Kyriakou v Jiang

Judgment 1BEAZLEY P: On 28 March 2013 Olsson DCJ granted to the applicant, Mr Kyriakou, a stay of an eviction order made by the Consumer, Trader and Tenancy Tribunal (the Tribunal) on condition that Mr Kyriakou pay rent pending the determination of his appeal from the Tribunal's order. Mr Kyriakou filed a summons seeking judicial review of her Honour's order and also sought a stay of the condition that he pay rent pending the determination of his summons for judicial review. On 22 April 2013, Barrett JA refused that application and ordered that Mr Kyriakou pay the respondent's costs of the application. The matter has come before the Court urgently this morning for a review of Barrett JA's judgment given on 22 April 2013 and orders made that day. 2The genesis of the proceedings relates to a lease that was entered into between Mr Kyriakou and the respondent, M Ke Yang Jiang, in January this year for the rental of part of premises for a period of one year. Not long after the commencement of the lease, Mr Kyriakou made a number of representations to Mr Ke Yang Jiang about the condition of the premises. He also alleged that the premises were being leased in circumstances where the premises were not a registered boarding house. Mr Kyriakou contends that in that circumstance the rental of the premises is unlawful and that in accordance with cl 7 of the lease, the rent is to abate. 3On 14 March 2013, Mr Kyriakou commenced proceedings in the Tribunal raising these matters. That application has not yet been determined. In the meantime the landlord, Mr Ke Yang Jiang, also made an application to the Tribunal and, by order made on 22 March 2013, the Tribunal ordered that the residential tenancy agreement between the parties be terminated in accordance with s 92B of the Residential Tenancies Act 2010 as the tenant has intentionally engaged, caused or permitted another person to intimidate or harass a person. The Tribunal ordered that possession of the rented premises be given to the landlord on 25 March 2013. 4Mr Kyriakou then filed a Summons Commencing an Appeal in the District Court. That summons was filed on 25 March 2013. On 28 March 2013, Olsson DCJ made, relevantly, the following order: "The decision of the Consumer, Trader & Tenancy Tribunal is stayed until further order of this Court on the following condition: (a) the plaintiff make payments in accordance with the lease dated 21 March 2013 as and from 1 April 2013." 5I note in passing that her Honour did not make it a condition of the stay that back rent be paid. (In this regard, the material before Barrett JA made it apparent that the rent was in arrears.) The condition upon which Olsson DCJ made the stay was not complied with and the landlord, Mr Ke Yang Jiang, had the matter re-listed in the District Court. On that occasion the matter came before Neilson DCJ. His Honour, relevantly, made the following two orders: "1. I dissolve the stay of proceedings granted by her Honour Judge Olsson SC on 28 March 2013. 2. I set aside order 1 of 28 March 2013 with effect from Saturday 27 April 2013." 6The Court was informed that there had been a communication by Mr Kyriakou to the respondent's solicitors in respect of the payment of rent prior to 17 April 2013. It is likely that that communication was either on 15 or 16 April 2013. Those communications did not result in any rent being paid. 7Mr Kyriakou informed the Court from the bar table that he did not pay rent at that time because he wanted confirmation of the correct name of the account into which the rent was to be paid. As I understand it, he does not disagree with the statement from the bar table that was made on behalf of the landlord that the landlord's solicitor had told him that rent was to be paid into the account referred to in the tenancy agreement. 8The tenancy agreement is before the Court and it is clear on p 2 of that tenancy agreement that an account number is designated, including the account name. The account name designated is Ke Yan Jiang, K-E Y-A-N J-I-A-N-G. Mr Kyriakou contends that all he wanted was the correct name of the account. The difficulty is Mr Kyriakou was given the correct name of the account. 9It appears that somewhere along the line Mr Kyriakou came to understand that the second name in the landlord's name had a 'g' on the end of the middle name, so that it was spelt Y-A-N-G. From the material before the Court it would appear that on any occasion when the landlord was the author of a communication, the name was spelt K-E Y-A-N J-I-A-N-G, that is, the name that appears on the lease. So far as I have been able to ascertain, it is only on documents that have been generated by Mr Kyriakou that the 'g' has been put on the end. 10I understand from what Mr Kyriakou has informed the Court that he did not pay any money into an account or attempt to do so. His concern was with ascertaining the correct name. As I have said, from wherever his misunderstanding originated, it was not a misunderstanding that can be sheeted home to the respondent landlord. 