Talatala v Esguerra [2020] NSWSC 994

Supreme Court New South Wales

Medium Neutral Citation: Talatala v Esguerra [2020] NSWSC 994 Hearing dates: 29 July 2020 Decision date: 29 July 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order that, pending further order, the respondent (Aurelio Esguerra, being the defendant in case number 2019/00392825) be restrained from commencing or prosecuting any proceedings in the NSW Civil & Administrative Tribunal (the Tribunal) for the purpose of obtaining as against the applicant a termination order, including but not limited to a termination order pursuant to ss 85, 87, 88 and 89 of the Residential Tenancies Act 2010 (NSW), and including issuing or purporting to issue a termination notice with respect to an alleged residential tenancy agreement of a periodic nature in relation to the property known as and situate at 14 Glenview Grove, Glendenning, NSW, 2761 (the Property) until the pending Supreme Court proceedings have been concluded by the making of declaratory and other orders of a final nature, including a general order for costs as sought by the plaintiff in these proceedings. 2. Order that, pending further order, the respondent be restrained from taking any steps to enforce any order obtained from the Tribunal in relation to the premises erected on the Property. 3. Order that, pending further order, the respondent be restrained from taking any steps towards a sale of the Property or taking any steps to invite prospective purchasers to enter into a contract for the sale of the Property or otherwise dealing with the Property. 4. Note that the making of those orders is on the basis that the applicant will, without prejudice to either party's rights in the proceedings, within 7 days and, subject to provision of the relevant mortgage account statements, pay the amount retained to date by the applicant in relation to the mortgage payments in respect to the Property, and the balance, if any, of those outstanding mortgage payments from November 2019 to date, within 21 days and undertakes to continue to pay the mortgage payments subject to the provision of ongoing mortgage account statements pending the hearing and ultimate determination of these proceedings. 5. Order that, pursuant to sch 4, cl 6 of the Civil and Administrative Tribunal Act 2013 (NSW), the proceedings presently in the Tribunal (RT 20/25455) be transferred to this Court to be listed together with the proceedings in this division. 6. Order that these orders be entered forthwith. 7. Order that the costs of this application be reserved. 8. Direct the Registrar to obtain the file from the Tribunal. Catchwords: CIVIL PROCEDURE — Interlocutory applications — Application to restrain further prosecution of the Tribunal proceedings — Application to restrain dealings in real property — Whether an agreement was for tenancy or equitable interest — Transfer of proceedings to the Supreme Court Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), sch 4 cl 6 Civil Procedure Act 2005 (NSW), s 56 Duties Act 1997 (NSW), ss 8(1)(b)(ii), 304 Residential Tenancies Act 2010 (NSW), ss 85, 119, 187, 190 Cases Cited: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Category: Procedural and other rulings Parties: Beth Talatala (Plaintiff/Applicant) Aurelio Esguerra (Defendant/Respondent) Representation: Counsel: J Shaw (Plaintiff/Applicant) R Abbas (Solicitor) (Defendant/Respondent)