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[2025] NSWSC 1513
General information, not legal advice.
Supreme Court of NSW
2025-12-15
Slattery J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: International Minerals Group Pty Ltd v Amir Elleissy [2025] NSWSC 1513
Hearing dates: 10 & 12 December 2025
Date of orders: 12 December 2025
Decision date: 15 December 2025
Jurisdiction: Equity - Duty List
Before: Slattery J
Decision: Application refused with costs.
Catchwords: ADMINISTRATIVE LAW — Remedies — Equitable remedies – the plaintiff, a tenant was ordered by the NSW Civil and Administrative Tribunal (NCAT) to vacate certain premises for non-payment of rent – the plaintiff’s case that rent of the premises was abated because of an unexecuted repairs at the premises was rejected by NCAT – the plaintiff seeks relief in the nature of prerogative relief under Supreme Court Act 1970, s 69 – plaintiff moves for interlocutory relief staying the orders of the Tribunal pending a final hearing – whether interlocutory orders should be made – consideration of a serious question to be tried and the balance of convenience – no question of principle.
Legislation Cited: Residential Tenancies Act 2010
Supreme Court Act 1970, s 69
Cases Cited: N/A
Texts Cited: N/A
Category: Procedural rulings
Parties: Plaintiff: International Minerals Group Pty Ltd ACN 154 274 174
Defendant: Amir Elleissy
Representation: Counsel:
Defendant: A. Power
Solicitors:
Plaintiff: Ms Sarobol Teeranuku and
Mr John Hillam in person
Defendant: Bailey George Compton, Leverage Solicitors
File Number(s): 2025/433731
Publication restriction: No
The plaintiff company, International Minerals Group Pty Ltd, is the lessee under a residential tenancy agreement of a multi-bedroom apartment in Darling Island Road, Pyrmont with views of Darling Harbour. Two directors of International Minerals, Ms Sarobol Teeranuku and Mr John Hillam have continuously occupied the apartment under the company’s residential tenancy agreement since 2018 at an initial weekly rent of $2,600.
On 13 October 2025 the NSW Civil and Administrative Tribunal (“NCAT”) made orders (“the NCAT decision”) in favour of the landlord, the defendant, Mr Amir Elleissy terminating the tenancy agreement immediately and giving vacant possession to the landlord due to the corporate tenant’s frequent failure to pay rent. NCAT found that the corporate tenant was then in rental arrears to the defendant landlord in the sum of $109,658.58.
The NCAT decision rejected the tenant’s argument that the landlord’s failure to repair part of the balcony of the apartment relieved the tenant wholly or partially of its obligation to pay rent. NCAT found in accordance with established authority that even if the landlord had breached the agreement, the tenant could not set that breach up as a defence to the claim for non-payment of rent.
The tenant sought unsuccessfully to stay that decision in the appeal division of NCAT on 5 November 2025. Then on 7 November 2025 the tenant commenced these Supreme Court proceedings by Summons for prerogative review of the NCAT decision under Supreme Court A**ct 1970 s 69. The interim relief the plaintiff tenant seeks in its summons is that the NCAT decision be stayed until 21 January 2026 when the plaintiff’s appeal will be heard before NCAT’s appeal division. One substantial ground for the stay application is the ill health of Mr Hillam and the need for Ms Teeranuku to care for him.
Since then, the proceedings have come before several judges of this division, each sitting as Equity Duty Judge. Each has made temporary holding orders in accordance with conventional principles maintaining the status quo temporarily until the matter could be more fully considered on interlocutory basis. It was so considered by Hmelnitsky J on 28 November 2025, when his Honour dismissed the tenant’s claim and made further temporary orders maintaining the status quo to give the tenant directors time to remove their possessions from the apartment. Most recently, on 5 December 2025 Hmelnitsky J accepted an undertaking by the plaintiff to pay a daily usage fee of $315 a day and extended the plaintiff’s access to the premises “until 5 PM on 10 December 2025 and no longer” to permit them a reasonable time to remove their personal possessions from the property.
