Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dokas v Gallagher [2024] NSWCA 223 Hearing dates: 2 September 2024 Date of orders: 2 September 2024 Decision date: 02 September 2024 Before: Basten AJA Decision: (1) Dismiss the applicants' notice of motion filed on 16 August 2024 seeking a stay of the orders made by NCAT. (2) Direct that the summons seeking leave to appeal be heard on the issue of leave only and listed for hearing on Monday, 23 September 2024. (3) Direct that: (a) the respondent file and serve any evidence and written submissions on which he seeks to rely by 5pm on Thursday, 12 September 2024; (b) the applicants file and serve any submissions in reply by 5pm on Wednesday, 18 September 2024. (4) Order that the applicants pay the costs of the notice of motion seeking a stay of the orders of NCAT. Catchwords: CIVIL PROCEDURE – appeal from decision of Appeal Panel of NCAT – application for leave to appeal pending – stay of issue of writ of possession sought pending determination of appeal – writ issued and executed before stay sought – stay no longer available Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 14, 83 Uniform Civil Procedure Rules 2005 (NSW), r 36.15 Category: Procedural rulings Parties: Tobias Lazarus Dokas (First Applicant) (unrepresented) Lazarakis Dokas (Second Applicant) (unrepresented) David Gallagher (Respondent) Representation: Counsel: S Foda (Respondent) Solicitors: Strata Title Lawyers (Respondent) File Number(s): 2024/275296 Decision under appeal Court or tribunal: Civil and Administrative Jurisdiction: Appeal Panel Citation: [2024] NSWCATAP 129 Date of Decision: 28 June 2024 Before: M Harrowell, Deputy President G Sarginson, Senior Member File Number(s): 2024/155225 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. BASTEN AJA: On 26 July 2024, the applicants filed a summons seeking leave to appeal from a decision of an Appeal Panel of NCAT handed down on 28 June 2024 rejecting an appeal from a decision terminating a residential tenancy agreement and issuing a writ for possession in favour of the respondent. The return date on the summons was 2 September 2024. 2. The NCAT proceedings involved the termination by the respondent of the applicants' residential tenancy agreement for non-payment of rent, and a challenge by the tenants, Tobias Dokas and Lazarakis Dokas, to a notice of increased rent. The latter notice was withdrawn while the proceedings were on foot in NCAT. The applicants needed leave to appeal to this Court pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act). 3. On 16 August 2024, the applicants filed a notice of motion seeking a stay of "all orders" made by the Appeal Panel on 28 June 2024 pending determination of the appeal. Orders 1 to 3 made by the Appeal Panel extended time to appeal, granted leave to appeal on a limited basis, and dismissed the appeal and are of no present relevance. The substantive issue is directed to order 4, the effect of which was to suspend the order for the issue of a writ of possession of the premises made by the Tribunal on 27 May 2024, until 28 days from the date of the Appeal Panel orders, namely until 26 July 2024. The writ has since been duly issued, and the applicants were removed from the premises by the sheriff on 13 August 2024. Order 4 has thus been executed. 4. There is no basis for contending that the steps taken by the respondent to obtain the issue of the writ of possession and enforce it were unlawful, the stay granted by the Appeal Panel having expired. Nor is there any basis for concluding that the steps taken by the sheriff to evict the applicants were unlawful or invalid. As a result, there is now nothing to stay. There is also no basis for making a mandatory order restoring the applicants to possession. 5. The applicants filed their summons seeking leave to appeal (as noted above) on 26 July 2024, that is, the day order 4 expired. When and how it was served is in dispute. The applicants rely on the fact that at p 21 of the white folder there appears a document titled, "Notice of Motion". It was unsigned, undated, and covered 11 typed pages without formal parts. Of the two orders sought in the notice of motion, order 2 is of no present relevance. Order 1, as in the present notice of motion, sought a stay, purportedly in reliance on s 14 of the Tribunal Act, a provision which is irrelevant. 6. The applicants accept that NCAT had no power to extend the stay it had made, once it had expired. There is no evidence that the notice of motion was signed, served or a return date for it sought before 16 August 2024. The question for this Court is not what might have happened had the applicants been legally represented, or better understood the procedures they were required to follow. Order 4 expired before any effective step was taken to extend it. 7. The applicants sought to remedy this position by relying upon the power under Uniform Civil Procedure Rules 2005 (NSW), r 36.15, conferred on this Court to set aside or vary a judgment or order of the Court for sufficient cause. But there is no judgment or order of this Court to be set aside or varied. 8. Accordingly, the notice of motion of 16 August 2024 must be dismissed. The Court makes the following orders: 1. Dismiss the applicants' notice of motion filed on 16 August 2024 seeking a stay of the orders made by NCAT. 2. Direct that the summons seeking leave to appeal be heard on the issue of leave only and listed for hearing on Monday, 23 September 2024. 3. Direct that: 1. the respondent file and serve any evidence and written submissions on which he seeks to rely by 5pm on Thursday, 12 September 2024; 2. the applicants file and serve any submissions in reply by 5pm on Wednesday, 18 September 2024. 1. Order that the applicants pay the costs of the notice of motion seeking a stay of the orders of NCAT. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2024