Supreme Court New South Wales Medium Neutral Citation: Chester v Prestige Promotions Pty Limited [2014] NSWSC 1102 Hearing dates: 28/07/2014 Decision date: 28 July 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) The defendant, Prestige Promotions Pty Ltd, and its agent Ms Tania Sassoon of Belle Property Pty Ltd of Double Bay be, and hereby are, restrained from taking any step, or any further step to enforce any writ or otherwise obtain possession of the premises at 19/40 Penkivil Street Bondi. (2) I stay the execution of any Writ of Possession issued by the New South Wales Civil and Administrative Tribunal until further order. (3) I note that the first two orders are made upon condition that the plaintiffs, Mr and Mrs Chester, pay all rental and other outgoing and tenant expenses as and when they fall due in a timely manner. (4) I order that service of these orders may be effected by delivery to the landlord's agent Ms Sassoon at Belle Property Pty Ltd Double Bay both by delivery of the documents to the premises and by email on or before 9 am 29 July 2014. (5) I grant the parties liberty to apply on two hours' notice. Catchwords: PROCEDURE - civil - judgments and orders - stay pending appeal - appeal from NSW Civil and Administrative Tribunal - stay execution of writ of possession issued by NSW Civil and Administrative Tribunal; application for - plaintiffs in occupation of property for over 20 years - arrears of rent arguably not owed - no notice received Legislation Cited: Civil and Administrative Tribunal Regulations 2013 Residential Tenancies Act 2010 Category: Procedural and other rulings Parties: Jerome Chester (P1) Leah Chester (P2) Prestige Promotions Pty Limited (D) Representation: Counsel: J Chester (P) (on behalf of his parents) No appearance (D) Solicitors: Jemmeson & Fisher (D) File Number(s): 2014/218498 EX TEMPORE Judgment 1Ex parte application has been made to the Court by way of Notice of Motion for an urgent order staying the execution of all relevant orders of the New South Wales Civil and Administrative Tribunal ("the Tribunal") until further order. Since this is the duty list, these reasons will be necessarily shorter than if greater time permitted. Background Facts 2Mr and Mrs Chester, who are aged in their early sixties, have lived for over 20 years in a property at 19/40 Penkivil Street, Bondi in Sydney. The defendant, Prestige Promotions Pty Ltd, is the owner of that property. 3Mr and Mrs Chester have occupied the property pursuant to a residential tenancy lease during that period. That lease appears to have expired on 17 February 2014. Civil and Administrative Tribunal Proceedings 4Prestige Promotions commenced proceedings in the Consumer Commercial Division of the Tribunal. Those proceedings were heard on 29 January 2014, and an order was made under the Residential Tenancies Act 2010 for the termination of the tenancy agreement. 5It is apparent that in making the order, the Tribunal relied on two grounds, namely, arrears of rent in the sum of $300 and a failure to comply with previous orders of the Tribunal. 6Mr and Mrs Chester were not present at that hearing of the Tribunal, nor were they represented. Although they had notice of that hearing, it appears that they contend that the landlord's agent led them to believe that if all arrears of rent were paid prior to the hearing date, then the proceedings would be dismissed and they would not have to attend. They believed that they had paid all the previous arrears of rent. 7On 4 February 2014, Mr and Mrs Chester lodged a Notice of Appeal to set aside the decision of the Tribunal because of their absence and requested an urgent stay of the orders. This appeal was withdrawn and an application to set aside the decision, as being made in the absence of a party, was made under cl 9 of the Civil and Administrative Tribunal Regulation 2013. A single member of the Tribunal heard that application on 20 February 2014 and rejected the application. The single member of the Tribunal lifted the previous interlocutory stay on the orders for termination and possession made on 5 February 2014, and ordered that any order for possession be suspended up until 7 March 2014. 8On 5 March 2014, Mr and Mrs Chester filed another Notice of Appeal to the Appeal Panel of the Tribunal seeking to set aside either or both of the previous single member decisions. Prestige Promotions, by application, sought the summary dismissal of that appeal. Directions were given with respect to a factual issue that arose within the appeal. The application for summary dismissal that was made by Prestige Promotions was heard on 8 July 2014 by the Appeal Panel. 