Sedhom v Guirguis [2017] NSWCATAP 77

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sedhom v Guirguis [2017] NSWCATAP 77 Hearing dates: 28 February 2017 Date of orders: 04 April 2017 Decision date: 04 April 2017 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member Decision: The application for stay is dismissed. Catchwords: Stay- application made after warrant for possession executed, balance of convenience against grant of interim relief. Legislation Cited: Civil and Administrative Tribunal Act, 2013 Civil and Administrative Tribunal Rules, 2014 Residential Tenancies Act, 2010 Cases Cited: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Category: Procedural and other rulings Parties: Nashaat Sedhom (Appellant) Michael Guirguis (Respondent) Representation: Mr P Brown, Matthews Folbigg Lawyers (Appellant) Ms S Goodsell (Solicitor) (Respondent) File Number(s): AP 17/08218 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 06 February 2017 Before: N Vrabac, Senior Member File Number(s): RT 16/27008

reasons for decision

Introduction 1. These reasons relate to an application by the appellant for a stay of orders made by the Tribunal on 26 October 2016 in residential tenancy proceedings number RT 16/27008. 2. Those proceedings concerned an application for termination of a residential tenancy agreement by the respondent who was the applicant/landlord against the appellant who was the respondent/tenant in relation to residential premises at Mortdale. On 26 October 2016 the Tribunal made orders terminating the residential tenancy agreement by consent. In addition, the Tribunal noted an agreement between the parties concerning a proposal to redevelop the residential premises, sell the redeveloped property and divide the proceeds of sale in accordance with the terms of the agreement. 3. The orders were in the following terms: On 26-Oct-2016 the following orders were made by consent: 1. The Residential Tenancy Agreement is terminated in accordance with s89(5). 2. The Residential Tenancy Agreement is terminated immediately. 3. The order for possession is suspended until 01-Feb-2017 4. No order as to costs. Notations A The applicant is to obtain a quote for development of the property (development to be in accordance with the existing DA Consent) on or before 16 November 2016. B The respondent is to obtain a quote for development of the property (development to be in accordance with the existing DA Consent) on or before 30 November 2016. C The decision to engage a builder and the constructions works to be completed on or before 1 June 2017. D The applicant agrees to pay the costs associated with the development. E From the sale of the properties the proceeds will be distributed as follows: (i) the applicant reimbursed the monies paid toward the development. (ii) the remainder of the sale proceeds to be paid to the applicant F The parties are to enter the Deed of Agreement on or before 15 December 2016. 1. The appellant did not vacate the premises by 1 February 2017. 2. The appellant wrote to the Tribunal on 31 January 2017. In that letter, the appellant asked to have the matter relisted before the Tribunal for the purpose of hearing an application that the order for possession be suspended until be respondent "complies with all of his obligations under the Notations" those notations being the matters noted in the orders made 26 October 2016. 3. By document dated 9 February 2017, the Tribunal declined to relist the matter to hear the application. The orders made by the Tribunal were in the following terms: On 6-FEB-2017 the following orders were made: 1 The Tribunal notes the correspondence from the (Appellant), dated 31 January 2017. 2 I am of the preliminary view that I have no jurisdiction to suspend the termination order made on 26 October 2016 on the ground that the applicant failed to comply with the notation (4) which relates to the "oral joint venture agreement" between the parties. 3 The application by the Respondent to have this matter relisted is not granted. 1. On that same day, 9 February 2017, the respondent landlord applied for a warrant for possession. That warrant was executed on the morning of 20 February 2017 and the appellant was evicted from the residential premises. 2. The Notice of Appeal, commencing the present appeal, was filed on 20 February 2017, after the warrant had been executed. The Notice of Appeal is dated 17 February 2070. In the Notice of Appeal the appellant challenged the orders made by the Tribunal on 6 February 2017 refusing to relist the matter for the purpose of determining the appellant's application to suspend the order for possession. 3. Inter alia, the appellant says: 1. he was denied an opportunity to be heard in relation to his application to suspend the order for possession; 2. the Tribunal was in error in concluding it had no jurisdiction to suspend the order for possession; and 3. the Tribunal should have made an order to suspend the order for possession "until such time the Respondent complies with all his obligations under the Notations contained in the orders of 26 October 2016 which relates to the "oral joint venture agreement" between the parties".