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. 21 June 2019 hearing 1. For reasons which are unclear, the matter was unfortunately removed from the Registrar's list on 20 June 2019 and the parties did nothing to restore it, as they were unsure of the basis upon which it had been removed from the Registrar's list. 2. On 21 June 2019 at the further hearing of the motion, an affidavit of Mr Rayner annexing a rent payment ledger indicated the rent payment was up to date, although had on occasion been sporadic and late. 3. In oral submissions, Mr Lynch attempted to articulate what he says are the bases for the appeal from the decision of the Appeal Panel. He seems, in summary, to be submitting that the Panel was in error because it interpreted s 83 of the Residential Tenancies Act as eliminating the right of the defendant to raise matters of equitable rights by way of a defence under ss 6 and 7 of the Law Reform (Law and Equity) Act 1972 (NSW), and that the Panel misinterpreted s 83 of the Residential Tenancies Act as requiring a mandatory possession order. 4. Section 83 of the Residential Tenancies Act provides as follows: 83 Termination orders (1) If the Tribunal makes an order terminating a residential tenancy agreement under this Act, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect. (2) An application to the Tribunal by a landlord for a termination order: (a) must be made after the termination date specified in the relevant termination notice and within the period prescribed by the regulations, and (b) must be made only if vacant possession of the premises is not given as required by the notice. 1. Sections 6 and 7 of the Law Reform (Law and Equity) Act provide as follows: 6 Defence in inferior court Every inferior court shall in every proceeding before it give such and the like effect to every ground of defence, equitable or legal, in as full and ample a manner as might and ought to be done in the like case by the Supreme Court under the Supreme Court Act 1970. 7 Jurisdiction as to relief not enlarged This Act does not enlarge the jurisdiction of any court as regards the nature or extent of the relief available in that court, but any court may, for the purpose of giving effect to sections 5 and 6, postpone the grant of any relief, or grant relief subject to such terms and conditions as the nature of the case requires. 1. Mr Lynch argued that the appeal grounds identified in the summons show reviewable errors in the Panel's decision (Rayner v Rayner [2019] NSWCATAP 121) in [51] and [60]-[63]: "51 Nor, in our view, can the Tribunal's remark about the limitations of its jurisdiction be construed to be a reference to the Tribunal having explained to the appellant that it did not have jurisdiction to determine an equitable claim as asserted by the appellant in these proceedings. In our view, the Tribunal's remark, when read in context, related to an explanation of the jurisdiction it did have under the RT Act by reason of the appellant's application for an order under s 115. … 60 As we have noted above, ss 6 and 7 of the Law Reform (Law and Equity) Act has a limited application in that it only applies where a party to proceedings in an inferior court raises an equitable defence to proceedings brought against him or her in that inferior court. However, these sections are not enlivened by mere assertion. As noted by White J, before the inferior court can make an order is made under s 7 staying the proceedings before it, an entitlement to relief under the asserted equitable defence must first be established. It is s 6 which enables the inferior court to decide whether or not there might be an entitlement as asserted has been established. 61 Other than an assertion, the appellant failed to place any material before the Tribunal that might have established an entitlement to relief under an equitable defence. While the appellant has placed additional material before us, in our view this also fails to establish an entitlement to a relevant equitable defence to the respondent's claim. The appellant has at no time denied that he executed the residential tenancy Agreement that gave him a right to possession of the premises. In signing that Agreement, the applicant also agreed to be bound by its terms. Nor has the appellant challenged the termination order of the Tribunal in regard to that Agreement. It was this order that triggered the orders for possession. As noted by the respondent, once a termination order is made, s 83 of the RT Act requires the Tribunal to make an order for possession. The Tribunal has no discretion in this regard, but does have the power, under s 114 of the RT Act, to suspend the orders for possession for a specified period if satisfied it is desirable to do so. In this case, the Tribunal suspended the possession orders for 28 days. 62 If, as contended by the appellant, he had an entitlement, in equity, to possession of the premises independently of the tenancy Agreement, it is difficult to understand why he did not press that entitlement at the time he was issued with the respondent's Notice of Termination. In our view, an entitlement, as articulated by the appellant would not amount to a defence, in equity, to the respondent's claim under the RT Act. If it amounts to a substantive counter claim, in equity, is a matter for the appellant to pursue in another forum. 63 The appellant has not brought such a claim in the Supreme Court. Instead he lodged a claim in the Federal Circuit Court following the decision of the Tribunal. That claim is not a claim in which the appellant seeks orders for possession of the premises. It is a claim where he seeks to have the 2012 consent orders of that Court set aside. Those orders, as we have noted, relate to the jointly owned property by the appellant and his former wife and not the premises the subject of the tenancy Agreement. We note that the consent orders were based on the agreement of the applicant to transfer 50% of his interest in the property he jointly owned with his former wife. That agreement was signed by the applicant, who signed against the notation that he did not require legal advice in regard to the terms of that agreement." 1. Mr McAuley repeated his submissions that the appeal is hopeless and without merit. 2. To maintain the position pending my judgment on the motion I made the following orders: 1. Pending further order, the order for possession of the subject premises be stayed until 9am on Wednesday 3 July 2019. 2. I list the matter for delivery of judgment of the Notice of Motion on 1 July 2019 at 2pm. 3. I note that no assumption should be made as to the stay of the possession order being continued, and in those circumstances Mr Rayner should explore accommodation options in case I determine the Notice of Motion against him. 4. The parties are directed to attend the Registrar this morning, immediately, and seek a timetable in respect of the summons and associated primary proceedings. Decision 1. On the evidence filed on the motion, I am unable to form a clear view as to the prospects of success of the plaintiff's arguments. In particular the many pages of evidence filed on the motion by the plaintiff do nothing to identify what material was before the Tribunal or Panel on the "equitable defence" issue. 2. It is clear in the affidavit material that there is animosity between the plaintiff and the defendant; fraud is alleged. It is clear that if the stay is not granted, the plaintiff will be removed and the appeal would be rendered otiose. 3. As the Court stated in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694 the applicant is required to demonstrate a reason or an appropriate case to warrant discretion in his favour. Filing an appeal is not itself a reason. There is a requirement that the balance of convenience be considered and the competing rights of the parties be balanced. 4. I suspect that the plaintiff's appeal is without merit, but I do not have the benefit of completed evidence, or fully articulated submissions that would allow me to have an informed basis to say, as the defendant does, that the appeal is entirely baseless and doomed to fail. 5. The appeal is listed for hearing on 6 November 2019 with a timetable ordered by the Registrar for service of evidence and submissions. 6. The order sought in the motion only seeks a stay until the "hearing of the summons". 7. I reluctantly grant a further to stay of possession to expire two days after that 6 November 2019 hearing date, that is to 9am on Friday 8 November 2019. The Judge hearing the appeal will be in a better position to express a view as to whether the appeal is hopeless, and if it is, can refrain from ordering a further stay, and if it is not, or the position is uncertain, make such orders as he/she sees fit. 8. I note that this order I have made does not affect the order made by the Panel requiring rent be paid of $28.57 per day and for abundance of caution I order that the stay be conditional upon the ongoing payment of that occupation fee. ORDERS 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. ********** 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: 02 July 2019