The matter was heard in the duty list again on 10 December 2025 upon a further motion filed by the tenant by leave on 9 December 2025 which was adjourned for hearing until 12 December 2025 when the determination the subject of these reasons was made. This determination reaffirms Hmelnitsky J’s decision and requires the tenant to vacate the premises. Since Hmelnitsky J’s considered interlocutory decision, there has been no relevant change of circumstances which might justify its later variation before a final hearing.
Indeed, the circumstances now known by the Court strengthen the conclusion Hmelnitsky J reached. The corporate tenant offers an undertaking as to damages. Little is known about the value of that undertaking other than that the tenant is in substantial rental arrears to the landlord.
The tenant accepted in submissions that even on its case that rent should not be fully abated and that the undisputed arrears of rent to the landlord were no less than $38,000. But the payment of that sum at the Court was not embraced by the tenant. After some encouragement from the Court the tenant hinted that it might be able to organise a bank guarantee for about $30,000 but that it would take a less than well-defined time to do so.
The tenant seeks the interlocutory intervention of this court of Equity. The tenant must therefore do equity as well. Even if the defendant is partially successful in its claim for some set off in relation to the state of repair of the apartment, the tenant is unlikely to succeed in everything for which it contends. The tenant clearly chose to stay in the Pyrmont apartment despite the alleged need for repairs and therefore an appropriate balance of avoidance of injustice would be to require the tenant to pay quite a substantial amount of the present arrears of rent into Court. The tenant’s offer of the sum of $30,000 to support its undertaking as to damages is grossly inadequate and well short of what would be a fair payment in the circumstances.
The tenant’s submissions also create a degree of cognitive dissonance. Although the tenant is reticent about making a proper and substantial payment into Court to support, the Court is nevertheless told by the tenant that it, or perhaps its directors or another related entity, have recently acquired other residential real property for over $5 million. The directors plan to move into that new property in February 2026. They want to stay in the Pyrmont apartment until they can move directly into the new property. If interests associated with the tenant have the command of financial resources to enable the acquisition of a $5 million property, such resources could probably be deployed to pay an appropriate sum into Court if the tenant really wanted to do so. As a fair and proper sum has not been offered, the Court declines to grant the interlocutory injunction requested.
But this is merely a reaffirmation of what Hmelnitsky J did on 28 November 2025, now based on the information presently available to inform the Court’s exercise of its relevant discretion. It is worthwhile to briefly recount Hmelnitsky J’s unpublished reasons for reaching the conclusion that he did, to see that little has changed and the Court now considers much the same discretionary considerations as were presented to his Honour.
Hmelnitsky J’s decision first added a wider factual background than that recounted above, which I gratefully adopt. What appears below is partly derived from Hmelnitsky J’s unpublished reasons for decision, supplemented by some additional facts and material from the Court’s file.
A dispute arose in 2022 between the tenant and the landlord about damage to the balcony of the apartment and certain waterproofing issues. Related issues existed between the landlord and the Owners’ Corporation for the Pyrmont apartment.
The tenant commenced proceedings in January 2025 in NCAT seeking orders for repair to the apartment and a rental reduction. On 22 August NCAT reduced the rent to a sum not exceeding $2,210 per week. The plaintiff has appealed from this decision to the NCAT appeal panel, which is listed for hearing on 21 January 2026.
As Hmelnitsky J further explained on 26 August 2025 the landlord applied in NCAT for a termination of the tenancy principally because of the non-payment of rent.
On 13 October, NCAT determined that application, making the following orders:
"1. The Tribunal makes an order under the Residential Tenancies Act 2010 terminating the residential tenancy agreement, as the tenant has breached the agreement by failing to pay rent or charges.
2. The Tribunal makes a finding under section 89(5) of the Residential Tenancies Act 2010 that the tenant has frequently failed to pay rent or water usage charges on time.
Note: If a finding under s89(5) that the tenant has frequently failed to pay rent has been made a warrant for possession may be issued even if the tenant has paid all rent, water usage charges or utility charges owing or complied with a repayment plan.
