Boscolo v Consumer Trader and Tenancy Tribunal
[2011] NSWSC 1628
•07 December 2011
Supreme Court
New South Wales
Medium Neutral Citation: Boscolo v Consumer Trader and Tenancy Tribunal [2011] NSWSC 1628 Hearing dates: 05/12/2011, 07/12/2011 Decision date: 07 December 2011 Jurisdiction: Common Law Before: Garling J Decision: 1. Plaintiff's motion filed 5/12/2011 dismissed.
2. Plaintiff to pay the defendant's costs, if any, of that dismissal.
Catchwords: PRACTICE AND PROCEDURE - Motion seeking stay of orders of Consumer Trader and Tenancy Tribunal - Notice of Intention to Appeal filed for Supreme Court decision not to quash orders of CTTT - Grant of stay of execution of an order pending the hearing for leave to appeal or of an appeal is a discretional grant of relief - Not in the interests of justice that the stay ought to be granted - Residential tenancy agreement expired - Landlords seek possession - Significant arrears of rental payments - Tenant on notice to fine alternative accommodation for at least 10 months. Unpersuaded that grounds of appeal are of substance or likely to succeed - stay refused. Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001
Supreme Court Act 1970Cases Cited: Boscolo v Consumer Trader and Tenancy Tribunal [2011] NSWSC 1402 Category: Interlocutory applications Parties: Mario Sylvio Boscolo (P)
Consumer Trader and Tenancy Tribunal (1D)
Cheung Sing Lai (2D)
Jenny Chow (3D)Representation: Sylvia Boscolo (by leave (P)
No appearance (1D)
In person (2D)
In person (3D)
File Number(s): 2011/190879 Publication restriction: Nil
EX TEMPORE Judgment
On 5 December 2011, the plaintiff filed a notice of motion seeking a stay of the orders of the Consumer Trader and Tenancy Tribunal of 11 January 2011. In the course of the duty list on that day, I ordered that the time for service of the motion be abridged to 12pm, 6 December 2011 and that the motion be returnable before me on 7 December 2011.
When the matter was called, on 7 December 2011, Mr Boscolo did not attend personally but his mother, Sylvia Boscolo sought, and was granted leave, to appear for him.
The application for stay is made because a notice of intention to appeal has been filed with respect to a decision of Hoeben J of this Court delivered on 21 November 2011.
In order to understand the application for stay, it is necessary that a little background be sketched.
Mr Boscolo, the plaintiff, is a tenant who lives in premises that are owned by the defendants, Mr Cheung Sing Lai and Ms Jenny Chow. The lease, pursuant to which Mr Boscolo lived in the premises of the defendants, required him to pay rent. It expired on 22 January 2011.
Consumer, Trader and Tenancy Tribunal Hearing
On Tuesday 11 January 2011, there were proceedings before the Consumer Trader and Tenancy Tribunal between the defendants, to whom I shall refer as the landlords, and Mr Boscolo in which the landlords sought orders that the residential tenancy agreement be terminated, possession of the premises be given to the landlords, a daily occupation fee be paid, and that the rental arrears be paid immediately.
On that day, according to the transcript of the proceedings, the landlords' agent, Ms Mandy Huang, appeared and was sworn in. As well, Mrs Sylvia Boscolo appeared on behalf of her son and was also sworn in.
The Tribunal member then heard various factual accounts from Ms Huang and Mrs Boscolo. As far as I can see, the fact that Mr Boscolo was in arrears with his rent was accepted by Mrs Boscolo. According to the transcript she said that she was not denying that her son was in arrears in rent and that the arrears had been continuing for a reasonably lengthy period of time.
Mrs Boscolo made an offer in the Tribunal to pay $1,000 immediately, because she had it with her, and to pay the balance of the arrears by the end of that day. She offered an assurance to the Tribunal that her son would bring the rent up-to-date by the end of that day.
Although that offer was made and is recorded in the evidence, the landlord's agent said that notwithstanding that offer the landlords wished to terminate the lease and did not want it to continue. The landlords' agent pointed out that the lease concluded, in any event, on 22 January 2011.
Mrs Boscolo made submissions and put arguments to the Tribunal about the fact that requiring her son and her to move out by the end of the lease would lead to hardship. She informed the Tribunal that she and her son would endeavour to find alternative premises by the end of the lease and pointed out that she was feeling under a good deal of stress.
