Agini v Avissos Pty Ltd

[2023] NSWSC 286

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Agini v Avissos Pty Ltd [2023] NSWSC 286

Hearing dates:

22 March 2023

Date of orders:

22 March 2023

Decision date:

22 March 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1)   The plaintiff’s summons is dismissed.

(2)   No order as to costs.

Catchwords:

LANDLORD AND TENANT – residential tenancy – stay application – warrant for possession issued by NCAT– no jurisdiction – summons dismissed

Legislation Cited:

Supreme Court Act 1970 (NSW), s 23

Cases Cited:

Agini v LJ Hooker Brighton-Le-Sands (Supreme Court (NSW), N Adams J, 16 March 2023, unrep)

Category:

Principal judgment

Parties:

Alec George Agini (Plaintiff)
Avissos Pty Ltd (Defendant)

Representation:

Solicitors:
McLachlan Thorpe Partners (Plaintiff)
S Hetherington, unrepresented (Defendant)

File Number(s):

2023/86790

Publication restriction:

Nil

EXTEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: In the matter of Alec George Agini v Avissos Pty Ltd, the plaintiff seeks an order that the warrant for possession issued by the New South Wales Civil and Administrative Tribunal (the Tribunal) on 1 March 2023 is stayed until 20 June 2023. The plaintiff seeks further orders with respect to the payment by the plaintiff of sums of money to the defendant, in essence as recompense for the staying of the warrant for possession sought by order 1. A further order is sought restraining the defendant from applying for a further warrant for possession unless, to summarise, there has been a failure to comply with the various orders in relation to payments to be made by the plaintiff.

2. The application comes before me as Duty Judge in circumstances where N Adams J, as Duty Judge, ordered a stay for six days on Thursday 16 March. In her reasons, her Honour sets out the history of the matter: Agini v LJ Hooker Brighton-Le-Sands (Supreme Court (NSW), N Adams J, 16 March 2023, unrep). There is no doubting that the circumstances are concerning, involving as it does, a warrant for possession of a property which would see the plaintiff and his elderly mother Ms Ross, who is now 88 years of age, removed from their housing. N Adams J in her reasons set out the history, which I will not repeat here, other than to say that the circumstances leading to the matter today began with a rental agreement between the plaintiff and the defendant, which was followed by an application to terminate the tenancy filed in the Tribunal on 12 March 2022.

3. The plaintiff was unsuccessful before the Tribunal, with a decision made that the residential tenancy had come to an end at 4.00pm on 12 December 2022. It was further ordered that, by that time, the keys and vacant possession were to be provided to the real estate agent on behalf of the landlord. There was an appeal by the plaintiff against that decision. While that appeal was pending, an agreement was reached between the parties whereby, in effect, the plaintiffs would be given one more chance. The appeal was withdrawn and consequently dismissed, subject to an order made by consent affirming the order for termination made by the Tribunal at first instance on 1 December 2022, but by consent that that order would be extended until 28 February 2023. Additionally, an order was made for the plaintiffs to pay a sum of money by instalments, with the proviso that, if any of the instalments were not paid, the whole sum would become due and payable immediately.

4. N Adams J details in her reasons the position between the parties subsequent to the settlement of the appeal before the Appeal Panel of the Tribunal. In short, the situation appears to have been one of continuing negotiation between the parties but ultimately default on the part of the plaintiff. When the matter came before N Adams J, her Honour was faced with a most difficult decision. She had before her, as she acknowledged, a somewhat questionable application but one which arose in circumstances where the Sheriff was poised to evict the plaintiff and his elderly mother the next day. In those circumstances, whilst her Honour noted that the Court’s jurisdiction to stay the order of the Tribunal was somewhat unclear, her Honour granted the stay for a period of six days. Her Honour noted in granting the stay that, “it is unlikely the stay will be extended” when the matter goes before the Duty Judge, as it has before me today. Her Honour said:

“The reason that it is unlikely the stay will be extended is that I do not consider it appropriate or fair or in the interests of justice that the owner would have to go and get yet another writ of possession if this matter is stayed beyond 29 March 2023.”

5. The factual underpinning for that observation is the temporal limitation with respect to the writ of possession. But beyond that, as her Honour indicated, there is a real question as to this Court’s power to stay the order of the Tribunal. As I have indicated, there was a proceeding before the Tribunal at first instance; the plaintiff was unsuccessful; the plaintiff in response brought an appeal to the appeal panel of the Tribunal; and that matter was settled.

6. As the solicitor for the plaintiff before me this morning acknowledged there has been no challenge brought to the decision of the Tribunal. That should not, in any way, be thought to be a criticism of the plaintiff’s representative. In circumstances where those proceedings were settled, it is difficult to see what challenge might be available. The reality is that a process was begun by the defendant in order to obtain possession of the property and that process has run its course. There being no further proceedings in relation to that process, there is nothing or, at least, no process to which the stay sought could attach.

7. Regrettably for the plaintiff, having regard to the circumstances in which he finds himself and particularly with respect to his mother, the reality is that this Court does not have jurisdiction to grant the orders sought. In particular, it is not, in the absence of some proceeding to which the stay would attach, a matter where it can simply be said that the Court should make the order in the exercise of its inherent jurisdiction pursuant to s 23 of the Supreme Court Act 1970 (NSW).

8. I make the following orders:

1. The plaintiff’s summons is dismissed.

2. No order as to costs.

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Amendments

12 June 2025 - [7] - 's 22' amended to 's 23'

Decision last updated: 12 June 2025