Burriss v Hallit

NCAT Appeal Panel|2014-08-06|Before: Wright J

reasons for decision 1In the afternoon of yesterday, 6 August 2014, the appellant, Mr Burriss, sought an urgent stay of the orders made against him in the Consumer and Commercial Division pending the determination of his appeal lodged on 5 August 2014. The Appeal Panel was informed that a warrant for possession was due to be executed at 10.30 am on the next day, 7 August 2014, in respect of the premises which were the subject of the orders sought to be stayed. The Appeal Panel heard the matter late in the afternoon of 6 August 2014 and decided that the application for the stay should be refused and made an order accordingly. Reasons were not provided at that time. These are the reasons for that decision.

Background 2On 5 August 2014 the appellant lodged a notice of appeal form in which leave to appeal against the orders made by the Consumer and Commercial Division was sought (see section 12A of the notice of appeal, although this was not the appropriate section to be completed in this particular case). The grounds of appeal, in so far as they could be clearly discerned, appeared to relate to the question of how much was owed by the appellant, tenant, to the landlord, respondent and whether payments had been made or received rather than any errors in the determination by the Tribunal below concerning the orders terminating the residential tenancy agreement between the parties and requiring vacant possession to be given. 3The orders appealed from was made on 21 July 2014 and were as follows: 1. The Residential Tenancy Agreement is terminated in accordance with: - s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. - failure to pay rent in accordance with agreement. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 28-Jul-2014 4. The tenant shall pay the landlord a daily occupation fee at the rate of $97.14 per day from the day after the date of termination, namely 22 July 2014 until the date vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 6. By consent, the applicant landlord will accept the arrears of rent presently calculated by the landlord at $7674.29, or such other amount as may be agreed, at any time up to and including 28 July 2014, and if received and paid up in full to the landlord's satisfaction, then the termination will not proceed. 4In section 14 of the notice of appeal form an appellant is required to indicate whether it is seeking a stay by ticking either the box marked "yes" or the box marked "no". If a stay is being sought an appellant is then required to identify the orders it wants stayed and to state why a stay is appropriate. The use by the Tribunal of a multipurpose notice of appeal form has been explained in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [8]. 5In section 14 of the appellant's notice of appeal, he has ticked the "yes" box in response to the question "Are you asking for a stay of any of the orders". In the space provided under the heading "If yes, explain which orders you want stayed and why a stay is appropriate" the appellant has stated: After audit [this refers to the appellant's request for an audit of the landlord's agents rental ledger by the appellant as part of the appeal] time to move and complete vacant possession. 6There was no other material in writing relating to the granting of a stay of the order to which the Appeal Panel was taken by the parties.

Hearing on 6 August 2014 7At about 1 pm on 6 August 2014, the appellant's urgent stay application came to the Appeal Panel's attention. An attempt was made to conduct a telephone hearing at about this time and the managing agent of the respondent, Mr Mark Torcellato, was contacted by telephone. The attempt to contract Mr Burriss, the appellant, on the mobile telephone number supplied on his notice of appeal was, however, unsuccessful. In these circumstances, the hearing could not proceed. The registry indicated to Mr Torcellato that a further attempt would be made to conduct a hearing in relation to the application after 4 pm when the Appeal Panel had completed the call over and directions hearings listed for the afternoon. 8The Appeal Panel subsequently became aware that a Mr Gray, purporting to represent the appellant, had presented himself at the registry of the Consumer and Commercial Division to press for the stay sought by the appellant. A message was passed to Mr Gray indicating that he should attend at the Appeal Panel call over and directions hearings as the application for a stay would be dealt with when the call over and hearings were complete. 9At about 4.30 pm on 6 August, Mr Gray appeared at the hearing and Mr Torcellato appeared by telephone. Although the Appeal Panel had no material before it to establish the authority of either Mr Gray or Mr Torcellato to act on behalf of the appellant and respondents, respectively, both Mr Gray and Mr Torcellato were apparently known to each other and each was accepted by the other as being a usual point of contact for their respective parties. They were both content for the other to represent the party involved. In these circumstances, the Appeal Panel granted leave to both representatives to appear, under s 45(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), in order to allow the application to be heard that afternoon. 10Mr Gray did not put before the Appeal Panel any sworn or written evidence in relation to the application for a stay and neither did Mr Torcellato. Nonetheless, both parties were given the opportunity to make any submissions on the application. In addition, avenues for an agreed resolution were also discussed with a view to facilitating the just, quick and cheap resolution of the real issues in the proceedings. An agreed resolution could not be achieved. As a consequence, the Appeal Panel was required to determine the application on such material as was before it. This will be discussed later in these reasons. At this point it is appropriate to set out the legislative provisions and principles applicable to an application for a stay in the Tribunal.

