CIVIL PROCEDURE - application for stay of execution of orders - stay pending appeal - insufficient prospects of success
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CIVIL PROCEDURE - application for stay of execution of orders - stay pending appeal - insufficient prospects of success
Judgment (2 paragraphs)
[1]
Judgment - Ex Tempore
Revised and reissued 27 June 2018
This is an application for a stay or extension of order which I made on 7 June in Parslow v New South Wales Housing and Land Corporation; NSW Land and Housing Corporation v Parslow [2018] NSWSC 843. What I will say assumes familiarity with that judgment and with the abbreviations which I used in it.
The relevant orders were made in what I described as the possession proceedings, which were proceedings by the Housing Corporation under Pt 7 of the Residential Tenancies Act 2010. The orders were that Ms Parslow's tenancy at Lower Fort Street be terminated and that she provide vacant possession of the property by 5 July 2018, which was 28 days after the date of delivery of the judgment. Ms Parslow now seeks a stay of the operation of those orders pending the determination of proceedings to be instituted in the Court of Appeal. Alternatively she seeks an extension of time of the possession order to allow her a longer period to vacate the property.
Ms Parslow has not yet commenced proceedings in the Court of Appeal. Her counsel recognise that leave will be required to appeal against the decision. Counsel propose that the stay would be granted on condition that Ms Parslow file a notice of intention to appeal by 5 July and her application for leave to appeal within 14 days thereafter, rather than the three months which she would otherwise have following the filing of a notice of intention to appeal. The stay would then operate until the determination of the leave application, and I assume if leave were granted, the determination of the appeal itself. I have been provided by counsel with a proposed draft notice of appeal which would be the subject of the application for leave.
In considering the application for a stay pending the application for leave to appeal, there are three matters of particular significance. The first is the question of prejudice to Ms Parslow if the stay is not granted.
If the possession order is not stayed, Ms Parslow would have to vacate the Lower Fort Street property where she has lived for more than 40 years. I noted in my judgment that there was no evidence before me at the hearing of any particular practical difficulty with Ms Parslow vacating the property. For the purposes of the stay application, there was affidavit evidence presented by a solicitor for the Redfern Legal Centre, who are acting for Ms Parslow, which the solicitor, having observed Ms Parslow's residence, observed that it would be "difficult and costly" for Ms Parslow to move the large volume of her belongings at the property within the 28-day period ordered by the Court. The solicitor also deposed to being informed by Ms Parslow that she wishes her daughter, Arana, to assist her in relocating, and that Arana is not available, due to study commitments, until after 30 June. The solicitor stated that to the best of her knowledge, Ms Parslow did not have any other support person to assist her with relocating.
I have no doubt - as I said in my decision - that for Ms Parslow to leave the property after having lived there for more than 40 years, will be emotionally difficult for her. However, the evidence concerning the practical difficulties that moving may cause Ms Parslow is vague, and to my mind, unpersuasive.
There is also evidence on this application from the Housing Corporation to the effect that it is the Corporation's practice when offering alternative housing accommodation, as in this case, to provide assistance with relocation. In particular, removalists have already been arranged and are on standby to assist Ms Parslow in relocating. This does not completely deal with the problems which might arise if the new accommodation is smaller than the Lower Fort Street property, so far as accommodating all of Ms Parslow's possessions are concerned. But there is no reason to think that this problem could not be overcome, if necessary, by placing items into storage. It may involve a degree of inconvenience, but it is far from impracticable.
As I concluded in my judgment, Ms Parslow's principal claim was one for proprietary or some other form of promissory estoppel. The principal relief claimed was a declaration that Ms Parslow had the benefit of a lifetime tenancy. Ms Parslow also sought an injunction restraining the Housing Corporation from interfering with her possession of the premises under that tenancy.
There was a claim pleaded in the alternative for equitable compensation.
At the hearing for the stay, counsel for Ms Parslow pointed out that that particular claim had not been pressed at the hearing, and that evidence had not been presented in support of it. I accept that was so, but the fact is that if Ms Parslow's claim were later to succeed, she would be entitled to make a claim for equitable compensation. Compensation would presumably be calculated either by reference to expenditure that she made on the property, or perhaps by reference to the value of the allegedly promised interest in the property.
