Bridgford v Brien

[2017] NSWSC 456

Supreme Court

New South Wales

Medium Neutral Citation:	Bridgford v Brien [2017] NSWSC 456
Hearing dates:	19 April 2017
Date of orders:	19 April 2017
Decision date:	19 April 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) I dissolve the stay ordered on 13 April 2017 of the execution of the warrant for the eviction of Kevin Bridgford and Victoria Bladen; (2) I order that the eviction is not to take place before a period fourteen days from today has expired, being 3 May 2017.
Catchwords:	CIVIL PROCEDURE – stay in place over warrant for eviction of the plaintiffs as tenants – stay granted ex parte – whether the stay ought to be continued – whether the defendants suffer hardship by continuation of the stay – where the rental property is on the market for sale – where the plaintiffs are in occupation rent-free – consideration of where the balance of convenience lies – stay dissolved – held that eviction to take place not before a fortnight
Legislation Cited:	Residential Tenancies Act 2010 (NSW)
Category:	Procedural and other rulings
Parties:	Kevin Bridgford and Victoria Bladen (Plaintiffs) Greg and Kay Brien (Defendants)
Representation:	K. Bridgford (plaintiff in person) A. Haas (agent for the defendants)
File Number(s):	2017/112348
Publication restriction:	Nil

ex tempore Judgment - revised

1. The plaintiffs seek judicial review of a decision made on 10 March 2017 in the Appeal Panel of the Civil and Administrative Tribunal by Principal Member Harrowell. The proceedings have been commenced by summons filed in the registry on 13 April 2017.

2. The matter came before me on that day as duty judge to consider an application for a stay of a warrant that had been issued pursuant to orders of the Tribunal to evict the plaintiffs from the premises they rented under a residential tenancy lease from the defendants.

3. It is unnecessary to go into the detail of the dispute in the Tribunal between the parties. However, that dispute appeared to have been settled or resolved by orders made on 2 November 2016 in the Tribunal's Commercial and Consumer Division at Queanbeyan.

4. One of the orders was that the residential tenancy would terminate on 31 January 2017, and that the tenants were to reside in the premises from 2 November until that time rent-free.

5. Other orders were made on that day, apparently by the first instance Member in the exercise of her powers under the Residential Tenancies Act 2010 (NSW), substantially for compensation under various heads which totalled about $17,000.

6. The orders for the payment of that compensation provide that it should be paid within seven days, that is, on or before 9 November 2016. It is common ground that there has been a default in compliance with those orders of the Tribunal. No effective step has yet been taken to enforce those monetary orders, apparently because when Mr Bridgford attempted to file the orders in the Local Court, he was unable to provide a residential address for the defendants, and the Court refused to accept his paperwork.

7. The defendants are represented today by Mr Haas by my leave. Mr Haas is a registered real estate agent, and he is the managing agent for the property. The defendants are his clients. I note from Exhibit#1 which he has tendered in support of his application that the stay I granted on 13 April be dissolved, that no residential address for the defendants appears anywhere on it.

8. Mr Bridgford seeks judicial review of Principal Member Harrowell's decision on a number of grounds. Essentially, his case is that the monetary orders were conditions precedent to the agreement of him and his partner to terminate the lease, and that as they were not complied with, no termination was authorised. He says that Principal Member Harrowell's decision to the contrary involved an error of law, in as much as he misconstrued the total effect of all of the orders made on 2 November. He also says that effectively he was denied procedural fairness before the orders were made because he and his partner had requested a hearing in Sydney in person, but the decision was made following a telephone conference only. He also says that the learned Principal Member's decision is vitiated by a breach of his statutory obligations to give adequate reasons for the decision.

9. The stay I granted on 13 April was granted in the absence of the defendants. I brought the matter back before me today in order that the defendants would have an opportunity of arguing why the stay should not be continued.

10. As I have said, they acknowledge that they have not complied with the balance of the orders of 2 November, and I might say that is not a strong start to their case. They however put before the Court, as part of Exhibit#1, evidence which I accept shows that they are in circumstances of hardship.

11. The material generally indicates that they are pensioners, and that Mr Brien occasionally has casual work as a teacher. The documents also indicate that it has been necessary for them to enter into an arrangement to temporarily reduce their mortgage repayments with the mortgagee of the property on the grounds of hardship. The correspondence from the mortgagee indicates that the current arrangement is a special exception and will not necessarily be repeated should the mortgagors request relief on grounds of hardship again. From reading the correspondence, I can see that there is currently a low repayment rate of $400 per month which from 3 June 2017 will jump to $2,054 per month.