Legislative Foundation and Principles Relating to Granting a Stay 11The power of the Tribunal to stay the operation of a decision pending the determination of the appeal is found in s 43 of the Act which provides in part: (1) This section applies to the making or lodgment of any of the following (a pending general application or appeal): ... (c) an internal appeal. (2) A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal. 12A stay affecting the operation of a decision will in many cases involve staying the orders made by the Tribunal at first instance which give effect to the decision. 13The Appeal Panel has recently summarised the principles applicable to stay applications in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 as follows: (1)Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour - s 43(2) and (3) of the Act, Kalafair Pty Limited v Digitec (Australia) Pty Limited (2002) 55 NSWLR 737 at [28], Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (2)In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Vaughan v Dawson [2008] NSWCA 169 at 16. (3)The mere lodgment of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay - s 43(2) and (3) of the Act, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (4)An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal - s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (5)The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (6)The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies - ss 43(3) and 58 of the Act. (7)In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [21] and [22]. (8)Finally, the overriding principle in an application for a stay is to ask what the interests of justice require - New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83] and Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18].

Nature of the Appeal in the Present Case 14As the Appeal Panel understood it from the oral submissions made on 6 August 2014, it was not in dispute that the appellant continued to owe to the respondents unpaid rent and other charges in respect of the residential tenancy agreement in question as at that date. In the hearing, Mr Gray conceded that at least about $4,500 was outstanding. 15The most significant part, if not the entire substance, of the appeal appeared to the Panel to be an attempt to attack the consent order made by the Tribunal below. That order was: 6. By consent, the applicant landlord will accept the arrears of rent presently calculated by the landlord at $7674.29, or such other amount as may be agreed, at any time up to and including 28 July 2014, and if received and paid up in full to the landlord's satisfaction, then the termination will not proceed. 16In the grounds of appeal section of the notice of appeal (section 11A of the notice of appeal) the appellant sought to raise matters expressed as follows: 1. Account is incorrect as per order after investigation by the writer 2. Notified time of case arrived at Enmore 3 days after case had been heard [Nonetheless the Tribunal's record indicates the respondent appeared in the Tribunal below on 21 July 2014 accompanied by Mr Gray] 3. Various bank payments have not been lodged on rent ledger 17In addition, section 11B contained the following as grounds of appeal: "at time of consent we ..[illegible].. had no time to [alter or audit ?] supporting data", "When we tried to work through ..[illegible].. member did not wish to admit that the BSB was incorrect", "Remote payment made and rent ledger does not display this Bank ..[illegible].. Respective manner of Raine and Horne". 18Further in the section for orders the Appeal Panel should make (section 11C of the notice of appeal) the appellant stated: "Grounds for set aside as orders consented to on July 21 have been based on information that is falsely inaccurate in regards to rent ledger. There needs to be a complete audit of the filing of rent arrears on the ..[illegible]..". 19In response to a question whether the appellant had paid rent (or perhaps more precisely the occupation fee referred to in order 4 of the Tribunal below) for the latest rental period, Mr Gray gave a somewhat unsatisfactory answer which appeared to amount to saying that an attempt had been made to pay the amount but there had been a problem with the bank transfer. 20The Appeal Panel's attention was not drawn to anything in the notice of appeal which indicated that the respondent was seeking to appeal against the orders terminating the residential tenancy agreement or requiring that vacant possession be given. Moreover, in response to a query from the Appeal Panel Mr Gray accepted that the appellant did not oppose termination of the residential tenancy agreement or vacant possession being ordered to be given by the appellant. His point was that the appellant just wanted more time to move out. This was consistent with the grounds for granting a stay set out in section 14 of the notice of appeal. After audit time to move and complete vacant possession.