3. The Tribunal orders the Residential Tenancy Agreement is terminated immediately and vacant possession is to be given to the landlord on the date of termination.
4. The Tribunal makes an order under section 114(2) of the Residential Tenancies Act 2010, that the order for possession is suspended until 27 October 2025.
5. The tenant is to pay the landlord a daily occupation fee at the rate of $315.71 per day from the day after the date of termination, 14 October 2025, until the date vacant possession is given.
6. The landlord may request the relisting of this application to determine the occupation fee owing, within 60 days from the date of possession."
The Tribunal gave reasons for making those orders. As Hmelnitsky J further explained the plaintiff has also appealed from those orders to the NCAT appeal panel which will be heard on 13 February 2026.
The tenant sought to stay the 13 October orders, but the stay was refused by the appeal panel member on 6 November 2025. The materials suggest another apparently unsuccessful application was also made to the Tribunal to stay the NCAT decision.
Perhaps prompted by the refusal of the stay the tenant commenced these proceedings in the duty list on 7 November seeking the relief summarised above. Richmond J made ex parte orders on the plaintiff’s application until 21 January 2026, or further order of the Court, staying the 13 October orders of NCAT to the extent that they required the plaintiff to vacate the premises.
Richmond J’s orders were continued but varied by Meek J on 19 November 2025 to require the tenant to pay the daily occupation fee ordered by NCAT to the defendant's solicitor and $2,840 was paid before 28 November.
On 28 November Hmelnitsky J dealt with a contest about whether Richmond J’s orders be discharged following a contested interlocutory hearing and he decided that those orders should be discharged.
His Honour was influenced in that decision, as this Court is now, that the rental arrears were $109,658.58, and that the tenant had not made any payments on account of rent since 5 November 2024. At the time of Hmelnitsky J’s decision the arrears were $119,637.13. Hmelnitsky J noted in addition to the usual undertaking as to damages, the plaintiff gave an undertaking through Ms Teeranakul on 7 November to Richmond J that the plaintiff would pay the rental arrears, but only as determined by the NCAT appeal panel. Hmelnitsky J also noted that a director’s further undertaking on behalf of the plaintiff on 18 November to provide a bank guarantee on behalf of the plaintiff to secure the daily occupation fee had not been given all the payments had been made into the landlord’s solicitor’s trust account.
Hmelnitsky J recorded the tenant as submitting that there is a prospect that its appeal against the rent abatement order would result in an overall reduction in the weekly rent, which backdated to 2022, that a payment of about $38,000 should be sufficient to clear the rental arrears. But Hmelnitsky J recorded that this involves an assumption that NCAT would find that the damage to the balcony is so serious that a rent reduction of 65% backdated to 2022 would be justified, then the amount of arrears would only be $38,000. Hmelnitsky J recorded that the tenant said it should be able to pay this amount. But this amount was not organised to be paid before Hmelnitsky J and has not yet been paid.
Hmelnitsky J recorded the tenant’s argument that that upon a favourable finding on the rent abatement order, the tenant would then be likely to succeed in the termination proceedings: the tenant arguing that NCAT could not then terminate the tenancy because the arrears would be brought up to date. This argument did not appeal to Hmelnitsky J. It appeals even less to this Court now when the tenant has not organised since 28 November to pay the $38,000 into Court.
**********
International Minerals Group Pty Ltd
Amir Elleissy [2025] NSWSC 1513
Hmelnitsky J concluded that the tenant did not have a good arguable case for relief in this Court. Hmelnitsky J pointed out that based upon the applicable legislation the tenant’s claim depends upon demonstrating jurisdictional error in the NCAT decision to terminate the lease and to require the tenant to vacate within 14 days. Hmelnitsky J concluded that on the available material the decision was well within the jurisdiction of NCAT. Although the tenant has added more arguments in its motion filed on 9 December, in the Court’s consideration the jurisdictional error is no more obviously discernible on the additional material.
