Supreme Court New South Wales Medium Neutral Citation: Lewis v Brown [2016] NSWSC 474 Hearing dates: 4 April 2016 Date of orders: 04 April 2016 Decision date: 04 April 2016 Jurisdiction: Common Law Before: Wilson J Decision: 1. I decline to make the order sought by the Plaintiff. 2. Summons dismissed. 3. Order for costs in favour of the defendant. Catchwords: PRACTICE AND PROCEDURE – judgments and orders – application for stay of execution of writ of possession – NSW Civil and Administrative Tribunal Category: Procedural and other rulings Parties: Roseanne Lewis (Plaintiff) Susan Elizabeth Brown (Defendant) Representation: Dr G O'Shea (Plaintiff) Mr R W Tregonza (Defendant) File Number(s): 2016/97732 EX TEMPORE Judgment 1. By summons filed in the Registry of the Supreme Court on 31 March 2016, Roseanne Lewis sought urgent orders staying a grant of execution of orders made by the New South Wales Civil and Administrative Tribunal ('NCAT'), granting a writ of possession to the owner of premises at 7 Farmer Close at Glenwood. 2. The matter came before his Honour Justice Harrison sitting as duty judge, as is customary in matters of some urgency, in the absence of any appearance for the defendant, Susan Elizabeth Brown. 3. His Honour received an affidavit from Ms Lewis on her application. In that affidavit Ms Lewis deposed that she was the tenant of 7 Farmer Close at Glenwood, having entered into a lease with the defendant on 16 September 2015. She deposed that she had fallen behind in her rent from late December of 2015, following an injury she sustained at work, leading to the need for her to be absent from her employment. Because of the arrears of rent, Ms Lewis deposed that the landlord commenced proceedings in NCAT, and the Tribunal subsequently made consent orders for the vacation of the premises by the plaintiff. Ms Lewis asserted in her affidavit of 31 March 2016 that she consented to such orders because she was unrepresented by a lawyer, uncertain of what to do or how to cope with the proceedings and, in a panicked state, allowed herself to be, as she says, convinced to enter into consent orders. 4. She subsequently filed for a review of the orders before the Tribunal, but did not attend the proceedings and her application was struck out. 5. The original order from NCAT remaining in force, the plaintiff made an application to this Court, seeking a stay of execution. In her affidavit in support of the stay, the plaintiff deposed that she had paid various amounts of rent, as I understand the evidence, so that outstanding monies were either fully paid or close to being fully paid. 6. On the basis of the evidence before the Court, his Honour made orders which stayed the writ of execution or any other cognate process permitting the defendant to recover possession of the premises until 4pm today, 4 April 2016. His Honour directed the plaintiff to serve the defendant with a copy of the orders made by the Court, together with the plaintiff's affidavit of 31 March. Service was to be effected by no later than 5pm on Friday, 1 April 2016. His Honour listed the matter today before the duty judge for further hearing of the plaintiff's summons. 7. The defendant complied with his Honour's orders and, having been served, Ms Brown is represented before the Court by Mr Tregenza. The defendant opposes the plaintiff's application for a stay of the writ of execution. 8. An offer has been made and a copy of Short Minutes of Order proposed by the plaintiff has been provided to the Court. It is an offer which the defendant does not accept and will not consent to. 9. In brief, the proposed consent orders from the plaintiff allows for her to remain in the premises until 4pm on 14 April 2016, staying the writ of execution for recovery of the premises until that time on that date. The plaintiff has offered, and tendered a copy of, a bank cheque in the sum of $3,050 payable to the defendant's agent as a means of reducing unpaid rent. She proposes an agreement by which she will both pay a daily occupation fee of the premises and continue to make payments to reduce the rent in arrears which the defendant says remains owing. There are some other associated conditions in the proposed Short Minutes of Order. 10. I have indicated that the defendant does not consent to the Court making orders in those terms. The defendant has tendered an affidavit of Kirsty Timson, a property manager for the defendant, who has, it seems, had the management of the rental premises in question. The affidavit of Kirsty Timson of 4 April 2016 sets out the history of the rental lease between the defendant and the plaintiff and annexes some relevant evidence going to the question of payment of rent. 11. Whilst the plaintiff had deposed in her affidavit, exhibited before his Honour Justice Harrison, that she had made payments to make good some of the outstanding rent, the defendant disputes that. The defendant provides in support of her position copies of banking documentation which establishes that whilst the plaintiff did make some payments against outstanding rent, those payments were made by cheque post-dated and, upon deposit of the cheques, the cheques were not paid, and returned as dishonoured. Accordingly, there is an outstanding sum of rent owed by the plaintiff to the defendant in the sum of approximately $6,500. 12. The plaintiff's offer encapsulated in the draft Short Minutes of Order falls well short of payment of the outstanding amount. 13. The defendant additionally relies upon a copy of the residential tenancy agreement between the parties, which notes the term of the agreement as one of 26 weeks commencing on 17 September 2015 and concluding on 17 March 2016. That is, the tenancy agreement was always anticipated to conclude in March and it would always have been necessary for the plaintiff to make alternative arrangements for her accommodation and the accommodation of others who lived with her in the premises. 14. From all of the evidence before the Court, it appears that the plaintiff, presumably through reasons connected with injury at work and a loss of full-time employment, has fallen into arrears with rent. She has, unfortunately, it would appear, taken no steps to obtain alternative accommodation despite the situation that she faced with the impending termination of the lease. 15. The application made to this Court was made very much at the eleventh hour, and the evidence upon which the orders made by the Court were grounded seems to be inaccurate. Whilst the plaintiff has made a proposal for settlement of the outstanding issue, the defendant does not accept that proposal as sufficient. Indeed, there is, it would appear, some question as to whether the plaintiff has the capacity to pay the outstanding debt, a debt which could only be increased by further tenancy at the premises. 16. It is an unpleasant situation to ask an individual to vacate a premises with a short amount of time in which to do it, and that is particularly so when children and other elderly residents are involved. However, it would seem from all of the evidence that the plaintiff has been well aware of the date by which she had to leave the premises, has taken no steps to obtain alternative accommodation for herself, and indeed has exacerbated her situation by failing to pay rent and failing to come to any agreement with the defendant for the payment of rent so that the necessity of proceedings to the NCAT were obviated. 17. The landlord has, it seems on the evidence, already suffered a degree of economic loss. Whether that economic loss will be made good by the plaintiff is a very uncertain thing. I am told from the bar table that the defendant is in an advanced state of pregnancy and wishes to settle in the home which is the subject of this dispute prior to the impending birth of her child. That process would be prejudiced if the Court granted a further stay of the orders made by NCAT. As much as one can feel sympathy for the outcome for the plaintiff, overall, the justice of the situation is with the defendant. 18. Accordingly, I decline to make the orders sought by the plaintiff. The summons is dismissed. I make an order for costs in favour of the defendant. ********** 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 April 2016