NATHAN and ANOR v JONES [1998] NSWCA 154

NATHAN v JONES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL JA 16 November 1998, 16 November 1998

[1998] NSWCA 154

Practice and Procedure — Holding summons for leave to appeal — Application for stay

Powell JA The application which is before me this afternoon is one made by two persons who were the plaintiffs in proceedings which were listed for hearing before Grove J today.

By their Notice of Motion which is filed in conjunction with a holding summons seeking leave to appeal, the claimants seek an order that the orders made this morning by Grove J be stayed.

In order that one might understand the circumstances in which the matter comes before me, it is necessary to go back to May 1998 when the claimants entered into a residential tenancy agreement with Mr Paul Jones who is the opponent and who was the defendant in the proceedings listed before Grove J this morning. That tenancy agreement provided for the grant by the opponent to the claimants of a tenancy of a flat known as 7/35 Roslyn Street, Kings Cross for a term of twenty-six weeks beginning on 29 May 1998 and ending on 28 November 1998 with a provision for holding over unless meantime the term had been terminated in accordance with the provisions of the Residential Tenancies Act 1987.

It would appear that the opponent, having previously retained a firm of estate agents, Messrs Laing & Simmons, to collect rent on his behalf, at the end of August or in early September took over the collection of rental himself. It would further appear that the opponent claimed that the claimants were, by the end of September 1998 in arrears of rent for a period in excess of fourteen days, that default, according to a notice delivered, or posted, to the claimants on or about 30 September 1998, having occurred on a number of occasions previously. The same notice required the claimants to vacate the premises by 16 October 1998.