Louise Lyelle v Michael Kenderes
[2017] NSWSC 1141
•22 August 2017
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Louise Lyelle v Michael Kenderes [2017] NSWSC 1141 Hearing dates: 22 August 2017 Decision date: 22 August 2017 Jurisdiction: Common Law Before: Button J Decision: (1) The application for stay of a writ for possession regarding 4 Walker Avenue Edgecliff is refused.
Catchwords: LANDLORD AND TENANT – ex parte application for stay of eviction order made by New South Wales Civil and Administrative Tribunal – stay refused – false evidence presented on previous ex parte application – referral to the Director of Public Prosecutions of New South Wales to investigate possible offences Cases Cited: Lyel v Hunt-Sharp [2016] NSWSC 562 Category: Procedural and other rulings Parties: Louise Lyelle (applicant)
Michael Kenderes (respondent)Representation: Counsel:
Louise Lyelle, self-represented (applicant) (ex parte)
No appearance (respondent)
File Number(s): 2017/255491 Publication restriction: Nil
EX TEMPORE Judgment
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This matter came before me in the Duty List at very short notice earlier today. It pertains to a writ for possession issued by the New South Wales Civil and Administrative Tribunal (NCAT, or the Tribunal) as a result of the termination of a residential lease at premises in Edgecliff quite some time ago. The writ is to be executed at 1.30pm, and I note that the time by the court clock is now 1.05pm.
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The applicant lessee, Ms Louise Lyelle, appeared for herself, and tendered a number of documents. After a time, when I indicated (for reasons that I shall explain shortly) that her credibility was seriously in question, the applicant gave evidence on oath.
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The nub of the application was an acceptance that the Tribunal had terminated the residential lease, but a request on hardship grounds that the writ be postponed because of the illness of the applicant, the fact that she has nowhere else to live, and the fact that she has a number of pets whom it would be very hard, if not impossible, to accommodate. It was also said that a mix-up with regard to transfer of significant sums of money had played an important role. It was also said that the managing agent of the premises had consented to a postponement of the writ.
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The managing agent “gave evidence” in an informal way by phone, a process with which I was content with due to the urgency of the matter. I think his position in a nutshell could be summarised as not pushing forcefully for the execution of the writ. Having said that, he expressed himself to be in a position of not knowing what to believe anymore. He also proposed a way forward whereby the pets could stay for a period, and the applicant would be permitted to go to the premises with him in order to feed them.
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There was placed before me an email purportedly from that gentleman. I must say at first I felt it possessed a very odd layout of differing typescripts that hardly seems professional. It also seemed to me noteworthy that his apparent contentment in that email with the writ being postponed was not consistent with what I was told subsequently by the applicant; namely, that the agent needed to speak to his clients in Singapore to see whether they were content with the postponement. But having formed that initial impression, I accept that what he said a moment ago by telephone corroborates, to some degree, the position of the applicant.
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By far the most significant part of this application, to my mind, is the judgment delivered by Davies J in Lyel v Hunt-Sharp [2016] NSWSC 562. It can be seen that there are a number of compelling similarities between that matter and this matter: the name of the applicant; the location of the premises (in this matter Edgecliff, in that matter Paddington); the fact that an NCAT writ was sought to be stayed at the last minute; the fact that the application was made ex parte; and the fact that reliance was placed upon an email from the lessor, or the agent of the lessor, to the effect that the lessor is content with the delay (having said that, as I said a moment ago, the managing agent in this case confirmed that he was, in a sense, content).
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Contrary to the submission of the applicant that she had been the victim of some sort of identity theft, to my mind the unavoidable inference is that the litigant who brazenly deceived Davies J in 2016 is indeed the litigant before me. That means to my mind that the credibility of the applicant is not just called into question; it is destroyed, I regret to say.
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It is true that, as I have said, the real estate agent of the lessors confirmed by phone today some of what Ms Lyelle has told me. Having said that, his evidence – in particular, that he no longer knows what to believe in terms of things said or written by the applicant – hardly assists her case.
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In the circumstances, I have no intention of making the order sought staying the NCAT writ, even assuming that I have jurisdiction to do so. That is for the simple reason that I am not satisfied that anything I have been told by the applicant, whether on oath or not, is actually true.
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[Further submissions invited from the applicant.]
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Separately, I propose to provide a copy of the transcript of this matter, a copy of the judgment of Davies J, and a copy of my judgment, to the Principal Registrar of the Court, and ask him to refer the matter to the Director of Public Prosecutions of New South Wales for consideration of possible prosecution for a public justice offence, including, but not limited to, perjury.
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In short, the order that I make is as follows:
The application for stay of a writ for possession regarding 4 Walker Avenue Edgecliff is refused.
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Amendments
25 September 2017 - Paragraph number taken off Order (1)
25 September 2017 - Cover sheet amendment
Decision last updated: 25 September 2017
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