Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hewlett v Chandler [2016] NSWCATAP 50 Hearing dates: 11 December 2015 Date of orders: 23 February 2016 Decision date: 23 February 2016 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President Decision: Application for a stay of the Tribunal's orders made on 4 December 2015 in RT 15/63471 is refused. Catchwords: INTERLOCUTORY ORDERS – application for stay of a decision to give vacant possession to landlord – settlement on sale of property scheduled in 3 days from hearing the stay application – no merit in appeal – significant prejudice to landlord if stay granted even though appeal would be rendered nugatory Legislation Cited: Residential Tenancies Act 2010 (NSW) Cases Cited: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 Category: Procedural and other rulings Parties: Frances Hewlett (1st Appellant) Mark Hall (2nd Appellant) Mark Chandler (1st Respondent) Kate Chandler (2nd Respondent) Representation: H Simmons (South West Tenants Advice Service) (Appellants) L Morgan (Leading Property Group) (Respondents) File Number(s): AP 15/65839 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 4 December 2012 Before: D Harvey, Member File Number(s): RT 15/63471 ex tempore reasons for decision 1. DEPUTY PRESIDENT HENNESSY: Frances Hewlett and Mark Hall appealed from a decision of the Consumer and Commercial Division terminating their residential tenancy agreement immediately and giving possession to the landlords Mark and Kate Chandler. The order for possession was suspended until 9 December 2015. The tenants applied for a stay of the orders. That application was heard today, Friday 11 December 2015. 2. In the meantime the house has been sold and settlement is due to take place on Monday 14 December 2015. 3. The basis for the stay application was that the tenants had not been afforded procedural fairness at the hearing before the Consumer and Commercial Division. The hearing was scheduled for 27 November 2015 but, at short notice, the tenants were told that it would be held on 4 December 2015. Ms Simmons, representing the tenants, said that her clients were not told why the hearing date had changed nor were they given an opportunity to see the documents relied on by the landlord including the contract of sale. The tenants acknowledged that the notice of termination of the tenancy was valid. 4. Ms Morgan representing the landlords submitted that there was no obligation on the landlords to give the tenants a copy of the contract of sale although that document was provided to the Tribunal. 5. The Appeal Panel has recently summarised the principles applicable to stay applications in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 as follows: (1) Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour - s 43(2) and (3) of the Act, Kalafair Pty Limited v Digitec (Australia) Pty Limited [2002] NSWCA 383; (2002) 55 NSWLR 737 at [28], Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (2) In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Vaughan v Dawson [2008] NSWCA 169 at 16. (3) The mere lodgment of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay - s 43(2) and (3) of the Act, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (4) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal - s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (5) The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay . This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (6) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies - ss 43(3) and 58 of the Act. (7) In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [21] and [22]. (8) Finally, the overriding principle in an application for a stay is to ask what the interests of justice require - New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83] and Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18]. 1. While a stay will normally be granted in circumstances where the hearing would otherwise be rendered nugatory, the appeal in this case has no merit and the landlord will be seriously prejudiced if settlement cannot proceed on Monday 14 December 2015. 2. When it heard the matter on 4 December 2015, the Tribunal was satisfied that the contract of sale required vacant possession. It was also satisfied that all the requirements in s 86 of the Residential Tenancies Act 2010 had been met. 3. The tenants' appeal is on the basis of a breach of procedural fairness. In particular they say that they were not advised as to the reason for a phone hearing being necessary and they were not shown documents including the contract for sale. In my view that ground of appeal would not be successful because regardless of whether procedural fairness was afforded there is no possibility that the Tribunal would have made a different decision. 4. The Appeal Panel will not set aside a decision made in breach of the rules of procedural fairness if the breach would have made no difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145. 5. The balance of convenience is strongly in favour of the landlord. They have an order in their favour, the legality of which has not been challenged except in respect of a breach of procedural fairness. The landlord stands to lose the sale if vacant possession is not granted and the sale is for a house to the value of $430,000. 6. Although it is unfortunate for the tenants to be placed in a situation of having to leave the premises, the process has been carried out lawfully in compliance with s 86 of the Residential Tenancies Act and the orders should stand. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 23 February 2016