Lyel v NSW Civil and Administrative Tribunal

[2014] NSWSC 1320

Supreme Court

New South Wales

Medium Neutral Citation:	Lyel v NSW Civil and Administrative Tribunal [2014] NSWSC 1320
Hearing dates:	22 September 2014
Decision date:	22 September 2014
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Order sought to stay eviction granted.
Catchwords:	PROCEDURE - order sought to stay eviction - granted
Legislation Cited:	Residential Tenancies Act 2010 (NSW)
Category:	Procedural and other rulings
Parties:	Louise Lyel (Plaintiff) NSW Civil and Administrative Tribunal (First Defendant) Craig Burton (Second Defendant)
Representation:	Solicitors: Ms L Lyel, self-represented (Plaintiff)
File Number(s):	2014/279026
Publication restriction:	None

EX TEMPORE Judgment

1. HER HONOUR: By summons filed in court, the plaintiff, Ms Louise Lyel, seeks orders staying her eviction from premises which she leases at Moore Park Road, Paddington, pursuant to orders made by the New South Wales Civil and Administrative Tribunal on 11 September 2014.

1. The application was brought ex parte in circumstances where the eviction is due, Ms Lyel understands, to be given effect by the Sheriff at 12.30 pm tomorrow.

1. The summons was supported by an affidavit, unsworn at this stage by Ms Lyel, who has appeared today unrepresented to support the application for stay.

1. I have come to the view that the stay ought to be granted for the period of two weeks that Ms Lyel seeks in circumstances where, on her case, she was not served or given any notice of the landlord's application to the Tribunal or the hearing on 11 September.

1. On that occasion the orders made included a finding that Ms Lyel was in arrears of rent in a sum of some $4,234.29, in circumstances where she had not paid rent from 26 June.

1. In those circumstances the Tribunal found that the residential tenancy agreement in question had been breached. It was terminated in accordance with s 87 of the Residential Tenancies Act2010 (NSW) and an order for immediate possession in favour of the landlord was made.

1. On Ms Lyel's case, not only was she not given notice of the application and of the hearing, she had in fact made all payments due under the lease in cash and was not in arrears of any rent.

1. Ms Lyel received notice of the decision on 16 September, when a copy of the decision was placed under her front door. She then approached the Tribunal in order to challenge the decision and filed an application in terms of the document provided to her by the Tribunal, together with a filing fee.

1. She was advised to follow up with the Tribunal as to the progress of that review application and was informed only at 3.30 pm today, that she had been provided with the wrong application form.

1. Ms Lyel returned to the Tribunal, submitted another application and paid a further filing fee. At 4 pm she was advised by telephone that her application had been denied and it was in those circumstances that she approached the Court for a stay.

1. I am satisfied in the circumstances that a case for a short stay has been established so that Ms Lyel can, as she has explained, seek to reach an agreement with the landlord in relation to the dispute over the rent.

1. The summons and supporting documents which include, I note, an eviction appointment document from the Sheriff which appears to be directed to the landlord and which was, Ms Lyel says also put under her door, indicates that the eviction is due to be effected by the Sheriff at 12.30 pm tomorrow.

1. In all those circumstances, I am satisfied that justice demands that the eviction scheduled for tomorrow at 12.30 pm pursuant to the order made by the Tribunal on 11 September 2014 should be stayed until further order of the Court. Ms Lyel has established an arguable case that she was denied an opportunity to advance her case, which if accepted, provides a complete answer to the landlord's claim.

1. For that purpose, the matter will go into the list before the Common Law Duty Judge on Tuesday, 7 October 2014 at 10 am.

1. The summons and supporting affidavit and other documents should be served on the Tribunal and the landlord, Mr Burton, within twenty-four hours together with a copy of the order which I will now make.

1. Ms Lyel will need to serve that order on the Sheriff forthwith so that the Sheriff will become aware of the order before the eviction is given effect.

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Decision last updated: 29 September 2014