VALASSIS v BERNARD [1998] NSWCA 244

VALASSIS v BERNARD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

BEAZLEY JA and STEIN JA 12 October 1998

[1998] NSWCA 244

Beazley JA. There are two applications before the Court. The first is a Notice of Motion in which the claimant, Mr Valassis, seeks an extension of time in which to file the summons for leave to appeal from a decision of Dowd J. That Notice of Motion was filed in the Court on 24 September 1998.

The second application before the Court is the summons for leave to appeal. That in fact was filed prior to the Notice of Motion for an extension of time, but there is no need to take any formal point in that regard. We propose to deal with each application.

It is convenient in the first instance to deal with the summons for leave to appeal.

The proceeding before Dowd J was a proceeding brought by Mr Valassis under s 107 of the Residential Tenancies Act 1987. That provides an appeal to the Supreme Court lies against a decision of the Residential Tenancies Tribunal in respect of a matter of law.

Mr Valassis had brought an application in the Residential Tenancies Tribunal in 1997 in which he sought a number of orders including forarrears of rent and for the payment of money for damage to his property.

The first hearing date of that application was 24 September 1997. On that day, according to the reasons for decision of the Tribunal given on 11 December 1997, a consent order was made to the effect that the tenancy agreement was terminated on 13 September. A consent order for possession was also made, and in addition certain procedural orders were made, including orders relating to the exchange of documentation, the calling of witnesses at the next hearing, as well as an order that Mr Valassis provide to the tenant particulars of the further orders he was seeking and the amount claimed for compensation. He was informed of the need to provide an ingoing and outgoing condition report and to support his claims for compensation by quotation of an invoice. The Tribunal records these various orders at paragraph 2 of its reasons for decisionThe matter was set down for hearing on 28 October 1997. Before referring to what occurred on that day, I should refer first to the Notice of Hearing which was given to the parties in respect of the first hearing date on 24 September 1997. That appears at page 25 in the white folder. The document is a pro forma notice of hearing and there was certain information provided to persons who were to appear at that hearing. Included in that information was a paragraph (i) which stated 'Do not bring any witnesses to the first hearing'. It also stated that the application had been listed before the Tribunal on Wednesday 24 September 1997 at 2pm.