Rayner v Rayner (No 2) [2019] NSWSC 819

Supreme Court New South Wales

Medium Neutral Citation: Rayner v Rayner (No 2) [2019] NSWSC 819 Hearing dates: 13 June 2019 and 21 June 2019 Date of orders: 02 July 2019 Decision date: 02 July 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Conditional upon the payment of the $28.57 per day occupation fee, the order for possession of the subject premises be stayed until 9am on 8 November 2019.

(2) Costs reserved. Catchwords: LANDLORD AND TENANT – notice of motion – application for stay of possession order made by New South Wales Civil and Administrative Tribunal pending appeal –appeal listed in November – further stay granted Legislation Cited: Law Reform (Law and Equity) Act 1972 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Rayner v Rayner [2019] NSWCATAP 121 Rayner v Rayner [2019] NSWSC 714 Category: Procedural and other rulings Parties: Gary John Rayner (Plaintiff) Ashlee Evelyn Rayner (Defendant) Representation: Solicitors: Beswick Lynch Lawyers (Plaintiff) McAuley Hawach (defendant) File Number(s): 2019/177998 Publication restriction: Nil

Judgment 1. This application for a stay of possession of the residence at which the plaintiff lived resumed hearing before me as duty judge on Thursday 13 June 2019. Mr McAuley solicitor appeared for the defendant and the defendant herself was present in court. 2. Orders were made by me ex parte on 11 June 2019 and the reasons for making those orders, is set out in Rayner v Rayner [2019] NSWSC 714. The orders I made included a stay of possession until 9am, Friday 14 June 2019, and that the defendant be served with the notice of motion and be given an opportunity to be heard about any ongoing stay. 3. The background of the proceedings is set out in that judgment. In short the plaintiff filed a summons on 7 June 2019 seeking leave to appeal from a decision of an NCAT Panel. The NCAT Panel had dismissed an appeal from a decision made by the Tribunal on 30 July 2018 enforcing the defendant's termination notice under s 85(2) of the Residential Tenancies Act 2010 (NSW). Included in the Panel's orders was an order for immediate possession, with a three week stay on that order. 4. The plaintiff was notified on 7 June 2019 that possession was to be taken on 12 June 2019. The plaintiff had already instructed his solicitor to file the summons seeking leave to appeal the Panel's decision. The summons was stamped as filed was filed one day late - 7 June 2019 - but the plaintiff's solicitor says, and I accept , that it was forwarded for filing on 6 June 2019, and thus within the 28 day appeal window, but was not filed until 7 June 2019 once filing fees were paid. Nothing turns on this one day delay in terms of this application for the stay. The summons was listed for directions on 20 June 2019 before the Registrar. 5. Affidavits of the plaintiff claim that there is an "equitable defence" to the NCAT proceedings based on a complex history which includes allegations of fraud by the plaintiff against the defendant, that various consent orders and agreements were not signed by him or he did not understand what they meant, and that he had, in effect, been cheated out of his entitlement to share in matrimonial property split in 2011 as part of family law proceedings with his ex-wife, the mother of the defendant. 6. The plaintiff claims that he did not understand the document he signed was a tenancy agreement but thought it was a mortgage and that he was not paying rent but paying a contribution to help pay off the mortgage that was being paid by his daughter. He also claims that he thought he was the registered owner of the premises. 7. It is not the purpose of an application for a stay to assess in detail the merits of these assertions. The argument put forward by the solicitor for the plaintiff as to why I should grant the stay is first, that he has an arguable appeal from the Panel decision because it did not properly deal with his equitable defence. Secondly he argued that the appeal proceedings will become nugatory if the stay is not granted because once the plaintiff is removed from the premises, he will never be able to regain possession. 8. The solicitor for the defendant argued that the plaintiff's summons seeking leave to appeal is doomed to failure and I should not grant the stay as the appeal from the Panel decision is hopeless. 9. I granted leave to the defendant to file in Court an affidavit sworn by the defendant. In that affidavit she claims that the plaintiff is "always late" in paying rent and that she has complex financial circumstances and owes large sums of money by way of mortgages and loans from the mother and father in law. She also deposed to her understanding that the plaintiff would qualify for public housing given his circumstances, and so it was not true for him to say he had "nowhere to go". 10. Issue was taken by Mr Lynch as to whether what was said by the defendant about late rent payment – on a day to day basis as ordered by the Panel as a condition of the stay to 31 May 2019 – was true. His client was not present in court and he was unable to contact him to confirm the position. 11. As a factor relevant to the exercise of my discretion to grant or refuse the stay, and given the issue about it, I took the view I could not decide the issue without objective evidence of the true position regarding payment of rent. I also took the view that there were matters raised in the defendant's affidavit that ought to be replied to by the plaintiff. 12. Accordingly I made the following orders: 1. The defendant is to provide a ledger of rent payments and other payments that have been made associated with the premises between the dates 30 July 2018 to date by 5pm on Monday, 17 June 2019. 2. The plaintiff is to file and serve an affidavit in reply to Ms Rayner's affidavit on or before midday Thursday, 20 June 2019. 3. The matter is listed at 10am on Friday, 21 June 2019 for further argument or if possible, delivery of a decision and judgment with reasons. 4. Pending further order, the order for possession of the subject premises is stayed until 9am on Monday, 24 June 2019. 1. Given that the summons for leave to appeal was returnable before the Registrar on 20 June 2019, I emphasised to the parties that it was essential that matter proceed quickly and that a timetable should be obtained from the Registrar to quickly progress to hearing the primary relief sought.