I accept that from Ms Parslow's point of view this is very much an alternative claim, and that assessing the value of the claim might entail some further valuation evidence. But it is still possible that if Ms Parslow were ultimately to succeed, she could obtain relief in the nature of equitable compensation, and there can be no doubt that the Housing Corporation is in a position to pay any compensation which might be awarded.
The second factor to be considered is prejudice to the Housing Corporation from the grant of a stay. Counsel for Ms Parslow referred to an acknowledgment he obtained in cross-examination from one of the Corporation's witnesses to the effect that none of the Corporation's social housing programs is specifically dependent upon the sale of the Lower Fort Street property. In my decision I noted that this concession was inevitable, given the amounts involved in the Corporation's programs which run into hundreds of millions of dollars.
Counsel argued on the stay application that accordingly there was no real prejudice to the Housing Corporation. I disagree. The evidence makes it clear that the property has a value of between $2.5 and $3.5 million, and there is no doubt that the rent being paid by Ms Parslow is less than the market rent the property would command. In my view the Housing Corporation clearly suffers prejudice for every day when it is unable, as it wishes, to sell the property, or at least to deploy it for its full economic value.
Ms Parslow has not offered any undertaking as to damages of the sort that would be required for the grant of an injunction. But whether she would offer such an undertaking or not is of no practical significance because counsel has candidly acknowledged that she would not be in a position to provide any form of security, or to meet any order for compensation which might be made against her.
In these circumstances, if a stay were to be granted pending the hearing of the appeal, there would be financial prejudice to the Corporation throughout the period it would take to propound the appeal, and then to decide it; and, on the evidence, there is nothing to ameliorate that prejudice.
The third factor to be considered is the strength of the proposed appeal. This presented a difficulty for counsel in having to present submissions to me about potential errors in my recently delivered decision, and for me in attempting to keep an open mind in entertaining those submissions.
Doing the best I can I think I can summarise the position as follows. There are a number of points in Ms Parslow's case where I reached adverse findings, or adverse conclusions. First, there was a question of indefeasibility. Ms Parslow's case was based on representations allegedly made to her going back to the late 1970s. Those representations were allegedly made by the MSB. In March 1984 control of the property passed to the Housing Commission, and title was later transferred to the Housing Corporation (as it had become).
I accepted the Corporation's argument that it held its title free of any claim attributable to conduct of the MSB up to March 1984. The effect of this conclusion was to limit the period during which Ms Parslow's estoppel claim was available to the single year from March 1984, when the Corporation assumed management of the properties, until March 1985 when, as I recorded it in my decision, it was accepted by Ms Parslow that she knew the Commission did not recognise that she had any tenure in the property.
I then rejected Ms Parslow's case on four independent grounds: First, I found that she was by her laches debarred from making any claim for equitable relief. This conclusion applied equally to the period of time when the property was being administered by the MSB as to the period when it was being administered by the Commission.
I also found that Ms Parslow failed on three essential elements of her estoppel claims. She failed to persuade me that any promise had been made to her of an interest of the nature she claimed. She also failed to satisfy me that she had acted in reliance upon any such promises, or that the alleged detriment which consisted of works that she had undertaken on the property in balance had left her worse off.
Each of these findings was a finding made on the facts as it related to the Housing Commission's period of administration, but I also made equivalent findings in relation to the period of MSB administration, which meant that even if I was wrong on indefeasibility, Ms Parslow's claims would still fail.
The proposed notice of appeal seeks to challenge all aspects of my decision, including the conclusions and findings to which I have just referred. The challenge on indefeasibility is not articulated in the draft notice of appeal. Counsel for Ms Parslow strongly submitted that it would be strange to think that the conduct and knowledge of the MSB would not be attributed to the Housing Commission. Counsel characterised the position as one where the there had been a relationship of agency between the two government bodies. I am not sure that is right. As I recorded in my decision, for decades up to the late 1970s, and extending into the early 1980s, the MSB owned and managed the properties in question on its own account. The Commission assumed management of those properties pursuant to intergovernmental arrangements that took place starting in the early 1980s. The indefeasibility issue in this case raised the question whether the conduct by the MSB before the Housing Commission was involved could in some way be attributed to the Commission.