The Tribunal member determined that she would make the following orders:
(1) That the residential tenancy agreement between the landlords and Mr Boscolo "...is terminated. Possession to be given to the landlord on 14 January [2011] ."
(2) The tenant shall pay the landlords a daily occupation fee at the rate of $60 per day from the date of 12 January 2011 to the date possession is given.
(3) The tenant is to pay the landlords the sum of $2,500 immediately.
An application was then made to the Tribunal by Mrs Boscolo for a re-hearing of the matter and a stay of the Tribunal's orders was given while that application for a re-hearing was dealt with. On 31 January 2011 the Tribunal determined that the application for a re-hearing would not be granted and the stay order was subsequently lifted.
Supreme Court Proceedings
On 10 June 2011, a summons was filed in this Court seeking to challenge the determination of the Consumer Trader and Tenancy Tribunal. An amended summons was filed on 5 August 2011. That summons sought the following orders:
"1. The Plaintiff seeks an order in the nature of certiorari quashing the decision of the Consumer Trader & Tenancy Tribunal made at Sydney on 11 June 2011 at Sydney pursuant to s 65 of the Consumer Trader and Tenancy Tribunal Act 2001 .
2. The plaintiff seeks an order in the nature of mandamus that the Consumer Trader and Tenancy Tribunal hear and determine the plaintiff's claim on the basis the Plaintiff has been denied procedural fairness."
That summons came before the Court on a number of occasions as the parties waited for the transcript of the proceedings in the Tribunal to be made available. Ultimately the transcript was made available and on Friday 18 November 2011, the matter was listed for a hearing.
I observe from the Court file that no orders were made for the filing of any evidence by either party. This no doubt is because the jurisdiction of this Court which was invoked was its supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970, and what was relevant to a hearing when the Court chose to exercise that discretion was the record of the Tribunal below, which was constituted by the transcript and the orders which the Tribunal made. Those documents were before the Court on 18 November 2011, when there was a hearing.
On that day the plaintiff was not present. His mother, Mrs Sylvia Boscolo, attended and counsel, Mr Steirn, appeared on behalf of the plaintiff seeking an adjournment on the basis of the ill health of the plaintiff. Hoeben J rejected the application for an adjournment on the basis that the issue before the Court was one that did not require the plaintiff's presence and that the plaintiff's mother, who had been present in the Tribunal's hearing, was available to give instructions to counsel if required.
His Honour also formed the view that the issue before the Court was a comparatively narrow one, namely, whether the plaintiff had been provided with procedural fairness on 11 January 2011, and that it was appropriate for that issue to be determined on the basis of the transcript of the Tribunal's hearing.
His Honour made orders on 18 November 2011, to the effect that the plaintiff's summons was dismissed, the plaintiff was to pay the defendant's costs and his Honour made some subsequent orders about stays, to which I will come. On 21 November 2011 his Honour published his reasons: Boscolo v Consumer Trader and Tenancy Tribunal [2011] NSWSC 1402.
In short, it appears from those reasons that his Honour was not persuaded that there had been any denial of procedural fairness before the Tribunal. He was not persuaded that there was any basis upon which this Court ought intervene to quash the orders of the Tribunal.
Grounds for a stay
I am informed by Mrs Boscolo and accept that today, 7 November 2011, a notice of intention to appeal has been filed. She informs me that there are a number of bases upon which that appeal will be pursued. The first basis is that the application for adjournment made to Hoeben J on 18 November 2011 was wrongly refused.
The second basis is that the plaintiff, Mr Boscolo, should have been allowed to file such evidence as he wished on affidavit, and to have that evidence taken into account.
The third basis is that at the hearing on 18 November 2011 the plaintiff was denied procedural fairness because he was not allowed to be present and he was not allowed to present evidence or make submissions.
The fourth basis which is advanced is that in the course of various directions hearings, documents were handed to the Court by the landlords, who are the defendants in the proceedings, copies of which were never provided to the plaintiff and copies of which remain on the file, and must have been taken into account by Hoeben J, although the transcript of the proceedings before him and contained in his judgment do not make any specific reference to any such unidentified documents.
Mrs Boscolo submits to me that on one or other or all of these four grounds, I should find that the application for leave to appeal or the plaintiff's substantive appeal, depending on how he proceeds, are of sufficient merit to justify the grant of a stay.
