Chan v Cheng

[2004] NSWCA 288

CITATION:	Chan v Cheng & Ors [2004] NSWCA 288
HEARING DATE(S):	23 August 2004
JUDGMENT DATE:	23 August 2004
JUDGMENT OF:	Giles JA
DECISION:	Notice of Motion filed 20 August 2004 dismissed.
CATCHWORDS:	Application for stay - effectively stay of order for possession - consideration of merits of proposed appeal - no substance in appeal - stay refused.
PARTIES :	Yau Hang Chan - Claimant Wei Jie Chan - First Opponent Hui Fang Wang - Second Opponent Consumer, Trader and Tenancy Tribunal - Third Opponent
FILE NUMBER(S):	CA 40685/04
COUNSEL:	Claimant in person Second Opponent in person with Hao Chan (son) also to speak for first opponent I V Knight, Crown Solicitor - Third Opponent - submitting appearance
SOLICITORS:

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	10779/04
LOWER COURT JUDICIAL OFFICER :	Dunford J

CA 40685/04
SC 10779/04

GILES JA

Monday 23 August 2004

CHAN v CHEN & ORS

Judgment

1 HIS HONOUR: This is an application for an order staying what is described as order 3 made by Dunford J on 13 August 2004. The application is made in an appeal in which the claimant appeals from that order.

2 The order was in terms confirmation of orders of the Consumer Trader and Tenancy Tribunal which terminated a tenancy agreement between the claimant and the opponents and ordered that possession of the premises the subject of the tenancy agreement be given by the claimant to the opponents. Effectively, the issue is one of entitlement to possession of the premises and the application for a stay is an application for a stay of an order for possession. As well as confirming the order of the Tribunal, Dunford J ordered that a warrant for possession could issue forthwith but should not be executed before Friday next.

3 The background may be briefly stated.

4 The claimant and the opponents entered into a residential tenancy agreement in respect of a room in a building at Croydon, for the term of one year commencing on 8 February 2003 and ending on 7 February 2004. The tenancy could be brought to an end in accordance with the Residential Tenancies Act 1987, relevantly requiring the service by the opponents on the claimant of a notice of termination and then proceedings for termination and possession in the Tribunal.

5 A notice of termination was provided, and I use that word intending not to trespass upon one of the claimant’s submissions, on 4 December 2003, and subsequently the opponents brought proceedings in the Tribunal. The Tribunal made the orders to which I have referred on 8 March 2004.

6 Under s 67 of the Consumer, Trader and Tenancy Tribunal Act 1987 an appeal to the Supreme Court lay with respect to a matter of law, and the claimant appealed. His appeal was heard by Dunford J, who on 13 August 2004 dismissed it, confirmed the order of the Tribunal and made the order in relation to a warrant for possession and some other ancillary orders.

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