Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Liristis v Gadelrabb [2011] NSWCA 207 Hearing dates: 20 July 2011 Decision date: 20 July 2011 Before: Basten JA Decision: (1) In relation to the affidavit of Mr Liristis of 19 July 2011: (a) admit paragraphs 5-7, and 60-65 as relevant to the question of prejudice; (b) reject paragraphs 37-55; (c) admit paragraphs 8-29 for the limited purpose of explaining the claim made by Mr Liristis; (d) admit the remaining paragraphs of the affidavit. (2) Dismiss the motion to stay orders 1-6 made by Ward J on 20 June 2011 (the interlocutory orders). (3) Pending determination of the proceedings in this Court, or further order, stay enforcement of: (a) order 7 to the extent that is necessary; (b) orders 9-12 (the financial orders); and (c) stay order 8 (requiring Mr Liristis to vacate the premises and permitting the issue of a writ of possession by 1 August 2011) on condition that Mr Liristis pay an occupation fee of $350 per fortnight, such payments - (i) to commence on Friday, 22 July 2011 (in relation to the period ending on that day) and fortnightly thereafter; (ii) into an account to be notified by the respondent's solicitors. (4) Costs of the motion are to be costs in the application for leave to appeal. (5) Each party to have liberty to apply on 3 days' notice. (6) Reject the application of Mr Liristis to vary order 3(c)(i) as to the date and amount of the first payment. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - appeal - stay of order for possession of house pending application for leave to appeal - whether stay required to preserve subject matter of proceedings - merit of leave application - balance of convenience - whether stay should be conditioned on payment of occupation fee Cases Cited: House v The King (1936) HCA 40, 55 CLR 499 Category: Procedural and other rulings Parties: Tony Liristis - Applicant Julia Gadelrabb - Respondent Representation: Counsel: Applicant self-represented P J Webb - Respondent Solicitors: Applicant self-represented Meridian Legal - Respondent File Number(s): CA 2008/280586 Decision under appeal Date of Decision: 2011-06-20 00:00:00 Before: Ward J File Number(s): SC 2006/259403; 2008/278152 Judgment 1HIS HONOUR : Mr Liristis seeks a stay of orders made by Justice Ward on 20 June 2011 pending the hearing of an application for leave to appeal, and if granted, the appeal. 2There is an issue in relation to the nature of the orders made. In particular, Mr Webb who appears for the respondent is concerned that there is no reference in the orders as entered in the Court's computerised record system of the fate of Mr Liristis' statement of claim. That I think is so. He seeks an opportunity to have that matter clarified with the Court. As I indicated in the course of argument, that step should be taken before the directions hearing in this Court which is fixed for 15 August 2011. 3It may also be the case that order 7 in the Court's orders requires attention. In substance it includes a declaration as to the basis upon which Mr Liristis occupied the disputed premises at various times and as to the termination of a residential lease. 4Order 8 requires Mr Liristis to vacate the premises by Monday 1 August 2011 and grants leave for a writ of possession to be "executed" by which I think is meant issued in favour of Ms Gadelrabb. 5Orders 9-12 require payment of arrears of rent and costs. Order 9 requires payment of rent for a specified period in 2006 at a specified rate but contains no amount although the amount could no doubt be calculated. Order 10 provides for payment of an occupation fee since the end of the lease in July 2006 "at a rate assessed by an Associate Judge". 6Only order 11 requires payment of outstanding occupation fees for the period from 26 March 2010 but without specification of a final date. They are nevertheless assessed at $11,900. There is no indication before me that the costs of the proceedings which are required to be paid by order 12 have been either agreed or assessed. As there is no final judgment for a fixed amount, I propose to grant a stay of orders 9-12. 7The form of the declaration in order 7 is a matter of concern. It forms no doubt the basis for the following orders which are either capable of standing by themselves or they are not. I am prepared to stay order 7 pending clarification of its content but the substantive issue in these proceedings is whether Mr Liristis should have a stay of order 8 which requires him to vacate the premises by 1 August 2011 which is a fortnight before the next directions hearing. 8The evidence before me includes an affidavit of Mr Liristis of 8 July 2011 which annexes amongst other documents a report of Dr Stephen Allnutt prepared on 10 June 2011 assessing Mr Liristis' psychiatric circumstances. 9Mr Liristis also sought to read an affidavit of 19 July 2011. The circumstances in which this affidavit was provided to the Court and to the other party bears comment. Normally this Court would not tolerate the presentation of material before it which had not been served with reasonable notice to the other side. 10In the circumstances, much of Mr Liristis' present affidavit is not to be admitted. Of the affidavit of 19 July, pars 5-7 and 60-65 involve concerns which might be said to be prejudiced to him and to his mother and father and children who he says reside in the premises. 11Paragraphs 8-29 deal with his assertion of a property interest which was, as I understand it, before the trial judge in respect of his statement of claim. Paragraphs 37-55 concern the provision of material to the respondent and communications with the solicitor for the respondent. 12I propose to reject pars 37-55 on the basis that the material is not relevant to any issue presently before me. As I indicated in the course of the hearing, I will allow pars 8-29 dealing with the property interests on the basis that they inform me as to the nature of the claim being made before the trial judge. I allow pars 5-7 and 60-65 as going to possible prejudice. The other paragraphs may be allowed but they do not deal with issues that are contention in the proceedings. 13The grounds of appeal in the draft notice of appeal do not take issue with the merits of the judgment. They assert procedural unfairness in the failure to grant an adjournment application and in the failure of the trial judge to disqualify herself on the basis of apprehended bias. They do, however, also complain of the trial judge's failure to deal with the appellant's claim which appears to be for an interest in the property as I have indicated, the property being the subject of the writ of possession. 14These proceedings appear to have been greatly protracted over a number of years. In recent times Mr Liristis says he has been the subject of assaults which have no direct bearing on the issues before me but have doubtless affected his health. I accept that he currently suffers from anxiety and depression. Whether or not these conditions are debilitating, they may well make it difficult for him to run Supreme Court litigation. He has from time to time had representation. He does not have representation for the purposes of this motion. 