Dokas v Gallagher - [2024] NSWCA 223

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dokas v Gallagher [2024] NSWCA 223
Hearing dates: 2 September 2024
Date of orders: 2 September 2024
Decision date: 02 September 2024
Before: Basten AJA
Decision:
(1)   Dismiss the applicants’ notice of motion filed on 16 August 2024 seeking a stay of the orders made by NCAT.
(2)   Direct that the summons seeking leave to appeal be heard on the issue of leave only and listed for hearing on Monday, 23 September 2024.
(3)   Direct that:
(a)   the respondent file and serve any evidence and written submissions on which he seeks to rely by 5pm on Thursday, 12 September 2024;
(b)   the applicants file and serve any submissions in reply by 5pm on Wednesday, 18 September 2024.
(4)   Order that the applicants pay the costs of the notice of motion seeking a stay of the orders of NCAT.

Catchwords:
CIVIL PROCEDURE – appeal from decision of Appeal Panel of NCAT – application for leave to appeal pending – stay of issue of writ of possession sought pending determination of appeal – writ issued and executed before stay sought – stay no longer available

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 14, 83
Uniform Civil Procedure Rules 2005 (NSW), r 36.15

Category: Procedural rulings
Parties: Tobias Lazarus Dokas (First Applicant) (unrepresented)
Lazarakis Dokas (Second Applicant) (unrepresented)
David Gallagher (Respondent)
Representation:
Counsel:
S Foda (Respondent)
Solicitors:
Strata Title Lawyers (Respondent)

File Number(s): 2024/275296
Decision under appeal

Court or tribunal:

Civil and Administrative

Jurisdiction:

Appeal Panel

Citation:

[2024] NSWCATAP 129

Date of Decision:

28 June 2024

Before:

M Harrowell, Deputy President
G Sarginson, Senior Member

File Number(s):

2024/155225

JUDGMENT

BASTEN AJA: On 26 July 2024, the applicants filed a summons seeking leave to appeal from a decision of an Appeal Panel of NCAT handed down on 28 June 2024 rejecting an appeal from a decision terminating a residential tenancy agreement and issuing a writ for possession in favour of the respondent. The return date on the summons was 2 September 2024.
The NCAT proceedings involved the termination by the respondent of the applicants’ residential tenancy agreement for non-payment of rent, and a challenge by the tenants, Tobias Dokas and Lazarakis Dokas, to a notice of increased rent. The latter notice was withdrawn while the proceedings were on foot in NCAT. The applicants needed leave to appeal to this Court pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act).
On 16 August 2024, the applicants filed a notice of motion seeking a stay of “all orders” made by the Appeal Panel on 28 June 2024 pending determination of the appeal. Orders 1 to 3 made by the Appeal Panel extended time to appeal, granted leave to appeal on a limited basis, and dismissed the appeal and are of no present relevance. The substantive issue is directed to order 4, the effect of which was to suspend the order for the issue of a writ…

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.

Continue reading Dokas v Gallagher

Details

AGLC: Dokas v Gallagher [2024] NSWCA 223
Case: [2024] NSWCA 223
Decision Date: 02 September 2024

CaseChat Overview and Summary

The applicants, Dokas and Gallagher, sought a stay of orders made by the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT). This application was made pending the determination of their application for leave to appeal those NCAT orders. However, a writ of possession had already been issued and executed by the respondent before the stay was sought, rendering the primary relief sought by the applicants no longer available.

The central legal issue before the court was whether to grant a stay of the NCAT orders, notwithstanding that the writ of possession had already been executed. This required the court to consider the availability of a stay in circumstances where the relief sought had already been implemented.

Basten AJA dismissed the applicants' notice of motion seeking a stay. His Honour reasoned that the execution of the writ of possession meant that the relief of a stay was no longer available. The court directed that the summons seeking leave to appeal would be heard on the issue of leave only, and set a timetable for the filing of submissions. The applicants were ordered to pay the costs of the notice of motion seeking the stay.

Orders

Orders of the court

(1) Dismiss the applicants’ notice of motion filed on 16 August 2024 seeking a stay of the orders made by NCAT.

(2) Direct that the summons seeking leave to appeal be heard on the issue of leave only and listed for hearing on Monday, 23 September 2024.

(3) Direct that:

(a) the respondent file and serve any evidence and written submissions on which he seeks to rely by 5pm on Thursday, 12 September 2024;

(b) the applicants file and serve any submissions in reply by 5pm on Wednesday, 18 September 2024.

(4) Order that the applicants pay the costs of the notice of motion seeking a stay of the orders of NCAT.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Dokas v Gallagher [2024] NSWCA 223
Hearing dates:	2 September 2024
Date of orders:	2 September 2024
Decision date:	02 September 2024
Before:	Basten AJA
Decision:	(1) Dismiss the applicants’ notice of motion filed on 16 August 2024 seeking a stay of the orders made by NCAT. (2) Direct that the summons seeking leave to appeal be heard on the issue of leave only and listed for hearing on Monday, 23 September 2024. (3) Direct that: (a) the respondent file and serve any evidence and written submissions on which he seeks to rely by 5pm on Thursday, 12 September 2024; (b) the applicants file and serve any submissions in reply by 5pm on Wednesday, 18 September 2024. (4) Order that the applicants pay the costs of the notice of motion seeking a stay of the orders of NCAT.
Catchwords:	CIVIL PROCEDURE – appeal from decision of Appeal Panel of NCAT – application for leave to appeal pending – stay of issue of writ of possession sought pending determination of appeal – writ issued and executed before stay sought – stay no longer available
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 14, 83 Uniform Civil Procedure Rules 2005 (NSW), r 36.15
Category:	Procedural rulings
Parties:	Tobias Lazarus Dokas (First Applicant) (unrepresented) Lazarakis Dokas (Second Applicant) (unrepresented) David Gallagher (Respondent)
Representation:	Counsel: S Foda (Respondent) Solicitors: Strata Title Lawyers (Respondent)
File Number(s):	2024/275296
Decision under appeal	Court or tribunal: Civil and Administrative Jurisdiction: Appeal Panel Citation: [2024] NSWCATAP 129 Date of Decision: 28 June 2024 Before: M Harrowell, Deputy President G Sarginson, Senior Member File Number(s): 2024/155225