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. That notice not having been complied with, the opponent, on 23 October 1998, lodged with the Residential Tenancies Tribunal an application for termination and possession, asserting in that application that "the tenant is more than fourteen days in arrears of rent. When the notice of termination was served the tenant was twenty-one days in arrears." That application was made returnable before the Tribunal on 4 November 1998. When the matter came before the Tribunal on that day, the opponent, so it would appear, appeared in person but there was no appearance on behalf of the claimants. That being so, the Tribunal made orders terminating the tenancy agreement and directing that possession be given to the opponent immediately. At the same time the Tribunal ordered that the claimants pay to the opponent the sum of $1,120 or thereabouts immediately on account of rent arrears from 25 September to 4 November inclusive. Other subsidiary orders were made. 2 UNREPORTED JUDGMENTS It would appear that, when those orders came to the attention of the claimants, they then lodged with the Residential Tenancies Tribunal an application under s110 of the Residential Tenancies Act ("the Act") to vary or set aside the order. Such applications may be made only with the consent of the Registrar which consent may be given in a case in which the orders which it was sought to have set aside or reviewed were made in the absence of the person seeking to have the orders set aside or reviewed. The material - which is very sparse - which is before me at the moment does not demonstrate that that consent was given but, since the matter was in fact listed for that purpose on 9 November, I assume that it was. The material that is contained in the application would tend to indicate that, although there was a dispute on the part of the claimants as to the extent of the rent outstanding, there was no dispute but that they were then in arrears. That this is so is demonstrated by the fact that the application contains the following:- "T have informed the landlord I am waiting for my tax rebate and I forwarded him $320 rent goodwill (sic), as a result he wavered my having to vacate the premises on the condition I surrender my tax cheque to him immediately upon receiving it. The cheque will pay all outstanding bills. He agreed. As yet I have not received my tax cheque. Now he has changed his mind and told my family to get out. The matter was in fact listed before the Tribunal on 9 November 1998. I have been informed by Mr Nathan, one of the claimants, that, for reasons which have not been explained, he was late attending before the Tribunal and that, although he, so he says, had with him receipts to demonstrate that he had paid his rent, the member of the Tribunal before whom he appeared was not interested in seeing his material. Be that as it may, on 9 November the Tribunal made orders setting aside the orders which had been made on 4 November and, on a rehearing, made fresh orders, those orders being for the termination of the tenancy agreement, for the delivery of possession immediately and for the payment of some $1,237-odd being the arrears of rent to that date. In pursuance of those orders the Tribunal then caused to be delivered to the Sheriff a warrant for possession. It would seem that on 11 November the Sheriffs officer attended at the premises with a view to executing that warrant. However, it would appear that, meantime, the claimants, pursuant to leave granted by Hidden J, had caused to be filed in the Administrative Law Division, a summons in which they sought:- "An order by the Residential Tenancies Tribunal file number 98/34392 on behalf of Paul Jones the landlord dated Monday 9 November 1998 for Dennis Nathan and Vanessa Wete to vacate unit 7/35 Roslyn Street, Potts Point 2011 no later than 12pm on 11 November 1998 be overturned due to an unfair ruling which may be an error of law. To be determined." and that, at the time of his granting that leave, Hidden J had ordered that execution upon the order made by the Tribunal be stayed until 4pm this day. It should be noticed that s107 of the Act provides as follows: "107(1). An appeal under this section shall be made in accordance with the rules of the Supreme Court. (2) If, in proceedings before it, the Tribunal decides a question with respect to a matter of law, a party to the proceedings who is dissatisfied with the decision may appeal to the Supreme Court against the decision." URJ NATHAN v JONES (Powell JA) 3 It may be an open question whether, in the circumstances, even if the fact be, as Mr Nathan asserts, that it was, that the Tribunal in some way declined to consider the receipts which he claims then to have had with him, this constitutes a decision on a point of law. If it does not, then there would be no right of appeal available to the claimants. Although it would appear that, at the time when the Sheriffs officers attended at the premises, Mr Nathan was able to make available to them a copy of the order for a stay, the Sheriffs officers, after considering the matter, went ahead and delivered possession of the premises to the opponent. Later, so it would seem, the claimants made application to Hidden J who, on 12 November 1998, ordered that the opponent and the Sheriff restore the claimants to possession of the premises until 4pm this day Mr Nathan has informed me that, this morning, at about 9am, a person claiming to be a Mr Kevin Jones, a builder, who claimed to have a key to the subject premises and claiming to have been instructed by the opponent to, inter alia, remove the carpet from the premises, attended at the premises and that an unpleasant