Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Sinanovic v Portbear Pty Ltd [2012] NSWCA 158
• Hearing dates: 21 May 2012
• Decision date: 21 May 2012
• Before: Tobias AJA

Decision

(1) Within the said period of fourteen days, the applicant shall pay to the respondent the sum of $62,510, together with the amount of $192.86 per day for each day after 18 May 2012 until the said amount of $62,510 is paid in full.

(2) The applicant shall within three days of today advise the respondent's solicitor in writing of his current residential address at Gymea.

(3) In the event of the failure of the applicant to comply with conditions (1) or (2), the stay of execution of the warrant shall be automatically discharged.

(4) The applicant to pay the respondent's costs of the notice of motion filed on 18 May 2012.

(5) The applicant shall within 28 days of today file and serve on the respondent an amended summons under s 69 of the Supreme Court Act 1970 setting out in detail the grounds on which it is alleged that he is entitled to relief under that section.

(6) Liberty to the applicant to apply on three days written notice to the respondent to re-list the Summons before the Registrar of the Court of Appeal for the purpose of obtaining an extension of time to comply with par 5 above in the event that the availability of the judgment of Knox DCJ is delayed.

(7) Liberty to either party to apply on 24 hours notice to me by notice to my Associate for any further orders or relief, that liberty to cease on 8 June 2012.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PRACTICE AND PROCEDURE - notice of motion filed seeking a suspension of the execution of a sheriff's warrant for possession - notice of motion is pending on the hearing of a summons pursuant to s 69 Supreme Court Act 1970 for judicial review - applicant seeks judicial review of a District Court decision which rejected an appeal of the decision of the CTTT to terminate a lease based on the ground of non payment of rent; PRACTICE AND PROCEDURE - Cross claim filed by respondent seeking the amount of arrears of rent - application of s 89(3) Residential Tenancies Act 2010 to give the applicant an opportunity to pay the arrears in rent - warrant stayed for 14 days- applicant to file amended summons under s 69 Supreme Court Act 1970
• Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001(NSW); Residential Tenancies Act 2010 (NSW); Supreme Court Act 1970 (NSW)
• Category: Procedural and other rulings
• Parties: Hakija Achille SINANOVIC (applicant); PORTBEAR PTY LTD (respondent)
• Representation: Counsel: Applicant in Person; C Freeman (respondent); Solicitors: Unrepresented (applicant); Hannams (respondent)
• File Number(s): 2012/159582

Decision under appeal

• Date of Decision: 2012-05-15 00:00:00
• Before: Judge Knox

Judgment

1 TOBIAS AJA: There is before me a notice of motion filed on 18 May 2012 by Mr Sinanovic (the applicant) in which he seeks an order suspending the execution of a sheriff's warrant for possession of the premises situated at xxxx xxxxx xx xxxxxxxxx xxx xxxx Elizabeth Bay (the premises) pending the hearing of a summons filed by him on the same date pursuant to s 69 of the Supreme Court Act 1970 (NSW) seeking judicial review of the decision of Judge Knox given on 15 May 2012.

2 In that decision his Honour rejected an appeal by the applicant against the decision of the CTTT Tribunal to terminate a lease entered into between the applicant and the respondent in respect of the premises in or about July or August 2010. The basis upon which the Tribunal determined to terminate the lease was on the ground of non payment of rent.

3 The appeal from the Tribunal to the District Court was confined by s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001(NSW) to decisions of the Tribunal on a question with respect to a matter of law. As I understand it, and without the benefit of his Honour's reasons which have yet to be transcribed, his Honour rejected the various grounds upon which the Tribunal's decision was challenged by the applicant generally upon the basis that none of them raised a question of law.

4 The summons issued pursuant to s 69 in this Court by the applicant does not contain any grounds apart from asserting that judicial review is sought. Relevantly under s 69, there can be a challenge to the jurisdiction of the District Court but I do not understand that to be alleged in the present case. Otherwise, subject to one matter, it will be necessary for the applicant to establish error on the face of the record constituted by the reasons of Judge Knox when those reasons are available.

5 The only other possible judicial review ground upon which the decision of Judge Knox could be quashed is if it is established and demonstrated that his Honour denied procedural fairness to the applicant during the course of the hearing of 15 May.

6 It is unnecessary to go into all the history of this matter except to note the following. First, there is a dispute between the parties or at least on the part of the applicant as to precisely the amount of the arrears of rent at any particular time. There does not seem to be any doubt that he was in arrears although the amount seems to be in issue. That was an issue that was required to be determined in the Tribunal and the Tribunal's finding with respect to it would seem to me to be one of fact in respect of which no appeal lay to the District Court.

7 Secondly, it was asserted by the applicant that the lease that the Tribunal terminated was the wrong lease. Various reasons were advanced in support of that argument but it does not seem to me as at present advised to have a great deal of merit. In any event, it again may give rise only to a question of fact.

8 Thirdly, on 23 December 2011, Judge Gibson of the District Court granted a stay of any warrant for possession of the premises but that order was discharged by Judge Knox on 15 May 2012 when he dismissed the applicant's appeal. He also struck out the applicant's amended summonses of 13 April 2012 and 15 May 2012.

