New South Wales Court of Appeal CITATION : Chan v Cheng & Ors [2004] NSWCA 288 HEARING DATE(S) : 23 August 2004 JUDGMENT DATE : 23 August 2004 JUDGMENT OF : Giles JA DECISION : Notice of Motion filed 20 August 2004 dismissed. CATCHWORDS : Application for stay - effectively stay of order for possession - consideration of merits of proposed appeal - no substance in appeal - stay refused. Yau Hang Chan - Claimant PARTIES : Wei Jie Chan - First Opponent Hui Fang Wang - Second Opponent Consumer, Trader and Tenancy Tribunal - Third Opponent FILE NUMBER(S) : CA 40685/04 Claimant in person COUNSEL : Second Opponent in person with Hao Chan (son) also to speak for first opponent I V Knight, Crown Solicitor - Third Opponent - submitting appearance SOLICITORS : LOWER COURT Supreme Court JURISDICTION : LOWER COURT 10779/04 FILE NUMBER(S) : LOWER COURT Dunford J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40685/04 SC 10779/04 GILES JA Monday 23 August 2004 CHAN v CHEN & ORS Judgment 1 HIS HONOUR: This is an application for an order staying what is described as order 3 made by Dunford J on 13 August 2004. The application is made in an appeal in which the claimant appeals from that order. 2 The order was in terms confirmation of orders of the Consumer Trader and Tenancy Tribunal which terminated a tenancy agreement between the claimant and the opponents and ordered that possession of the premises the subject of the tenancy agreement be given by the claimant to the opponents. Effectively, the issue is one of entitlement to possession of the premises and the application for a stay is an application for a stay of an order for possession. As well as confirming the order of the Tribunal, Dunford J ordered that a warrant for possession could issue forthwith but should not be executed before Friday next. 3 The background may be briefly stated. 4 The claimant and the opponents entered into a residential tenancy agreement in respect of a room in a building at Croydon, for the term of one year commencing on 8 February 2003 and ending on 7 February 2004. The tenancy could be brought to an end in accordance with the Residential Tenancies Act 1987, relevantly requiring the service by the opponents on the claimant of a notice of termination and then proceedings for termination and possession in the Tribunal. 5 A notice of termination was provided, and I use that word intending not to trespass upon one of the claimant's submissions, on 4 December 2003, and subsequently the opponents brought proceedings in the Tribunal. The Tribunal made the orders to which I have referred on 8 March 2004. 6 Under s 67 of the Consumer, Trader and Tenancy Tribunal Act 1987 an appeal to the Supreme Court lay with respect to a matter of law, and the claimant appealed. His appeal was heard by Dunford J, who on 13 August 2004 dismissed it, confirmed the order of the Tribunal and made the order in relation to a warrant for possession and some other ancillary orders. 7 It is plain that, if the warrant for possession is executed on or shortly after Friday next, the claimant will effectively lose that which he seeks to preserve by his appeal to this Court from the decision of Dunford J. It may be that an appeal to this Court lies only by leave because of the requirement for a certain monetary amount to be at stake, but I do not think it necessary to go into that. What is important in deciding the claimant's application, with due recognition that a stay is necessary in order to preserve the subject matter of the appeal, is the substance, if any, of the proposed appeal. 8 For the reasons which follow, in my opinion there is no substance at all in the proposed appeal, and for that reason it would not be appropriate to grant the stay. The claimant appeared in person, and the opponents appeared in the case of the second opponent in person, and with the assistance of the son of the opponents who sought to speak on their behalves. It was unnecessary to determine the status of the son as, having heard fully from the claimant, I did not think that assistance from the opponents was required. 9 The claimant went through the various grounds on which he would seek to submit that Dunford J had erred, frequently without sufficient regard to the fact that Dunford J was concerned with error of law on the part of the Tribunal and that this Court would be concerned with error of Dunford J. 10 The first ground was in substance that Dunford J had denied procedural fairness to the claimant because, as related in the claimant's affidavit affirmed on 23 August 2004, his Honour had said that he could not find an affidavit of 2 June 2004 and had declined the opportunity to print out a fresh copy of it. It was said that the affidavit was present in the Court's file, although I do not think that is correct. I do not think that there is anything in this ground, because his Honour was concerned with errors of law and I am not persuaded that whatever the claimant may have had in mind in referring to this affidavit, incorrectly as I apprehend, could bear upon his Honour's identification and determination of any alleged error of law. 11 The second ground was again in substance a contention that his Honour had denied the claimant procedural fairness. It seems that at some point a question of service of the opponent's notices of appearance arose, in the course of directions hearings well prior to 13 August 2004. The claimant said, in the affidavit to which I have referred, that he had not been served with their notices of appearance, and he said that he applied to Dunford J for an adjournment because he was prejudiced by their failure to serve the notices of appearance. The adjournment was refused. 12 From the judge's reasons, submitting appearances had earlier mistakenly been filed by the opponents and leave had been given to file fresh notices of appearances in lieu of the earlier submitting appearances. The judge said that the history of the matter showed that there had been no doubt that for many months the opponents had been seeking possession of the premises, and his Honour was not satisfied that the claimant was mislead in any way by the failure to serve fresh notices of appearance. That must plainly be so, and there cannot be any reason for concluding that his Honour's exercise of discretion in this respect miscarried. 