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. Following Hulme J's decisions short stays were granted by other judges in the Common Law Division until I think a date this week. This week, however, the willingness of Common Law Division judges to grant stays ran out. The summons for leave to appeal against Hulme J's orders was filed and the present application was made to me for a stay of the execution of the writ in the Sheriff's hands until the determination at least of the application for leave to appeal against Hulme J's orders. Yesterday I was told that the Sheriff was on the brink of executing the writ and because of that the matter came on for hearing yesterday, when it soon became clear that it would be difficult to arrive at a considered decision of that application in the circumstances of the day. The matter was then stood over until today and I granted a stay until 11 o'clock this morning which today I continued until the end of today's proceedings at least. 2 UNREPORTED JUDGMENTS In his reasons, Hulme J set out some of the history relevant to the making of the orders on 21 August this year by the tribunal. I will not go through that history. There is no suggestion that the history was not accurately recounted although it may not have been recounted in absolute completeness in his Honour's reasons. When his Honour's reasons are read through it is quite clear, in my opinion, that he came to the conclusion that there was a considerable amount of rent outstanding by Mrs Stramsek to the landlords. He had evidence before him upon which it was inevitable, in my opinion, that he came to that conclusion. In one part of his reasons he set out a notification that had been made to Mrs Stramsek by the tribunal on 12 August following the making of orders the previous day in the absence of Mrs Stramsek, who had sent the tribunal a medical certificate saying she was too ill to attend. This notification warned her of a further hearing on 21 August. She rang the tribunal on the day to say that she was too sick to attend. Her evidence was that because of her illness she was not able to attend herself and the only person she might have got to attend in her place were her children whom she did not wish to trouble with her litigation and whom she did not wish to divert from their ordinary working day. Mrs Stramsek then made an application under s 110 of the Residential Tenancies Act for the setting aside of the orders made on 21 August. That application was also dealt with in her absence. Hulme J noted that the s 110 application was unsuccessful and he set out at p 8 of his reasons the notification that was given to Mrs Stramsek of its result: When a tenant is more than 14 days in arrears of rent, the landlord may issue to the tenant a notice of termination of the residential tenancy agreement. If the tenant does not vacate the premises the landlord may apply to the tribunal for an order to end the agreement and to take possession of the premises. Where a landlord does this and the tenant does not attend the hearing, after a landlord or agent gives sworn evidence of arrears owing an order can be made. His Honour stated 'This happened in your case.' My understanding of that notification is that although it was sent to the plaintiff as part of the notification to her of the result of her s 110 application to set aside the orders that had been made on 21 August, it was in fact summarising what had happened on 21 August. The judge's conclusion was expressed in a paragraph in which he said: Given the evidence to which I have referred, even if this court came to the conclusion there had been an error of law, it seems to me inevitable that this court would confirm the order for possession. In those circumstances, I would regard that part of the plaintiff's prayers for relief as deal with the question of possession doomed to failure. As his later orders showed, the part of the plaintiff's prayers for relief that he was referring to was para | of the amended summons, which he later in substance struck out from the summons. The evidence which he referred to in that paragraph was evidence which had been before him during a lengthy hearing on 25 September which established to his satisfaction that there was an amount of rent unpaid by Mrs Stramsek very considerably in excess of any amount she might hope to recover in cross-claims on the various heads that she asserted against the landlords. URJ STRAMSEK v RESIDENTIAL TENANCY TRIBUNAL (Priestley JA) 3 One of the arguments put to me today has been that he was not justified in coming to that conclusion. I don't think I need say any more in regard to that submission than that, in my view, there was ample evidence before Hulme J which made his conclusion the only one he could arrive at. In the submissions for Mrs Stramsek today, objections were raised to the way in which the amounts were quantified before Hulme J and it was argued that there had never been any sufficient notification to Mrs Stramsek of what was owing by her, which left her in the difficult situation of not being able to meet what the landlords were asserting in the proceedings before Hulme J. In my view, there is no substance to this objection. The evidence was there, the parties were there, and so was the opportunity to explore any discrepancies or anything of substance in regard to denial of the amount owing by Mrs Stramsek. The judge made his decision on a significant body of evidence. In my view both sides had full opportunity to put anything of substance before the court. In the paragraph last quoted from his Honour's reasons he also referred to the possibility of an error of law having occurred in the amount that the tribunal had held was owing by way of rent. (This appears to have been the only matter arguably of law that Mrs Stramsek had been able to find, apart from complaints of denial of natural justice.) Some doubt had been raised at the hearing before Hulme J about whether the amount arrived at by the tribunal was within its jurisdiction. Reference to this doubt before me today has had the result that I now have before me the Residential Tenancies (Tribunal) (Amendment) Monetary Jurisdiction Regulation 1997 which was published in gazette 104 of 26 September 1997, which was expressed to commence on 1 October 1997, and was made for the purposes of ss 85(3)(a) and (b) of the Residential Tenancies Act, and shows the relevant amount was amount $10,000. Thus the doubt that was raised at the hearing before Hulme J was groundless, as the amount arrived at by the tribunal was within its $10,000 jurisdiction limit. Returning again to the paragraph I quoted earlier from Hulme J's reasons, he was prepared, even if there had been an error of law, which we now know there was not, to strike out para 1 on the basis that it was inevitable that the appeal brought by Mrs Stramsek in