Hmelnitsky J rejected an argument that a failure to take into account the personal medical and health challenges of Mr Hillam is likely to amount to jurisdictional error. This Court respectfully agrees with that conclusion and is not persuaded NCAT failed to take the matter into account.
But as was the situation before Hmelnitsky J, as has been discussed above the balance of convenience is strongly against granting any relief. As Hmelnitsky J observed, Mr Hillam is very unwell. He is 74 years of age and six years ago was diagnosed with colon cancer for which he had a total of nine surgeries resulting in the removal of most of his stomach. His condition affects his life in numerous ways, as might be expected. He continues to require regular checkups and procedures. His condition affects his mobility, diet and other aspects of his life.
Like Hmelnitsky J, I accept that Mr Hillam's health, and indeed the general circumstances of both him and his wife, are all matters that must be closely considered in weighing the balance of convenience in this Court. But as at 12 December, Mr Hillam has had since 13 October to prepare to leave the Pyrmont apartment and secure his medications and health aids.
Nothing in the 9 December 2025 motion in my view changes the assessment reached by Hmelnitsky J that it is unlikely that “either these proceedings or the NCAT proceedings are going to lead to an outcome in which the arrears of rent for these premises will be brought up to date”. Like Hmelnitsky J, I too recognise the disruption that will be caused both to Mr Hillam and to his wife if they are required to vacate the premises. But as Hmelnitsky J observed, and I respectfully agree as at 12 December 2025, “in circumstances where rent has been unpaid for so long and where the prospects of arrears being brought up to date are so remote, I do not consider that the balance of convenience favours maintaining this state of affairs any longer”.
The plaintiff’s motion will be dismissed with costs. The appropriate course in the circumstances is to give short further time to the tenant to vacate the premises. The Court regards the weekend and three more working days until 5 PM on 17 December 2025 is sufficient for this purpose, given the time that has already elapsed since the NCAT decision.
The Court therefore makes the following orders, notations and directions:
Order that, upon the plaintiff paying to the defendant the daily usage fee of $315 per day, Order 1 made by Hmelnitsky J on 5 December 2025 is extended to Wednesday, 17 December 2025 at 5pm.
Dismiss the plaintiff’s application for a further extension for access to the premises identified in the Summons (the premises).
Order that the extension in Order 1 is provided solely for the plaintiff and its directors to evacuate its and their possessions from the premises in an orderly way, including retrieving all medication and medical equipment and all other personal possessions.
The plaintiff will pay the defendant’s costs of the application.
Orders entered forthwith.
Order that, from 5:01pm on Wednesday, 17 December 2025, the defendant is entitled to immediate vacant possession of the premises, including changing the locks on the premises and locking out the plaintiff’s tenants and occupants from the premises.
Order that, in the event the plaintiff leaves any furniture or other personal possessions in the premises after 5pm on Wednesday, 17 December 2025, the defendant is to arrange for Fox Relocations or another similar removalist to remove all furniture and/or personal possessions of the plaintiff and to deliver that furniture and/or personal possessions to Rent A Space Self Storage at Girraween or another similar storage facility in greater Sydney by 5pm on Monday, 22 December 2025.
Order that the defendant’s solicitor is to notify the plaintiff in writing upon the completion of the removal in Order 7, and to provide details of the storage facility to enable the plaintiff to arrange for collection of the plaintiff’s possessions from that storage facility.
Order that the plaintiff is to arrange for the collection of all furniture and/or personal possessions of the plaintiff from the storage facility by 5pm on Friday, 16 January 2026.
Order that, in the event that the plaintiff does not arrange for the collection of all furniture and/or personal possessions of the plaintiff by 5pm on Monday, 5 January 2026 as required by Order 9, the defendant is permitted to dispose of all furniture and/or personal possessions of the plaintiff.
Note that the defendant has a key to the premises having changed the locks and the defendant by his servants and agents is restrained from entering the premises in any way before 5pm on 17 December 2025 notwithstanding his capacity to do so.