Fawzi El-Saeidy v NSW Land and Housing Corporation

[2013] NSWSC 2045

Supreme Court

New South Wales

Medium Neutral Citation:

Fawzi El-Saeidy v NSW Land and Housing Corporation [2013] NSWSC 2045

Hearing dates:

30 December 2013

Decision date:

30 December 2013

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

1. Leave is granted to the plaintiff to file in Court a Notice of Motion dated 30 December 2013; and

2. Leave is granted to file in Court the Affidavit of the plaintiff sworn 30 December 2013, which contains some hand written alterations;

3. The defendant, its servants and agents are prohibited from relying upon the Notice of Intent to issue a Notice of Termination dated 19 December 2013 and addressed to the plaintiff herein;

4. The defendant, its servants and agents are restrained from issuing further notices of termination or notice of intention to terminate the plaintiff's lease of the premises at 58 Lowana Street, Villawood;

5. The plaintiff give notice to the defendant of the orders made today by facsimile on or before 12 noon 2 January 2014;

6. Orders may be entered forthwith;

7. Costs of today are reserved.

Catchwords:

RESIDENTIAL TENANCIES - notice of termination - conduct of defendant inconsistent with orders by the Court

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Category:

Interlocutory applications

Parties:

Fawzi El-Saeidy (Plaintiff)
NSW Land and Housing Corporation (Defendant)

Representation:

Counsel:
Plaintiff (Self-represented)
Defendant (No appearance)
Solicitors:

File Number(s):

2009/294748

Publication restriction:

None

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application dealing with the conduct of the defendant in these proceedings in a manner, which it is said, is inconsistent with the undertakings given by the defendant to the Court on 18 December 2013. On that earlier date, the defendant appeared and opposed orders granting an extension of time for the doing of acts ordered by Harrison AsJ.

1. Without seeking to be detailed about the past chronology, Harrison AsJ ordered that the plaintiff move back into his premises effective on 26 November 2013. That order was made on 28 October 2013. On 25 November 2013, solicitors acting for the plaintiff wrote to the defendant seeking the keys to the premises. That correspondence was not answered forthwith. Rather, a letter was sent on 27 November 2013 referring to the fact that, as at that later date the time for compliance with her Honour's order of 28 October 2013 had lapsed.

1. The plaintiff then approached the Court seeking some remedy in relation to that issue. It was on that basis that the defendant undertook to the Court certain matters and it is probably wise to repeat each of the three paragraphs of the undertaking. It was in the following terms:

"(a) That until further order of the court the plaintiff will be able to retain the premises currently occupied and provided by the defendant.

(b) The defendant will not deal with the disputed unoccupied property in a manner inconsistent with the return of the plaintiff to the property should the plaintiff be successful in the proceedings; and

(c) the forgoing does not prevent the defendant from taking steps such as the service of notice consistent with its stated intention to sell the disputed property provided that the property will be available for occupation by the plaintiff if the court so orders."

1. It may be necessary to explain that the plaintiff is currently occupying premises in Bankstown provided by the defendant because of what is said to be renovations to the disputed premises in these proceedings. The reference to Bankstown premises is the reference to the premises currently occupied and provided by the defendant in paragraph (a) of the forgoing undertaking.

1. On the basis of that undertaking, the Court adjourned the proceedings to be returnable before the registrar on 28 January 2014 with the intention that the registrar list the matter either before the Duty Associate Justice or the Duty Judge in the week commencing 3 February. As a consequence, it would be impossible, it would seem to me, to comply with paragraph (c) of the undertaking recited above and effect a termination of the tenancy prior to, at the very earliest, 3 February 2014 and more relevantly the conclusion of the proceedings that were to commence in that week.

1. It is at least arguable on that basis that the defendant is in breach of its undertaking. The defendant, the day after the undertaking was given to the Court, sent a Notice of Termination of the lease, based, I hesitate to reiterate, on the intention of the defendant to sell the premises, the effect of which notice would, without further steps by the plaintiff, terminate the tenancy at the disputed premises between it, that is, the defendant, and the plaintiff in these proceedings.

1. It advises the plaintiff, that he may seek a review of the decision within fourteen days after this notice is "given to". The sentence does not provide an object to the preposition "to". On the face of it, the document seeks to effect a termination of the tenancy prior to the Court dealing finally with the substantive matters raised in the summons.

1. The letter provides advice that within fourteen days, presumably of its receipt, the applicant may apply under s149 of the Residential Tenancies Act 2010 for a review of the decision to terminate the lease. While the notice may appropriately have been given, notwithstanding the undertaking given to the Court, the operation of the fourteen day period and the effect of the Residential Tenancies Act on a failure to do anything in relation to the termination notice are steps that will plainly effect an outcome inconsistent with either the letter or spirit of the undertaking as understood by the Court.

1. In those circumstances, orders of the Court further and in addition to those already issued, will be made.

1. The Court makes the following orders:

1)   Leave is granted to the plaintiff to file in Court a Notice of Motion dated 30 December 2013; and

2)   Leave is granted to file in Court the Affidavit of the plaintiff sworn 30 December 2013, which contains some hand written alterations;

3)   The defendant, its servants and agents are prohibited from relying upon the Notice of Intent to issue a Notice of Termination dated 19 December 2013 and addressed to the plaintiff herein;

4)   The defendant, its servants and agents are restrained from issuing further notices of termination or notice of intention to terminate the plaintiff's lease of the premises at 58 Lowana Street, Villawood;

5)   The plaintiff give notice to the defendant of the orders made today by facsimile on or before 12 noon 2 January 2014;

6)   Orders may be entered forthwith;

7)   Costs of today are reserved.

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Decision last updated: 04 September 2014