Mansour v NSW Land and Housing Corporation

[2016] NSWSC 2

Supreme Court

New South Wales

Medium Neutral Citation:

Mansour v NSW Land and Housing Corporation [2016] NSWSC 2

Hearing dates:

8 January 2016

Decision date:

08 January 2016

Jurisdiction:

Common Law

Before:

Adams J

Decision:

1. Application for stay refused.

 

2. Matter referred to the Registrar for directions.

 

2. The NSW Civil and Administrative Tribunal to provide on or before 18 February 2016 the reasons of the Appeal Panel in SH 13/52459, SH 14/11679 and SH 14/15490 in respect of the order made on 4 September 2014 appointing a guardian ad litem for the plaintiff.

 3. No order as to costs.

Catchwords:

CIVIL – procedure – stay application pending appeals in NSW Civil and Administrative Tribunal – warrant for possession of real property – merits review not available – no relevant error of law

Category:

Procedural and other rulings

Parties:

Anthony Gabriel Mansour (plaintiff)
NSW Land and Housing Corporation (defendant)

Representation:

Counsel:
Self-represented (plaintiff)
C McMeniman (defendant)

File Number(s):

2016/6110

Judgment

1. This is an application for a stay of a warrant for possession of premises presently occupied by the plaintiff. He wishes to appeal against various decisions of the NSW Civil and Administrative Tribunal, essentially because he says two things - firstly, he did not get a fair hearing because a guardian ad litem was wrongly appointed and, secondly, there were a number of factual matters which were wrongly decided. In order to obtain a stay, which is interlocutory, it is necessary for him to show at least some reasonable grounds for success in the primary proceedings. As to the first complaint, it is clear that the Tribunal gave him opportunity to be heard himself, despite the fact that a guardian ad litem was appointed and participated in the hearing. (I should interpolate that it is evident from Mr Mansour’s conduct of the proceedings before me, there appear to be very good reasons which might well justify the appointment of a guardian ad litem. However, I will return to this matter in due course.) As to the second complaint, that is not a matter which is presently capable of consideration by the Court. They are mere matters of fact and judgment and some of the plaintiff’s contentions mistake the issues being considered by the Tribunal. Thus, Mr Mansour is troubled by the notion that he has been unjustifiably “slandered” (I understand him to mean by that that he is being blamed for the state of the premises). However, the question of whether his tenancy can continue because of the state of the premises does not depend upon how they came to be in that state. It is a purely objective question.

2. I am therefore doubtful that there is any serious prospect that Mr Mansour will succeed in persuading a Court that the decisions affecting him made by the Tribunal are affected by legal error.

3. In considering the stay, it is of particular importance to note two additional things - firstly, the present state of the premises which is problematic. Although it appears there is no immediate danger to the occupant, it is plain that the premises are unsuitable for occupation and require quite substantial repairs. Mr Mansour, on the other hand, says he is happy to live there and wants to live there and claims to be able to maintain those premises appropriately. Nevertheless, the engineer’s report, which has been tendered, shows a number of problems which have plainly been in existence for a considerable period of time. Some of them are structural, although the engineer does not say they are dangerous. The second consideration is that Mr Mansour has been offered new premises with a courtyard, being necessary, it is thought, because he needs to have some outside area for his pets. He tells me that he has a couple of dogs and a cat. He does not want to move. He gave two reasons: firstly, he says although he was informed he was not really consulted about the move, and the relevant departmental officers have acted in a high handed and arrogant way towards him, which he plainly resents; secondly, he says he cannot maintain the premises as he predicts his dogs will immediately dig up the courtyard and the cat will have difficulty with moving around inside. This second point is markedly inconsistent with his assertion that he is perfectly able to maintain his present premises. The real problem seems to me to be this, that as he cannot maintain adequately his present premises which is evident from the engineer’s report, it may be that he will have some difficulty in maintaining his new premises. However, that is primarily the responsibility of the landlord. He does not have to keep them in new condition. He simply has to keep them in reasonable condition. I am satisfied that his protest in this regard was exaggerated because he simply does not wish to move. Now one cannot expect complete rationality when persons are required to move to new premises from a residence which they have occupied for some time, the area for which one inevitably develops affection for, and social contacts. These feelings are not always conscious, but they are real.

4. Nevertheless, balancing out the considerations which I have mentioned, it seems to me there is no proper basis for me to order a stay of the warrant. It follows that the stay is refused. The matter is referred to the Registrar for directions as to its future procedure. I make no order as to costs.

5. The plaintiff also complains that he has been unable to obtain the reasons for which the Tribunal appointed the guardian ad litem. It is appropriate that these are provided and I propose to order accordingly. The matter will go back to the Registrar for appropriate management and the plaintiff will receive a notice of the directions hearing shortly after the vacation.

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Decision last updated: 03 June 2016