, except where one party is resident interstate [see Raschke v Firinauskas [2018] SACAT 19; Burns v Corbett [2018] HCA 15]. In the case of monetary claims, the amount claimed must not be more than $40 000, unless both parties consent in writing to the Tribunal's jurisdiction [s 24]. Once such agreement is given, neither party can change their mind. If there is no such agreement, the application must be made in the appropriate court. The amount of the claim will determine which court has jurisdiction.

A party to a tenancy agreement who wishes to apply for an order must first fill out an application and pay the application fee which, as of 1 July 2018 is $73.00 [see South Australian Civil and Administrative Tribunal Regulations 2015 Schedule 1].

The Tribunal has the power to require parties to attend a compulsory conference before the matter is listed for a hearing [s 50] and also has the power to refer a matter for mediation [s 51].

If no settlement is reached the matter is set down for a hearing by the Tribunal. The parties should attend the hearing. If they do not it will proceed in their absence and they may lose the opportunity to argue their case. However, it is possible in exceptional circumstances for matters to be re-heard. Orders of the Tribunal for payment of money are registered in the appropriate court and enforceable in the same manner as other court orders.

Orders the Tribunal may make

Under sections 110 and 111 of the Residential Tenancies Act 1995 (SA) an applicant can ask the Tribunal for one or more of the following orders:

  • that all or part of the security bond be paid to the applicant
  • that the other party perform some part of the agreement
  • that the other party not act in breach of the agreement
  • that the agreement be terminated
  • for possession of the premises
  • for compensation for breach by the other party
  • for compensation for losses caused by 'abandonment' (breaking a lease)
  • that the premises be declared abandoned
  • that a provision of the Residential Tenancies Act 1995 (SA) should not apply to the tenancy agreement or the premises
  • any other related order

In addition to the powers stated above, other specific powers of the Tribunal are:

  • to declare that rent is excessive [s 56]
  • to order eviction from premises [s 93]
  • to order that provisions of the Act shall not apply to an agreement or to premises [s 119]

The Tribunal also has the power to make a restraining order where there is a risk that a tenant or a guest of the tenant may cause serious damage to the property or a person. The penalty for breaching a restraining order is imprisonment for up to one year [s 112]. This provision has been extended to include situations of domestic abuse. If the Tribunal is satisfied that a co-tenant may cause serious property damage or personal injury or commit an act of domestic abuse they may make an order prohibiting the co-tenant from engaging in such conduct [s 112(1a)].

Disputes where one party is resident interstate

Following the High Court decision in Burns v Corbett [2018] HCA 15and subsequent SACAT decision of Raschke v Firinuaskas [2018], any tenancy dispute where one party is resident interstate (such as where a landlord owns an investment property in another state) cannot be heard by a tribunal and must instead be heard by a court. Section 38B of the South Australian Civil and Administrative Tribunal Act 2013 (SA) provides for the vesting of jurisdiction (referred to as the federal diversity jurisdiction) in the Magistrates Court of South Australia to hear and determine disputes where one party is resident interstate. These disputes were previously heard by SACAT, but from 12 July 2018 are now heard as minor statutory proceedings in the Minor Civil Claims division of the Magistrates Court [see Magistrates Court Act 1991 (SA) s 3 definition of minor statutory proceeding].

The fee payable for these applications is identical to the relevant fee payable to SACAT (as of 1 July 2018, the fee is $73.00) [see South Australian Civil and Administrative Tribunal Act 2013 (SA) s 38B(5)].

SACAT can transfer proceedings to the Magistrates Court in circumstances where there is some doubt as to whether it has jurisdiction to determine the dispute [see South Australian Civil and Administrative Tribunal Act 2013 (SA) s 38B(2)].

The Magistrates Court in hearing these disputes can exercise the jurisdiction, powers and functions that the Tribunal would exercise and had previously exercised in determining such disputes [see s 38C(3)].

Where the Magistrates Court makes an order, a party to the dispute can apply for a review of the decision in the same way they would apply for a review of any judgment of a Magistrate in a minor civil claim - by application to the District Court. See Review of a Minor Civil Action Judgment.

SACAT has produced a factsheet to assist parties affected by these jurisdictional changes - see SACAT Frequently Asked Questions Factsheet.

Resolving Tenancy Disputes  :  Last Revised: Fri Jul 13th 2018
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.