Lyel v Hunt-Sharp

[2016] NSWSC 562

Supreme Court

New South Wales

Medium Neutral Citation:	Lyel v Hunt-Sharp [2016] NSWSC 562
Hearing dates:	5 May 2016
Date of orders:	05 May 2016
Decision date:	05 May 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. An order that the names of the Defendants be amended to Peter Jesse Hunt-Sharp and Stephanie Louise Rascoe. 2. An order that the Order for a stay of the Order of Eviction made on 28 April 2016 be vacated. 3. Sheriff to be notified of orders immediately. 4. Proceedings referred to Prothonotary for investigation of Plaintiff for contempt of court. 5. Plaintiff to pay the Defendants’ costs of the proceedings on an indemnity basis.
Catchwords:	LANDLORD AND TENANT – for stay of eviction order made by New South Wales Civil and Administrative Tribunal – stay granted ex parte – application by lessors to lift stay – false evidence presented on ex parte application – stay lifted – referral to Prothonotary to investigate contempt proceedings
Cases Cited:	Lyel v Civil and Administrative Tribunal [2014] NSWSC 1412
Category:	Procedural and other rulings
Parties:	Louise Lyel (Plaintiff) Peter Jesse Hunt-Sharp (First Defendant) Stephanie Louise Rascoe (Second Defendant)
Representation:	Counsel: No appearance (Plaintiff) D Jackson (Defendants)   Solicitors: Self-represented (Plaintiff) David Jackson & Associates (Defendants)
File Number(s):	2016/121129

Judgment

1. These proceedings commenced on 20 April 2016 by the Plaintiff acting for herself. She named as Defendants persons described as “P Hunt Sharpe and B Pascoe”. She sought a stay of an eviction which had been ordered by NCAT until a rehearing of an application in relation to the termination of her tenancy at 10 Liverpool Street, Paddington.

2. That application came first before Natalie Adams J, ex parte, on 20 April 2016. Justice Adams informed the Plaintiff that she had doubts about the jurisdiction of this Court principally in reliance on a judgment I had given in relation to the same Plaintiff but in respect of different premises in 2014: Lyel v Civil and Administrative Tribunal [2014] NSWSC 1412. However, in the urgent circumstances put forward to her Honour, Adams J granted a stay for 48 hours.

3. The matter then came back before me on 28 April, again ex parte. I was informed that the Sheriff was due to evict the Plaintiff at 10.30 that morning. I again pointed out to the Plaintiff the issue of this Court's jurisdiction and reminded her of my earlier judgment.

4. That morning my Associate had received an email forwarded by the Plaintiff which contained an earlier email chain. One of the emails in that chain came from a Philippa Hunt Sharpe at 8.30 that morning. It was addressed to the Plaintiff. It, in turn, was in response to an earlier email forwarded by the Plaintiff to Philippa Hunt Sharpe. The email from Philippa Hunt Sharpe said this:

Hi Louise, I won't be attending the hearing. I'm fine for you to get an    extension. I've also spoken with CTTT and advised that a rehearing is    acceptable to us. I knew you were in hospital and had requested a    date later in the week, which was fine.

5. When the matter was before me, having raised the issue of this Court's jurisdiction, I said to the Plaintiff:

It is only because the sheriff is coming at 10.30 this morning and    because we received an email from the land lady who said she did not    oppose this eviction, [that] I am prepared to make an order, but this is    not the right Court to come to.

The Plaintiff responded: I understand.

6. An application has now been made by the lessors of the premises who are Peter Jesse Hunt Sharp and Stephanie Louise Rascoe. That affidavit details some of the history of the matter which should be briefly recorded.

7. The landlords and Plaintiff entered into a residential tenancy agreement on 27 March 2015. It was for a 12-month period. On 10 February 2016 NCAT made orders terminating the tenancy and gave immediate possession to the lessors. The basis for the termination order was a failure by the Plaintiff to pay rent in accordance with the terms of the lease. On 15 April NCAT dismissed an application by the Plaintiff for a stay of the orders. It must have been that dismissal that led the Plaintiff to come to this Court on 20 April.

8. Further evidence from the lessors is that they do not know, and there is no-one in their immediate families, known as Philippa Hunt Sharpe. They did not authorise the sending of the email agreeing to the extension of the stay.

9. The evidence further discloses that the rent outstanding to the present time under the lease is in excess of $22,000. In addition, there is evidence that the Plaintiff has been advertising the property as a guest house. Material annexed to the affidavit of the lessors’ solicitors obtained from the internet suggests, on its face, that the property has already been used in that way. In one sense, that is now irrelevant because orders have been made by NCAT terminating the tenancy for non-payment of the rent.

10. It is apparent to me from this material that the Court was significantly deceived on 28 April by the presentation of the email from Philippa Hunt Sharpe and the Plaintiff’s failure to disabuse me of what she led me to believe from the tender of the email in the exchange referred to at [5] above.

11. The Plaintiff has been notified of the listing of this matter today. In response to that, she forwarded an email saying that she would be in hospital but that she would endeavour to change that arrangement. She has not appeared this morning. In all of the circumstances it is appropriate nevertheless that I proceed in her absence.

12. The lessors seek an order that the names of the Defendants in the proceedings be amended to their correct names and they seek a further order that the stay I ordered on 28 April be vacated. In all of the circumstances, those orders should be made. I am also satisfied in the circumstances that the costs of the lessors in the proceedings should be paid by the Plaintiff and on an indemnity basis.

13. I intend to refer the proceedings to the Prothonotary of the Court for investigation to be made whether the Plaintiff has acted in contempt of Court in tendering the information on 28 April leading to the making of the stay.

14. The orders that I make are these:

1.    An order that the names of the Defendants be amended to Peter Jesse Hunt-Sharp and Stephanie Louise Rascoe.

2.   An order for a stay of the order of eviction made on 28 April 2016 be vacated.

3.   I order the Plaintiff to pay the Defendants' costs associated with her applications and of the application this morning on an indemnity basis.    

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Decision last updated: 05 May 2016