Supreme Court New South Wales Medium Neutral Citation: Kyriakou v Kuzevski & Ors [2011] NSWSC 1541 Hearing dates: Friday, 25 November 2011 Decision date: 25 November 2011 Jurisdiction: Equity Division - Duty List Before: White J Decision: Refer to paras [26]-[29] of judgment. Catchwords: LANDLORD AND TENANT - residential tenancy agreement - where occupant of residential premises evicted - application for order allowing residence at premise for period of seven days - whether residential tenancy agreement under the Residential Tenancies Act 2010 - parties cannot enter into agreement for purpose of preventing operation of Residential Tenancies Act 2010 - serious question to be tried that occupant a tenant under fixed term residential tenancy agreement that could only be terminated in accordance with s 84, Residential Tenancies Act 2010 - balance of convenience favours allowing occupant back into possession of premises for seven days - occupant allowed back into possession of premises for seven days on undertakings to vacate after seven days, pay outstanding rent and not to damage premises Legislation Cited: Residential Tenancies Act 2010 Consumer, Trader & Tenancy Tribunal Act 2001 Category: Principal judgment Parties: Andrew Kyriakou (Plaintiff) John Kuzevski (1st Defendant) Luba Kuzevski (2nd Defendant) Naum Kuzevski (3rd Defendant) Sue Hetherington (4th Defendant) Representation: Plaintiff - in person 1st Defendant - in person N/a File Number(s): 2011/382203 Judgment 1HIS HONOUR : This is an application by the plaintiff who is a former occupant of premises in Tantallon Avenue, Arncliffe for an order that the landlord allow him to reside at the premises for a period of seven days. The plaintiff proffers an undertaking that if he is allowed back into occupation he will vacate the premises after seven days. He also undertakes to pay certain moneys to which I will refer later in these reasons. Although it has not been specifically addressed I assume he also proffers an undertaking not to damage the premises, but to yield them up after seven days peaceably and in a state of repair that is no worse than their current state of repair. 2The application arises from proceedings that were before the Consumer Trader and Tenancy Tribunal ("the Tribunal") between these parties. It is common ground that on 14 October 2011 the plaintiff filed an application in the Tribunal seeking an order that an agreement he had with another tenant was a residential tenancy agreement, an order under s 16 of the Residential Tenancies Act 2010 requiring the landlord to prepare and enter into a written residential tenancy agreement, and an order under s 77 of that Act recognising the plaintiff as a tenant under a residential tenancy agreement. It is common ground that the owner had entered into a residential tenancy agreement with a tenant by the name of Graham Tyrrell. I was told that that agreement was entered into on 27 August 2004. 3Before the Tribunal, the plaintiff asserted that he had been a tenant of the premises since 8 January 2011. He made an agreement with Mr Tyrell to pay weekly rent of $150 and in effect purportedly took a sublease from Mr Tyrrell of part of the premises. The defendants say that they did not know of that arrangement and did not consent to it. There is no evidence that they did know of the arrangement at the time it was made and no evidence that the owners consented to it. Indeed, in an email said to form part of the subtenancy agreement Mr Tyrrell said that: " ... rent of $150 a week cash is fine. [W] hat the landlord and agent don't know won't hurt them. " 4There were proceedings before the Tribunal between the owners and Mr Tyrrell. Those proceedings were pending when the plaintiff filed his application on 14 October 2011. Both proceedings had a return date on 1 November 2011. I was informed that on the morning of 1 November 2011 Mr Tyrrell did not appear and the Registrar made an order terminating his residential tenancy agreement. On the same day there was, it seems, a conciliation and perhaps the commencement of a hearing before the Tribunal. It is common ground that the Tribunal member expressed the view that the plaintiff's application was likely to fail and she urged the plaintiff and the owners to seek to agree on terms providing for a time for the plaintiff to vacate the premises. The plaintiff says that undue pressure was applied by the Tribunal. But the evidence does not suggest that there is a serious question to be tried that that was so. Indeed, given that a tenant under a residential tenancy agreement may only sub-let premises to another person with the landlord's written consent, there would be serious obstacles to the plaintiff's being able to establish at that time that he was a tenant under a residential tenancy agreement. 5The Tribunal did not rule on the plaintiff's application. Its orders of that day state as follows: " On 01-Nov-2011 the following orders were made: The application is withdrawn under s 28(5)(h) of the Consumer, Trader & Tenancy Tribunal Act 2001. 1. The respondent's name Sue Hetherington, is amended to J & N & L Kuzevski. The Tribunal notes the following: 1. The applicant agrees to return possession of the property to the respondent on 19 November 2011. 2. The applicant agrees that he is not a tenant as that term is defined in section 7 and section 10 of the Residential Tenancies [A] ct 2010. 3. The Tribunal notes that the applicant agrees to pay a fee to the respondent to enable him to remain in the premise until 19 November 2011, that fee being $951.48 and payable on 8 November [2011] . 