Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163 Hearing dates: 23 and 27 July 2021 Date of orders: 27 July 2021 Decision date: 27 July 2021 Before: Brereton JA Decision: Upon the applicant, Antonio Di Liristi, giving to the Court the usual undertaking as to damages and further undertaking that he will prosecute the appeal expeditiously, and upon condition that by 10 August 2021, the applicant execute and deliver to the Registrar a general security deed in the nature of a fixed and floating security over all his circulating and non-circulating assets, including motor vehicles and livestock, as security for the judgment under appeal, such security to be in a form agreed with the respondent, or if not agreed then as settled by the registrar, the Court orders that: (1) Execution on and proceedings under orders 1 and 2 made on 23 June 2021 in the Common Law Division be stayed until the hearing of the appeal or earlier further order; (2) Until the hearing of the appeal or earlier further order, the respondent be restrained from prosecuting any application for an order for possession in proceedings in the New South Wales Civil and Administrative Tribunal, including the transferred proceeding file number RT21/29690; (3) The hearing of the appeal be expedited; (4) The respondent by 2 August 2021 deliver to the appellant a draft security deed for the purpose of the condition referred to above; (5) There be liberty to apply by arrangement with my associate in the event of any difficulty arising in settling the terms of the security deed; (6) There be liberty to apply by arrangement with my associate for dissolution of the stay in the event that the security is not given; and (7) Costs of the application for a stay be costs in the appeal. Catchwords: CIVIL PROCEDURE – Court of Appeal – Stay pending appeal – Judgment for monetary sum – Orders transferring proceedings for possession to NCAT – Whether arguable grounds of appeal – Whether orders already implemented amenable to stay – Whether failure to grant stay would render appeal nugatory – Monetary judgment stayed – Anti-suit injunction granted restraining prosecution of proceedings in NCAT – Conditional upon undertakings as to damages and expedition, and provision of security LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Termination – By landlord – Prohibition on recovery of possession – Whether prohibition deprives court of jurisdiction or is merely a defence LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – NSW Civil and Administrative Tribunal – Jurisdiction and powers – NCAT proceedings commenced by respondent after appeal filed but prior to applicant notifying NCAT of appeal – Whether NCAT retains jurisdiction – Whether Court of Appeal can stay NCAT proceedings Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4 cll 5, 6 Landlord and Tenant Act 1899 (NSW), s 2A Residential Tenancies Act 1987 (NSW), s 71 Residential Tenancies Act 2010 (NSW), s 119 Supreme Court Act 1970 (NSW), s 46(2) Residential Tenancies Amendment (COVID-19) Regulation 2020 (NSW), Sch 1 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 Attia v Health Care Complaints Commission [2017] NSWSC 178 AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81 Case v Frimont [2021] NSWCA 30 Chen v Lym International Pty Ltd [2009] NSWCA 121 Commonwealth v Rhind (1966) 119 CLR 584; [1966] HCA 83 Di Liristi v Matautia Developments (No 2) [2020] NSWSC 862 Di Liristi v Matautia Developments (No 6) [2021] NSWSC 663 Di Liristi v Matautia Developments (No 7) [2021] NSWSC 760 Johnson v Mackinnon [2021] NSWCA 152 Leue v Reynolds (1986) 4 NSWLR 590 McBride v Walton (Court of Appeal (NSW), Handley JA, 27, 27 August 1993, unrep) Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 Whiteford v Commonwealth (1995) 38 NSWLR 100 Category: Procedural rulings Parties: Antonio Di Liristi (Applicant) Matautia Developments Pty Ltd (First Respondent) Brian Garnet Wheadon (Second Respondent) Michael Bernard Fowler (Third Respondent) Representation: Counsel: Self-represented (Applicant) A Avery-Williams (First & Second Respondents)