the Common Law Division would have resulted in the court not disturbing the order for possession made by the tribunal. This view was based on the judge's findings about the amount of rent owing. Prima facie, it seems to me that there is nothing exceptional about his Honour having reached that conclusion on that basis. I have mentioned one of the submissions made already on behalf of Mrs Stramsek which I do not think had any merit. Another submission was that the judge was in some way acting without jurisdiction under s 107 in doing what he did. It seems to me in particular that subss (5) and (6) together gave Hulme J jurisdiction to do what he did. Another submission was that by his action he rendered nugatory the possibilities existing in Mrs Stramsek's right to seek leave to appeal against his decision and also rendered nugatory the appeal to the Common Law Division, which, as I mentioned earlier, remains on foot and will be dealt with in the Common Law Division again on 19 October next, all except the matter raised in the first paragraph. Ordinarily, this court takes steps to see that the subject matter of an appeal, or a possible appeal, will be preserved pending the hearing either of the application for leave to appeal or the appeal itself. 4 UNREPORTED JUDGMENTS It was to that usual practice that this submission for Mrs Stramsek was directed. However the court does not take that course in cases where it seems to the court that the prospects of getting leave to appeal or succeeding in an appeal are slight or hopeless. I have carefully read Hulme J's decision and have heard quite detailed submissions upon most of the paragraphs in it. Nothing that I have read or heard has allowed me to think that his Honour made any material error in his statement of the facts or in his conclusion upon those facts, that conclusion being summarised in the last quoted paragraph. Considering the matter for myself as well as I can on the materials before me which I think are pretty well the complete materials that were before Hulme J and also the affidavit that was filed today, sworn by Mrs Stramsek and also some material filed yesterday, I come to the same conclusion as Hulme J. I have the additional knowledge that there is no argument to support the one possible error of law relied on by Mrs Stramsek. Quite apart from that, the simple hard fact, so far as Mrs Stramsek is concerned in this case, is that there is a considerable amount of rent outstanding. So long as that remains outstanding it seems to me the prospects of her getting leave to appeal against Hulme J's decision even had his jurisdictional doubt been right, would be so slight as not to justify any further stay being granted of his orders pending leave to appeal against them. A submission that was put in a number of ways was that because the tribunal had not supplied reasons for its decision in accordance with s 114 of the Act that procedural problems and unfairness had been caused to Mrs Stramsek which should have influenced Hulme J in coming to a different conclusion about the striking out of para 1 of the amended summons. HulmeJ showed some concern about that position and, likewise, I myself felt some concern about that but the concern was overcome by two things. The first is the one that so obviously influenced Hulme J, namely, that the result so far as Mrs Stramsek is concerned is inevitable because of the large amount of rent outstanding and, secondly, on the procedural side, the notification which Mrs Stramsek received as a result of her s 110 application, which included the paragraph I have earlier quoted, seems to me to have given to her the substance of the tribunal's reasons for making the orders it did on 21 August. The tribunal's failure to comply with s 114 seems to me to have caused a formal problem for Mrs Stramsek or, perhaps, a formal problem for the landlord and the tribunal, but it does not cause Mrs Stramsek a substantial problem. It does not seem to me to have hampered her in any material way in putting what evidence she wanted to put, or seeking what evidence she wanted to seek from the landlords before Hulme J on 25 September. Mr Gwozdecky put a number of other arguments, some of which to my mind travelled into the realm of the super optimistic, which do not need to be dealt with explicitly. None could prevail against this basic situation of the large amount of outstanding rent. His last submission involved the offer of an undertaking by Mrs Stramsek to pay $2,000 to the landlords in a month's time. That sum, it was submitted, would bridge, or would arguably bridge, the gap between the amount of outstanding rent and the figure Mrs Stramsek would hope to obtain from the landlords in her cross-claims against them. URJ STRAMSEK v RESIDENTIAL TENANCY TRIBUNAL (Priestley JA) 5 It has been mentioned in evidence that Mrs Stramsek is bankrupt. The evidence also shows that an amount, for which I will use the figure of $6,000, although that might be a little restrained, but an amount roughly of that order of unpaid rent remains, her potential cross-claims are speculative, and in the circumstances I do not regard the proffered undertaking as being of sufficient significance to take into account in considering whether I should exercise discretion to grant a stay in favour of Mrs Stramsek. I should, perhaps, add to what I have said, that one of the arguments Mr Gwozdecky dwelt on was the difficulties that Mrs Stramsek might encounter in seeking to pursue the claims she asserts against the landlords for damages based on various causes of action, one being breach of the covenant of the quiet enjoyment of the premises that she is a tenant of. I was not persuaded that any rights she may have will be in any way affected by Hulme J having struck out of her amended summons para 1. Any claim she may have cannot, in my view, at least on what I have been shown in the Residential Tenancies Act today, be shut out from being litigated insofar as a bankrupt is able to litigate them in courts of ordinary common law jurisdiction. The result is that I do not think I should grant a stay and I will dismiss the application for a stay. I might add that in the course of the hearing Mr Gwozdecky's earnest endeavours on behalf of his client led to submissions being made which did not seem to me to have any substantial foundation, which led to my being, perhaps, more testy with Mr Gwozdecky than I would have liked to be. Interspersed with these considerations I have dealt with those submissions to the extent I think necessary. Mr Gwozdecky has done all and more than all that could be done on behalf of his client. I repeat again, the theme of Hulme J and myself that Mrs Stramsek has a problem that seems to me to be insuperable as long as this large amount of rent remains unpaid. I, therefore, dismiss the motion with costs. Orders accordingly.