HIS HONOUR: On 14 February 2020 Johnson J made the following orders in these proceedings:
1. The defendants' notice of motion filed 4 September 2019 is dismissed.
2. The defendants are to pay the plaintiffs' costs of the defendants' notice of motion filed 4 September 2019.
3. Pursuant to Rule 13.1 Uniform Civil Procedure Rules 2005, summary judgment is given to the plaintiffs for possession of the whole of the land described in Folio Identifier 1X/1X/XX37 being the land situated and known as xx Prince Edward Street, Malabar in the State of New South Wales (the Malabar property).
4. The plaintiffs have leave to issue a writ of possession forthwith with respect to the Malabar property.
5. The defendants are to pay the plaintiffs' costs of the plaintiffs' notice of motion filed 17 September 2019.
By notice of motion filed on 16 March 2020 the defendants now move the Court for an order that the writ of possession issued to the plaintiffs on 19 February 2020 in respect of the property at xx Prince Edward Street, Malabar be stayed until further order of the Court. That application is supported by the affidavit of the second defendant sworn on the same day.
The application came before me today in the Duty List. Mr B Levet of counsel appeared for the defendants. Mr M W Young SC appeared for the plaintiffs. Mr Levet did not read the second defendant's affidavit to which I have just referred.
It is common ground that the plaintiffs have instructed the sheriff to recover possession of the property pursuant to their writ of possession tomorrow. Mr Levet informed the Court that no appeal against the decision of Johnson J has been filed although a draft notice of appeal has been prepared. Mr Levet indicated, quite properly in my opinion, that the proposed grounds of appeal, although arguable, are destined to fail.
In the circumstances, Mr Levet submits that I should exercise my discretion to stay the writ for a further period of two weeks in anticipation of the NSW Government passing further legislation or making regulations pursuant to current legislation that would avail his clients having regard to the current pandemic emergency affecting Australia.
The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 came into force on 25 March 2020. Among other statutes, the Act made amendments to the Residential Tenancies Act 2010 by the insertion of s 229. That section is headed "Regulation-making power" and is in the following terms:
229 Regulation-making power
(1) The regulations under any relevant Act may provide for the following matters for the purposes of responding to the public health emergency caused by the COVID-19 pandemic -
(a) prohibiting the recovery of possession of premises by a landlord, owner or proprietor of premises from a tenant or resident of the premises under the relevant Act in particular circumstances,
(b) prohibiting the termination of a residential tenancy agreement, occupancy agreement or site agreement by a landlord, proprietor of premises or operator of a community under the relevant Act in particular circumstances,
(c) regulating or preventing the exercise or enforcement of another right of a landlord, proprietor of premises or operator of a community by the landlord, proprietor or operator under the relevant Act or an agreement relating to the premises,
(d) exempting a tenant, resident or home owner, or a class of tenants, residents or home owners, from the operation of a provision of the relevant Act or any agreement relating to premises.
(2) The Minister may recommend to the Governor that regulations be made under this section only if -
(a) Parliament is not currently sitting and is not likely to sit within 2 weeks after the day the regulations are made, and
(b) in the Minister's opinion, the regulations are reasonable to protect the health, safety and welfare of tenants or residents under the Act.
(3) Regulations made under this section are not limited by the regulation-making power in a relevant Act.
(4) Regulations made under this section expire on -
(a) the day that is 6 months after the day on which the regulation commences, or
(b) the earlier day decided by Parliament by resolution of either House of Parliament.
(5) In this section -
occupancy agreement has the same meaning as in the Boarding Houses Act 2012.
operator of a community has the same meaning as in the Residential (Land Lease) Communities Act 2013.
proprietor has the same meaning as in the Boarding Houses Act 2012.
relevant Act means any of the following -
(a) Boarding Houses Act 2012,
(b) Residential (Land Lease) Communities Act 2013,
(c) Residential Tenancies Act 2010,
(d) any other Act relating to the leasing of premises or land for residential purposes.
site agreement has the same meaning as in the Residential (Land Lease) Communities Act 2013.
Mr Young submits, and Mr Levet concedes, that nothing in that section or otherwise in the Act constrains or affects the ability of a mortgagee with the benefit of a writ of possession to recover possession of residential property from a defaulting mortgagor. Mr Levet's single contention is that, having regard to the rapid pace with which legal and social developments are occurring in the light of the pandemic, there is at least a reasonable anticipation or expectation that the NSW Government may move to make further orders or regulations to protect the position of defaulting mortgagors such as the defendants. Mr Levet also concedes, however, that he has no basis beyond what I might describe as informed speculation to suggest that any such orders or regulations are pending or even likely.
In opposing the defendants' application for a temporary stay, Mr Young makes the following submissions. First, I am required to exercise my discretion having regard to the law as it exists today, not upon the basis of what the law may become. Secondly, Mr Young contends that I can take judicial notice of the fact that the terms of the legislation quoted above make no reference to mortgagees, so that the clearly available inference is that the parliament did not intend to extend any form of moratorium or other relief to those in the position of the present defendants.
Mr Levet has indicated that the property in question is currently home not only to the defendants but to a series of tenants pursuant to oral leases that the defendants have granted to them. Mr Levet submits that the ability of the plaintiffs to recover possession from such tenants, in anticipation of a sale of the property, is likely to be entirely foreclosed by any regulations of the sort contemplated by s 229. However, as presently advised, it does not appear that regulations pursuant to that section have yet been made. It remains unclear in those circumstances, or possibly even doubtful, whether the regulation-making power under the Residential Tenancies Act would or could extend to limit action by the plaintiffs to recover possession of the property from the defendants' tenants. Whether or not that is correct, it does seem to be clear that any regulations that might be made under the Residential Tenancies Act would not extend to provide relief to the defendants.
Mr Levet has indicated that the second defendant is currently showing what are described as flu-like symptoms. She has not been tested for the COVID-19 virus. The defendants are however self-isolating in the subject premises and are taking an expectant approach to their condition. The evidence does not suggest that the defendants are unable to secure alternative accommodation.
While I accept that it is possible that the evidentiary position may change in the short course, I am unable to be satisfied that the defendants have demonstrated the existence of a proper basis upon which I could legitimately restrain the plaintiffs from the exercise of their legal rights. In those circumstances the defendants' application for a stay is refused.
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Decision last updated: 31 March 2020