15The questions I need to address are in a general sense the merit of the application for leave to appeal and more significantly where the balance of convenience may lie during the course of the proceedings in this Court. 16In relation to the application for leave to appeal, it is clear that the competing interests in respect of the adjournment application were carefully considered by the trial judge. She held in the circumstances that no adjournment should be granted and that the proceedings should be heard as they were on 20 June. 17It may well be that there will be material available on appeal which will give rise to an arguable case in favour of a contrary view. That material is not before me. However, what must be established is that her Honour erred in principle in giving effect to what was clearly a discretionary judgment by reference to the principles in House v The King (1936) HCA 40, 55 CLR 499. 18I am not satisfied that the prospects of success on appeal are reasonable. That is a factor to be taken into account with respect to the application for a stay. 19A second matter concerns the need for a stay in order to preserve the subject matter of the proceedings. This may be viewed in one of two ways. On the one hand, the subject matter may be the availability of the property to the extent that Mr Liristis maintains his claim to an interest in it. Secondly, the subject matter may be his continued occupation of the premises. 20The availability of the property may be preserved by requiring as a condition of continued occupation that the respondent not dispose of her interest in the property pending the determination of the appeal otherwise than by way of a residential tenancy lease for a period not exceeding two years. 21Mr Webb indicated that he was not presently in a position to give such an undertaking. In the circumstances, I think that is of limited relevance because I propose to make the order on the basis that it may be subject to further consideration when the matter comes back before the Court on 15 August for directions. 22There remains, however, the question of the occupation of the premises which is at the heart of the present application. The trial judge gave Mr Liristis a period of six weeks in which to find alternative accommodation. That period was not inherently unreasonable. Given the difficulty in assessing the merits of the proposed appeal, the balance weighs to some extent in favour of the assumption that the respondent is entitled to the benefit of the order in her favour without delay. 23The failure to pay rent in the past or an occupation fee suggests that there is doubt as to whether Mr Liristis will pay rent in the future. He is not in a position to offer any security for payment of rent, nor does he demonstrate a clearly arguable right to a rent free occupation of the premises. 24In my view, a stay should be granted of the orders for vacation of the premises but on condition that an occupation fee is now paid. 25It was said to me in the course of evidence that he was not in a position to pay from his Centrelink allowance more than a hundred dollars per fortnight. That was an amount which was paid in the past to an account provided by the respondent's solicitor. That amount does not bear a significant relationship to the rental payment of $350 per week which was apparently the amount that applied up to 27 July 2006. 26Mr Liristis says, although without supporting evidence, that his parents, although in receipt of Commonwealth benefits, have debts owing to the bank which are being paid in part directly from their benefits. I do not know the circumstances in which that operates. 27It is not the situation that they would in any event be entitled to rent free occupation of private premises because they had other outstanding debts. In the circumstances, I propose to order a stay of the proceedings on condition that Mr Liristis make payments to the respondent by way of direct deposit to an account to be notified to him by the solicitors for the respondent of an amount of $350 per fortnight, the first payment to be due on Friday, 22 July 2011, that is in two days time. That is to be treated as a payment in arrears for the fortnight preceding that date. 28The continuation of the stay is conditional upon that payment and fortnightly payments being made thereafter. The respondent has liberty to apply on three days notice in the event of a failure to comply with the condition. 29The costs of today's proceedings should be costs in the appeal or the application for leave to appeal. 30Mr Liristis seeks a variation of the order I have made in respect of the condition attaching to the stay to allow him to pay the first occupation fee at the end of the fortnight following Friday 22 July. He says he requires the time in order to allow him to obtain finance to arrange for the payment to be made. 31The occupation fee which I have fixed is one which is less than half of the rental payment which was due five years ago. In the circumstances, if Mr Liristis wishes to remain in the premises, then he must pay the fees as they fall due. I appreciate that he has little notice in terms of the first occupation fee. I do not intend to vary my order to accommodate personal circumstances as they are now raised. I reject the application. Orders (1) In relation to the affidavit of Mr Liristis of 19 July 2011: (a) admit paragraphs 5-7, and 60-65 as relevant to the question of prejudice; (b) reject paragraphs 37-55; (c) admit paragraphs 8-29 for the limited purpose of explaining the claim made by Mr Liristis; (d) admit the remaining paragraphs of the affidavit. (2) Dismiss the motion to stay orders 1-6 made by Ward J on 20 June 2011 (the interlocutory orders). (3) Pending determination of the proceedings in this Court, or further order, stay enforcement of: (a) order 7 to the extent that is necessary; (b) orders 9-12 (the financial orders); and (c) stay order 8 (requiring Mr Liristis to vacate the premises and permitting the issue of a writ of possession by 1 August 2011) on condition that Mr Liristis pay an occupation fee of $350 per fortnight, such payments - (i) to commence on Friday, 22 July 2011 (in relation to the period ending on that day) and fortnightly thereafter; (ii) into an account to be notified by the respondent's solicitors. (4) Costs of the motion are to be costs in the application for leave to appeal. (5) Each party to have liberty to apply on 3 days' notice. (6) Reject the application of Mr Liristis to vary order 3(c)(i) as to the date and amount of the first payment. ********** 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. Decision last updated: 26 July 2011