Di Liristi v Matautia Developments Pty Ltd - [2021] NSWCA 163

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163
Hearing dates: 23 and 27 July 2021
Date of orders: 27 July 2021
Decision date: 27 July 2021
Before: Brereton JA
Decision:
Upon the applicant, Antonio Di Liristi, giving to the Court the usual undertaking as to damages and further undertaking that he will prosecute the appeal expeditiously, and upon condition that by 10 August 2021, the applicant execute and deliver to the Registrar a general security deed in the nature of a fixed and floating security over all his circulating and non-circulating assets, including motor vehicles and livestock, as security for the judgment under appeal, such security to be in a form agreed with the respondent, or if not agreed then as settled by the registrar, the Court orders that:
(1) Execution on and proceedings under orders 1 and 2 made on 23 June 2021 in the Common Law Division be stayed until the hearing of the appeal or earlier further order;
(2) Until the hearing of the appeal or earlier further order, the respondent be restrained from prosecuting any application for an order for possession in proceedings in the New South Wales Civil and Administrative Tribunal, including the transferred proceeding file number RT21/29690;
(3) The hearing of the appeal be expedited;
(4) The respondent by 2 August 2021 deliver to the appellant a draft security deed for the purpose of the condition referred to above;
(5) There be liberty to apply by arrangement with my associate in the event of any difficulty arising in settling the terms of the security deed;
(6) There be liberty to apply by arrangement with my associate for dissolution of the stay in the event that the security is not given; and
(7) Costs of the application for a stay be costs in the appeal.

Catchwords:
CIVIL PROCEDURE – Court of Appeal – Stay pending appeal – Judgment for monetary sum – Orders transferring proceedings for possession to NCAT – Whether arguable grounds of appeal – Whether orders already implemented amenable to stay – Whether failure to grant stay would render appeal nugatory – Monetary judgment stayed – Anti-suit injunction granted restraining prosecution of proceedings in NCAT – Conditional upon undertakings as to damages and expedition, and provision of security
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Termination – By landlord – Prohibition on recovery of possession – Whether prohibition deprives court of jurisdiction or is merely a defence
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – NSW Civil and Administrative Tribunal – Jurisdiction and powers – NCAT proceedings commenced by respondent after appeal filed but prior to applicant notifying NCAT of appeal – Whether NCAT retains jurisdiction – Whether Court of Appeal can stay NCAT proceedings

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), Sch 4 cll 5, 6
Landlord and Tenant Act 1899 (NSW), s 2A
Residential Tenancies Act 1987 (NSW), s 71
Residential…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCA 163
Decision Date: 27 July 2021

CaseChat Overview and Summary

In *Di Liristi v Matautia Developments Pty Ltd*, the Court of Appeal considered an application by the applicant, Antonio Di Liristi, for a stay of execution and an anti-suit injunction. The dispute arose from a monetary judgment granted against the applicant, which included orders transferring proceedings for possession to the NSW Civil and Administrative Tribunal (NCAT). The applicant sought to prevent the respondent from pursuing possession orders in NCAT pending the determination of his appeal against the primary judgment.

The Court was required to determine whether there were arguable grounds of appeal, whether orders already implemented could be stayed, and whether a failure to grant a stay would render the appeal nugatory. A further issue concerned the jurisdiction of NCAT and the Court of Appeal's power to stay NCAT proceedings, particularly in circumstances where NCAT proceedings were commenced after the appeal was filed but before the applicant notified NCAT of the appeal. The Court also considered whether the prohibition on recovery of possession under the *Residential Tenancies Act 2010* (NSW) deprived the court of jurisdiction or merely provided a defence.

Brereton JA granted the stay of execution on the monetary judgment and issued an anti-suit injunction restraining the respondent from prosecuting proceedings for possession in NCAT. These orders were conditional upon the applicant providing usual undertakings as to damages and prosecuting the appeal expeditiously, and crucially, upon the applicant providing a general security deed over his assets as security for the judgment under appeal by a specified date. The Court also ordered that the hearing of the appeal be expedited and that costs of the stay application be costs in the appeal.

