Piccione v Follari [2018] NSWCATAP 87

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Piccione v Follari [2018] NSWCATAP 87 Hearing dates: 5 April 2018 Date of orders: 12 April 2018 Decision date: 12 April 2018 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member Decision: (1) The operation of order 4, made on 13 March 2018, in matter number RT 17/51459, is further extended to the date on which the Appeal Panel determines the appellant's appeal. Catchwords: APPEAL - stay - application for a stay of the orders of the Tribunal the subject of the appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Cases Cited: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Category: Procedural and other rulings Parties: Angela Piccione (Appellant) Gaetano Follari (First Respondent) Giuseppe Follari (Second Respondent) Representation: Counsel: J O'Connor (Respondent)

Solicitors: M Marando (Appellant) Clinch Long Woodbridge Lawyers (Respondent) File Number(s): AP 18/14531 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 13 March 2018 Before: G Burton SC, Senior Member File Number(s): RT 17/51459

reasons for decision 1. The appellant, Angela Piccione, has lodged an appeal against the orders made by the Tribunal, in the Consumer and Commercial Division, on 13 March 2018, concerning her three year occupation within the home owned by her brother and father, the first and second respondent (Gaetano Follari and Giuseppi Follari respectively). The appellant's father, Giuseppi Follari, is 91 years of age and also resides at the home where he has lived for many years. He and his son, Gaetano Follari, commenced proceedings before the Tribunal as they wanted to sell the home so that he, the father, can move into an aged care facility. When the appellant would not vacate the home, the appellant's brother and her father commenced the proceedings below under the provisions of the Residential Tenancies Act 2010. The proceedings were allocated a file number of RT 17/51459. 2. When lodging her appeal with the Appeal Panel, the appellant also made an application for a stay of orders 2 and 3, made by the Tribunal in RT 17/541459. The orders made by the Tribunal were as follows: "1. Declare by way of order pursuant to s 11 of the Residential Tenancies Act 2010 (NSW) (RTA) that the oral agreement between the applicants on the one hand and the respondent on the other hand entered into (at the earliest) May 2015 in respect of part of residential premises (a house at Haberfield NSW) being a bedroom occupied by the respondent with the right to use other parts of the house is a periodic residential tenancy agreement to which the RTA applies. 2. Order under s 85 (3) of the Residential Tenancies Act 2010 (NSW) that the periodic residential tenancy between the parties terminated on 13 December 2017. 3. Order that the respondent give possession to the applicants of the residential premises the subject of the terminated residential tenancy at [address] Haberfield NSW 2045. 4. Stay the operation of orders 2 and 3 until 29 March 2018. 5. Order that the respondent pay 30% of the applicants cost of the proceedings as agreed or assessed." 1. The appellant lodged her appeal on 27 March 2018. On the same day, the Appeal Panel, constituted by M Harrowell, Principal Member, made an order, in chambers, extending order 4 of the Tribunal, in RT 17/541459 until 5pm on 5 April 2018. The appellant's stay application was otherwise stood over to that day when the appellant's appeal was also listed for a first call over directions hearing. 2. The matter came before me on 5 April 2018. I made orders for each party to file and serve their evidence and written submissions. With the consent of the parties I listed the appellant's appeal for hearing on 11 May 2018. 3. I also heard submissions from the parties in regard to the stay application. The appellant pressed her stay application pending the outcome of her appeal. Counsel for the respondents, the appellant's brother and father, strenuously opposed any extension of the stay order that had been made. 4. After hearing arguments from both parties I indicated to the parties I would reserve my decision in regard to the appellant's application for a stay. I also undertook to publish my decision and reasons for decision within a week and on that basis I made an order extending the time of the order made by Principal Member Harrowell, on 27 March 2018, to close of business on 13 April 2018, subject to any further order by the Appeal Panel. 5. For the reasons that follow, I have determined that in the circumstances it is appropriate to further extend order 4 of the Tribunal, in RT 17/541459, until the determination of the appellant's appeal.