9On 22 July 2014, the Appeal Panel upheld the application for summary dismissal, and summarily dismissed the Appeal. It made an order that Mr and Mrs Chester pay the landlord's costs which it fixed in the sum of $1,500. Curiously, the Appeal Panel then added this paragraph: "38. Having said that, I would encourage the parties to find a way through that enables the two appellants to remain in occupation. But that requires the appellants to establish a rent payment arrangement that is orderly and predictable. And I should add it would have been helpful, I think, if the appellants had been here today to hear some of what has been said in the hearing room. I will have a written decision prepared and that can be provided to the parties". 10It is apparent from a copy of the written reasons, which have been published: [2014] NSWCATAP 34, that the written reasons are: "an edited and extended version of reasons delivered orally by the presiding member on behalf of the Appeal Panel on 8 July 2014". 11To what extent the reasons have been edited and extended is unclear to the Court at this stage. Notice of Eviction 12Nevertheless, it appears from what the Court is told by affidavit of the first plaintiff, that they have not received any notice by service of a letter or other document that the Sheriff was to execute a Warrant for Possession of the property tomorrow morning 29 July 2014 at 9 am. 13Mr and Mrs Chester's son, who has, with leave, appeared for them today, has informed the Court that the only notice his parents received of the Warrant was a text message, which was sent on 23 July 2014, from the agent which read: "We have a warrant are you out". Present Position 14Mr Chester informs the Court that there are presently no arrears of rent and that all rent has been paid to date as and when it fell due. 15He also informs the Court that Ms Tania Sassoon, who is the managing agent from Belle Property Pty Ltd of Double Bay and who has had the conduct of the whole of the proceedings in the Tribunal on behalf of the landlord, was telephoned to be informed that this application was to be made today by Notice of Motion. 16Upon being informed of the application, so the Court is told, Ms Sassoon did not indicate one way or the other whether the landlord would oppose the Court making the order. Ms Sassoon, or anybody on behalf of the landlord, has not attended Court this afternoon when this order was sought. Discernment 17I have not examined the merits of the Summons by which proceedings have been commenced in this Court. That Summons was filed on 24 July 2014, and is due to come before the Court on 14 August 2014 for directions. I will proceed at this stage on the basis that the matters raised in that Summons are reasonably arguable. 18However, it seems to me that, based upon the proposition that Mr and Mrs Chester have been in occupation of this property for a period in excess of 20 years, that such arrears of rent as was claimed was arguably not owed, and even if it was owed, it was a relatively small amount, and finally, that no notice has been received by them by way of any document being served of Sheriff executing the Writ of Possession tomorrow morning at 9am, that it is in the interests of justice that the execution of that writ be stayed. 19I make the following orders: (1)The defendant, Prestige Promotions Pty Ltd, and its agent Ms Tania Sassoon of Belle Property Pty Ltd of Double Bay be, and hereby are, restrained from taking any step, or any further step to enforce any writ or otherwise obtain possession of the premises at 19/40 Penkivil Street Bondi. (2)I stay the execution of any Writ of Possession issued by the New South Wales Civil and Administrative Tribunal until further order. (3)I note that the first two orders are made upon condition that the plaintiffs, Mr and Mrs Chester, pay all rental and other outgoing and tenant expenses as and when they fall due in a timely manner. (4)I order that service of these orders may be effected by delivery to the landlord's agent Ms Sassoon at Belle Property Pty Ltd Double Bay both by delivery of the documents to the premises and by email on or before 9 am 29 July 2014. (5)I grant the parties liberty to apply on two hours' notice. ********** Amendments 19 November 2014 - Incorrect firm of solicitors listed Amended paragraphs: Coversheet 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: 19 November 2014