Orders

Orders of the court

Upon the applicant, Antonio Di Liristi, giving to the Court the usual undertaking as to damages and further undertaking that he will prosecute the appeal expeditiously, and upon condition that by 10 August 2021, the applicant execute and deliver to the Registrar a general security deed in the nature of a fixed and floating security over all his circulating and non-circulating assets, including motor vehicles and livestock, as security for the judgment under appeal, such security to be in a form agreed with the respondent, or if not agreed then as settled by the registrar, the Court orders that:

(1) Execution on and proceedings under orders 1 and 2 made on 23 June 2021 in the Common Law Division be stayed until the hearing of the appeal or earlier further order;

(2) Until the hearing of the appeal or earlier further order, the respondent be restrained from prosecuting any application for an order for possession in proceedings in the New South Wales Civil and Administrative Tribunal, including the transferred proceeding file number RT21/29690;

(3) The hearing of the appeal be expedited;

(4) The respondent by 2 August 2021 deliver to the appellant a draft security deed for the purpose of the condition referred to above;

(5) There be liberty to apply by arrangement with my associate in the event of any difficulty arising in settling the terms of the security deed;

(6) There be liberty to apply by arrangement with my associate for dissolution of the stay in the event that the security is not given; and

(7) Costs of the application for a stay be costs in the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163
Hearing dates:	23 and 27 July 2021
Date of orders:	27 July 2021
Decision date:	27 July 2021
Before:	Brereton JA
Decision:	Upon the applicant, Antonio Di Liristi, giving to the Court the usual undertaking as to damages and further undertaking that he will prosecute the appeal expeditiously, and upon condition that by 10 August 2021, the applicant execute and deliver to the Registrar a general security deed in the nature of a fixed and floating security over all his circulating and non-circulating assets, including motor vehicles and livestock, as security for the judgment under appeal, such security to be in a form agreed with the respondent, or if not agreed then as settled by the registrar, the Court orders that: (1) Execution on and proceedings under orders 1 and 2 made on 23 June 2021 in the Common Law Division be stayed until the hearing of the appeal or earlier further order; (2) Until the hearing of the appeal or earlier further order, the respondent be restrained from prosecuting any application for an order for possession in proceedings in the New South Wales Civil and Administrative Tribunal, including the transferred proceeding file number RT21/29690; (3) The hearing of the appeal be expedited; (4) The respondent by 2 August 2021 deliver to the appellant a draft security deed for the purpose of the condition referred to above; (5) There be liberty to apply by arrangement with my associate in the event of any difficulty arising in settling the terms of the security deed; (6) There be liberty to apply by arrangement with my associate for dissolution of the stay in the event that the security is not given; and (7) Costs of the application for a stay be costs in the appeal.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – Stay pending appeal – Judgment for monetary sum – Orders transferring proceedings for possession to NCAT – Whether arguable grounds of appeal – Whether orders already implemented amenable to stay – Whether failure to grant stay would render appeal nugatory – Monetary judgment stayed – Anti-suit injunction granted restraining prosecution of proceedings in NCAT – Conditional upon undertakings as to damages and expedition, and provision of security LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Termination – By landlord – Prohibition on recovery of possession – Whether prohibition deprives court of jurisdiction or is merely a defence LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – NSW Civil and Administrative Tribunal – Jurisdiction and powers – NCAT proceedings commenced by respondent after appeal filed but prior to applicant notifying NCAT of appeal – Whether NCAT retains jurisdiction – Whether Court of Appeal can stay NCAT proceedings
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), Sch 4 cll 5, 6 Landlord and Tenant Act 1899 (NSW), s 2A Residential Tenancies Act 1987 (NSW), s 71 Residential…