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". Application for Stay 1. The application for stay was filed with the Notice of Appeal on 20 February 2017. It is also dated 17 February 2017. 2. The appellant sought a stay of the warrant for possession issued on 9 February 2017 "pending the outcome of the appeal lodged". 3. The reason why the stay should be granted was because the appellant contends the orders made by the Tribunal on 26 October 2016 "were made in light of the oral joint venture agreement between the parties to develop the property owned by the respondent". The appellant says that the parties were to carry out an agreed process to develop the property in accordance with the terms of the notated agreement and that "the appellant would be allowed to stay at the property free of charge until the development is completed". The appellant also says that the respondent failed to comply with its obligations under the agreement. The appellant then says on page 2 of the application for stay: The orders of 26 October 2016, in particular Order No. 3 in regards to the suspension of the order for possession, was made in consideration of the parties' joint venture agreement. It was agreed between the parties that they would enter a Deed of Agreement on or before 15 December 2016, some 6 weeks before the suspension would expire on 1 February 2017. Due to the non-compliance by the Respondents, a deed has not yet been entered into. Without notice from the Respondent or his legal representative, the Respondent requested for the issue of a warrant for possession from the Tribunal. The appellant was notified by the Tribunal that a warrant for possession was issued on 9 February 2017. Hearing of the stay application 1. The Stay Application was heard on 3 March 2017. 2. Each of the parties was represented by lawyers. Each of the parties provided oral and written submissions. The parties also provided evidence in the form of affidavits and other documentary material. 3. The appellant's submissions recounted the substance of the application for stay which had been lodged. The appellant contended that the Tribunal was in error in concluding it had no jurisdiction to entertain the application made on 31 January 2017. The appellant said that the Tribunal had power to make the orders sought. Inter alia, the appellant identified the source of power to stay or suspend an order as s188 of the Residential Tenancies Act, 2010 (RT Act) or, alternatively, s29 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) which enabled the Tribunal to make ancillary or interlocutory orders in proceedings. 4. The appellant submitted that the respondent had failed to comply with the agreement noted in the orders made on 26 October 2016 and that the respondent did not provide the appellant with notice that he was going to seek vacant possession of the property. The appellant said that he "interpreted the Respondent's failure to comply with the notations of 26 October 2016 as foregoing the obtaining of vacant possession of the Property on 1 February 2017, and therefore sought to put in motion before the Tribunal for such order to be suspended". 5. The appellant referred to s95 of the RT Act, and suggested that the respondent was required to give 14 days' notice that it was seeking vacant possession at a certain date. However, this section deals with occupants remaining in possession after the tenant has vacated the residential premises and does not apply present circumstances. 6. The appellant referred to the decision of the Tribunal in Bentran v Sabbarton [2014] NSWCATAP 37 and the principles applicable to the grant of a stay. The appellant submitted: 1. he had reasonable prospects of success; 2. the appellant will suffer far more inconvenience and hardship than the respondent if the stay is not granted in his favour; 3. the interests of justice require the grant of a stay to ensure the appellant does not endure any further hardship leading up to a determination of the appeal; and 4. a stay should be granted subject to the appellant paying an occupation fee. 1. In relation to the issue of hardship, the appellant submitted that he suffers from depression. He also says that he has been unable to obtain an alternative suitable residence and that he is presently living with a family friend at Mortdale. The appellant says he has not been able to obtain possession of his belongings nor has he been able to access documents required for ongoing litigation to which the respondent is a party. The appellant says he has maintained the property while in possession and that it would not cause a detriment to the respondent if possession was returned to him pending resolution of his appeal. 2. In oral submissions, the appellant restated that the agreement to develop the property had not been performed and that he should have his possession reinstated and be allowed to remain in possession until the development proceeded in accordance with the agreement reached. In making these submissions, the appellant accepted that various demolition work had been undertaken however he maintained that part of the house was habitable and he should be allowed to have possession of that part of the premises until his appeal was resolved. 