Capon v Snyman

Court of Appeal

New South Wales

Case Title:

Capon v Snyman

Medium Neutral Citation:

[2014] NSWCA 274

Hearing Date(s):

7 August 2014

Decision Date:

07 August 2014

Before:

Ward JA

Decision:

Application for stay of execution of writ of possession dismissed. Costs reserved.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - stays - where applicant seeking stay prior to hearing of appeal - whether balance of convenience favoured stay - whether there was a serious question to be tried

Legislation Cited:

Residential Tenancies Act 2010 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:

Boutros v Nationwide Capital Pty Ltd [2013] NSWCA 246
House v The King [1936] HCA 40; (1936) 55 CLR 499

Category:

Interlocutory applications

Parties:

Nadia Marie Capon (Applicant)
Carl Snyman (First Respondent)
Stuart Orr (Second Respondent)

Representation

- Counsel:

Counsel:
Ms G Mahoney (Respondents)

- Solicitors:

Solicitors:
Nadia Capon (Appearing in person)
McLachlan Thorpe Partners (Respondents)

File Number(s):

2014/00199664

Decision Under Appeal

- Before:

Bellew J

- Date of Decision: 

20 June 2014

- Court File Number(s):

2014/00156089

Publication Restriction:

Nil

EX TEMPORE JUDGMENT

1. WARD JA: This is an urgent application by Ms Capon that has been referred to me by the Registrar of the Court of Appeal. Ms Capon is seeking a stay of execution of a writ of possession in relation to residential premises she is currently occupying. Part of the background of the matter is set out in an earlier ex tempore judgment of McCallum J on 23 May 2014. The application made by Ms Capon was oral.

2. The chronology, as I understand it, briefly is this. Ms Capon entered into a 6 month Residential Tenancy Agreement with Dr Snyman in respect of the premises in question. Dr Snyman was himself a tenant under a tenancy agreement with the owner of the property, Ms Hartley. A notice of termination was served on Ms Capon in January this year requiring vacant possession on 14 February 2014. It was asserted that Ms Capon was in arrears of rent. That notice of termination, Ms Capon has informed me, was set aside on an application by Dr Snyman on 3 April 2014. A further notice of termination was served on 3 April 2014, again on the basis of rental arrears, requiring vacant possession on 19 April 2014.

3. Proceedings were then brought by Dr Snyman in the Civil and Administrative Tribunal of New South Wales which I will refer to as NCAT. That application led to orders on 7 May 2014 terminating Ms Capon's Residential Tenancy Agreement for failure to pay rent in accordance with the agreement and for possession of the property to…