Boscolo v Consumer Trader and Tenancy Tribunal
[2011] NSWSC 1564
•15 December 2011
Supreme Court
New South Wales
Medium Neutral Citation: Boscolo v Consumer Trader and Tenancy Tribunal [2011] NSWSC 1564 Hearing dates: 14 December 2011 Decision date: 15 December 2011 Jurisdiction: Common Law Before: Schmidt J Decision: 1. Mr Boscolo's motion filed on 6 December 2011 is dismissed.
2. Apart from any application for leave to appeal, Mr Boscolo may not file or serve any further applications in respect of the January 2011 decision of the Consumer Trader and Tenancy Tribunal, without prior leave of a judge of this Court.
3. Mr Boscolo is to pay the second and third defendants' costs of the motion, if any.
Catchwords: PROCEDURE - notice of motion - further application for stay sought in respect of Consumer Trader and Tenancy Tribunal decision - motion dismissed - plaintiff not to file or serve any applications in respect of Tribunal decision without prior leave - costs Legislation Cited: Civil Procedure Act 2005
Consumer Trader and Tenancy Tribunal Act 2001Cases Cited: Boscolo v Consumer Trader and Tenancy Tribunal & Ors [2011] NSWSC 1402
Boscolo v Consumer Trader and Tenancy Tribunal (Supreme Court of New South Wales, Garling J, 7 December 2011, unreported)Category: Procedural and other rulings Parties: Mario Sylvio Boscolo (Plaintiff)
Consumer Trader and Tenancy Tribunal (First Defendant)
Cheung Sing Lai (Second Defendant)
Jenny Chow (Third Defendant)Representation: Mrs Sylvia Boscolo (appeared on Plaintiff's behalf)
Mr Cheung Sing Lai (in person)
Ms Jenny Chow (in person)
File Number(s): 2011/190879
Judgment
On 6 December 2011, the plaintiff, Mr Mario Boscolo, filed a notice of motion seeking that orders made by the Consumer Trader and Tenancy Tribunal on 11 January 2011 be stayed. The motion was supported by an affidavit which Mr Boscolo swore on 14 December 2011. The matter came before me as duty judge at a time when the file could not be located. Mr Boscolo's mother appeared again on his behalf, without objection.
The stay was opposed by the second and third defendants, Mr Lai and Ms Chow, who also asked the Court to order that Mr Boscolo be prohibited from bringing any further motions, or appeals, or other actions in relation to the Tribunal's order. They say that their concern is that Mr Boscolo has paid no rent since February 2011, in circumstances where they have received complaints from neighbours about the state of the property and where they are having difficulty paying their mortgage, in the absence of the rent being paid.
Mr Lai and Ms Chow are the owners of the property. The lease expired on 22 January 2011. Mr Boscolo remains in occupation, despite not paying any rent and various orders of the Tribunal and this Court, which require him to vacate the premises.
Hoeben J dealt with Mr Boscolo's amended summons, filed in August 2011, in which orders quashing the Tribunal's decision made pursuant to s 65 of the Consumer Trader and Tenancy Tribunal Act 2001 ('the Act') were sought, as well as an order requiring the Tribunal to hear and determine the claim afresh (see Boscolo v Consumer Trader and Tenancy Tribunal & Ors [2011] NSWSC 1402) . Mr Boscolo's complaint was that he had been denied procedural fairness by the Tribunal.
Hoeben J made orders that:
"(i) The summons is dismissed.
(ii) The plaintiff is to pay the defendants' costs of these proceedings.
(iii) I stay the orders of the Tribunal of 11 January 2011 until 4pm on Friday, 2 December 2011.
(iv) Any further applications for a stay by the plaintiff are to be made to me."
In coming to his conclusion that the summons had to be dismissed, his Honour considered the course of the proceedings before the Tribunal; the orders it made on 11 January, in circumstances where the tenancy was due to expire on 22 January; the stay granted by the Tribunal pending consideration of the application for rehearing of the matter sought by Mr Boscolo, a remedy available under s 68 of the Act; the further orders of the Tribunal refusing that application, it taking the view that he had not suffered any substantial injustice, for reasons given; and the application made to the District Court, provided for by s 67 (the outcome of which was unknown).
His Honour noted the adjournment of the hearing sought by Mr Steirn of counsel at the hearing on 18 November, which was refused. His Honour took the view that the matters raised, whether Mr Boscolo had been given procedural fairness by the Tribunal, did not require Mr Boscolo's presence. His Honour noted:
"[20] I explained to Mr Steirn and to the plaintiff's mother that on my reading of the transcript of what had occurred on 11 January 2011, there had been no denial of procedural fairness. The rent was clearly in arrears and the defendants were entitled to possession. Insofar as the defendants' position was concerned, it had significantly deteriorated in that the amount of the unpaid rental and/or occupation fee now amounted to a very substantial sum. I indicated my intention to dismiss the summons, but provided the opportunity to either Mr Steirn or Ms Boscolo to make submissions as to why that order should not be made. No submissions were made either by Mr Steirn or by Ms Boscolo on that issue. In particular, no aspect of what had occurred before the Tribunal on 11 January 2011 was identified as involving a denial of procedural fairness.
[21] The only issue argued was the amount of time which should be allowed to the plaintiff within which to leave the premises. In an exchange with counsel I had suggested seven days but on instructions he requested 14 days. Because of the ill-health of the plaintiff, I acceded to that request. I invited submissions as to why the plaintiff should not pay the costs of these proceedings."
The position as to rent at the time the matter was before Hoeben J was that it had then been in arrears since 5 February.