Application of the Principles in the Present Case 21Having regard to the principles set out above, the respondents should be taken to be, at least prima facie, entitled to the benefit of the decision and orders made by the Tribunal below. The onus is on the appellant to make out a case that it is appropriate for the Tribunal to grant the stay. 22The appellant has not pointed to any circumstances which would make a stay of the termination and vacant possession orders reasonably necessary to secure the effectiveness of the appeal. As far as the Appeal Panel understood it, the termination and vacant possession orders were not the subject of the appeal. The appeal in relation to whether the consent order could be overturned and whether the sum of $7674.29 referred to in order 6 was incorrect would not be rendered ineffective or abortive if the stay relating to the termination and vacant possession orders was not granted. Thus, a stay is neither necessary or appropriate on this basis. 23In balancing the competing rights of the parties, the Appeal Panel has taken into account the fact, which was not in dispute, that the respondents had obtained a warrant for possession which was to be executed at 10.30 am the next day, 7 August 2014, and had engaged a locksmith to deal with the locks on the premises the subject of the residential tenancy agreement. If a stay were granted of the termination and vacant possession orders, the warrant could not be executed. The respondents' right to possession would have been temporarily (at least) thwarted and they would have wasted the money involved in taking those steps. It also appeared that if the warrant was not executed because of a stay being granted, the respondents may not have been able to obtain the execution of a further warrant for some 3 or more weeks. There were no significant rights of the appellants which Mr Gray identified as being adversely affected by refusal of a stay. This was not surprising given the nature and grounds of appeal. This balancing does not favour granting a stay. 24In considering the balance of convenience, Mr Gray did raise the difficulty the appellant would have as a result of being forced to give vacant possession by execution of the warrant compared to an orderly leaving which he estimated would take 2 weeks. In this context, the submissions before the Appeal Panel suggested that there may have been subtenants or persons other than the appellant who would be required to vacate the premises but no specific or detailed information, let alone sworn evidence, was given in this regard. The Appeal Panel has taken this into account. Against this the Panel takes into account the disruption to the respondents to the appeal, having obtained the orders of 21 July 2014, then obtained a warrant and organised for it to be executed on 7 August 2014. To disrupt these arrangements involves relevant inconvenience. 25In addition, the Panel notes that the proceedings at first instance were apparently originally lodged on 25 June 2014. A hearing on 4 July 2014 at which the appellant (respondent to the proceedings below) did not appear was adjourned. The orders were finally made after a hearing on 21 July 2014 and vacant possession was ordered to be given on 28 July 2014. The notice of appeal was not filed until 5 August 2014 and the application for a stay was not pressed until the day before the warrant was due to be executed, on 7 July 2014. Some if not all of the inconvenience which might arise out of the appellant (and any other persons) being required to vacate the premises on 7 August 2014 was caused by his failure to take prompt action after the proceedings were instituted and the orders made. Having regard to the circumstances outlined above, the balance of convenience does not support the granting of a stay. 26The principal basis upon which Mr Gray put the application was that the appellant wanted more time in which to vacate the premises. In the light of the nature of the grounds of appeal relied upon and the other circumstances referred to above, the Appeal Panel does not accept that the interests of justice in this case require or even support the granting of the stay as sought. 27Accordingly, the application for a stay was refused.

Orders 28The orders which the Appeal Panel made yesterday, 6 August 2014, were: (1)Mr Gray and Mr Torcellato have leave to appear and represent the appellant and the respondents, respectively, at the hearing on 6 August 2014. (2)The appellant's application for a stay was refused. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 08 August 2014

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