STRAMSEK v RESIDENTIAL TENANCY TRIBUNAL [1998] NSWCA 219

STRAMSEK v RESIDENTIAL TENANCY TRIBUNAL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 14 October 1998

[1998] NSWCA 219

Priestley JA. This is an application which was brought on for hearing as a matter of urgency yesterday seeking a stay of orders made by Hulme J on 25 September this year pending the hearing of the summons for leave to appeal against the orders he made on that day.

The matter that was before Hulme J was a notice of motion seeking to strike out or stay an appeal summons which had been filed by Mrs Stramsek pursuant to s 107 of the Residential Tenancies Act. This section restricted appeals to matters of law. Mrs Stramsek was attempting to appeal against a decision of the Residential Tenancy Tribunal which had been made on 21 August this year.

Hulme J gave quite detailed reasons for the decision he came to which was to strike out Mrs Stramsek's appeal summons insofar as it sought to set aside the order of the Residential Tenancy Tribunal on 21 August 1998. That in effect struck out para 1 from Mrs Stramsek's summons. That summons, incidentally, the original of which I have before me at the moment, was filed on the day that the matter came before Hulme J and is entitled 'Amended Summons'.

Hulme J left on foot the balance of the paragraphs in the amended summons raising various matters of appeal in regard to the tribunal's decision on 21 August 1998. He stood the balance of the amended summons over for mention before the Common Law duty judge on 19 October 1998. He also terminated the stay order which had been made by the tribunal pending the hearing of the appeal from the tribunal in the Common Law Division of the court.

He stayed the operation of his order terminating the tribunal's stay order until Tuesday 29 September 1998. The effect of his decision on the motion was that once the stay that he himself had granted until 29 September 1998, for his termination of the tribunal's stay, expired, the landlords would be in a position to have the Sheriff execute a writ of possession.