Roslyn Anne O'Meley v Kane O'Meley
[2013] NSWSC 1496
•04 October 2013
Supreme Court
New South Wales
Medium Neutral Citation: Roslyn Anne O'Meley v Kane O'Meley [2013] NSWSC 1496 Hearing dates: 4 October Decision date: 04 October 2013 Jurisdiction: Equity Division - Duty List Before: Rein J Decision: 1. Order the defendant be restrained form taking any steps to prevent, hinder or delay access to the property by a valuer but order stayed until 16 October 2013 to enable 7 days notice to be given by the plaintiff.
2. Order that the matter be expedited.
Catchwords: EQUITY - whether the matter should be expedited - whether an order should be made to restrain the defendant from preventing or hindering access to the property by a valuer and otherwise impeding the undertaking of an inspection by a valuer - jurisdiction of the Court to make the order sought considered and reference made to the application by the defendant to the Consumer, Trade and Tenancy Tribunal purportedly pursuant to s 77 of the Residential Tenancies Act 2010 (NSW) Legislation Cited: Consumer, Trade and Tenancy Tribunal Act 2001 (NSW)
Residential Tenancies Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Category: Interlocutory applications Parties: Roslyn Anne O'Meley (plaintiff)
Kane O'Meley (defendant)Representation: Counsel: Mr M. Condon SC and Ms M. Clemmett (plaintiff)
No appearance (defendant)
Solicitors: Sparke Helmore Lawyers (plaintiff)
File Number(s): 2013/296916
EX TEMPORE Judgment
REIN J: The plaintiff in these proceedings is the sole registered proprietor of a property at Wyee on the Central Coast ("the property"). She has arranged to sell the property to her nephew (and her nephew's wife) and the purchasers need to obtain a valuation of the property as a requirement of the bank lender from whom the purchasers propose to obtain most of the finance for the purchase. Contracts have not yet been exchanged, because of the bank's requirement for valuation.
The plaintiff and her husband were joined as parties to family law proceedings between the plaintiff's son, Tony O'Meley ("Tony"), and Tony's first wife because of their interest in the property. Tony had become a bankrupt in 2005.
Effectively the Family Court ordered the plaintiff and her husband to pay Tony and his second wife an amount for the latters' share in the property in return for a transfer of the title to the plaintiff and her husband. Very shortly after the transfer in accordance with the Family Court's orders, the plaintiff's husband transferred his share of the property to her.
There is presently in occupation of the premises Tony's son Mr Kane O'Meley, the defendant, who I shall refer to as "Kane". The plaintiff, on her evidence, has not given Kane permission to occupy the premises or to be on the premises for any purpose and the principal relief sought in the proceedings is the possession of the property and the ejectment of Kane from it. I am satisfied that Kane has been served with notice of these proceedings and today's hearing in accordance with the orders made by McDougall J a few days ago.
Mr Guttierrez, solicitor, attended this morning indicating that he did so at the request of Tony, but he did not seek to have Tony joined and stated that he did not have instructions to appear for Kane or Tony but rather sought to appear as "amicus curiae" which in my view is an inappropriate description of his position. When Mr Guttierrez sought to make submissions, Mr Condon SC who appears in this matter with Ms Clemmett for the plaintiff, objected to Mr Guttierrez doing so, since he had neither filed an appearance, nor undertaken to file one. I refused to hear Mr Guttierrez's submissions in those circumstances: see Pt 6, r 1 Uniform Civil Procedure Rules 2005 (NSW).
In support of her case, the plaintiff relies on her affidavit of 3 October 2013, the affidavits of Mr Ananian-Cooper of 2 and 4 October and an affidavit of Sharon Woodward of 3 October.
There have been previous proceedings in this Court between the plaintiff and Tony in which Tony's wife "Ellie" and companies controlled by the plaintiff were also parties and which were heard by his Honour Young AJ earlier this year. Tony and Ellie have sought leave to adduce further evidence and the hearing of that application has been listed before his Honour on 29 October 2013. However, on 30 August 2013, orders were entered by consent that none of the defendants, including Tony, were to take any steps to prevent, hinder or delay the sale by the plaintiff of the property.
There is evidence that the plaintiff and Kane, through Kane's solicitor at the time, Mr Hagon, agreed that Kane should be joined to the Supreme Court proceedings, but I am informed that Young AJ did not agree to that joinder and no orders to that effect were made. Nevertheless, there is evidence that on that date, the 30 August 2013, Kane, through his solicitor, agreed to vacate the property. Kane has not vacated the property and there is evidence that he will not permit the valuer to attend on the property and inspect it. Kane has asserted in the course of a visit of Ms Woodward and the valuer, that the property is owned by his father, Tony.
The plaintiff has sought an expedited hearing of this matter and I have fixed the matter for hearing on 18 November 2013 before the Expedition List Judge. The plaintiff presently seeks, as a further order in addition to the interlocutory steps leading to the hearing, an order that Kane be restrained from preventing or hindering access to the property by a valuer and otherwise impeding the undertaking of the inspection by the valuer. I am satisfied that there is a need for this order in view of the difficulties on the previous occasion that the valuer attended and I think there is an appreciable risk that Kane will not permit such a valuation to proceed, unless ordered to do so.
There is evidence that on 30 September 2013 Kane lodged an application in the Consumer Trade and Tenancy Tribunal ("CTTT") seeking an order under s 77 of the Residential Tenancies Act 2010 (NSW). Section 77 provides:
77 Recognition of certain persons as tenants
(1) The Tribunal may, on application by a person who is occupying residential premises, make an order recognising the person as a tenant under a residential tenancy agreement or join the person as a party to any proceedings relating to the premises, or both.
