Sutton v NSW Land and Housing Corporation
[2016] NSWSC 848
•16 June 2016
Supreme Court
New South Wales
Medium Neutral Citation: Sutton v NSW Land & Housing Corporation [2016] NSWSC 848 Hearing dates: 16 June 2016 Decision date: 16 June 2016 Jurisdiction: Equity - Duty List Before: Stevenson J Decision: Order made restraining proceedings in New South Wales Civil and Administrative Tribunal
Catchwords: PRACTICE AND PROCEDURE – interlocutory issues – urgent application to restrain NSW Civil and Administrative Tribunal from determining proceedings – where plaintiff has commenced proceedings in this Court for equitable relief Legislation Cited: Residential Tenancies Act 2010 (NSW) Category: Procedural and other rulings Parties: Beverley Sutton (Plaintiff)
NSW Land & Housing Corporation (Defendant)Representation: Counsel:
Solicitors:
R D Wilson SC with K P Tang (Plaintiff)
J O’Connor (Defendant)
Redfern Legal Centre (Plaintiff)
File Number(s): SC 2016/182117
EX TEMPORE Judgment (REVISED)
-
This is an application brought at the very last moment by the plaintiff, Mrs Beverley Sutton, for a declaration that, in the events that have happened, she is entitled on the grounds of proprietary estoppel to a tenancy for her life, or such other period as the court determines, in a property at Millers Point. That property is now owned by the New South Wales Land & Housing Corporation. Mrs Sutton has been in occupation of the property since 1986.
-
According to an affidavit sworn on her behalf by her tenants’ advocate, Mr Timothy Barker, the basis upon which Mrs Sutton will contend that she has a tenancy for life is statements that she says were made to her by officers of the Maritime Services Board, then the owner of the premises, that “if you pay your rent on time, keep your nose clean, you will be there for life”.
-
Mrs Sutton has since then signed a number of documents concerning her occupation of the property which are inconsistent, in their terms, with there being a tenancy for life.
-
According to Mr Barker, Mrs Sutton’s case will be that she did not appreciate that that was the effect of those documents and that she did not intend to waive such right as she has for a life tenancy.
-
On 1 March 2016, the defendant Corporation commenced proceedings at the New South Wales Civil and Administrative Tribunal under the Residential Tenancies Act2010 (NSW) seeking possession of the property. It did that after giving Mrs Sutton fair notice of its intention to take that step. Since the proceedings were commenced there has been correspondence to NCAT from the Inner Sydney Tenants Advice and Advocacy Centre on Mrs Sutton’s behalf.
-
Those proceedings are fixed for hearing tomorrow at NCAT.
-
The application before me is brought on the eve of the hearing before NCAT and I think it is fair to say that there is no adequate explanation as to why the application is made so late and why the matter has not been agitated either here or before NCAT before.
-
However, the fact is that Mrs Sutton has been in occupation of the property for 30 years and the practicalities of the matter are that, were I to refuse Mrs Sutton’s application, the same type of application would have to be made to NCAT tomorrow or, worse from Mrs Sutton’s point of view, the matter would be resolved finally and adversely to her interests.
-
In all the circumstances, and although I find the matter evenly balanced, I am persuaded to make an order restraining NCAT from determining the proceedings pending the determination by this Court of Mrs Sutton’s claim.
-
In that regard I propose to give the matter the earliest date practically available for hearing, namely, 21, 22 and 23 September 2016.
-
The order that Mrs Sutton seeks today is an order restraining NCAT from proceeding with the matter tomorrow. I propose to make that order.
-
I enquired of Mr O’Connor, who appears for the Corporation, whether the Corporation requires that Mrs Sutton give an undertaking as to damages in order to obtain that relief (assuming that such an undertaking were needed). Mr O’Connor informed me that, consistent with its obligation to act as a model litigant, the Corporation does not require such an undertaking to be given. I wish to express my gratitude to the Corporation for taking that step.
-
I make the following orders:
Fix the matter for hearing before Sackar J for three days commencing 21 September 2016.
Make an order restraining NCAT from determining proceedings file no. SH 16/13330 and SH 16/10423 commenced by the defendant against the plaintiff for the vacant possession of the Millers Point property.
Direct that the solicitor for the plaintiff notify NCAT forthwith of the making of that order.
Invite the parties to confer and agree on directions to get the matter ready for hearing, those directions to include a directions hearing date before Sackar J as Expedition List Judge in August 2016.
List the matter for directions before me in the Expedition List on 24 June 2016.
Reserve the costs of today.
Order that Exhibit NC-1 be returned.
**********
Decision last updated: 22 June 2016
0
0
1