Tanious v NSW Land and Housing Corporation (No 2)

[2017] NSWCA 66

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Tanious v NSW Land and Housing Corporation (No 2) [2017] NSWCA 66
Hearing dates:	27 March 2017
Decision date:	27 March 2017
Before:	Leeming JA; Payne JA
Decision:	Notice of motion filed 20 March 2017 is dismissed.
Catchwords:	PRACTICE – Application to reopen decision refusing leave – no basis for reopening made out
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited:	Tanious v NSW Land and Housing Corporation [2017] NSWCA 43
Category:	Procedural and other rulings
Parties:	Mofeed Louis Tanious (Applicant) NSW Land and Housing Corporation (Respondent)
Representation:	Applicant in person
File Number(s):	2016/372861
Decision under appeal	Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2016] NSWCATAP 246 Date of Decision: 15 November 2016 Before: Wright J (President); Emeritus Professor Walker (Senior Member) File Number(s): SH 16/25006

EX TEMPORE Judgment

1. THE COURT: On 7 March 2016, this Court dismissed Mr Tanious’ application for leave to appeal from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT), itself dismissing an appeal on a question of law from a first instance decision of NCAT constituted by a general member which ordered the removal of some metal shutters which had been installed in the premises owned by the respondent and rented by Mr Tanious: Tanious v NSW Land and Housing Corporation [2017] NSWCA 43.

2. Following that decision, Mr Tanious filed a motion on 20 March 2017 which was made returnable today. The motion, which has the hallmarks of being prepared by Mr Tanious unassisted by a lawyer, seeks the following orders:

“1. The decision was handed down by the honourable Court of appeal of NSW on 7th of March 2017 in the matter number 2016 / 372861 concerning the summons seeking leave to appeal to be reviewed and set aside because it was made without any evidence.

2. Applicant must not remove the metal covering and shutters from window and door frames as the respondent looked for but he must apply for the respondent’s written permission according to clause 25.1 of the residential tenancy agreement.

3. Respondent must not refuse permission according to clause 26 of the residential tenancy agreement.

4, Respondent to pay the applicant’s cost including the cost before the appeal panel of civil and administrative tribunal of NSW because of repeating the same proceedings without any evidence specially the matter was dismissed twice at the beginning. In addition to the intention of the respondent to remove the metal cover from the window and door frame without any consideration for clause 26 of the residential tenancy agreement.” [sic]

3. The application is supported by written submissions which commence with a reference in general terms to the principles of natural justice. Without intending to convey any disrespect, it is difficult to understand the balance of the submissions. For example, paragraph 2 is as follows:

“Paragraph 9 page 6 of reasons of the decision was handed down on 7th of March 2017 (a) Mr Tanious had not sought the respondent’s written permission and (b) had permission been sought but in this notice of motion the applicant had sought this written permission without removal of the metal cover as the respondent intention to do in order to expose the applicant’s safety and privacy to others and let him hate living in the home to let the respondent be able sailing the home.” [sic]

4. Doing the best we can, paragraphs 3-6 include statements that there was no evidence for the decision, that the respondent’s officers have confirmed that it was his responsibility to install a new shutter, and had visited briefly last month without looking at fan ventilation or extra lighting, and that some six years ago permission was granted to Mr Tanious to lay pavers.

5. Those written submissions were reiterated orally by Mr Tanious this morning. He indicated that paragraph 2, which is reproduced above, was his “main issue” with this Court’s decision earlier this month. But paragraph 9 on page 6 of this Court’s reasons in its earlier decision merely records the reasons given by the Appeal Panel of NCAT and is not any part of the dispositive reasoning of this Court.

6. In order to be constructive, we observe that, to the extent that Mr Tanious may be concerned that he cannot comply with the NCAT order without first obtaining written permission from the respondent, that concern is misplaced. The order was sought by the respondent, and obliges him to comply with it. No further permission is required. For an abundance of caution, in light of the oral submissions made by Mr Tanious, the Court confirms that the order of NCAT requiring removal of the shutter should be complied with without delay. Nothing that has been said is intended to qualify that obligation upon Mr Tanious in any way.

7. We have treated the application as being made under UCPR r 36.16. Nothing Mr Tanious has written or said discloses anything which bears upon the discretion to reopen this Court’s decision refusing leave. The notice of motion filed 20 March 2017 will be dismissed.

8. The order of the Court is that the notice of motion of 20 March 2017 is dismissed.

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Decision last updated: 31 March 2017