Kyriakou v Day

[2015] NSWSC 1686

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kyriakou v Day [2015] NSWSC 1686

Hearing dates:

6 November 2015

Date of orders:

06 November 2015

Decision date:

06 November 2015

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

The defendant is restrained from evicting the plaintiff and throwing his personal belongings out into the street from premises at XX XXXX XXXXX X Street, Arncliffe, until 5pm on 20 November 2015.

 

The defendant must not interfere with, damage or take possession of any of the personal belongings of the plaintiff until the plaintiff vacates the premises by 5pm on 20 November 2015.

 Each party is to bear his own costs.

Catchwords:

PROCEDURE – eviction – order seeking to restrain defendant from evicting plaintiff – orders made

Cases Cited:

Kyriakou v Day (Supreme Court (NSW), Button J, 18 May 2015, unrep)

Category:

Procedural and other rulings

Parties:

Andrew Kyriakou (Plaintiff)
Adam James Lawrence Day (Defendant)

Representation:

Mr Kyriakou, unrepresented (Plaintiff)
Mr Day, unrepresented (Defendant)

File Number(s):

2015/328512

Publication restriction:

None

EX TEMPORE Judgment

1. HER HONOUR: By a summons filed in Court today, the plaintiff, Mr Kyriakou, has approached the Court seeking various orders against Mr Day, the defendant, namely:

“1. The Plaintiff seeks an order from this Court under Section 65 of the Supreme Court Act 1970, for the Defendant to comply with an agreement he made with the Plaintiff dated, 1st September 2015.

2. The Plaintiff seeks an order from this Court under Section 66 of the Supreme Court Act 1970, restraining the Defendant from evicting the Plaintiff and throwing his personal belongings out onto the street from premises at XX XXXX XXXXX X, Arncliffe, the subject premises.

3.   The Plaintiff seeks an order from this Court preventing the Defendant from maliciously sabotaging his tenancy (deliberately fail to pay his rent) in order to invoke a Termination Notice from the landlord as an alternative to evicting the Plaintiff should there be an adverse finding against the Defendant by this Court.

4.   The Plaintiff seeks an order from this Court that the Defendant be ordered not to interfere, damage or otherwise take possession of any of the Plaintiff’s personal belongings during, leading up to and upon the Defendant vacating the premises on or about February 2016.

5.   The Plaintiff seeks costs for bringing this application to this Court.”

2. Each party was unrepresented when the matter came on for hearing, although earlier Mr Kyriakou had taken advice from a solicitor who had sent correspondence to Mr Day, to which he had replied.

3. The summons was filed in circumstances where, earlier this year in May, Mr Kyriakou had similarly approached the Court seeking orders against Mr Day. His Honour Button J gave judgment on that application (see Kyriakou v Day (Supreme Court (NSW), Button J, 18 May 2015, unrep)), where he said:

“To state the background with great succinctness, the defendant is the tenant, pursuant to a written lease of long standing, of some residential premises in Arncliffe. Some months ago, the plaintiff and the defendant entered into an informal agreement whereby the defendant would sub-lease part of the premises to the plaintiff. At first, things went well and the two men got on well. However, recently things have soured and voluminous emails of increasing hostility have passed between the two of them.”

4. His Honour noted the circumstances which had come about, which had resulted in Mr Day taking steps to terminate Mr Kyriakou’s tenancy, but declined to make various of the orders then pressed by Mr Kyriakou, for reasons which his Honour explained. His Honour found, however, that:

“The evidence demonstrates that things have broken down markedly between these two men. In discussion, I expressed my reluctance to make orders that could force two people who have become hostile to each other to continue to live together for some days or weeks. Nevertheless, the position of the plaintiff was that it would take quite some time to remove all of his items and find another place to live. The position of the defendant was that he was content to have the plaintiff and his personal items in the premises, so long as a firm date for departure is set. To be clear, I am only content to make orders 1 and 4 in their amended form because the defendant consents to them.”

5. The orders which were then made by consent were as follows:

“1.    Defendant is restrained from evicting the plaintiff and throwing his personal belongings out on to the street from premises at XX XXXX XXXXX X, until 5pm on 31 May 2015;

2.    The defendant must not interfere with, damage or take possession of any of the personal belongings of the plaintiff until the plaintiff vacates the premises at 5pm on 31 May 2015;

3.    The plaintiff must pay the costs of the defendant of these proceedings.”

6. Before the Court today, the parties relied on affidavits which they had each sworn on 6 November, to which was annexed voluminous correspondence between them and the solicitor Mr Kyriakou had earlier retained. Other correspondence was also tendered at the hearing.

7. What was in issue between the parties included whether, in compliance with the orders Button J made in May, Mr Kyriakou had ever vacated the premises, he contending that he did, or whether instead, as Mr Day contended, Mr Kyriakou never vacated but has remained in residence at the premises since the earlier proceedings before the Court.

