Chester v Prestige Promotions Pty Limited (No.2)

[2014] NSWSC 1103

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Chester v Prestige Promotions Pty Limited (No.2) [2014] NSWSC 1103

Hearing dates:

31/07/2014

Decision date:

31 July 2014

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Motion filed 29 July 2014 is dismissed.

(2) The plaintiffs are to pay the defendant's costs of the Motion.

Catchwords:

PROCEDURE - civil - judgments and orders - orders made staying execution of Writ of Possession - orders conditional upon due and prompt payment of rental and other outgoings - rental not paid - explanations proffered - interests of justice

Category:

Procedural and other rulings

Parties:

Jerome Chester (P1)
Leah Chester (P2)
Prestige Promotions Pty Limited (D)

Representation:

Counsel:
J Chester (P) (for his parents)
Ms Vincent (D)
Solicitors:
Jemmeson & Fisher (D)

File Number(s):

2014/218498

EX TEMPORE Judgment

1. On Monday 28 July 2014, the Court made orders which restrained the defendant in these proceedings, Prestige Promotions Pty Limited or its agent, from taking any step or steps to enforce or otherwise obtain possession of the premises in which the plaintiffs reside. It also stayed an execution of a Writ of Possession which had been issued by the Civil and Administrative Tribunal of New South Wales ("the Tribunal").

1. In granting that stay, the Court determined that the orders be made on condition that the plaintiffs, Mr and Mrs Chester, pay all rental and other outgoings as and when they fell due and in a timely manner. After notice of those orders was served on the defendant, the defendant filed a motion on 29 July 2014 seeking to set aside the orders on the basis that the condition as to due and prompt payment had not been met, and that there continued to be arrears of rent.

1. At a hearing of the Motion on 30 July 2014, it became apparent that Mr and Mrs Chester had just learnt for the first time that a payment of rent, which was due to be paid on 26 June 2014 and which they understood had been paid, had not in fact been paid. It became apparent to the Court that the payment of rent, which was due on 26 July 2014, had not been paid. An explanation for this was proffered.

1. Having taken evidence and heard submissions, I determined that it was in the interests of justice, having regard to the lengthy history of the occupation of these premises by Mr and Mrs Chester (in excess of 20 years), the existence of a summons seeking leave to appeal in this Court against the orders of the Tribunal, and a very preliminary view, which I had formed, that I was unable to say that the issues to be determined on the appeal were wholly unarguable, I formed the view it was in the interests of justice that Mr and Mrs Chester should have a further limited period in which to rectify the issue relating to the outstanding rent.

1. When the matter was listed today, I was informed by the solicitor for the defendant, who is the landlord, that all outstanding moneys had been received into the landlord's agent's account and, accordingly, such arrears of rent as did exist have been completely paid.

1. It follows that I am satisfied that the condition which was imposed by the Court on Monday 28 July has been satisfied. Not surprisingly in those circumstances the defendant properly does not seek to proceed further with the Motion and the Motion will shortly be dismissed.

1. However, each party seek to have their costs paid by the other party on this interlocutory Motion. There is no doubt that in granting the stay on Monday 28 July 2014, the Court was acting on the basis of an assurance, which had been given by the representative of Mr and Mrs Chester, that the rent was paid. That assurance was in fact erroneous; whether it was deliberately so is something I do not need to, and I do not, determine.

1. However, the commencement of the proceedings was in the circumstances entirely reasonable, and the defendant has since then acted entirely reasonably in discontinuing the proceedings on the payment of the outstanding rent.

1. The plaintiffs have had the benefit of a good deal with latitude from the Court with respect to their obligations, and it seems to me that the interests of justice require, notwithstanding that I will shortly make an order dismissing the Notice of Motion, that the plaintiffs pay the defendant's costs of the Notice of Motion.

1. I make the following orders:

(1)   Motion filed 29 July 2014 is dismissed.

(2)   The plaintiffs are to pay the defendant's costs of the Motion.

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Amendments

19 November 2014 - Incorrect firm of solicitors listed

Amended paragraphs: Coversheet

Decision last updated: 19 November 2014