Ehrenfeld v Nan Sun (No. 2)

[2017] NSWSC 564

Supreme Court

New South Wales

Medium Neutral Citation:	Ehrenfeld & Anor v Nan Sun & Ors (No. 2) [2017] NSWSC 564
Hearing dates:	9 May 2017
Date of orders:	09 May 2017
Decision date:	09 May 2017
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Orders made extending interlocutory injunction to agreed final date of occupation. NSW Civil and Administrative Tribunal decision enforceable thereafter. No order as to costs.
Catchwords:	LANDLORD AND TENANT – Termination of a residential tenancy – expiring injunction – injunction restrains landlord from acting on decision of NCAT to allow re- entry to residential premises - parties not legally represented - priority in the administration of justice for final resolution of dispute and reduction of future disputation - potential for consent to be reached about final disposition of proceedings - rental arrears paid and payment made in advance – parties agree on form of consent orders - consent orders uncertain and inappropriate in form – parties agree on final date of occupation of premises.
Legislation Cited:	Civil Procedure Act 2005, s 56
Cases Cited:	Ehrenfeld & Anor v Nan Sun & Ors [2017] NSWSC 547
Category:	Procedural and other rulings
Parties:	First Plaintiff: Michelle Anne Ehrenfeld Second Plaintiff: Gabriel Ehrenfeld First Defendant: Nan Sun Second Defendant: Megaward Pty Ltd Third Defendant: NSW Civil and Administrative Tribunal
Representation:	Solicitor:   Plaintiffs: Mr G. Ehrenfeld in person First & Second Defendants: Min Wen in person Third Defendant: n/a
File Number(s):	2017/127242
Publication restriction:	No

ex tempore Judgment

1. This is the Court’s second judgment in these proceedings. The Court's first judgment extended an injunction granted on 27 April 2017 to restrain the defendants until 5pm on Thursday 4 May 2017 from entering the subject premises pursuant to orders of the NSW Civil and Administrative Tribunal (“NCAT”): Ehrenfeld v Nan Sun & Ors [2017] NSWSC 547.

2. These reasons should be read in conjunction with the Court’s reasons for decision in the first judgment. Events, matters and persons are referred to in the same way in both judgments.

3. This matter came back before the Court on 4 May 2017. Neither defendant was represented that day. Mr Ehrenfeld tendered a bank cheque for $20,000 that he was proposing to deliver that day to the second defendant, Megaward, on account of rent arrears and to secure to the defendants the balance of the rent due under the lease agreement. The cheque had not as yet been delivered at the time of the 4 May hearing.

4. On 4 May 2017 the Court further extended the injunction and adjourned the matter until today, 9 May 2017. The 4 May orders allowed an opportunity for the cheque to clear and for the parties to bring in consent orders for the disposition of the balance of the proceedings on an interim or final basis. The injunction expires today at 5.00pm.

5. When the parties appeared this morning, Megaward and Nan Sun were represented with the Court’s leave by Ms Wen. Mr Ehrenfeld by leave appeared for his wife as well as himself. The parties presented to the Court a form of consensus about the final disposition of the proceedings, which they had signed.

6. But the Court is concerned that the consensus that has been reached in this document without the benefit of legal representation does not actually resolve the underlying dispute between them. Rather it is calculated to produce further disputes (a) about their past transactions and (b) in the future about the defendants regaining possession of the premises at the end of the lease agreement.

7. The issue of the possession of these premises has already resulted in two applications in NCAT.  The better administration of justice requires that this dispute be quelled.

8. Mr Ehrenfeld argued that the form of orders handed up and marked Exhibit “A” should be made. The form of orders the parties handed up to the Court is the following:

“1.   That the Orders made by the Third Defendant in NSW Civil and Administrative Tribunal Proceeding RT 17/13136 on 26 April 2017 are set aside.

2.   That for the period ending 30 June 2017, the rent payable by the First Plaintiff under the Residential Tenancy Agreement for 70D George Street, Dover Heights (“Property”) is paid in full from 1 July 2017, the First Defendant will be entitled to possession of the property.

3.   There be no order as to costs.

4.   That these proceedings are discontinued by consent.”

9. The Court declines to make these orders for two reasons. First, the form of proposed order 1 does not specify which parts of the NCAT orders of 26 April 2017 should be set aside. The orders of 26 April relate to various matters: arrears of past rent; daily occupation fees; the declaration of the tenant’s past failures to pay rent; and, termination of the lease agreement. Many of these matters are not or should not be in issue any longer. Setting aside all these orders risks creating an opportunity to re-litigate these matters. That would be the antithesis of quelling this dispute. So the simple form of this proposed order is too all-embracing. It is inappropriate to reflect which parts of the parties’ prior dealings are avoided by order. Under the Court’s power under Civil Procedure Act 2005, s 56, I decline to make the orders requested on the grounds that they are likely to lead to uncertainty, false issues and consequently further litigation between these parties.

10. The Court indicated to Mr Ehrenfeld and Ms Wen that it was only inclined to extend the orders already made staying the execution of the NCAT decision until on 30 June 2017, upon the basis of the payment already made by way of the bank cheque for $20,000. The Court directed the parties on 4 May to agree by today on the last date of the occupation of the premise to which the rent paid in advance by way of security may be applied. There is a consensus at the Bar table that that date is 30 June 2017.

11. Mr and Mrs Ehrenfeld said they did not wish to suffer the continuing injustice of having the NCAT decision made on 26 April 2017 on the record. But the answer to this is that at a final hearing they are still able to challenge this decision and argue to have it set aside, if they wish. The proceedings can be listed for that purpose if this remains a serious issue.

12. Secondly, the Court also declines to make these orders, because they contain no mechanism for Megaward, or the first defendant, Nan Sun to take possession of the property at the end of the lease agreement in place of NCAT’s orders being avoided. NCAT’s orders presently make quite clear what is to happen without the need for any further application to NCAT.

13. Proposed order 2, stating that the "first defendant will be entitled to possession of the property" from 1 July 2017 means that if the defendants decline to leave the property after 30 June, then Megaward and Nan Sun will have to bring another set of proceedings in NCAT for possession of the property. This is not a satisfactory way of quelling the dispute between these parties.

14. If Mr Ehrenfeld wishes to set aside NCAT's decision out of some sense of alleged injustice, then he can attempt to continue these proceedings. But in the meantime, the existing situation of certainty should continue between these parties as to the enjoyment of, and end of, the tenant’s possession of the property and about exactly what will happen when the period covered by the tenants’ payment in advance ultimately runs out.

15. Moreover, the matter has not been argued to the final hearing, such as would demonstrate that the orders of NCAT should be set aside.

16. Accordingly the orders of the Court will be:

1. Note that the bank cheque for $20,000 (the subject of the Court’s Order 2 of 4 May 2017) was received by Megaward Pty Ltd and has cleared.

2. The Court extends the injunction granted on 27 April 2017 to expire on and including 30 June 2017 and unless the parties otherwise agree the decision of the third defendant in the NSW Civil and Administrative proceedings made on 26 April 2017 is enforceable on and from 1 July 2017.

3. As neither side is legally represented and neither side has been from the commencement of these proceedings, the Court will make no order as to costs.

4. These proceedings are adjourned to the Equity Registrar’s list at 9.30am on Monday 15 May 2017.

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Decision last updated: 10 May 2017