WHITEFORD v COMMONWEALTH OF AUSTRALIA [NO 2] [1996] NSWCA 558

WHITEFORD v COMMONWEALTH OF AUSTRALIA [NO 2] SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE, SHELLER and COLE JJA 16 August 1996

[1996] NSWCA 558 Clarke JA. I will ask Sheller JA to give the first judgment.

Sheller JA. On 10 October 1995 this Court, consisting of Kirby P, Powell JA and myself, delivered judgment in an appeal from an interlocutory decision of Rolfe J in the Common Law Division. The Court also had before it an appeal to Allen J from a decision of Master Malpass, which his Honour had removed into this Court.

Both proceedings arose out of a letting by the Commonwealth to the appellants, Michael Bede Whiteford and Jennifer Whiteford, of residential premises at Lot 2, Anton Road, Luddenham. The lease, which purported to be subject to the Residential Tenancies Act 1987, was for one year ten weeks and six days,commencing on 17 May 1991 and ending on 31 July 1992. After the expiry of the lease the appellants, Mr and Mrs Whiteford, were permitted to remain in the premises on the same terms, by inference, unless and until the agreement was ended in accordance with the Act.

From 28 February 1992 the appellants fell into arrears with the rent. As a result on 14 December 1992, the Commonwealth served a notice of termination on the appellants, which purported to terminate their right to occupy the premises as from 8 January 1993. The appellants remained in possession and on 23 April 1993 the Commonwealth instituted proceedings against them in the Supreme Court of New South Wales.

The statement of claim sought judgment for possession, leave to issue a writ of execution for possession, judgment for unpaid rent and further rent accruing to the date of judgment or when the property was vacated, interest and costs. On 2 February 1994 judgment was entered against the appellants in default of defence. The Commonwealth was awarded possession of the land and the appellants were ordered to pay $18,400.56, as well as an amount of $898 for costs. Subsequently the appellants filed a notice of motion seeking a stay of execution of the writ of possession and an order that the possession be set aside.