4. Both parties agree that the payment of the fee does not give the applicant a right to claim a tenancy. " 6On one reading of the orders it might be said that the Tribunal had ordered that the plaintiff's application was withdrawn under s 28(5)(h) of the Consumer, Trader & Tenancy Tribunal Act 2001 (the " CTTT Act "). That would not have been a power available to the Tribunal. Section 28(5)(h) provides that the Tribunal must, if requested by the applicant, allow the applicant to withdraw the application. But when the orders are read in context I think it is clear that in substance the order made by the Tribunal was to allow the plaintiff to withdraw his application. That is how both parties have understood the matter. The plaintiff himself said that the only order the Tribunal made was for the amendment of the name of the respondent. 7An appeal from decisions of the Tribunal with respect to matters of law lies to the District Court. Under s 67(5) of the CTTT Act where a party has appealed to the District Court against a decision of the Tribunal on a question of law, that Court may suspend the operation of any order or decision in respect of the proceedings until the appeal is determined. 8To return to the chronology of events, the plaintiff did not pay the fee of $951.48 on 8 November 2011. Nor did he return possession of the property on 19 November 2011. Instead, on 17 November 2011 the plaintiff made a fresh application to the Tribunal seeking a new order under s 77 recognising him as a tenant. The reasons advanced in respect of that application appear to be the same matters that would have been advanced on the earlier application, that is to say, matters based on his dealings with Mr Tyrell and perhaps the landlord prior to 1 November 2011. 9On 22 November 2011 the plaintiff applied ex parte to the District Court. On that day, her Honour Judge Truss made an order pursuant to s 67(5) of the CTTT Act suspending the operation of the Tribunal's orders and notations of 1 November 2011. This was prompted by the fact that on 22 November 2011, a warrant for possession was executed by the Sheriff. This warrant was obtained pursuant to orders of the Tribunal made in the proceedings between the defendants and Mr Tyrrell. The plaintiff deposed that there are other tenants in the property who were not evicted, but that he was. He then made an application to the District Court that was initially successful. 10However, on the following day, 23 November 2011, his Honour Judge Williams, after hearing both parties, vacated the order made the previous day by Judge Truss suspending the operation of the " orders and notations " made in the Tribunal on 1 November 2011. 11On 24 November 2011, the plaintiff made the present application to me as Duty Judge. I declined to grant substantive relief ex parte , but made orders for short service and the matter has been dealt with as a contested application today. 12Under s 65 of the CTTT Act this Court could exercise jurisdiction by way of prerogative relief on a ground that the Tribunal had no jurisdiction to make an order it did, or that in relation to the hearing or determination of a matter a party has been denied procedural fairness (s 65(1) and (3)). I do not think that there is a serious question to be tried that the plaintiff was denied procedural fairness. Nor do I think that there is a serious question to be tried that the Tribunal lacked jurisdiction to make the orders of 1 November 2011, because I think the only relevant order made by the Tribunal was for the amendment of the name of a party, or an order to allow the plaintiff's then application to be withdrawn. 13However the plaintiff relies upon a further ground. He contends that the agreement noted by the Tribunal on 1 November 2011 is itself a residential tenancy agreement even though the parties were at pains to say that it was not. If the agreement were a residential tenancy agreement, then it seems to me it was an agreement for a fixed term expiring on 19 November 2011. Nonetheless, it could only be terminated in accordance with s 84 of the Residential Tenancies Act which would have required service of a notice of not less than 30 days. 14Thus the second ground upon which the plaintiff seeks relief is to protect what he contends was his right as a tenant under a residential tenancy agreement to remain in possession of the property until the procedures of the Residential Tenancies Act for termination were followed. The fact that he had made a contrary agreement should not, it can be said, deprive him of the protection of the Act. 15It is not necessary on this application to decide on a final basis whether the agreement noted by the Tribunal is a residential tenancy agreement. That may well be an issue that arises on the further application that the plaintiff has filed on 17 November 2011 in the Tribunal that has been given a hearing date of 14 December 2011. The plaintiff does not seek orders to protect a right of possession until a termination notice under s 84 has been given. He only seeks a lesser form of relief, but says that there is a legal basis for wider relief. 16The first question is whether there is a serious question to be tried that that is so, and secondly, if there is a serious question, where the balance of convenience lies. 17Section 219 of the Residential Tenancies Act prohibits parties from entering into agreement for the purpose of preventing the operation of the Act. A term of any residential tenancy agreement that purports to exclude, limit or modify the operation of the Act or has that effect, is void. It can be inferred that the Tribunal member who noted the parties' agreement of 1 November 2011 did not consider that the agreement is a residential tenancy agreement. Nonetheless the question is whether there is a serious question to be tried. 