Von Reisner v Consumer Trader and Tenancy Tribunal

[2007] NSWSC 907

CITATION:	Von Reisner v Consumer Trader and Tenancy Tribunal & Anor [2007] NSWSC 907 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10/8/07
JUDGMENT DATE :	10 August 2007
JUDGMENT OF:	Bell J at 1
EX TEMPORE JUDGMENT DATE:	10 August 2007
DECISION:	1. Dismiss the amended notice of motion filed by Koidu Von Reisner in proceedings in the Court of Appeal No. 40193 of 2007; 2. The time for compliance with the orders made by the Consumer Trader & Tenancy Tribunal on 2 March 2006 is extended as follows; (a) the tenant to give access to the landlord and/or its agents to the premises from 8.30 am to 4.30pm on each day from 14 August 2007 to 17 August 2007 inclusively for the purposes of carrying out the repairs as sought in the second defendant's application to the Consumer Trader and Tenancy Tribunal (file number RT 06/06329); (b) The plaintiff to remove all clutter including but not limited to papers, rags, cardboard boxes, textiles and excess furniture by no later than 4pm on 15 August 2007; 3. If the order referred to in order 2(b) above is not complied with, the second defendant by its servants or agents may remove any such clutter at any time between 4.00pm to 4.30pm on 15 August and 8.30am to 4.30pm on 16 and 17 August 2007; 4. Upon reasonable notice by the second defendant the Sheriff is to attend the plaintiffs' premises at such time as the work is carried out and to provide such assistance as is necessary for the orderly carrying out of the work; 5. The balance of the second defendant's amended motion is stood over generally. The amended motion may be re-listed on three days' notice by contact with my Associate; 6. The plaintiff is to pay the second defendant's costs of its amended motion
PARTIES:	Koidu Von Reisner (Plaintiff) Consumer Trader and Tenancy Tribunal (1st Defendant) Land and Housing Corporation NSW (2nd Defendant)
FILE NUMBER(S):	SC 30023/06
COUNSEL:	In Person (Plaintiff) Mr Turnbull (1st Defendant)
SOLICITORS:	In Person IV Knight (1st Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 10 August 2007

030023/06 - KOIDU VON REISNER & ANOR v CONSUMER TRADER AND TENANCY TRIBUNAL NSW SYDNEY & ANOR

JUDGMENT

1 BELL J: On 23 February 2006 the Consumer Trader and Tenancy Tribunal (the Tribunal) made orders including that the plaintiff, Koidu Von Reisner, give access to the defendant, the New South Wales Land & Housing Corporation (the Corporation) and/or its agents to premises between certain hours on each day between 6 March and 10 March 2006 for the purpose of carrying out urgent repairs. In the event that Ms Von Reisner did not comply with the order, provision was made for the Corporation to retain the services of a locksmith in order to gain access. By further order the Tribunal directed Ms Von Reisner to remove all “clutter” including but not limited to papers, rags, cardboard boxes, textiles and excess furniture by no later than 3 March 2006 and made provision, in the event that she failed to do so, for the Corporation to remove any such clutter.

2 The Tribunal ordered that Ms Von Reisner be restrained from interfering with any contractor or Department of Housing personnel during the specified period including by harassing, film taping or questioning them and a number of consequential orders.

3 On 8 March 2006 Ms Von Reisner filed a summons appealing from the determination of the Tribunal. The matter was before the court for directions thereafter on 28 March and 1 May. On 5 June 2006 Simpson J declined Ms Von Reisner's application to adjourn the hearing of the appeal. On 13 June 2006 a further application to adjourn the hearing was refused. The appeal was listen for hearing on 26 June but on that date it was not reached. On 13 March 2007 Hidden J refused an application by Ms Von Reisner to vacate the date for the hearing of the appeal.

4 The appeal came on for hearing before Barr J on 29 March 2007. His Honour delivered three judgments on that day. In light of submissions that were advanced by Ms Von Reisner on the hearing of the motions before me, it is necessary to refer to the transcript of proceedings before his Honour on 29 March.

5 Ms Von Reisner appeared in person and it is apparent that she actively participated in the proceedings up until the luncheon adjournment. During the course of proceedings that morning Ms Von Reisner pressed an application for an adjournment, which was refused. The transcript of proceedings shows that, when the matter was resumed at 2pm, Ms Von Reisner did not appear. His Honour adjourned the hearing for a short time. The matter was called again at 2.20pm, at which time there was still no appearance by Ms Von Reisner.

6 His Honour proceeded to deal with the appeal and to dismiss it. His Honour varied the orders made by the Tribunal with respect to the timetable for access to the premises.

7 On 5 April 2007 Simpson J dismissed an application by Ms Von Reisner to set aside the orders made by Barr J.

8 On 13 July 2007 the Corporation obtained orders from Harrison J further extending the timetable for compliance with the orders.