The landlords, Mr Lai and Mrs Chow, who have appeared before me in person as they did before Hoeben J, oppose the grant of any stay. They have provided to me a document, Exhibit 1, which is from their letting agent and attests to the fact that the rental owing as at 6 December 2011 is $18,300. Mrs Boscolo tells me she is not in a position to agree as to whether that sum itself is owing because she has not seen all of the relevant ledgers, but tells me she accepts that a substantial sum of rent is owing.
The letter from the agent also notes that there has been rent paid only up until 5 February 2011, and nothing since. I do not understand Mrs Boscolo to dispute that proposition.
As well, the landlords handed up written submissions which go over two pages. In short, the landlords submit that there is inadequate strength is any of the grounds of appeal to permit the Court, exercising its discretion to grant the application for a stay. The submissions are expressed in language, which might be regarded as inappropriate, and I do not have regard to those submissions insofar as they are couched in those extreme terms.
Should a stay be granted
The grant of a stay of execution of an order pending the hearing of an application for leave to appeal, or of an appeal, is a discretionary grant of relief. The evidence in support of the application for a stay is that set out in the affidavit of Mr Mario Boscolo, the plaintiff, sworn 7 December 2011. He rehearses the history of the proceedings and asserts, without descending into any relevant detail, upon the basis of legal advice, which he apparently has received, that he may have been denied natural justice and procedural fairness in the proceedings before Hoeben J.
As well, he continues to assert that he was denied procedural fairness and a reasonable opportunity to be heard before the Consumer Trader and Tenancy Tribunal on 11 January 2011.
In short, the affidavit makes assertions in terms which reflected the arguments which Mrs Boscolo has put forward today as to the basis for the appeal. He notes that he has made a written undertaking to the landlords, or at least their agent, that he will pay the outstanding rental arrears from an award for compensation which he anticipates he will receive in accordance with the victims' compensation legislation. He points out that he is legally represented in those proceedings and is currently undergoing medical treatment.
He does not indicate when it might be that those proceedings will be finalised. He does not indicate when it might be that he will make any payment with respect to the arrears of rent.
Before proceeding to determine the question of whether I should order a stay, I should note that when Hoeben J made orders dismissing the plaintiff's summons, he also made orders with respect to staying the Tribunal's orders. His Honour ordered on 21 November 2011 that:
"(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."
It is not clear to me why the present application has not been made to Hoeben J, as he directed, but nevertheless, as I am the duty judge I have heard it. In those circumstances it would be a waste of court resources to now refer the matter to Hoeben J.
As I have said, this is a question of how I should exercise my discretion. I have had careful regard to the transcript of proceedings before the Consumer Trader and Tenancy Tribunal. I have also had careful regard to the transcript of the proceedings before Hoeben J and I have read carefully his Honour's decision. I note that his Honour exercised his discretion to grant a stay of the orders of the Consumer Trader and Tenancy Tribunal for a period of two weeks from the date of his orders.
The fact remains that even as at today the position is that the residential tenancy agreement has expired by effluxion of time. The landlords are desirous of obtaining possession of their premises. The rental and/or occupation fee is significantly in arrears and the undertaking or promise by the plaintiff to bring those arrears up-to-date is one that is not anchored completely in point of time.
The grant of a stay is not an automatic grant of relief. Stays are to be granted when the Court is satisfied that it is in the interests of justice in the proceedings that the stay ought be granted. Notwithstanding the earnest arguments that Mrs Boscolo has put to the Court, I am not satisfied that it is necessary in the interests of justice to grant the stay sought.
I have in the course of these reasons, articulated the principal facts that lead me to that conclusion. The residential tenancy agreement has expired through effluxion of time, Mr Boscolo has been on notice that he needs to find alternative accommodation and make arrangements for alternative accommodation at least since January 2011, if not before. It does not appear to me he has made any efforts to obtain such alternative accommodation or to remedy the default in payment of rent.
Whilst I am not prepared to summarily dismiss all of the grounds of the appeal on which the plaintiff relies, at least in outline to me today, I am far from persuaded that these grounds are of substance and I am far from persuaded that it is likely that the plaintiff will succeed in any application either for leave to appeal or on appeal.
In all of those circumstances I am not satisfied that the interests of justice require me to make the orders sought. In fact, I am satisfied that the interests of justice are better served by refusing to make the order for a stay of the orders of the Consumer Trader and Tenancy Tribunal of 11 January 2011.
Accordingly, I dismiss the motion of the plaintiff filed on Monday 5 December 2011 and I order the plaintiff to pay the defendants' costs, if any, of that dismissal.
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Decision last updated: 10 January 2012
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