Rayner v Rayner

[2019] NSWSC 714

Supreme Court

New South Wales

Medium Neutral Citation:

Rayner v Rayner [2019] NSWSC 714

Hearing dates:

11 June 2019

Date of orders:

11 June 2019

Decision date:

11 June 2019

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1)   Leave to the plaintiff to file in court the notice of motion dated 11 June 2019, as well as leave to file in court the affidavit of Timothy James Lynch sworn 11 June 2019.

 

(2)   The plaintiff is to serve by email upon the defendant herself, as well as her solicitor Mr Hawach of McAuley Hawach Lawyers, a copy of the notice of motion and affidavit, as well as notifying both the defendant and Mr Hawach of the orders I have made today.

 

(3)   An affidavit sworn or affirmed by the plaintiff detailing the date upon which he received various notices, as well as the times at which he instructed Mr Lynch, is to be filed and served and provided in electronic form to my Associate by 5pm 12 June 2019.

 

(4)   Pending further order, the order for possession of the subject premises be stayed until 9am Friday 14 June 2019.

 

(5)   I list the matter at 2pm Thursday 13 June 2019 before me.

 (6)   Any other evidence upon which the plaintiff wishes to rely in support of the notice of motion, in addition to the affidavit of the plaintiff that I have required, is to be filed and served by 5pm on Wednesday 12 June 2019, with an electronic copy to be provided to my Associate.
(7)   I also give liberty to apply by email to my Associate on 24 hours' notice.

Catchwords:

LANDLORD AND TENANT – notice of motion – ex parte application for stay of possession order made by New South Wales Civil and Administrative Tribunal pending appeal – short stay granted

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 50

Category:

Procedural and other rulings

Parties:

Gary John Rayner (Plaintiff)
Ashlee Evelyn Rayner (Defendant)

Representation:

Solicitors:
Beswick Lynch Lawyers (Plaintiff)

File Number(s):

2019/177998

Publication restriction:

Nil

ExTEMPORE Judgment

1. HER HONOUR: This notice of motion came before me as duty judge at about 3.30pm today, 11 June 2019. The background to it is that the plaintiff was the unsuccessful appellant in proceedings before an NCAT appeal panel with respect to his residential tenancy agreement he has with his daughter. Without going too much into the background given the time constraints, the lateness of the day and the reality of other pressing duty matters I need to deal with, as early as 9 May 2019 the plaintiff, Mr Rayner, was alerted to the prospect that he would have to give up possession of the premises after 31 May 2019 because the appeal panel made an order giving possession to the landlord immediately but suspending the order for possession to 31 May.

2. Mr Lynch, who was instructed in the appeal proceedings, tells me that it was only today at midday that he was instructed to make an application seeking a stay of the possession until the appeal proceedings in this court could be heard. I note in that regard a summons commencing an appeal pursuant to Prt 50 of the Uniform Civil Procedure Rules 2005 (NSW) was signed on 6 June 2019 by Mr Lynch and filed on 7 June 2019.

3. An affidavit of Mr Lynch sworn today is before me. In that he advises that the plaintiff is 68 years of age and is dependent on a Centrelink pension, he has nowhere else to go, and has continued to pay the occupation fee that he had been ordered to pay by NCAT some time ago pending determination of his appeal.

4. I note that while the summons commencing appeal has, I have been informed, been served upon the solicitor formerly acting for the defendant Ashlee Rayner at 1.55pm today, the notice of motion and affidavit of Mr Lynch was not served and still has not been served.

5. At my request, Mr Lynch attempted to contact Mr Hawach by phone at about a quarter to four today, and he informs me he has been unable to make telephone contact.

6. In the circumstances, I am prepared to grant a very short stay of the order for possession pending compliance with and provision of certain essential documents.

7. The formal orders I make are as follows:

1. Leave to the plaintiff to file in court the notice of motion dated 11 June 2019, as well as leave to file in court the affidavit of Timothy James Lynch sworn 11 June 2019.

2. The plaintiff is to serve by email upon the defendant herself, as well as her solicitor Mr Hawach of McAuley Hawach Lawyers, a copy of the notice of motion and affidavit, as well as notifying both the defendant and Mr Hawach of the orders I have made today.

3. An affidavit sworn or affirmed by the plaintiff detailing the date upon which he received various notices, as well as the times at which he instructed Mr Lynch, is to be filed and served and provided in electronic form to my Associate by 5pm 12 June 2019.

4. Pending further order, the order for possession of the subject premises be stayed until 9am Friday 14 June 2019.

5. I list the matter at 2pm Thursday 13 June 2019 before me.

6. Any other evidence upon which the plaintiff wishes to rely in support of the notice of motion, in addition to the affidavit of the plaintiff that I have required, is to be filed and served by 5pm on Wednesday 12 June 2019, with an electronic copy to be provided to my Associate.

7. I also give liberty to apply by email to my Associate on 24 hours' notice.

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Decision last updated: 17 June 2019