(2) The Tribunal may make an order if:
(a) the sole tenant under the residential tenancy agreement to which the premises are subject has died, or
(b) the tenant no longer occupies the premises.
(3) An order under this section may:
(a) vest a tenancy over the residential premises in the occupant on such of the terms of the previous residential tenancy agreement as the Tribunal thinks appropriate, having regard to the circumstances of the case, and
(b) vest the tenancy from a date that is earlier than the order.
(4) An application for an order under this section may be made at the same time as any other application or during proceedings before the Tribunal or independently of any such other application or proceedings.
(5) This section does not apply if the landlord is a social housing provider.
At page 178 of the plaintiff's affidavit is Kane's application to the CTTT in which he sets out his claim in support of the order that he is seeking under s 77:
Claiming my legal entitlement to reside at the property which is subject to a dispute between my Father and his mother. I have resided at the property which my father has paid for himself, and his mother was listed as the registered owner as a trustee for my father whilst he was bankrupt. My father's trustee in Bankruptcy entered into a deed with my father and his parents and was paid a sum of money by my father to relinquish any further claim the trustee may have had against the property. Now my father's mother is acting in breach of that Trust with her son, attempting to pervert the course of justice and deprive us of our right to our property.
Mr Condon has drawn my attention to a number of the sections of the Residential Tenancies Act 2010 (NSW) and also the Consumer, Trade and Tenancy Tribunal Act 2001 (NSW). Of relevance to present considerations are s 13 of Residential Tenancies Act 2010 (NSW), which definition a residential tenancy agreement as:
(1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.
(my emphasis)
and ss 21 and 22 of the Consumer, Trade and Tenancy Tribunal Act 2001 (NSW) and ss 55 and 119 of the Residential Tenancies Act 2010 (NSW). Subsection 22(3) of the Consumer, Trade and Tenancy Tribunal Act provides that in certain circumstances no Court, including this Court, has jurisdiction to hear or determine issues relating to residential tenancies. Subsection (3) is in the following terms:
(3) If, at the time when an application was made to the Tribunal in accordance with this Act, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue
Mr Condon maintained that also relevant in this context is subs (5):
(5) Subsection (3) does not prevent a court from hearing and determining any proceedings in which it is claimed that any order, determination or ruling of the Tribunal is invalid for want of jurisdiction or from making any order as a consequence of that finding.
Kane has not asserted that he has a residential tenancy agreement with the plaintiff (or his father) and he has chosen not to attend today or put evidence forward to establish that he has such an agreement. Although it does appear that Kane has been in occupation of the property, presumably as he would see it, under licence of his father, he seems to be asserting his father's claimed rights to the property rather than his own. An interesting and difficult question arises as to whether or not by the lodging by Kane of an application under s 77 this Court has been deprived jurisdiction in a context where there is no evidence of any residential tenancy agreement between the plaintiff and Kane and the only asserted basis of Kane's entitlement, as reflected by the terms of the application in the Tribunal and his comments to Ms Woodward and the valuer is in relation to his father's entitlement to the property. Such an entitlement on the evidence before me, seems to be wholly baseless and ignores the orders of the Family Court and the steps taken by the parties to the Family Court proceedings pursuant to those orders.
I do not today have to determine, given the s 77 application, whether or not this Court does have jurisdiction to determine whether or not Kane has a residential tenancy agreement or, indeed, is entitled to be in occupation because the order that is sought relates solely to the issue of access for a valuation.
If Kane is not in occupation of the property pursuant to a residential tenancy agreement he is not entitled to impede access being given to a valuer appointed by a prospective purchaser and to whom the registered proprietor wishes to give access. If, on the other hand, he is in occupation under a lease or even if he might be granted a lease, pursuant to s 77, the terms of the Residential Tenancies Act would apply and he would still be required to give access in accordance with s 55(2)(d) which requires access to be given:
to value the property, not more than once in any period of 12 months, if the tenant is given not less than 7 days notice each time
It is not without difficulty but I think that by making an order that Kane be required to grant access, provided that seven days notice is given, I will not, by so doing, be determining an issue arising under the application which Kane has made in the CTTT. Of course the plaintiff maintains there is no residential tenancy agreement and hence no scope for application of the Residential Tenancies Act at all. A notice period consistent with the Residential Tenancies Act seems to me to be appropriate, given that if there is any possibility that the Act does apply or perhaps more accurately may apply if the order sought under s 77 is granted, the requirement that Kane grant access will not be inconsistent with a residential tenancy agreement being on foot or being created if the orders sought under s 77 are granted. Whilst I am inclined to think that once the application is filed in the CTTT this Court may be precluded from dealing with the issue that is the subject of the application to the Tribunal and hence may be precluded from granting the relief sought in the Statement of Claim, there may be reasons why that tentative view is ultimately found to be incorrect. Instead, what I have sought to do is address the only issue that I have been asked to determine today as opposed to the question that will be considered by the Court on another occasion.
Accordingly, I think that orders should be made in accordance with the short minutes of order which have been prepared by Mr Condon which includes a stay of these orders until 16 October 2013 to ensure that a notice of at least 7 days is given.
Mr Condon indicated that consideration was being given to whether an application should be made to the CTTT to have the application lodged by Kane transferred to this Court and combined with these proceedings. If that course is open to the Tribunal it would remove any potential jurisdictional difficulties with which these proceedings might, at least on one view, be faced. This Court has already been the forum for proceedings between the plaintiff and Tony and any involvement by Tony in the position taken by Kane may be relevant to the question of whether Tony has sought to frustrate the orders made by consent in this Court on 30 August 2013. That and the fact that there will be no impediment to enforcement of orders should it be concluded that Kane is not entitled to remain in occupation of the property are additional advantages for all of the issues pertinent to Kane's occupation being heard in one forum.
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Decision last updated: 11 October 2013
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