On 7 December 2011, Garling J gave judgment on a motion filed by Mr Boscolo on 5 December, in which the same orders as those pressed on the second motion which later came before me, was sought, namely stay of the Tribunal's order (see Boscolo v Consumer Trader and Tenancy Tribunal (Supreme Court of New South Wales, Garling J, 7 December 2011, unreported)). Garling J also dealt with that motion, sitting as duty judge. His Honour noted that Mr Boscolo's mother appeared on that occasion, as she did when the matter came before me.
Garling J reviewed the transcript of the proceedings before the Tribunal and the course of these proceedings in this Court, including before Hoeben J. His Honour noted that a notice of intention to appeal his Honour's judgment had been filed. It was explained that there is to be a challenge to his Honour's refusal of the adjournment application; that Mr Boscolo should have been given an opportunity to put on affidavit evidence; that he was denied procedural fairness by not having been given the opportunity to be present to present evidence or make submissions; and that his Honour took into account documents provided by the defendants, which were not provided to him.
Garling J noted the second and third defendants' opposition to the stay, having in mind the outstanding rent.
His Honour refused the stay, notwithstanding a written undertaking given by Mr Boscolo that outstanding rent would be paid. He noted the two week stay granted by Hoeben J; the expiry of the lease in January; the outstanding rent; and the absence of any efforts to find other accommodation, or to pay rent. His Honour was not satisfied that it was in the interests of justice to grant the stay sought, nor was he satisfied, having considered the complaints advanced, that the application for leave to appeal was likely to succeed. He considered that the interests of the defendants also had to be considered and that in the circumstances, justice demanded that the stay be refused.
Mrs Boscolo's explanation for her son's further application for a stay was on the basis of she not being able to understand Garling J's decision, of which she said she had no copy; being dissatisfied with the proceedings before his Honour; and because of new matters addressed in her son's affidavit.
There Mr Boscolo explained that the notice of intention to appeal had been filed on 7 December, but that an application for leave to appeal also had to be prepared. He explained that he was too ill to attend the proceedings before Hoeben J on 18 November, or to instruct counsel. His mother did not recall either she or Mr Steirn being given any opportunity to make submissions that day and in any event, counsel had not been instructed to make submissions. In those circumstances, he had been denied the right to be heard.
On 8 March 2011, Mr Boscolo was the victim of a home invasion. He was shot three times and in hospital was diagnosed as suffering from anaemia, which he said explained his ill health in 2010 and early 2011. He has received legal advice that he will be entitled to the full amount of compensation available from Victims Services. He undertook to the Court and the defendants to 'pay all the rent owing to date'.
Mrs Boscolo said that her son would receive $50,000, which could be used to meet the undertaking and that in the circumstances, the stay would be granted.
I am satisfied that the stay must be refused. The position is that there is no issue between the parties that the lease expired in January. Whatever might have been the position about the proceedings before the Tribunal, which Hoeben J found had involved no procedural unfairness, what has happened since then must also be considered. Not only was there unpaid rent at the time of the proceedings before the Tribunal, no rent has been paid since February. Despite the undertaking proffered by Mr Boscolo, no steps have been taken to resume paying rent, or to pay outstanding rent.
Mr Boscolo has no legal basis for his continuing occupation of the premises. That he has been injured in the circumstances he described is very regrettable, but places no legal or moral obligation upon the defendants to provide him with free accommodation.
Mr Boscolo was heard by Garling J on his stay application. His Honour declined to exercise the Court's discretion in his favour, being satisfied that no basis had been established on the evidence, for its exercise in his favour. The evidence and submissions advanced on the further application for a stay, which I later heard, discloses no different position.
In exercising the Court's discretion, the requirements of s 56 of the Civil Procedure Act 2005 must be born in mind. It provides:
"56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(3A) A party to a civil dispute or civil proceedings is under a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of Part 2A (if any) that are applicable to the dispute or proceedings in a way that is consistent with the overriding purpose.
(4) Each of the following persons must not, by their conduct, cause a party to a civil dispute or civil proceedings to be put in breach of a duty identified in subsection (3) or (3A):
(a) any solicitor or barrister representing the party in the dispute or proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3), (3A) or (4) in exercising a discretion with respect to costs.
(6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person:
(a) provides financial assistance or other assistance to any party to the proceedings, and
(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.
Note. Examples of persons who may have a relevant interest are insurers and persons who fund litigation.
(7) In this section:
party to a civil dispute means a person who is involved in the dispute."
Section 58(2) provides:
"(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case."
In this case, it is apparent that Mr Boscolo's further application for a stay is not consistent with what is intended by s 56. His further application for a stay advanced no fresh basis upon which the stay sought might be considered. Dissatisfaction with Garling J's decision, is not a basis upon which a further stay application may be pressed. Mr Boscolo has been given every reasonable opportunity to advance his claim for a stay. The pursuit of any further such application would involve an obvious abuse of the Court's process.
In the circumstances, I am satisfied that while Mr Boscolo is certainly entitled to pursue his application for leave to appeal Hoeben J's judgment, as a matter of justice, he must be restrained from making further applications of this kind, without prior leave of a judge of this Court.
The usual order as to costs is that they should follow the event. Such an order must be made in this case.
Orders
For the reasons given, I make the following orders:
1. Mr Boscolo's motion filed on 6 December 2011 is dismissed.
2. Apart from any application for leave to appeal, Mr Boscolo may not file or serve any further applications in respect of the January 2011 decision of the Consumer Trader and Tenancy Tribunal, without prior leave of a judge of this Court.
3. Mr Boscolo is to pay the second and third defendants' costs of the motion, if any.
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I Certify that this and the ............
preceding pages are a true copy
of the reasons for judgment herein
of the Honourable Justice Schmidt
Date .......................................
Associate.................................
Decision last updated: 15 December 2011
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