At the time when the MSB was managing the properties on its own account, it had no agency relationship with the Commission, and in my view there is no basis for suggesting that merely because the Commission took over the operation of the properties, it is thereby to be fixed with knowledge of everything that had happened beforehand. I expressed a conclusion to similar effect in my decision. It remains unclear to me, on what I have been told, what challenge can be made to my indefeasibility conclusion.
Similarly, the challenge to my finding on laches is expressed in broad terms, and it remains unclear to me, following counsel's submissions, how it is that counsel would seek to challenge my conclusion that Ms Parslow's conduct extending over a long period of time in pursuing rights under other leasing arrangements did not involve acquiescence which makes it inequitable now for her to assert that she has, and always has had, a lifetime interest.
The other three grounds of my decision against Ms Parslow are all factual conclusions which I reached based on the evidence, and they were all factual issues where Ms Parslow bore the onus of satisfying me that her contentions were made out.
I did not wish to embarrass counsel by inviting them to try to articulate in detail the factual challenges to my findings; and counsel did not volunteer any such detailed analysis. I think it is sufficient to say that experience shows that mounting an appeal against such factual findings, especially when there are multiple concurrent findings, is always a very difficult task. Nothing has been put to me to suggest that my evaluation of the evidence, and of Ms Parslow's credibility, which was an important part of my findings, was in some way misguided.
In the result, I consider that the balance of convenience strongly favours the Housing Corporation, and that the appeal has insufficient prospects of success as it now appears to me, to justify a stay. Ms Parslow's application for a stay of the proceedings pending her application for leave to appeal will be refused.
The application to vary the possession order gives rise to separate considerations. Counsel for Ms Parslow relied on the Residential Tenancies Act, s 94. That Act provides that if a tenant has been in continual possession of the same residential premises for a period of 20 years or more, and an order is made terminating the tenancy and giving vacant possession, vacant possession may not be ordered before 90 days after the termination order is made.
Counsel for Ms Parslow acknowledged that this section was not directly applicable to the present circumstances. The application before me, as I have mentioned, was under Part 7. Section 137 provides:
In the event of any inconsistency between a provision of this Part and any other provision of this Act or the Regulations, this Part prevails to the extent of the inconsistency.
At the hearing, as I noted in my decision, I was referred to s 154G which requires that in the event of an order for termination and possession the order for possession cannot be suspended for any longer period than 28 days unless there are "exceptional circumstances" justifying a longer period.
Counsel for Ms Parslow nevertheless argue that the fact that the tenancy in question would satisfy the terms of s 94, in that Ms Parslow has been in continuous occupation for more than 20 years, is unavailable, is an "exceptional circumstance" for the purposes of s 154G.
This argument would have been available at the hearing itself. Counsel acknowledges that it had not been presented to me, but submitted that I should reconsider my decision in the light of this new argument.
It is common ground between the parties that under Uniform Civil Procedure Rules 2005 (NSW) r 36.16.3(a), the Court has power to set aside or vary the possession order that I made. And that is what counsel for Ms Parslow asks me to do, substituting a period of 90 days for the 28 days which I ordered on 7 June.
I do not doubt that I have power to reconsider my decision on this point, but it is a power to be exercised sparingly, for obvious reasons. In particular it will rarely be appropriate to permit reargument simply because one party has failed to present an argument as fully, or as clearly, as hindsight may reveal: Waterhouse v Independent Commissioner Against Corruption (No 2) [2015] NSWCA 362 at [16].
Bearing in mind that I am dealing not with substantive rights but simply with extension of a period of time to vacate, I am not persuaded that I should reopen my consideration of the point. In any event, it seems to me that counsel's argument is unsound.
Section 137 of the Act means what it says. I do not see how I could give effect to a longer period of time in another section of the Act as an "exceptional circumstance" for the purpose of s 154G without disobeying s 137.
Accordingly, even if I thought it appropriate to entertain counsel's argument, it would make no difference to the result and I would decline to alter the order for possession which I have made.
For these reasons, the orders of the Court are:
Order that the defendant's Notice of Motion filed 19 June 2018 be dismissed.
Order that the defendant pay the plaintiff's costs of the motion.
[2]
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Decision last updated: 28 June 2018