13 The next ground of appeal foreshadowed by the claimant was that his Honour erred in giving leave for the opponent's son to assist in the hearing, including in interpretation. The claimant wished to submit that he had been prejudiced, it seems in particular because he was unable to call the opponents to give evidence before Dunford J because he could not have confidence in the accuracy of the interpretation through their son. I see nothing in this. The opponents did not give evidence in chief before Dunford J. Since the appeal to Dunford J was on matters of law, it is not easy to see what room there was for evidence at all, but I am unable to accept the realistic possibility that the claimant would have called either of the opponents to give evidence. I do not think that error could possibly be shown in his Honour giving leave to the son to assist by interpreting the course of the proceedings before him for the benefit of the opponents. 14 The next proposed ground was effectively that the judge did not give sufficient reasons for his decision. The reasons were concise, but in my opinion were perfectly adequate. The particular complaint before his Honour seemed to be that, in dealing with a submission by the claimant that the Tribunal had not considered all the circumstances of the case as required by s 64 (2) of the Consumer Trader and Tenancy Tribunal Act, the Tribunal had failed to take into account the claimant's assertion that he would suffer hardship if an order for possession was made against him. The judge said that he was satisfied that on reading the reasons of the Tribunal Member that the Tribunal did take into account all the circumstances of the case, including the claimed hardship, saying that they were set out in the sixth paragraph of the Tribunal's reasons. This, according to the claimant, was insufficient because the judge did not say why he was satisfied. The satisfaction would be apparent simply from reading the reasons and, again, there is nothing in this proposed ground. 15 Then there was a ground directed to service of the notice of termination, that which I earlier described as provision of the notice of termination. What it seems occurred was that the notice of termination was provided (to continue the neutral term), was signed by the claimant but was not left with him, and after his signature was witnessed was taken away. The submission to Dunford J seems to have been that this was not service, and before me it was explained at some length that it was not service because the point of service is to provide information and information was not provided where the document recording it was shown but taken away. The judge said that he was satisfied that there was valid service upon the claimant, and in my opinion on the facts set out by his Honour it is not reasonably arguable that there was want of valid service. 16 Then it was proposed to be submitted that the notice of termination had been withdrawn by the opponents because they had refused to give the claimant a copy of the notice upon later request. It is not clear to me that this was a matter agitated before the Tribunal, or before Dunford J, but even if it was I am unable to see that it is reasonably arguable that there was a withdrawal of the notice of termination in those circumstances. 17 Then it was proposed to be submitted that Dunford J had proceeded upon a misconception of the meaning of a fixed term tenancy. Towards the end of his reasons the judge said, by way of summary, that the claimant had a tenancy for a fixed term, notice was given that it was not to be renewed and the claimant had remained in possession without any right to do so, therefore he must vacate the premises. Interposed in this, of course, was the question of the Tribunal's discretion in making an order terminating the tenancy, but that was not the point at that stage of his Honour's reasons or the point of the proposed ground of appeal. What was said was that the proper conception of a fixed term tenancy was that the terms were fixed but not the period, and that the period was unlimited. That is not so. His Honour did not proceed upon the misconception asserted. 18 Finally it was said that it was proposed to submit that the judge had erred in the regard he gave to the claimant's assertion of financial hardship if an order for possession was made against him. It is quite plain that the Tribunal and the judge paid regard to the assertion of hardship. It was not specifically identified in the judge's reasons as financial hardship, but obviously extended to such a matter. The hardship, including financial hardship, which an order for possession would cause to the claimant was a matter for the Tribunal to take into account as part of the circumstances of the case and the weight which the Tribunal gave to it was a matter for the Tribunal. It was not for Dunford J to arrive at a different balance of the circumstances of the case, and his Honour did not fall into error through failing to hold that the Tribunal had erred in the regard it paid to the hardship, including financial hardship, asserted by the claimant. 19 I have sought to summarise the various grounds outlined by the claimant. I appreciate to the full that to decline a stay may well bring the appeal to an end, but nonetheless if the grounds of a foreshadowed appeal are hopeless it would be wrong to inflict upon the other party to the appeal continued inability to exercise that party's rights. It is for these reasons that in my opinion the claimant's application should be dismissed,and I order that the notice of motion filed on 20 August 2004 be dismissed. ********** Last Modified: 08/25/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.