8. It is unnecessary to resolve that question. What is apparent from the evidence is that, whatever basis it was on which the parties continued their living arrangements, the relationship between them has deteriorated again. That is very well demonstrated by what they have each said to the other in their correspondence and in submissions today.

9. For his part, Mr Kyriakou contends that, by an email he sent to Mr Day, following an email received from him on 5 September 2015, an agreement was reached between them whereby he was entitled to continue residing at the premises "until I decide to leave, in which case you will be given reasonable time of when I will vacate."

10. There was a response to this correspondence from Mr Day, which does not explicitly address that part of Mr Kyriakou’s lengthy email, but included the following:

“As for the rest of your very lengthy email and the outright lies, half truths and innuendo contained therein - frankly I don't give a damn what you think. You made your true feelings known when you threatened to kill me over what boils down to not washing the bathroom floor on Sunday before I put the shower curtain back up.”

11. For his part, Mr Kyriakou denies that allegation, as well as other alleged misconduct on his part, claiming that what Mr Day has written in his correspondence about such matters and has submitted to the Court today, involves fabrication.

12. What Mr Kyriakou does not dispute is that the circumstances have reached the stage where he formed the intention to leave, that being eventually conveyed to Mr Day on the basis that he would be departing at the end of February 2016. In accordance with this advice, his solicitors also advised Mr Day in correspondence of 2 November, in relation to what they maintain was an agreement reached between Mr Day and Mr Kyriakou, in the 5 September email exchange, about Mr Kyriakou’s sub-tenancy, and as to Mr Kyriakou’s proposed departure.

13. For his part, Mr Day denies any such agreement was ever reached. He contends that the basis on which Mr Kyriakou continued residing at the premises in May 2015, was correspondence which he had sent by email of 5 May, which contemplated Mr Kyriakou vacating on 6 September and providing that if an earlier date be required by either party for any reason, 14 days' notice would be given in writing, email notice sufficing.

14. Mr Kyriakou did not then vacate, but there is no question that two weeks’ written notice has been given by Mr Day. It is due to expire on Sunday next. Mr Kyriakou denies Mr Day's entitlement to give such notice and contends that he is entitled to remain at the premises until the date he says he has nominated for his departure, at the end of February. It is upon that basis Mr Kyriakou presses orders from the Court to the effect that Mr Day be restrained from evicting him and throwing his personal belongings out into the street from the premises, until 5pm on 28 February.

15. Having heard the parties, I am of the view that, even if it could be concluded that the correspondence of 5 September evidenced a binding agreement between Mr Kyriakou and Mr Day, that in the circumstances the Court's discretion could not justly be exercised to grant Mr Kyriakou the orders which he seeks. Like Button J in May, on the evidence before the Court and the submissions which the parties have advanced, I am not prepared to exercise the Court's discretion to make orders forcing these two people, who are so hostile to each other notwithstanding what Mr Kyriakou has said about Mr Day's fabrications, to continue living together until February.

16. Mr Kyriakou is undoubtedly upset about what he perceives to have been very unfair treatment by Mr Day. Mr Day claims that he fears Mr Kyriakou. Mr Kyriakou relies upon correspondence which suggests that he has been providing services to Mr Day as a carer, because he suffers a disability. Mr Day denies he has been provided with such services. It is unnecessary to resolve where the truth lies as to those matters. What is clearly apparent is that these gentlemen can no longer continue living with each other.

17. In those circumstances I decline to make orders of the kind which Mr Kyriakou seeks.

18. There is plainly an arrangement in place between Mr Kyriakou and Mr Day. It is contractual in nature. On the evidence, I am not satisfied that it contains express terms as to the notice which either party is obliged to give the other to bring the contractual relationship to an end. In those circumstances the law imports into the contract an obligation to give reasonable notice.

19. Mr Day contends the notice he has already given, of two weeks which brings this contract to an end on 8 November, is reasonable in the circumstances. Mr Kyriakou contends the notice he has given, which brings the arrangement to an end in February, is reasonable. In all of the circumstances, I take the view that reasonable notice requires Mr Kyriakou to be given a further period of two weeks from today to remove himself from the premises.

20. Having come to that conclusion, the appropriate orders to make are as follows:

1.    The defendant is restrained from evicting the plaintiff and throwing his personal belongings out into the street from premises at XX XXXX XXXXX X, Arncliffe, until 5pm on 20 November 2015;

2.    The defendant must not interfere with, damage or take possession of any of the personal belongings of the plaintiff until the plaintiff vacates the premises by 5pm on 20 November 2015.

21. Having heard the parties on what was in issue between them and announcing my decision, they agreed as to costs. The Court's order as to costs will thus be that each party is to bear his own costs.

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Amendments

12 November 2015 - Amendment to coversheet - file number inserted

Decision last updated: 12 November 2015