3. In reply, the respondent provided a chronology of events and a copy of various decisions of the Tribunal concerning whether or not a stay should be granted. The chronology noted that consent orders had been made terminating the residential tenancy agreement and providing that the order for possession be suspended until 1 February 2017. The chronology also set out the events which had occurred since 31 January 2017. 4. The respondent said there was an issue as to whether or not the agreement which had been notated was void and unenforceable. Further, the respondent referred to various photographic evidence and said that the house was barely habitable and that it was inappropriate for the appellant to live there. Consideration 1. The principles applicable to whether or not a stay should be granted were set out by the President of the Tribunal in Sabbarton (supra) at [9]. It is unnecessary to restate them. 2. The nature of the relief sought in this application is to restore possession to the appellant pending determination of the appeal. This application has been made in circumstances where a warrant for possession has been executed and possession returned to the respondent prior to the appeal and stay application being lodged. Therefore, it is not possible to make an order staying the execution of the warrant for possession being the form of order originally sought. 3. The basis of the claim is that the appellant says the Tribunal was wrong to conclude it had no jurisdiction to entertain the claim to vary the date for possession and that he was entitled to remain in possession of the premises until the redevelopment work had been completed. 4. In the orders made 6 February 2017, the Tribunal said: 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. 1. The Tribunal's determination highlights one of the difficulties for the appellant in this application. The difficulty is this: Whether or not there is an enforceable agreement in respect of the proposed development and sale of the residential premises, the "notation" made in the orders 26 October 2016 did not make the orders in respect of termination and possession conditional upon the performance of the agreement. 2. The orders made on 26 October 2016 have not been the subject of any appeal. There is no evidence in relation to what occurred on 26 October 2016 to suggest that those orders do not properly record what was agreed. Subject to any time limitation issues the appellant may seek to challenge those orders. However, he has not done so. 3. The second difficulty for the appellant in this application is that the application to vary the order for possession was made to the Tribunal well after the alleged breach of the agreement is said to have occurred. As set out above, the appellant contends that the respondent had failed to comply with its obligations in that it did not enter into a Deed of Agreement on or before 15 December 2016. However, an application to extend the period of possession was not made until 31 January 2017, the day before possession was due to be delivered up by the appellant. 4. In these circumstances, whether or not the Tribunal was in error in refusing to relist the matter to hear the application to vary the order for suspension, the balance of convenience does not favour the making of an order to reinstate possession of the residential premises to the appellant pending determination of the appeal. 5. There are further reasons why such an order should be refused. 6. Firstly, there was evidence before the Appeal Panel that demolition work to parts of the premises had been commenced by the appellant. Photographic material was provided showing building rubble in the swimming pool and various parts of the residential premises having been partly demolished. The respondent asserted that the premises represent a hazard if they were to be reoccupied. The appellant denies this. However there is no relevant building inspection report to enable the Appeal Panel to form any appropriate view. In these circumstances, to make an order requiring redelivery of possession to the appellant may place the respondents as landlords in a position where they are in breach of the residential tenancy agreement due to the state of repair of the building or alternatively might be subject to a greater liability to the appellant if he suffered physical injury in his occupation of the premises. 7. Secondly, the appellant has been able to obtain alternative accommodation with friends or family. While he said this was only temporary, there was no evidence to suggest that this accommodation could not be continued in the short term. 8. Accordingly, that part of the application effectively seeking an order that the respondent redeliver possession to the appellant is refused. 9. The appellant also raised the issue of collection of his goods. The parties will be well aware of the appellant's entitlement to collect his goods following the termination of a residential tenancy agreement and the provisions of the RT Act, including s132. Access should be provided by the respondent as required by the Act. If this does not occur an appropriate application can be made to the Tribunal at first instance. 10. It follows from the above that the application for stay should be dismissed. Orders 1. The Appeal Panel makes the following order: 1. The application for stay is dismissed. ******** 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: 04 April 2017