Kyriakou v Long (No. 2) - [2013] NSWSC 1891

Supreme Court

New South Wales

Medium Neutral Citation: Kyriakou v Long (No. 2) [2013] NSWSC 1891
Hearing dates: 11 December 2013
Decision date: 11 December 2013
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Notice of motion dismissed with costs.

Catchwords: LANDLORD AND TENANT - plaintiff's residential tenancy in defendant's premises terminated by order of Consumer, Trader and Tenancy Tribunal (CTTT) - application for mandatory injunction to permit plaintiff to remain in defendant's premises for two weeks - limitation on jurisdiction of court pursuant to s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 - meaning of "in respect of" a matter determined by the CTTT
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001
Residential Tenancies Act 2010
Cases Cited: Kyriakou v Kuzevski & Ors [2011] NSWSC 1541
Category: Interlocutory applications
Parties: Andrew Kyriakou (Plaintiff)
Guo Fen Long (Defendant)
Representation: Counsel:
In person (Plaintiff)
P Tannous, solicitor (Defendant)
Solicitors:
The Australian Legal Practice (Defendant)

File Number(s): 2013/371742

Judgment

HIS HONOUR: On 29 November 2013 the Consumer, Trader and Tenancy Tribunal made orders terminating a tenancy agreement between the plaintiff as tenant and the defendant as landlord and giving possession of the premises occupied by the plaintiff to the landlord on 6 December 2013. Those orders were made in the plaintiff's absence.

After unsuccessfully seeking a stay of those orders from the District Court, the plaintiff commenced proceedings on 9 December 2013 seeking an order in the nature of certiorari quashing the orders of the Tribunal on the ground of denial of procedural fairness. On 10 December 2013 I dismissed the summons.

After I dismissed the plaintiff's summons, the plaintiff made a fresh application to Davies J in the Common Law Division. The summons filed in that Division included claims which were substantially the same as those that had been determined by me. But the plaintiff also sought a stay of proceedings, or of the decision of the Tribunal, for seven days. The claim for a stay was described as being "for service and further evidence to be adduced in Court and lodge re hearing application at CTTT in file RT13/52640".

According to the Associate's Record of Proceedings, Davies J made an order "Stay application refused".

The proceedings before me were urgent. I was told a warrant for possession of the premises was to be executed on 11 December.

Between about 7pm and 9pm on 10 December the plaintiff sent a series of emails to the plaintiff's lawyers advising that he had in mind attending this Court again today at 9am seeking urgent orders, the effect of which would allow him to remain on the premises for a period of no more than two weeks so that he would then be in a position to pack his extensive belongings, find suitable accommodation and move out of the premises. He asked that the defendant agree to this course to save substantial further legal costs as well as the costs of the sheriffs and…

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 Long (No. 2)

Details

AGLC: Kyriakou v Long (No. 2) [2013] NSWSC 1891
Case: [2013] NSWSC 1891
Decision Date: 11 December 2013

CaseChat Overview and Summary

The matter before the court involved a dispute between Kyriakou and Long, concerning a residential tenancy agreement. The plaintiff, Kyriakou, sought a mandatory injunction to allow him to remain in the defendant's premises for an additional two weeks beyond the termination date of the tenancy. The tenancy had been terminated by an order of the Consumer, Trader and Tenancy Tribunal (CTTT). This application was brought in the Supreme Court of Queensland. The legal issues before the court revolved around whether the court had jurisdiction to grant the injunction under section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 and the interpretation of the phrase "in respect of" a matter determined by the CTTT.

The court considered the legislative framework and the limitations on its jurisdiction in relation to matters decided by the CTTT. It was established that the court could only intervene if the application was directly related to the matter determined by the CTTT. The court held that the application was not directly connected to the matter determined by the CTTT. The phrase "in respect of" was interpreted to mean that the court could only exercise jurisdiction if the application was about a matter that was subject to the CTTT's decision. The court found that the application was not about the matter that had been subject to the CTTT's decision, but rather, a subsequent matter arising from that decision. Consequently, the court dismissed the application for lack of jurisdiction.

The court's reasoning and outcome were clear. The court found that the application did not fall within its jurisdiction as it was not directly related to the matter determined by the CTTT. The court did not grant the mandatory injunction sought by the plaintiff. No further orders were made in relation to the application.

Orders