Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Capon v Snyman [2014] NSWCA 274 Hearing dates: 7 August 2014 Decision date: 07 August 2014 Before: Ward JA Decision: Application for stay of execution of writ of possession dismissed. Costs reserved. [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 - stays - where applicant seeking stay prior to hearing of appeal - whether balance of convenience favoured stay - whether there was a serious question to be tried Legislation Cited: Residential Tenancies Act 2010 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Boutros v Nationwide Capital Pty Ltd [2013] NSWCA 246 House v The King [1936] HCA 40; (1936) 55 CLR 499 Category: Interlocutory applications Parties: Nadia Marie Capon (Applicant) Carl Snyman (First Respondent) Stuart Orr (Second Respondent) Representation: Counsel: Ms G Mahoney (Respondents) Solicitors: Nadia Capon (Appearing in person) McLachlan Thorpe Partners (Respondents) File Number(s): 2014/00199664 Publication restriction: Nil Decision under appeal Date of Decision: 2014-06-20 00:00:00 Before: Bellew J File Number(s): 2014/00156089 Ex tempore Judgment 1WARD JA: This is an urgent application by Ms Capon that has been referred to me by the Registrar of the Court of Appeal. Ms Capon is seeking a stay of execution of a writ of possession in relation to residential premises she is currently occupying. Part of the background of the matter is set out in an earlier ex tempore judgment of McCallum J on 23 May 2014. The application made by Ms Capon was oral. 2The chronology, as I understand it, briefly is this. Ms Capon entered into a 6 month Residential Tenancy Agreement with Dr Snyman in respect of the premises in question. Dr Snyman was himself a tenant under a tenancy agreement with the owner of the property, Ms Hartley. A notice of termination was served on Ms Capon in January this year requiring vacant possession on 14 February 2014. It was asserted that Ms Capon was in arrears of rent. That notice of termination, Ms Capon has informed me, was set aside on an application by Dr Snyman on 3 April 2014. A further notice of termination was served on 3 April 2014, again on the basis of rental arrears, requiring vacant possession on 19 April 2014. 3Proceedings were then brought by Dr Snyman in the Civil and Administrative Tribunal of New South Wales which I will refer to as NCAT. That application led to orders on 7 May 2014 terminating Ms Capon's Residential Tenancy Agreement for failure to pay rent in accordance with the agreement and for possession of the property to be given to Dr Snyman; and for payment of arrears by Ms Capon to Dr Snyman. (I add here that an order was also made for payment of a daily occupation fee from the date of termination, 8 May 2014, until the date vacant possession is given. The order for possession was suspended until 14 May 2014.) 4There was an application by Ms Capon on 14 May 2014 to set aside the decision made on 7 May 2014 and the orders terminating the Residential Tenancy Agreement and for payment of arrears of rent. That application was dismissed by NCAT on 16 May 2014. A warrant for enforcement of the order for possession was issued on 19 May 2014 by NCAT. Steps were then taken by the respondents to arrange for enforcement of the warrant for possession. 5Ms Capon then commenced proceedings in the Supreme Court. On 23 May 2014 she obtained a stay on an ex parte basis of the execution of the warrant for possession. The matter then came before Bellew J in the Common Law Division on 20 June 2014. Ms Capon sought a continuation of the stay. The proceedings commenced by her were in the nature of an application under s 69 of the Supreme Court Act 1970 (NSW) for a review of the NCAT decision of 7 May 2014. His Honour dismissed the application. 6His Honour gave oral reasons for the dismissal of the proceedings. One of the matters that his Honour noted on that occasion was the ability of Ms Capon to have reference to a specialist jurisdiction (NCAT) in order to determine the matters raised by her. His Honour noted that there were a number of internal mechanisms within the relevant legislation pertaining to NCAT which Ms Capon could still pursue if she wished to do so. However, his Honour considered that there was no proper basis for an extension of the stay and that it was appropriate in the circumstances to dismiss the proceedings. His Honour noted an undertaking that had been given that no execution of the warrant would be undertaken before 4 July 2014. This was apparently an arrangement made to facilitate the removal of Ms Capon's possessions. 7Subsequently, an application was brought by Ms Capon in this Court, which came before the President of the Court of Appeal. A summons seeking leave to appeal from Bellew J's decision was filed by Ms Capon. She sought a stay of the execution of the writ of possession. It was granted up to and including the following Monday (7 July 2014) when the matter was listed in the referrals list. Ms Capon filed on 4 July 2014 her summons seeking leave to appeal from the decision of Bellew J on 20 June 2014. Either on that day or the day before, there was a third application lodged with NCAT. This was an application by Ms Capon seeking an internal review, as I understand it, of the 7 May 2014 decision by NCAT. 8When the matter was before the referrals judge on 7 July 2014 in this Court, no stay was granted on the basis that there had already been a stay by NCAT (on 4 July 2014) of the execution of the orders for possession. 9I am informed that on 10 July 2014 Dr Snyman lodged an application with the NCAT opposing the stay and that there was a mediation of the dispute at NCAT. I know nothing, nor should I know anything, about what was the subject of discussion at that mediation. Suffice it to note that it did not resolve the dispute. 10NCAT published reasons on 25 July 2014 extending the time for an appeal by Ms Capon of the application for leave to appeal from the decision of 7 May 2014 and dismissed the application for leave to appeal on the merits. 11Orders were then made by the Appeal Panel of NCAT varying the decision of the Tribunal at first instance so as to substitute 30 July 2014 as the date for termination of Ms Capon's Residential Tenancy Agreement and substituting a reduced amount as the amount ordered to be paid in relation to the rental arrears. The stay on the operation of the orders of the Tribunal at first instance was lifted. 12Those are the circumstances in which the matter now comes before me for an urgent stay of the execution of the writ of possession. Arrangements have been made with the Sheriff for the eviction to take place at 1.30pm today. 