11It is apparent from the transcript of the proceedings before Barrett JA on 22 April that his Honour was concerned that Mr Kyriakou was continuing to seek to have occupation of the premises without paying rent. Mr Kyriakou informed the Court today that he did not have the opportunity to explain everything to his Honour but a reading of the transcript of the proceedings makes it clear first, that Mr Kyriakou did not, on that occasion, make any offer to pay rent as a condition of a continuing stay. Rather, his view appeared to be, as he stated to the Court, at transcript p 9 application book p 204, that his view was: "[w]ell it appears that once again I'm being punished because I'm not paying rent." His Honour had indicated to Mr Kyriakou in the course of the hearing of the matter that Mr Kyriakou could "pay [the landlord] rent". It was after some further questions after that that Mr Kyriakou made the statement to which I first referred. 12In my opinion, the applicant for the review, Mr Kyriakou, has not established that the orders made by his Honour were infected with any error or that his Honour's exercise of his discretion in refusing the relief was infected with error. 13Accordingly, I propose that the application for review be dismissed with costs. 14MEAGHER JA: Mr Kyriakou's application to Barrett JA was made in proceedings in this Court which are only concerned with the interlocutory orders made by Olsson DCJ on 28 March 2013. Those orders were made in proceedings before the District Court on appeal from a decision of the Consumer, Trader and Tenancy Tribunal in respect of an order made by that Tribunal under s 92(1)(b) of the Residential Tenancies Act 2010. 15The interlocutory relief sought from Barrett JA, in the form of a stay of orders made in the District Court, was to preserve a position which might only obtain if the applicant is successful in establishing before this Court that there was jurisdictional error or error of law on the part of Olsson DCJ in making the order under s 67(5) of the Consumer, Trader and Tenancy Tribunal Act 2001. That order was that the Tribunal's order made under s 92(1)(b) be stayed on condition that Mr Kyriakou make payments equivalent to rent. Mr Kyriakou's complaint is in respect of the imposition of that condition. 16The power under s 67(5) to suspend the operation of any order or decision of the Tribunal includes the power to do so on terms, and her Honour did not exceed that power in imposing a condition. Her Honour's decision to do so involved the exercise of a discretion. The transcript of the proceedings before her Honour on 28 March 2013, when the order was made, was not available to Barrett JA. Nor were any published reasons or notes of the reasons that her Honour gave for making the order. 17On its face her Honour's decision to impose the condition was not so unreasonable as to justify a conclusion that there must have been some error in the exercise of that discretion. In circumstances where the applicant wanted to preserve his right of occupation pending the determination of his appeal to the District Court, it was not unreasonable to require that he pay an occupation fee, or some amount equivalent to rent, as the price to enable him to remain in occupation while his challenge to the Tribunal's order was determined. That remained so even if he contended that the premises were being used unlawfully and in breach of planning laws. 18I am not satisfied that Barrett JA's decision to refuse a further stay, which would have had the effect of removing the condition imposed by Olsson DCJ, was wrong. The applicant's prospects of successfully challenging Olsson DCJ's order were not sufficient to justify the grant of the stay sought. 19For these reasons I agree with the orders proposed by the President. 20WARD JA: I agree with the reasons of the President and of Justice Meagher and with the orders that are proposed. I add two comments. The first, simply for completeness, is to note that although Mr Kyriakou informed this Court that the reason rent was not paid was due to a need for confirmation of the landlord's payment details, the notice of motion that is relied upon for the present application states that the reason rent was not paid was by virtue of legislation (s 49 of the Residential Tenancies Act 2010 (NSW)) and "by virtue of a contract signed by the defendant and plaintiff that the rent shall abate if the defendant's premises were unlawful". 21Secondly, I note that on the authorities, in particular Transglobal Capital Pty Limited v Yolarno Pty Limited [2004] NSWCA 136, (2004) 60 NSWLR 143 referred to in Sarkis v Moussa [2012] NSWCA 357 there is a heavy burden on an applicant for review of this kind to discharge. I am not persuaded that that burden has been discharged. 22BEAZLEY P: The orders of the Court are that the application for review is dismissed with costs.