confrontation then occurred. As the result of that confrontation, so Mr Nathan has informed me, he was not able to attend the court this morning at 10am. It would appear from what Mr Anderson, who appears this afternoon for the opponent, has told me, that the matter was called on before Grove J at about 11.1Oam and that in the absence of any appearance on behalf of the claimants, his Honour granted to the opponent leave to file a Notice of Motion returnable instanter, pursuant to which Notice of Motion his Honour ordered that each of the orders for a stay which had been made on 11 November and the order in the nature of an order for restitution which had been made on 12 November, be discharged and having done so, then dismissed the proceedings. It would appear that for reasons which I do not fully understand, Mr Nathan did not, when he came to the court later during the course of the morning, apply to his Honour to set aside the orders which he had made earlier. Thereafter there was filed the holding summons for leave to appeal which I have earlier referred to and the Notice of Motion upon which the claimants have moved this afternoon. It seems to me that I would not be justified in granting a stay - at least a stay until the disposition of any application for leave to appeal - unless I were satisfied that the present case was one in which there was at least a reasonable possibility that leave to appeal might be granted, and that, if leave to appeal be granted, that there was a reasonable possibility that any appeal might be upheld. While I am conscious of the difficulties which face litigants in person, such as the claimants in the present case are, I find it difficult, indeed, to hold that the present case is one in which there would be a reasonable prospect of leave to appeal being granted, and still less that in the event of leave being granted, that any appeal might succeed. It is sufficient I think to indicate that, as I have earlier recorded, the probabilities are that at times when the matter was before the Residential Tenancies Tribunal, the claimants were in arrears of rental payable pursuant to the tenancy agreement for periods which were in excess of fourteen days. That being so, it was a matter for the Tribunal to determine whether or not, in all the circumstances, orders for termination and for the delivery of possession ought be 4 UNREPORTED JUDGMENTS made. Such decisions, so it seems to me, are decisions on questions of fact and do not involve questions of law, so that, if that be correct, there was no competent appeal to this court in the first place. The question, however, is whether or not, notwithstanding the view I have expressed, there ought to be a stay for a short period to enable the claimants to seek and obtain alternative accommodation. (The hearing of the matter was then adjourned for a short time so that Mr Nathan might speak with the second claimant who was outside the court. When the hearing was resumed, both claimants were present in court. His Honour then continued.) T have indicated to Mr Nathan at the moment that I do not think the prospects of obtaining leave to appeal are very good and that, even if leave to appeal were granted, I do not think the prospects of succeeding on the appeal are high. That being so, I am not disposed to grant a stay of execution of the orders made by Grove J except for a limited period of three weeks to enable you and Mr Nathan to make arrangements, if you can, to obtain other accommodation, but because in fairness to the other side I do not want them having to come back to argue about possession unless it be absolutely necessary, I would not grant that stay except upon an undertaking by you and Mr Nathan to vacate the premises in any event no later than the expiration of that three week period. Ihave explained to Mr Nathan what is involved in giving an undertaking to the court and before I ask you to give that undertaking, I want you to understand - because the consequences of giving it and not complying with it can be rather unpleasant - an undertaking to the court is similar in its consequences to an order by the court that you do something or that you refrain from doing something. The result is, that if you give an undertaking and do not comply with that undertaking and you have no reasonable excuse for not complying with it, then you can be dealt with for what is called contempt of court, and the remedy for contempt of court can be imprisonment until the undertaking is complied with, and it is for that reason I wanted Mr Nathan to understand and I want you to understand what is involved if you give that undertaking to the court. Understanding that, are you nonetheless willing to give an undertaking to the court that if I stay the operation of the orders made by Grove J for three weeks, that is up to and including 7 December, you will vacate the premises by no later than midnight on 7 December. (Undertaking given by claimants) Upon the claimants, and each of them, undertaking to the court that they will, and each of them will, vacate the premises 7/35 Roslyn Street, Kings Cross, and deliver possession of the same to the opponent or such person as may be nominated by him, or on his behalf, by no later than 12 midnight on Monday 7 December 1998, I order that the operation of each of the orders made this day by Grove J in proceedings 30112/98 be stayed up to and including 12 midnight on Monday 7 December 1998. I order that the motion filed this day by the claimants otherwise be dismissed and I order that the claimants pay the opponent's costs of the motion. The claimants appeared in person Counsel for the opponent: R M Anderson (Solicitor) Solicitors for the opponent: Lane & Lane