Partington v Pacific Link Community Housing Ltd - [2013] NSWCA 67

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67
Hearing dates: 25 March 2013
Decision date: 25 March 2013
Before: Ward JA
Decision:
Appellant's application to be reinstated in premises from which he was evicted, pending the hearing of his appeal, dismissed. Security for costs ordered. Orders made as to persons to whom, and manner in which, correspondence or communications in relation to these proceedings should be made. Costs of motions ordered in favour of respondent.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
PRACTICE AND PROCEDURE - security for costs - application for orders as to communications between parties

BIAS - application for disqualification on grounds of bias
EQUITY - interlocutory mandatory injunction sought for reinstatement to premises pending appeal
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Residential Tenancies Act 1987 (NSW)
Residential Tenancies Act 2010 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
House v R (1936) 55 CLR 499
Hunt v Allied Bakeries Ltd [1956] 3 All ER 513
King Investment Solutions Pty Ltd v Hussain [2009] NSWSC 1076
Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310
Levy v Bablis [2011] NSWCA 411
Little v Victoria [1998] 4 VR 596
Michael Wilson & Partners Ltd v Nicholls & Ors [2011] HCA 48; (2011) 282 ALR 685
Porter v Gordian Runoff Limited [2004] NSWCA 171
Preston v Harbour Pacific Underwriting Management Pty Limited [2007] NSWCA 247
Re Luck [2003] HCA 70; [2003] 203 ALR 1
Tampion v Anderson [1973] 3 ALR 414
Transglobal Capital Pty Limited v Yolarno Pty Limited [2004] NSWCA 136; [2004] 60 NSWLR 143
Weldon v Maples Teesdale & Co [1887] 20 QBD 331
Category: Interlocutory applications
Parties: Ricky Partington (Appellant)
Pacific Link Community Housing Ltd (First Respondent)
Consumer Trader and Tenancy Tribunal (Second Respondent)
Representation:
Counsel:
A Hourigan (First Respondent)
K Sato (Second Respondent)
Solicitors:
Chris Ryan Legal (First Respondent)
I V Knight, Crown Solicitor (Second Respondent)
Appellant self-represented

File Number(s): 12/390042
Decision under appeal

Date of Decision:

2012-12-14 00:00:00

Before:

Robison DCJ

File Number(s):

12/539351

Judgment (ex tempore)

HER HONOUR: Before me in the referrals list today are two applications in this matter. There is an application by the first respondent, Pacific Link Housing Limited, by amended notice of motion dated 4 March 2013 for orders falling within three main categories. The first is an order for security for costs pursuant to r 51.50 of the Uniform Civil Procedure Rules

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: [2013] NSWCA 67
Decision Date: 25 March 2013

CaseChat Overview and Summary

In *Partington v Pacific Link Community Housing Ltd*, the appellant sought urgent interlocutory relief, including reinstatement to premises from which he had been evicted, pending the hearing of his appeal. The respondent sought security for costs and orders regulating communications between the parties. The matter came before Ward JA in the Court of Appeal of New South Wales.

The primary legal issues before the Court were whether the appellant was entitled to an interlocutory mandatory injunction for his reinstatement to the premises, whether the respondent should be granted security for its costs, and what orders, if any, should be made regarding communications between the parties in relation to the proceedings. The appellant also raised grounds concerning bias, though the specific nature of these grounds is not detailed in the provided text.

Ward JA dismissed the appellant's application for reinstatement, indicating that the threshold for such an injunction was not met. The Court ordered that the appellant provide security for the respondent's costs. Furthermore, specific orders were made concerning the individuals to whom, and the manner in which, correspondence or communications relating to these proceedings should be directed. The costs of the various motions were awarded in favour of the respondent.

Orders

Orders of the court

Appellant's application to be reinstated in premises from which he was evicted, pending the hearing of his appeal, dismissed. Security for costs ordered. Orders made as to persons to whom, and manner in which, correspondence or communications in relation to these proceedings should be made. Costs of motions ordered in favour of respondent.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67
Hearing dates:	25 March 2013
Decision date:	25 March 2013
Before:	Ward JA
Decision:	Appellant's application to be reinstated in premises from which he was evicted, pending the hearing of his appeal, dismissed. Security for costs ordered. Orders made as to persons to whom, and manner in which, correspondence or communications in relation to these proceedings should be made. Costs of motions ordered in favour of respondent. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE - security for costs - application for orders as to communications between parties BIAS - application for disqualification on grounds of bias EQUITY - interlocutory mandatory injunction sought for reinstatement to premises pending appeal
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Residential Tenancies Act 1987 (NSW) Residential Tenancies Act 2010 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 House v R (1936) 55 CLR 499 Hunt v Allied Bakeries Ltd [1956] 3 All ER 513 King Investment Solutions Pty Ltd v Hussain [2009] NSWSC 1076 Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 Levy v Bablis [2011] NSWCA 411 Little v Victoria [1998] 4 VR 596 Michael Wilson & Partners Ltd v Nicholls & Ors [2011] HCA 48; (2011) 282 ALR 685 Porter v Gordian Runoff Limited [2004] NSWCA 171 Preston v Harbour Pacific Underwriting Management Pty Limited [2007] NSWCA 247 Re Luck [2003] HCA 70; [2003] 203 ALR 1 Tampion v Anderson [1973] 3 ALR 414 Transglobal Capital Pty Limited v Yolarno Pty Limited [2004] NSWCA 136; [2004] 60 NSWLR 143 Weldon v Maples Teesdale & Co [1887] 20 QBD 331
Category:	Interlocutory applications
Parties:	Ricky Partington (Appellant) Pacific Link Community Housing Ltd (First Respondent) Consumer Trader and Tenancy Tribunal (Second Respondent)
Representation:	Counsel: A Hourigan (First Respondent) K Sato (Second Respondent) Solicitors: Chris Ryan Legal (First Respondent) I V Knight, Crown Solicitor (Second Respondent) Appellant self-represented
File Number(s):	12/390042
Decision under appeal	Date of Decision: 2012-12-14 00:00:00 Before: Robison DCJ File Number(s): 12/539351