9 Fourthly, in the meantime a cross-claim was filed by the respondent seeking the amount of the arrears of rent which as of last Friday amounted to some $62,510 inclusive of the occupation fee which the Tribunal ordered the applicant to pay whilst remaining in occupation of the premises between the time of the termination of the lease and the date upon which possession was obtained by the respondent. That cross-claim has been fixed for hearing for 13 August 2012. Of course, in the event that the amount of $62,510, together with the daily occupation rate is paid prior to that date, then there would be no necessity for the respondent to pursue those proceedings.

10 Under s 89 (3) of the Residential Tenancies Act 2010 (NSW) (the RT Act), where a residential tenancy agreement is terminated solely on the ground of non payment of rent as is the present case, any warrant for possession issued as a result of any order for possession ceases to have effect if the tenant pays all the rent owing and the tenant has not vacated the relevant premises.

11 The applicant has indicated that he is prepared as the price of obtaining a stay of the warrant for possession issued by the sheriff on 16 May 2012 to pay the amount alleged by the respondent to be owing for unpaid rent and unpaid occupation fee. He sought originally twenty one days in which to make that payment but I have indicated that I am only prepared to grant a stay for fourteen days. It would appear that the applicant has the funds but they have to be repatriated from overseas.

12 The respondent opposes the grant of any stay for any period first, upon the basis that the prospect of the applicant succeeding in challenging the validity of the decision of Judge Knox is remote and, secondly, upon the basis that the applicant has had numerous occasions and opportunities to pay the amount of the outstanding rent which he has failed to do. In particular, on at least two occasions, if not three, he has undertaken to pay the arrears of rent but has failed to do so and he has not paid any rent in relation to the premises since 2 December 2011. In this respect, the respondent is suffering extreme hardship as that rent is sought in order to enable it to meet its mortgage payments in relation to the premises.

13 I appreciate the significance and force of the respondent's submissions. However, it seems to me that the applicant, who has only just come to this Court last week, should be given one last opportunity in which to pay the amount owing to the respondent and thereby obtain the benefit of s 89(3) of the RT Act in relation to the warrant for possession of the premises which was issued by the sheriff on 16 May last.

14 I am prepared to accede to the applicant's request for a stay with some reluctance. However, one advantage of the stay from the point of view of the respondent is that if by chance the outstanding amount is paid, then it will save a hearing in the District Court next August and the respondent will obtain its funds that it apparently needs in order to meet its mortgage commitments at an earlier point of time that might otherwise be the case.

15 Furthermore, if in fact the applicant's funds do have to be repatriated from overseas, then there seems to me to be some advantage in conditioning a stay on those funds being obtained and paid which would be less risky from the respondent's point of view than if it ultimately succeeded in the District Court on its claim in August but then was faced with a situation where the applicant had no funds in Australia to meet any judgment.

16 Accordingly, I am prepared to order that the warrant be stayed for a period of fourteen days but upon strict conditions. The applicant and his wife must understand that this will in all probability be the last chance they will have to retain possession of the premises in which the applicant's wife and child reside and in which the applicant apparently resides but only on weekends.

17 They should also fully understand that paying the outstanding amount will not be the end of their liability if they wish to stay in possession of the premises. They have an ongoing obligation to pay rent which at the moment is fixed at the sum of $1,350 per week. If they do not wish to see themselves back in the Tribunal for a further round of expensive litigation, then they must understand that that rent needs to be paid on time and they cannot allow themselves to fall into arrears or they will ultimately lose possession of the premises in which, no doubt, they obtain some pleasure in residing.

18 I therefore order that the warrant for possession of xxxx xxxxxxx xxxxxxxxx xxx xxxx Elizabeth Bay issued by the sheriff on 16 May 2012 be stayed for a period of fourteen days from today on the following conditions:

(1) Within the said period of fourteen days, the applicant shall pay to the respondent the sum of $62,510, together with the amount of $192.86 per day for each day after 18 May 2012 until the said amount of $62,510 is paid in full.

(2) The applicant shall within three days of today advise the respondent's solicitor in writing of his current residential address at Gymea.

(3) In the event of the failure of the applicant to comply with conditions (1) or (2), the stay of execution of the warrant shall be automatically discharged.

(4) The applicant to pay the respondent's costs of the notice of motion filed on 18 May 2012.

(5) The applicant shall within 28 days of today file and serve on the respondent an amended summons under s 69 of the Supreme Court Act 1970 setting out in detail the grounds on which it is alleged that he is entitled to relief under that section.

(6) Liberty to the applicant to apply on three days written notice to the respondent to re-list the Summons before the Registrar of the Court of Appeal for the purpose of obtaining an extension of time to comply with par 5 above in the event that the availability of the judgment of Knox DCJ is delayed.

(7) Liberty to either party to apply on 24 hours notice to me by notice to my Associate for any further orders or relief, that liberty to cease on 8 June 2012.

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Decision last updated: 07 June 2012