Kyriakou v Long (No. 2)
[2013] NSWSC 1891
•11 December 2013
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 2010Cases 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 locksmiths that would be involved in possession being taken of the premises.
The defendant has not consented to that proposal. Shortly before lunch the plaintiff approached me again as Duty Judge seeking such orders. I permitted him, although I think irregularly, to file the notice of motion in the proceeding that I dealt with yesterday.
By his notice of motion, the plaintiff seeks an order that he be allowed to continue to reside in the premises for a period of two weeks and undertakes to pay rent and to leave the premises in the same condition as when he found them. He seeks orders requiring the defendant to provide him with keys to the premises and undertakes to return them after the period of fourteen days.
The effect of the Tribunal's orders is that the plaintiff's tenancy of the premises has been terminated. I am informed that the warrant for possession has been executed and that the sheriff has taken possession of the premises and, I assume, changed the locks.
In substance, what the plaintiff is seeking is a mandatory injunction to require the defendant to allow him to occupy the premises for a further two weeks.
Section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 relevantly provides that:
"65 Review by prerogative writ etc generally excluded
(1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of:
(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or
(b) a declaratory judgment or order, or
(c) an injunction,
in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.
(2) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that:
(a) the Tribunal gave an erroneous ruling as to its jurisdiction, or
(b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed.
(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:
(a) the Tribunal had no jurisdiction to make the order, or
(b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness."
The relief now claimed by the plaintiff clearly is "in respect of" the matter that the Tribunal determined and is "in respect of" the Tribunal's ruling relating to that matter.
This application is not founded on a claim that the Tribunal gave an erroneous ruling as to jurisdiction, or otherwise committed jurisdictional error including by denying procedural fairness. I have dismissed the claim in relation to the alleged denial of procedural fairness in relation to the orders of 29 November.
It follows from s 65 that I have no jurisdiction to grant the relief sought.
The plaintiff submitted that I made just such an order as he now seeks in another proceeding in which he was also a party: Kyriakou v Kuzevski & Ors [2011] NSWSC 1541.
That case was quite different. There the Tribunal had made an order allowing the plaintiff to withdraw an application he had made. The Tribunal noted an agreement between the parties whereby the plaintiff was allowed to return to the property and agreed to pay a fee. The agreement of the parties noted by the Tribunal was to the effect that the plaintiff would not be regarded as a "tenant" as defined in ss 7 and 10 of the Residential Tenancies Act 2010.
The plaintiff succeeded in persuading me that there was a serious question to be tried that not, withstanding the terms of that agreement noted by the Tribunal, the agreement was in fact a residential tenancy agreement within the meaning of the Residential Tenancies Act. I said that "a party cannot be deprived of the protection of the Act by making an agreement to the effect that the Act does not apply."
I found that in those circumstances the plaintiff had an arguable right to the protection of the Residential Tenancies Act and that the balance of convenience favoured his being allowed back into possession for a short period, which is what he had sought.
In that case the Tribunal had made no order in the proceedings between the plaintiff and the then defendant which precluded my making the order I did.
The plaintiff noted that in that case an order for possession had been made by the Tribunal in respect of the premises. But that order was not made in proceedings to which the plaintiff was a party.
In other words, in Kyriakou v Kuzevski the present plaintiff obtained relief in respect of his contractual rights having regard to the arguable applicability of the Residential Tenancies Act to the purported termination or expiry of that contract.
In this case, I am satisfied that s 65 applies and there is no jurisdiction to make the orders sought. I order that the notice of motion be dismissed with costs.
Decision last updated: 24 December 2013