Kyriakou v Kuzevski - [2011] NSWSC 1541

Supreme Court

New South Wales

Medium Neutral Citation: Kyriakou v Kuzevski & Ors [2011] NSWSC 1541
Hearing dates: Friday, 25 November 2011
Decision date: 25 November 2011
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Refer to paras [26]-[29] of judgment.

Catchwords: LANDLORD AND TENANT - residential tenancy agreement - where occupant of residential premises evicted - application for order allowing residence at premise for period of seven days - whether residential tenancy agreement under the Residential Tenancies Act 2010 - parties cannot enter into agreement for purpose of preventing operation of Residential Tenancies Act 2010 - serious question to be tried that occupant a tenant under fixed term residential tenancy agreement that could only be terminated in accordance with s 84, Residential Tenancies Act 2010 - balance of convenience favours allowing occupant back into possession of premises for seven days - occupant allowed back into possession of premises for seven days on undertakings to vacate after seven days, pay outstanding rent and not to damage premises
Legislation Cited: Residential Tenancies Act 2010
Consumer, Trader & Tenancy Tribunal Act 2001
Category: Principal judgment
Parties: Andrew Kyriakou (Plaintiff)
John Kuzevski (1st Defendant)
Luba Kuzevski (2nd Defendant)
Naum Kuzevski (3rd Defendant)
Sue Hetherington (4th Defendant)
Representation: Plaintiff - in person
1st Defendant - in person
N/a

File Number(s): 2011/382203

Judgment

HIS HONOUR : This is an application by the plaintiff who is a former occupant of premises in Tantallon Avenue, Arncliffe for an order that the landlord allow him to reside at the premises for a period of seven days. The plaintiff proffers an undertaking that if he is allowed back into occupation he will vacate the premises after seven days. He also undertakes to pay certain moneys to which I will refer later in these reasons. Although it has not been specifically addressed I assume he also proffers an undertaking not to damage the premises, but to yield them up after seven days peaceably and in a state of repair that is no worse than their current state of repair.

The application arises from proceedings that were before the Consumer Trader and Tenancy Tribunal ("the Tribunal") between these parties. It is common ground that on 14 October 2011 the plaintiff filed an application in the Tribunal seeking an order that an agreement he had with another tenant was a residential tenancy agreement, an order under s 16 of the Residential Tenancies Act 2010 requiring the landlord to prepare and enter into a written residential tenancy agreement, and an order under s 77 of that Act recognising the plaintiff as a tenant under a residential tenancy agreement. It is common ground that the owner had entered into a residential tenancy agreement with a tenant by the name of Graham Tyrrell. I was told that that agreement was entered into on 27 August 2004.

Before the Tribunal, the plaintiff asserted that he had been a tenant of the premises since 8 January 2011. He made an agreement with Mr Tyrell to…

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 Kuzevski

Details

AGLC: Kyriakou v Kuzevski [2011] NSWSC 1541
Case: [2011] NSWSC 1541
Decision Date: 25 November 2011

CaseChat Overview and Summary

In this case, Kyriakou applied for an order to allow them to reside in a residential property for a period of seven days. The application was made after the occupants were evicted from the property. The matter was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the occupants had a residential tenancy agreement under the Residential Tenancies Act 2010. The court needed to determine whether the parties could enter into an agreement to prevent the operation of the Act and whether a serious question was to be tried regarding whether the occupants were tenants under a fixed-term residential tenancy agreement that could only be terminated in accordance with section 84 of the Act.

The court found that the parties could not enter into an agreement to prevent the operation of the Residential Tenancies Act 2010. The court also found that there was a serious question to be tried that the occupants were tenants under a fixed-term residential tenancy agreement that could only be terminated in accordance with section 84 of the Act. The balance of convenience favoured allowing the occupants back into possession of the premises for seven days. The court therefore made an order allowing the occupants to reside in the property for seven days on the undertakings that they would vacate the premises after seven days, pay outstanding rent, and not damage the premises.

This decision highlights the importance of ensuring that residential tenancy agreements comply with the requirements of the Residential Tenancies Act 2010. It also demonstrates the court's willingness to balance the rights of both landlords and tenants in determining whether an order should be made in these types of matters.

Orders