Kyriakou v Long
[2013] NSWSC 1904
•10 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Kyriakou v Long [2013] NSWSC 1904 Hearing dates: 10 December 2013 Decision date: 10 December 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. Stay application refused.
2. Plaintiff to pay the Defendant's costs of the application.
Catchwords: LANDLORD AND TENANT - order of Consumer Trader and Tenancy Tribunal terminating residential tenancy agreement - application by tenant to stay eviction - tenant not present at hearing through illness - unsuccessful appeal by tenant to District Court alleging error of law on Tribunal's part - unsuccessful application by tenant to Supreme Court (Equity Division) alleging procedural unfairness - tenant applies to Common Law duty judge for stay of eviction - jurisdiction to grant stay limited under CTTT Act - application refused Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001 Category: Interlocutory applications Parties: Andrew Kyriakou (Plaintiff)
Guo Fen Long (First Defendant)
Consumer, Trader & Tenancy Tribunal (Second Defendant)Representation: Counsel:
In person (Plaintiff)
A J Bulley (Defendants)
Solicitors:
In person (Plaintiff)
The Australian Legal Practice (Defendants)
File Number(s): 2013/371742
Judgment
The present Plaintiff was the respondent in proceedings in the Consumer Trader and Tenancy Tribunal arising out of a residential tenancy agreement. It appears that the lessor under that agreement was seeking to bring the residential tenancy agreement to an end.
A hearing was fixed in the Tribunal for 29 November at 20:13, on the morning of that day the present Plaintiff was ill. At 7.22am he sent an email to the Registrar of the Tribunal saying:
I wish to advise that I will not be able to attend the hearing in the above-mentioned matter today due to illness. I will be attending my doctor's surgery this morning.
The present Plaintiff tells me that the email was not actually received by the Tribunal hearing the matter until 9.20am and there is some support for that in the reasons of the Tribunal given on that day. The Tribunal nevertheless gave reasons for not adjourning the hearing, for continuing with it and for making orders that the residential tenancy agreement be terminated. An order was made giving possession to the landlord on 6 December 2013.
The Plaintiff, on 3 December, made application to the Tribunal for a rehearing. He completed the prescribed form but the only matter of substance, apart from what was contained in the covering letter, was the annexing of a medical report from his doctor obtained on 29 November. In answer to the other questions on the form, for example, "What decision do you think the Tribunal should have made?" and, "What evidence or documents do you now seek to produce to the Tribunal?" and, "When did you first become aware of the evidence?" the Plaintiff wrote "N/A".
On 4 December 2013 the application for rehearing was refused for reasons which were given on that day by the Tribunal. The reasons made reference to the fact that the rehearing application was silent as to a number of matters, including some of those that I have identified.
The evidence that I have recited so far is contained in an affidavit of the Plaintiff. The remainder of what follows has simply been told to me from the bar table. The Plaintiff appealed to the District Court against the decision of the Tribunal on an error of law under s 67; the error of law being proceeding with the hearing at the Tribunal in the circumstances of the Plaintiff's absence. I am informed that that appeal was heard by Judge Truss and her Honour held that there was no error of law. I have not seen any documents in relation to that appeal.
The Plaintiff told me that he then made application yesterday to the Equity Division Duty Judge, White J. That application appears to have been an application under s 65(3) of the Consumer Trader and Tenancy Tribunal Act 2001 on the basis that the Tribunal had denied the Plaintiff procedural fairness. Although what I was informed happened before White J was somewhat confusing, it has been confirmed to me by Mr Bulley of counsel, who appears for the landlord, the Defendant in these proceedings, that White J dismissed the s 65 application.
It is in these circumstances that the Plaintiff now seeks a stay against an order made by the Tribunal yesterday that the Plaintiff give vacant possession by tomorrow. I am informed that there is an eviction scheduled for tomorrow.
In circumstances where an appeal has been taken to the District Court on an error of law which is, in substance, the same as what is complained about before me and where the Plaintiff has already brought an application under s 65 of the CTTT Act on the same basis that the present application is made before me, I consider that the present application is an abuse of process.
The Plaintiff asks for a stay simply so that he can make a further application for a rehearing in the Tribunal pursuant to s 68(9A). However, before such an application will be accepted, the chairperson of the Tribunal must be satisfied that significant new evidence has arisen since the application was refused and that that evidence suggests a substantial injustice to a party to the proceedings.
There seem to be two problems there. The first is that the Plaintiff was not able to indicate what new evidence has arisen since the application was refused. Secondly, in circumstances where White J apparently found that there was no denial of procedural fairness to the Plaintiff, it is difficult to see how there could be a substantial injustice to him to justify a rehearing application being accepted, as s 68(9A) requires.
The Plaintiff suffers from the further problem that under s 69 of the CTTT Act, the only bodies that may stay orders of the Tribunal are the chairperson of the Tribunal in connection with a s 68 rehearing application or the District Court in relation to an appeal under s 67. The latter is not any longer available to the Plaintiff but, in any event, this Court does not have the jurisdiction to make an order staying execution of the Tribunal's order.
For those reasons, the Plaintiff's summons is dismissed.
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Decision last updated: 18 December 2013
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