13Tendered by Ms Capon, who is self-represented, on a confidential basis is a medical certificate deposing to her psychological condition at the present time. Access to that, other than with leave of the Court, has been limited to the respondents' legal representatives. Tendered by the respondents is an email from Ms Hartley, the owner of the premises and the head landlord, stating that Ms Hartley does not wish to have any contact with Ms Capon. 14The principles applicable when considering an application for a stay were set out recently by Gleeson JA in this Court in Boutros v Nationwide Capital Pty Ltd [2013] NSWCA 246. I have indicated to Ms Capon in the course of argument that what is required is that the Court give consideration to whether there is a serious question to be tried in relation the matter and to the balance of convenience, including the adequacy of damages as a remedy if that be appropriate. In Boutros, his Honour said that there needs to be demonstrated to the Court a prospect that the appeal may succeed. 15In the present case, the summons for leave to appeal, filed on 4 July 2014, is seeking to appeal from a discretionary decision by Bellew J. The difficulties in establishing a basis for appellate intervention on discretionary decisions are well known. What is required for appellate intervention is that it be demonstrated that his Honour made an error of principle or a material error of fact, or took into account irrelevant circumstances, or failed to take into account relevant circumstances, or that the decision was so manifestly unreasonable in the sense considered in House v The King [1936] HCA 40; (1936) 55 CLR 499. 16There is no draft notice of appeal. Ms Capon informs me from the bar table that she has been seeking legal advice and representation. The basis on which she seeks leave to appeal is set out in an affidavit that was filed by her on 4 July 2014. That affidavit refers to the filing of a warrant of possession on 27 June 2014 and deposes to Ms Capon's belief that Dr Snyman is no longer a tenant for the property in question and has no jurisdiction to apply for a warrant of possession. (I interpose to note that the last NCAT decision held that Dr Snyman's tenancy has not yet been terminated as vacant possession has not been handed back to owner). 17I am not satisfied that there would be any utility in the grant of leave for an appeal from Bellew J's decision in circumstances where the matter has moved on since then. His Honour's decision was to refuse a continuation of the stay at a time when Ms Capon was seeking, in effect, to challenge NCAT's decision of 7 May 2014. There has since been a review of her application by the Appeal Panel at NCAT. While I am not here determining Ms Capon's application for leave to appeal, I am not satisfied that she has demonstrated that there is a prospect that leave would be granted or that any appeal would succeed. 18As I understand the position from what Ms Capon has informed me from the bar table, she concedes that rent has not been paid for a period of time although, as I understand it, there is a dispute as to the quantum of rental arrears that are owing. Ms Capon informs me that there is money in a bank account that could be made available by way of rent but that the respondents (or the agents for the property and/or the owner) have not made clear to whom that is to be paid. 19An order for an occupation fee to be paid was made on 7 May 2014. The Appeal Panel in its reasons notes a concession by Ms Capon that the last time she paid any rent was on 13 February 2014. In circumstances where there is no evidence before me that would suggest that Ms Capon has any right as against the owner of the premises to remain in possession of the premises (and I note the owner has not been joined to the proceedings) and the term of Ms Capon's Residential Tenancy Agreement expired in March 2014, the balance of convenience does not lie in favour of granting a stay of the execution of the writ of possession. 20I have asked the parties as to whether or not, in circumstances where Ms Capon has put on evidence as to her psychological condition and the writ is about to be executed, there could be some accommodation given to Ms Capon to permit her time to remove her possessions from the premises. The respondents' instructions were not to accede to any such arrangement. As I understand it, there has been a history of attempts to bring the matter to an end and for Ms Capon to vacate the premises. 21The respondents' counsel has indicated that the respondents may be prepared to execute the writ of possession but then to permit Ms Capon to make arrangements with either the landlord or the agent to remove her possessions. It seems to me that that is the appropriate way to proceed in all of the circumstances. 22I should note, in terms of the chronology, that Ms Capon informed me that late last night she has lodged a further application before the tribunal seeking to be recognised as a tenant pursuant to s 77 of the Residential Tenancies Act 2010 (NSW). That application will no doubt fall to be dealt with in due course on its terms, if it is pursued, as well as any other application that Ms Capon may wish to make in relation to the matters that have occurred to date. 23In the circumstances, I am not persuaded that there is a serious question to be tried in relation to the appeal and in terms of its utility at this stage and I am not persuaded that the balance of convenience lies in favour of the grant of the stay. 24I note for the record that Ms Capon has now left the courtroom. 25I add, for completeness, that submissions were made by the respondents and by Ms Capon as to the balance of convenience. The respondents pointed to Dr Snyman's continuing liability to the landlord until he is in a position to give vacant possession of the property. I was informed that the landlord has foreshadowed possible proceedings against Dr Snyman. The respondents also point to the amount of rent owed and say that there is nothing to suggest Ms Capon has any capacity to meet an order for damages. Ms Capon contended that her family had made payments for rent and referred to her medical condition. She also made allegations of harassment by a member of the landlord's family. 26As Ms Capon has left the courtroom I will not make an order as to costs because Ms Capon is not here to make any submissions in relation to costs. 27I will dismiss the oral application for a stay. I will reserve costs. ********** 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: 15 August 2014