Maytom v Laundy - [2024] NSWSC 817

Supreme Court

New South Wales

Medium Neutral Citation: Maytom v Laundy [2024] NSWSC 817
Hearing dates: 29 June 2024
Date of orders: 29 June 2024
Decision date: 29 June 2024
Jurisdiction: Equity - Duty List
Before: Meek J
Decision:
No interim order made. Leave granted to file summons and affidavit in Court and orders made for short service.

Catchwords:
LEASES AND TENANCIES — Tenancies — Week to week tenancy — Plaintiffs, together with granddaughter and assistance cat, resided in studio apartment in hotel accommodation above public bar for several years on week to week tenancy — Hotel management gave first plaintiff a written notice to vacate the studio apartment in seven weeks’ time —Plaintiffs accepted that there was no notice to vacate required under the tenancy, nor was there a requirement of notice to leave — Plaintiffs accepted that neither the Residential Tenancies Act2010 (NSW) nor the Boarding Houses Act2012 (NSW) applied to the tenancy — Nonetheless, plaintiffs sought urgent interim order restraining enforcement of the notice to vacate, which required apartment to be vacated the following day
HUMAN RIGHTS — Discrimination — Grounds — Age and disability discrimination — Second plaintiff was an 83-year-old grandmother suffering visual impairment and deafness, along with other “complex medical needs” — Plaintiffs claimed that notice to vacate studio apartment discriminated against second plaintiff in failing to consider her disabilities, age and assistance cat — Plaintiffs sought interim order pursuant to s 105 Anti-Discrimination Act 1977 (NSW) preserving status quo
HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) — Whether Supreme Court has power to make an interim order under s 105 — Discussion of role of NCAT in regulatory scheme — Held power to make interim order under s 105 is given to NCAT and Supreme Court has no power to make such an order
CIVIL PROCEDURE — Parties — Appropriate defendants — Whether defendants named by plaintiffs in summons are the appropriate defendants to the claim — No formal proof or evidence that named defendants were the registered proprietors of the hotel or otherwise the actual party with whom the plaintiffs have had an arrangement for occupation of the apartment — No indication that named defendants had any knowledge of the notice to vacate

Legislation Cited:
Anti-Discrimination Act1977 (NSW)
Boarding Houses Act2012 (NSW)
Conveyancing Act1919 (NSW)
Residential Tenancies Act2010 (NSW)

Cases Cited:
Senthilkumaran v Gosan Pty Ltd t/as Century 21 Classic Real Estate (No 2) [2023] NSWSC 442

Category: Procedural rulings
Parties: Rachel Taylor Maytom (First Plaintiff)
Pamela Maytom (Second Plaintiff)
Arthur Laundy (First Defendant)
Stuart Laundy (Second Defendant)
Representation: Self-represented (Plaintiffs)

File Number(s): 2024/241007

EX TEMPORE JUDGMENT (REVISED)

Introduction

HIS HONOUR: The application before the Court is made by the plaintiffs, Rachel Taylor Maytom and Pamela Maytom, seeking an urgent order to stay a notice to vacate in respect of a studio apartment in which they are residing at the Bayview Hotel, Woy Woy (Hotel).
Late yesterday (Friday, 28 June 2024), the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 817
Decision Date: 29 June 2024

CaseChat Overview and Summary

In the matter of Maytom v Laundy, the plaintiffs, comprising an elderly woman and her granddaughter, were residing in a studio apartment situated above a public bar on a week-to-week tenancy. The plaintiffs sought urgent relief in the Supreme Court of New South Wales to prevent enforcement of a notice to vacate the premises, which required them to leave the following day. The plaintiffs did not contest the validity of the notice to vacate under the terms of their tenancy agreement, nor did they argue that the tenancy was subject to the Residential Tenancies Act 2010 (NSW) or the Boarding Houses Act 2012 (NSW). Instead, the plaintiffs contended that the notice to vacate constituted age and disability discrimination against the elderly woman, who suffered from visual impairment, deafness, and other complex medical needs, and who was accompanied by an assistance cat. The plaintiffs sought an interim order under section 105 of the Anti-Discrimination Act 1977 (NSW) to maintain the status quo until the matter could be fully heard.

The primary legal issue before the court was whether the Supreme Court had the jurisdiction to make an interim order under section 105 of the Anti-Discrimination Act 1977 (NSW). The court considered the role of the New South Wales Civil and Administrative Tribunal (NCAT) within the regulatory scheme, and concluded that the power to make such interim orders was exclusively vested in the NCAT. The court held that the Supreme Court did not have the authority to grant the interim order sought by the plaintiffs. Additionally, the court found that the named defendants in the summons were not the appropriate parties to the claim, as there was no evidence to establish that they were the registered proprietors of the hotel or the actual parties with whom the plaintiffs had an arrangement for occupation of the apartment. Consequently, the plaintiffs' application for an interim order was dismissed.

The court found that the plaintiffs had not demonstrated that the named defendants were the appropriate parties to the claim, as there was no formal proof or evidence that they were the registered proprietors of the hotel or the actual parties with whom the plaintiffs had an arrangement for occupation of the apartment. The court also noted that there was no indication that the named defendants had any knowledge of the notice to vacate. As a result, the plaintiffs' application for an interim order under section 105 of the Anti-Discrimination Act 1977 (NSW) was dismissed. The Supreme Court affirmed that the power to make such interim orders was exclusively vested in the NCAT.

Orders