Kyriakou v Kuzevski & Ors

Judgment 1HIS HONOUR : This is an application by the plaintiff who is a former occupant of premises in Tantallon Avenue, Arncliffe for an order that the landlord allow him to reside at the premises for a period of seven days. The plaintiff proffers an undertaking that if he is allowed back into occupation he will vacate the premises after seven days. He also undertakes to pay certain moneys to which I will refer later in these reasons. Although it has not been specifically addressed I assume he also proffers an undertaking not to damage the premises, but to yield them up after seven days peaceably and in a state of repair that is no worse than their current state of repair. 2The application arises from proceedings that were before the Consumer Trader and Tenancy Tribunal ("the Tribunal") between these parties. It is common ground that on 14 October 2011 the plaintiff filed an application in the Tribunal seeking an order that an agreement he had with another tenant was a residential tenancy agreement, an order under s 16 of the Residential Tenancies Act 2010 requiring the landlord to prepare and enter into a written residential tenancy agreement, and an order under s 77 of that Act recognising the plaintiff as a tenant under a residential tenancy agreement. It is common ground that the owner had entered into a residential tenancy agreement with a tenant by the name of Graham Tyrrell. I was told that that agreement was entered into on 27 August 2004. 3Before the Tribunal, the plaintiff asserted that he had been a tenant of the premises since 8 January 2011. He made an agreement with Mr Tyrell to pay weekly rent of $150 and in effect purportedly took a sublease from Mr Tyrrell of part of the premises. The defendants say that they did not know of that arrangement and did not consent to it. There is no evidence that they did know of the arrangement at the time it was made and no evidence that the owners consented to it. Indeed, in an email said to form part of the subtenancy agreement Mr Tyrrell said that: " ... rent of $150 a week cash is fine. [W] hat the landlord and agent don't know won't hurt them. " 4There were proceedings before the Tribunal between the owners and Mr Tyrrell. Those proceedings were pending when the plaintiff filed his application on 14 October 2011. Both proceedings had a return date on 1 November 2011. I was informed that on the morning of 1 November 2011 Mr Tyrrell did not appear and the Registrar made an order terminating his residential tenancy agreement. On the same day there was, it seems, a conciliation and perhaps the commencement of a hearing before the Tribunal. It is common ground that the Tribunal member expressed the view that the plaintiff's application was likely to fail and she urged the plaintiff and the owners to seek to agree on terms providing for a time for the plaintiff to vacate the premises. The plaintiff says that undue pressure was applied by the Tribunal. But the evidence does not suggest that there is a serious question to be tried that that was so. Indeed, given that a tenant under a residential tenancy agreement may only sub-let premises to another person with the landlord's written consent, there would be serious obstacles to the plaintiff's being able to establish at that time that he was a tenant under a residential tenancy agreement. 5The Tribunal did not rule on the plaintiff's application. Its orders of that day state as follows: " On 01-Nov-2011 the following orders were made: The application is withdrawn under s 28(5)(h) of the Consumer, Trader & Tenancy Tribunal Act 2001.