Aaron Lye v Norma Sweeney - [2009] NSWSC 193

CITATION: AARON LYE V NORMA SWEENEY [2009] NSWSC 193

HEARING DATE(S): 19 March 2009

JUDGMENT DATE :
26 March 2009

JUDGMENT OF: Smart AJ

DECISION: Motion and appeal dismissed with costs.

CATCHWORDS: Landlord and tenant - no subsisting tenancy - lawfully terminated - consideration of ss 85(1)(d) and 127 of Conveyancing Act 1919 - futile to order re-hearing of strike out application on natural justice grounds as decision of Associate Judge correct.

LEGISLATION CITED: Conveyancing Act 1919
Real Property Act 1900

CASES CITED: Batiste & Ors v Lenin [2002] NSWCA 316

FILE NUMBER(S): SC 5259/2007

COUNSEL:
C. Dibb (P and Appellant)
V. R. Gray (D and Respondent)

SOLICITORS: Johnson & Sendall (P and Appellant)
P. J. Webb (D and Respondent)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SMART AJ

26 March 2009

JUDGMENT

1 Aaron Lye, the plaintiff, by his Notice of Motion of 3 October 2008 filed 17 October 2008 appeals against the whole judgment of Associate Justice Macready delivered 5 September 2008 by which he determined that the lease of the plaintiff had been validly terminated and there was no basis for the claim made in the statement of claim. He dismissed the proceedings by the plaintiff against the second defendant, Norma Sweeney.

2 The background and the facts are set out in the judgment of the As. J. I add that on 29 October 2007 Mr Lye issued a summons against R A Burrows Pty Ltd seeking relief against it similar to that specified in paragraph 5 of the As. J’s judgment. On 4 February 2009 a Deputy Registrar granted the plaintiff leave to file an Amended Summons, the effect of which was to add Ms Norma Sweeney as the second defendant and seek the relief set out in para [5] of the As. J’s judgment. On 8 February 2008 this Court, by consent, granted leave to the plaintiff to discontinue proceedings against R. A. Burrows Pty Ltd. The appeal grounds are that the As. J erred:

Conveyancing Act

3 As to the second ground counsel for the parties who appeared before the As. J and me were not agreed as to what occurred before the As. J. The transcript of 6 August 2008 of the hearing throws no light on the point of disagreement.

4 Mr C Dibb for the plaintiff contended that at the hearing before the As. J the defendant had submitted that the tenancy of the plaintiff was a tenancy at will pursuant to s 127 of the Conveyancing Act and the plaintiff agreed. Mr Dibb said that the plaintiff pointed out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aaron Lye v Norma Sweeney

Details

AGLC: Aaron Lye v Norma Sweeney [2009] NSWSC 193
Case: [2009] NSWSC 193
Decision Date: 26 March 2009

CaseChat Overview and Summary

Aaron Lye, the applicant, sought relief against Norma Sweeney, the respondent, in the District Court of New South Wales, over a dispute involving the termination of a tenancy and the refusal to re-hear a strike out application. The primary contention was whether the tenancy had been lawfully terminated and if the Associate Judge's decision to strike out the application was correct.

The court had to decide whether there was a subsisting tenancy at the time of its purported termination, and if not, whether the termination was lawful under sections 85(1)(d) and 127 of the Conveyancing Act 1919. Additionally, the court needed to assess if it was just and equitable to order a re-hearing of the strike out application on natural justice grounds.

In its reasoning, the court held that there was no subsisting tenancy at the time of the termination, and that the termination was therefore lawful. The Associate Judge's decision to strike out the application was found to be correct, and the court held that it would be futile to re-hear the strike out application. The application for re-hearing was dismissed as the decision was both procedurally and substantively sound. The court concluded that it was not just and equitable to order a re-hearing given the circumstances and the correctness of the Associate Judge's decision.

No further orders were made by the court, and the dismissal of the strike out application stood. The decision underscored the importance of ensuring that all legal proceedings, including the termination of tenancies, adhere to the statutory requirements and the principles of natural justice.

Orders