Supreme Court New South Wales Medium Neutral Citation: Young v Roads and Maritime Services [2014] NSWSC 1104 Hearing dates: 28/07/2014 Decision date: 28 July 2014 Jurisdiction: Common Law Before: Justice Garling Decision: (1) Grant leave to Ms Young to file in Court the Notice of Motion which is dated 28 July 2014, and which she has signed, and which I have initialled and dated today for proper identification. (2) Grant leave to Ms Young to file in Court an affidavit affirmed 28 July 2014. (3) Dismiss the Notice of Motion. Catchwords: PROCEDURE - civil - interlocutory issues - injunctions - restraining defendants from engaging in conduct which constitutes an abuse of the process of the Court - restraining eviction under defaulted lease - validity of lease disputed -whether conduct which would affect the litigation - whether arguable basis for that conduct to occur - no conduct placing occupation in jeopardy - balance of convenience Category: Procedural and other rulings Parties: Maureen Mary Young (P) Roads and Maritime Services (D) Representation: Counsel: In person (P) Ex parte (D) File Number(s): 2014/198018 EX TEMPORE Judgment 1Ms Maureen Young applies, ex parte, to this Court by Notice of Motion, which she seeks to file in Court today, for a series of injunctions to restrain the defendant, the Roads and Maritime Services NSW by itself, its servants and agents, from engaging in conduct which constitutes an abuse of the process of this Court, or of the Local Court. 2In her Notice of Motion, Ms Young has formulated seven specific orders that she says are justified by the material which she has annexed to her affidavit. History of Proceedings 3Some short background is necessary. I do not suggest that this is a complete recitation of the background. 4In August 2013, Roads and Maritime Services, to which I will refer to for convenience as the RMS, commenced proceedings in the Local Court claiming unpaid rental which it asserted was due to it, pursuant to a lease of Lot 1 Deposited Plan 1145276, dated 11 May 2012, in respect of Ms Young's occupation of a houseboat, being houseboat No.8 in Pearl Bay, Mosman. 5Ms Young filed a Defence and Cross-Claim in those proceedings in which she denied that she owed any moneys by way of rent to the RMS, and denied that the lease, which she accepts was executed in May 2012, was a valid lease. 6In her Cross-Claim filed in the Local Court, amongst the relief she sought was an order of the Court that the lease be held to be void and invalid, and also that an agreement which preceded the issue of the lease, which agreement had been entered into in 2009, was also declared to be void and invalid. The proceedings in the Local Court remain on foot and have as yet not been allocated a date for final hearing. 7By a Summons filed on 4 July 2014, Ms Young commenced proceedings in this Court seeking an order that the proceedings in the Local Court be transferred to this Court and further, that the Local Court proceedings be stayed until the transfer of the proceedings to this Court had been heard and determined by this Court. That Summons was accompanied by an affidavit sworn by Ms Young. 8The matter first came before the Registrar of this Division on 15 July 2014, and it came again before Justice Harrison who was the Duty Judge on 17 July 2014. 9On 17 July 2014, Justice Harrison made orders with respect to the filing of evidence in support of the Summons by Ms Young, and evidence in opposition by the defendant. The time for the plaintiff, Ms Young, to file all further evidence in support of her Summons has not yet arrived. That time is Friday 29 August 2014. The defendant then has a period of four weeks, to Friday 26 September 2014, to file and serve such evidence as it wishes to rely upon. The matter is then due to be returned for directions before the Registrar on 29 September 2014. 10I expect that if compliance with those directions occurs, then the Registrar will attempt to fix a hearing date for the Summons filed by Ms Young to transfer the proceedings to this Court. Clearly, the transfer of proceedings, if it occurs, will not happen before 29 September 2014 at the earliest possible date. The Current Notice of Motion 11The basis upon which Ms Young seeks the orders to which I have earlier referred seems to be that sometime after 17 July 2014, she was served with a document entitled Notice of Default dated 14 July 2014 by the Crown Solicitor's Office acting upon the instructions of the RMS. That Notice of Default records the assertion of the RMS that Ms Young is in default under the lease because she has failed to effect and maintain a public liability policy with respect to her occupation of the houseboat, and to provide to the RMS a copy of the public liability insurance policy. 12The Notice calls upon Ms Young to rectify the breach by 4pm 28 July 2014. The Notice goes on to say: "Should the above breaches not be rectified by the time indicated above, the Lessor intends to exercise its rights under the Lease, including seeking to terminate the Lease". 13Shortly put, the Notice in reliance upon the lease, which Ms Young disputes, seeks to assert the rights of the landlord and seeks to create a breach of that lease sufficient, if all other requirements are met, for the landlord to proceed further to determine that lease. Discernment 14In order for this Court to grant the injunctions of the kind that Ms Young seeks, the Court needs to be satisfied firstly that there is conduct which is likely to happen which, if it were to happen, would or may adversely affect the conduct of the litigation; secondly that there is no legitimate basis for the RMS to conduct itself in that way and thirdly that the balance of convenience favours the granting of interlocutory relief. 15I can well understand that in light of what is seen to be a long and complicated history between Ms Young and the RMS, and her perception that she has not been adequately, or fairly, dealt with by RMS, she is concerned that the conduct of the RMS during the course of the proceedings, which relate to the disputed 2012 lease, will irrevocably affect her position in occupying the houseboat which she alleges exists outside of the proceedings. 16On the other hand, I recognise the fact that the RMS assert that they have a lease, and upon the basis of that assertion, have served their Notice of Default. 17However, as at today, the fact is that there is no conduct by the RMS or its lawyers or anybody else on its behalf which places in immediate jeopardy the occupation of the houseboat by Ms Young; and as well, it seems that the RMS has been placed on notice, if not by what occurred in front of Justice Harrison then at least by the transmission of a copy of a letter from the Court, that Justice Harrison has said it that would be a breach of Court orders if the RMS took action to evict Miss Young whilst a timetable was in place for the determination of the transfer question. 18There is no material before me presently that would justify the grant of interlocutory relief of the kind sought by Ms Young. Taken at its highest, pursuant to its asserted position of the validity of the lease, the RMS has served a Notice of Default. The expiry of that Notice of Default of itself does not directly affect the occupation of the property by Ms Young. 19It is well and truly obvious from the proceedings that Ms Young disputes the validity of the lease and disputes that she has any obligation to comply with the particular clause upon which the RMS relies and further, to the extent that she is unable to comply with the Notice of Default, she has raised factual issues on the part of RMS which she says are the true reason why she cannot comply with that Notice. 20All of those matters are clear, and are seemingly matters upon which the RMS is on notice. But the RMS has not moved to evict Ms Young. If it did so, it would have to give good and adequate notice. None of that process has as yet commenced, and accordingly, I am not satisfied that the urgent orders and injunction sought by Ms Young in her Notice of Motion ought be made. 21I will, however, in order to regularise the record, make these orders: (1)Grant leave to Ms Young to file in Court the Notice of Motion which is dated 28 July 2014, and which she has signed, and which I have initialled and dated today for proper identification. (2)Grant leave to Ms Young to file in Court an affidavit affirmed 28 July 2014. (3)Dismiss the Notice of Motion. ********** 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: 14 August 2014