Kyriakou v Jiang - [2013] NSWCA 105

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kyriakou v Jiang [2013] NSWCA 105
Hearing dates: 26 April 2013
Decision date: 26 April 2013
Before: Beazley P at [1] and [22];
Meagher JA at [14];
Ward JA at [20]
Decision:
The application is dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
ADMINISTRATIVE LAW - judicial review - Supreme Court Act 1970, s 69.
PROCEDURE - Supreme Court Act 1970, s 46(4) - application for review of judge of appeal - refusal of stay by judge of appeal - not shown decision of judge wrong.
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001
Residential Tenancies Act 2010
Cases Cited: Sarkis v Moussa [2012] NSWCA 357
Transglobal Capital Pty Limited v Yolarno Pty Limited [2004] NSWCA 136, (2004) 60 NSWLR 143
Category: Principal judgment
Parties: Andrew Kyriakou (Applicant)
Ke Yang Jiang (First Respondent)
Representation: Counsel:
In person (Applicant)
A J Bulley (First and Second Respondent)
Solicitors:
In person (Applicant)
The Australian Legal Practice (First Respondent)

File Number(s): CA 2013/119344

Application for Review

Court/Tribunal: Court of Appeal

Before: Barrett JA

Date of Decision: 22 April 2013

Court File Number(s): CA 2013/119344

Judgment

BEAZLEY P: On 28 March 2013 Olsson DCJ granted to the applicant, Mr Kyriakou, a stay of an eviction order made by the Consumer, Trader and Tenancy Tribunal (the Tribunal) on condition that Mr Kyriakou pay rent pending the determination of his appeal from the Tribunal's order. Mr Kyriakou filed a summons seeking judicial review of her Honour's order and also sought a stay of the condition that he pay rent pending the determination of his summons for judicial review. On 22 April 2013, Barrett JA refused that application and ordered that Mr Kyriakou pay the respondent's costs of the application. The matter has come before the Court urgently this morning for a review of Barrett JA's judgment given on 22 April 2013 and orders made that day.

The genesis of the proceedings relates to a lease that was entered into between Mr Kyriakou and the respondent, M Ke Yang Jiang, in January this year for the rental of part of premises for a period of one year. Not long after the commencement of the lease, Mr Kyriakou made a number of representations to Mr Ke Yang Jiang about the condition of the premises. He also alleged that the premises were being leased in circumstances where the premises were not a registered boarding house. Mr Kyriakou contends that in that circumstance the rental of the premises is unlawful and that in accordance with cl 7 of the lease, the rent is…

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 Kyriakou v Jiang

Details

AGLC: Kyriakou v Jiang [2013] NSWCA 105
Case: [2013] NSWCA 105
Decision Date: 22 April 2013

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by the applicant, Kyriakou, against the respondent, Jiang. The application sought to challenge a decision made by a judge of appeal. The proceedings were heard in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the decision of the judge of appeal to refuse a stay of proceedings was demonstrably wrong. This required the Court to consider the application of section 46(4) of the *Supreme Court Act 1970* (NSW) in the context of reviewing a judicial decision.

The Court, comprising Beazley P, Meagher and Ward JJA, found that the applicant had not demonstrated that the judge of appeal's decision to refuse the stay was wrong. Consequently, the Court dismissed the application.

The application was dismissed with costs.

Orders

Orders of the court

The application is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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:	Kyriakou v Jiang [2013] NSWCA 105
Hearing dates:	26 April 2013
Decision date:	26 April 2013
Before:	Beazley P at [1] and [22]; Meagher JA at [14]; Ward JA at [20]
Decision:	The application is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - judicial review - Supreme Court Act 1970, s 69. PROCEDURE - Supreme Court Act 1970, s 46(4) - application for review of judge of appeal - refusal of stay by judge of appeal - not shown decision of judge wrong.
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001 Residential Tenancies Act 2010
Cases Cited:	Sarkis v Moussa [2012] NSWCA 357 Transglobal Capital Pty Limited v Yolarno Pty Limited [2004] NSWCA 136, (2004) 60 NSWLR 143
Category:	Principal judgment
Parties:	Andrew Kyriakou (Applicant) Ke Yang Jiang (First Respondent)
Representation:	Counsel: In person (Applicant) A J Bulley (First and Second Respondent) Solicitors: In person (Applicant) The Australian Legal Practice (First Respondent)
File Number(s):	CA 2013/119344