9 On 17 July 2007 Ms Von Reisner filed a summons for leave to appeal. On 24 July she filed a motion in the Court of Appeal for a stay of the orders made by Barr J. On 27 July the Corporation, by letter, advised Ms Von Reisner of the time and date upon which the work was to be carried out conformably with the orders as varied by Harrison J.

10 In evidence on the motions before me is the affidavit of Michael Callan, a solicitor in the Corporation's employ. On 1 August Mr Callan and other staff members and contractors of the Corporation attended at the premises. They were not given entry. A locksmith was summonsed to the premises and ultimately entry was gained. Suffice to say, the effect of the evidence of Mr Callan is that Ms Von Reisner, by her conduct, prevented the Corporation from carrying out the repairs on 1 August.

11 On 2 August 2007 the Corporation moved on notice for orders that the plaintiff be removed from the premises while the work is carried out. Subsequently the Corporation moved on an amended motion claiming an order that Ms Von Reisner be found guilty of contempt by her failure to comply with the orders made on 13 July 2007 in that she refused to allow representatives of the Corporation to enter the premises and carry out the work.

12 By its amended motion the Corporation claimed a further order that Ms Von Reisner be removed from the premises at such time and on such date as the court may order and that she be restrained from entering the premises until the work is complete.

13 Ms Von Reisner’s motion, by which she claims a stay of the orders made by Barr J, was filed in the Court of Appeal and was referred by the Registrar of the Court of Appeal to me for determination. Her motion and the Corporation's amended motion both came before me for hearing. The Corporation read the affidavit of Mr Callan. When the matter first came on Ms Von Reisner was represented by Mr McGlynn. An affidavit sworn by Ms Von Reisner and filed in the Court of Appeal proceedings, which is dated 25 July 2007 together with a further affidavit sworn by Ms Von Reisner on 10 August was read in her case.

14 During the course of the hearing Ms Von Reisner commenced making submissions personally. I adjourned the proceedings for a short period in order to clarify the position with respect to her representation. On the resumed hearing Mr McGlynn indicated that his instructions had been withdrawn. Thereafter, Ms Von Reisner appeared in person.

15 Ms Von Reisner submitted that her appeal would be rendered nugatory if the stay were not granted. This is a powerful consideration. Mr Turnbull, who appeared for the Corporation, acknowledged this was the case but he invited me to consider the history of the proceedings and the grounds of the appeal. He submitted that the grounds are variously directed to the contention that the proceedings before Barr J involved a denial of procedural fairness by reason that his Honour determined the appeal in Ms Von Reisner’s absence.

16 Having considered the grounds of appeal in the notice of appeal and the transcript of proceedings before Barr J, I am of the opinion that no arguable ground of challenge to the judgment has been articulated.

17 I am mindful of the history of the matter, which includes that in February 2006 the Tribunal made orders giving access to the premises to the Corporation in order to effect “urgent repairs”. I am not persuaded, against this history and in light of the grounds of appeal, that the proper exercise of my discretion favours a stay of the orders.

18 I turn next to the amended notice of motion filed by the Corporation. Mr Turnbull did not press for the relief claimed in the amended motion. In his submission, in addition to varying the timetable to give effect to the orders, the Court should direct the Sheriff to render assistance to ensure that the orders are carried out without further incident. Given the history in Mr Callan's affidavit, I am persuaded that this is an appropriate order to make.

ORDERS

1. Dismiss the amended notice of motion filed by Koidu Von Reisner in proceedings in the Court of Appeal No. 40193 of 2007.

2. The time for compliance with the orders made by the Consumer Trader & Tenancy Tribunal on 2 March 2006 is extended as follows:

(a) the tenant to give access to the landlord and/or its agents to the premises from 8.30 am to 4.30pm on each day from 14 August 2007 to 17 August 2007 inclusively for the purposes of carrying out the repairs as sought in the second defendant's application to the Consumer Trader and Tenancy Tribunal (file number RT 06/06329).
(b) The plaintiff to remove all clutter including but not limited to papers, rags, cardboard boxes, textiles and excess furniture by no later than 4pm on 15 August 2007.


3. If the order referred to in order 2(b) above is not complied with, the second defendant by its servants or agents may remove any such clutter at any time between 4.00pm to 4.30pm on 15 August and 8.30am to 4.30pm on 16 and 17 August 2007.

4. Upon reasonable notice by the second defendant the Sheriff is to attend the plaintiffs' premises at such time as the work is carried out and to provide such assistance as is necessary for the orderly carrying out of the work.

5. The balance of the second defendant's amended motion is stood over generally. The amended motion may be re-listed on three days' notice by contact with my Associate.

6. The plaintiff is to pay the second defendant's costs of its amended motion.

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17/08/2007	-	Cover sheet amendment - Paragraph(s) [0]
17/08/2007	-	Cover sheet amendment - Paragraph(s) [0]