12. I also accept, and Mr Bridgford acknowledges, that leaving aside the agreed rent free period, the current arrears of rent are $9,606.55, although I acknowledge that I have accepted evidence that Mr Bridgford paid the sum of $700 this morning as a licence or occupation fee in accordance with my orders of 13 April 2017. That payment is in respect of a period of two weeks. I accepted his submission that the licence fee should be $350 per week on Thursday.

13. I also accept what Mr Haas says about the property being on the market for sale, and I can well accept that in the ordinary course of things it is somewhat more difficult to sell property which has a tenant than property in respect of which the purchaser can obtain vacant possession on completion.

14. All of these matters, I think, do indicate that there is some hardship on the part of the defendants, and indicate that they have a real reason for wanting termination.

15. I also record that the defendants through Mr Haas have indicated to the Court that the balance of moneys due under the orders of the 2 November 2016 will be paid upon completion. That of itself is not entirely satisfactory, but I am prepared to accept that as a serious indication to the Court that they will honour their legal obligations under those orders.

16. There was a further hearing on 4 April in the Appeal Panel of the Tribunal dealing with the outstanding matters in the plaintiff's appeal, including the argument whether all of the orders made on 2 November were in fact conditions precedent to the agreement to terminate, and that decision is reserved. The Tribunal attempts to decide appeal matters, I am told in the evidence I have before me, within three months.

17. It is obvious, of course, that the natural consequence of an acceptance of Mr Bridgford's argument about all of the orders being conditions precedent to the promise to vacate is that, if the conditions do not materialise, as he says they have not, then in fact he and his partner have been liable for the agreed rent since 2 November 2016, subject to any application in the Tribunal to reduce the rent on the grounds that Mr Bridgford has indicated in his affidavit and in his argument before me.

18. The following matters seem to me to be important. First, I am not satisfied, as I said on 13 April, that the plaintiffs have a strong case for judicial review of Principal Member Harrowell's decision. It seems to me that the decision they complain about did involve a discretionary aspect in terms of whether or not the stay should be continued. To the extent to which they challenge his decision that only the rent free period was a condition of their agreement to terminate, I am not satisfied that the grounds actually advanced can be taken as fairly support the contrary contention, especially in circumstances where Mr Bridgford has submitted before me that the other orders for compensation were made separately by the Tribunal Member in the exercise of her powers.

19. Although I thought previously that the justice of the case favoured a stay, largely because the defendants had not complied with their obligations under the orders of 2 November 2016, looking at all of the circumstances now before me, I have formed a contrary view.

20. Now, it seems to me that, although there is a chance that the plaintiffs will be prejudiced if this Court determined this application against them, there is equally hardship on the other side of the record, particularly as Mr Bridgford and his partner have been living on the premises rent free since November 2016, except for the moneys paid pursuant to my orders.

21. I am also aware that, in the case of a periodic tenancy under the Residential Tenancies Act2010 (NSW), a landlord is entitled to possession on giving the tenants ninety days' notice. Now, it is true that such a notice has not been given, but I think I can take that period into account in considering that the plaintiffs have been in residence at the premises rent-free since November, and weigh that as a factor in deciding where the balance of convenience lies.

22. I am also of the view that the defendants have persuaded me that they have a legitimate interest in obtaining possession of the premises in order to facilitate its sale and to facilitate the payment of moneys due to the plaintiffs after deduction of the arrears of rent and other expenses that they have incurred in attempting to seek possession.

23. I think however that, given the orders I made and the compliance of them by Mr Bridgford, that the sheriff should be enjoined from enforcing the warrant until the expiration of a period of two weeks to cover the occupation fee paid by the plaintiffs today. That will also give them the opportunity to vacate the premises rather than being forcibly evicted by the sheriff.

24. Before pronouncing orders, I will address some further submissions made by Mr Bridgford just now. He pointed out that he contests the claim of hardship on the part of the defendants because they had been overseas and they had travelled to Queensland.

25. I accept what is said that the journey overseas was in relation to their calling as missionaries, and that the expenses of that trip were paid for by the church. I also accept what Mr Haas says, that they had to go to Queensland for a family emergency.

26. Mr Bridgford also said on his calculations he thought that the defendant’s would be better off with the rent. Well, I observe the rent has not been paid for some months. But it is not for this Court, or, with respect, for the tenants, to tell property owners what they should do with their property. And I do not think that those arguments change the decision I have indicated and the reasons I have given.

27. For these reasons I make the following orders:

1. I dissolve the stay ordered on 13 April 2017 of the execution of the warrant for the eviction of Kevin Bridgford and Victoria Bladen;

2. I order that the eviction is not to take place before a period fourteen days from today has expired, being 3 May 2017.

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Decision last updated: 20 April 2017