18Section 13 relevantly provides that: " (1) A residential tenancy agreement is an agreement under which a person agrees to another person for value a right of occupation of residential premises for the purpose of use as a residence. (2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. " 19Accepting, as appears to be the fact, that the plaintiff was not a tenant under a residential tenancy agreement prior to 1 November 2011, it is nonetheless seriously arguable that he became a tenant under such an agreement by the agreement of 1 November 2011. The owners, for value, gave him the right to occupy premises that are admittedly residential premises, for a fixed term and for use as a residence. I was not referred to any exclusion either under s 7 or s 8 of the Act that would take the agreement outside the scope of the Act. 20I think it is clear that the parties cannot take the agreement outside the scope of the Act merely by declaring their agreement that the Act does not apply, or that the plaintiff is not a tenant as the term is defined in the Act. The agreement referred to s 7 and s 10. There is no evidence that the premises fall within any of the paragraphs (a) to (h) of s 7. Nor would s 10 appear to have any application to the agreement of 1 November 2011. 21The plaintiff is named in that agreement and although he is not described as a " tenant ", he is given the right of occupation. I therefore think that there is a serious question to be tried that notwithstanding it was agreed to the contrary, the plaintiff was entitled to the protection of s 84 of the Act. The question is where the balance of convenience lies. 22The first defendant, Mr Kuzevski (who, if I may say so, presented his case with considerable skill and moderation) seeks to get possession of the premises for his own purposes. He is presently residing with his mother but wishes to be able to move back into the house that he owns. 23On the other hand the plaintiff at the moment is without accommodation. He says that he has been sleeping in his car since he was evicted on 22 November 2011. He wants to re-enter the premises for a period of seven days, during which time he hopes to find other accommodation. He proffers an undertaking, not only to the defendant but to the Court, to vacate the premises at the end of seven days. It has been explained to the plaintiff that if he failed to honour that undertaking he would be in contempt of Court and would be liable to be punished by fine or imprisonment or both. He advises that he understands that, and I see no reason to doubt that he does. 24As I have said, the plaintiff has not paid the sum of $951.48 he promised to pay on 8 November. There was a dispute about the tender of payment that the plaintiff says he has made. It seems to me that the plaintiff offered payment of that fee only in return for his being recognised as a tenant under a residential tenancy agreement. Nonetheless he now undertakes, unconditionally, to pay that sum together with a further $370 for the cost of occupation for seven days. He offers to pay $600 forthwith and a further $721.48 within fourteen days. 25In my view, in those circumstances the balance of convenience favours allowing the plaintiff back into possession of the premises for seven days. I will make these orders providing the plaintiff confirms that he gives undertakings both to the defendants and to the Court as follows: 1. to vacate the premises by 6 pm on Friday 2 December 2011; 2. to pay the first defendant $600 forthwith and $721.48 within 14 days; and 3. not to damage the premises and to yield them up after seven days peaceably and in a state of repair no worse than their current state of repair. [Plaintiff addressed.] 26The plaintiff gives those undertakings. For these reasons I make the following orders: 1. Upon the plaintiff undertaking to the defendant and to the Court: (a) To vacate the premises known as [xx] Tantallon Avenue, Arncliffe, New South Wales, by 6 pm on 2 December 2011; (b) To pay the first defendant $600 forthwith and $721.48 within 14 days; and (c) Not to damage the premises but to yield them up by 6 pm on 2 December 2011 peaceably and in a state of repair no worse than their current state of repair, I order that the defendants by themselves, their servants and agents allow the plaintiff back into possession of the said premises up to 6 pm on 2 December 2011 and provide him with a key to the premises. 2. I order that the plaintiff return all keys to the premises on his vacating them. [Parties addressed.] 27I give the parties liberty to apply. 28I will make an order for possession now to take effect from 3 December. 29I also make the following orders: 3. I give judgment for the defendants for possession of the said premises to take effect on 3 December 2011. 4. I give leave to the defendants to apply for the issue of a writ of possession at any time from 3 December 2011. 5. This judgment and order is not to disturb the possession of any occupier other than the plaintiff. 30Neither party is legally represented. I make no order as to costs. 31I note that these orders deal with the whole of the claims made in the summons and no further return date is required. 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: 13 December 2011