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[2026] NSWSC 823
Supreme Court of NSW
2026-07-03
Emmett J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Williams v Millar [2026] NSWSC 823
Hearing dates: 03 July 2026
Date of orders: 03 July 2026
Decision date: 03 July 2026
Jurisdiction: Common Law
Before: Emmett J
Decision: (1) Dismiss the notice of motion.
(2) Between the plaintiff and the first defendant, costs are reserved.
(3) The plaintiff is to pay the second and fourth defendants’ costs as agreed or assessed on the ordinary basis.
Catchwords: CIVIL PROCEDURE — Interlocutory applications — claim for urgent relief in respect of asserted subtenancy following surrender of lease and vacation of premises by head tenant — where plaintiff unsuccessfully sought orders granting access to premises before the NSW Civil and Administrative Tribunal — where Tribunal proceedings continuing — where plaintiff now approaches Supreme Court seeking the same or similar relief in its original jurisdiction — whether evidence discloses a prima facie case against the owners or the agent that plaintiff has right to possession of or access to property — whether plaintiff’s claim constitutes an abuse of process — whether damages may be an adequate remedy — whether balance of convenience favours grant of interlocutory relief
CIVIL PROCEDURE — Interlocutory applications — where plaintiff unsuccessfully sought orders for return of chattels and associated interlocutory relief before the NSW Civil and Administrative Tribunal — where total value of plaintiff’s claim is less than limit of Local Court’s Small Claims Decision — where plaintiff did not pursue rights to similar relief in Tribunal, Local Court or District Court — whether plaintiff’s claim constitutes an abuse of process — whether interlocutory relief should be granted — whether any prima facie case of threatened breach of confidence in respect of data on electronic devices — whether damages may be an adequate remedy — whether balance of convenience favours grant of interlocutory relief
Legislation Cited: Civil Procedure Act 2005 (NSW), s 93
Conveyancing Act 1919 (NSW), s 122
Local Court Act 2007 (NSW), s 30
Residential Tenancies Act 2010 (NSW), ss 77, 81, 95, 120, 125, 187, 219
Uncollected Goods Act 1995 (NSW), s 31B
Category: Procedural rulings
Parties: Michael Williams (Plaintiff) (Self-represented)
Kathleen Millar (First Defendant)
David Goldman (Second Defendant)
Jane Stephen (Third Defendant) (No Appearance)
BresicWhitney Property Management Pty Ltd (Fourth Defendant)
Representation: Counsel:
L McIntyre (First Defendant)
B Shaw (Second and Fourth Defendants)
Solicitors:
Cadre Moss (First Defendant)
Ironbridge Legal (Second to Fourth Defendants)
File Number(s): 2026/00268107
Publication restriction: Nil
The Court has before it an application for interlocutory relief made on an urgent basis.
The plaintiff has brought the case based on a notice of motion with 49 prayers for relief, an affidavit of 259 paragraphs which together with the annexures, runs to 348 pages, and a statement of claim of 384 paragraphs, 102 pages including schedules.
The plaintiff claims he had a subtenancy with the first defendant, his ex-romantic partner. He says he moved into the premises on 9 April 2026.
The WhatsApp exchange the plaintiff relies upon as providing the written record of his tenancy is dated 5 May 2026 and included the plaintiff saying:
You can live here w/ me if you buy groceries, supplies & household items
and
I want us to live together. Contribute to the household and you can stay here as long as you want. You pay for dinner, drinks & groceries all the time. I will get you your own keys[.]
Since the plaintiff says he had already moved in a month earlier, this exchange does not appear, at least on its face, to manifest an intention to create contractual relations. Those messages are also not indicative of someone who had already granted a tenancy for value one month earlier, as the plaintiff contends. It is not necessary to rule on that at this stage, but when it comes to balance of convenience it is appropriate to take into account the strength of any prima facie case the plaintiff may have. I am not persuaded that any prima facie case for a contractually binding tenancy or other right to occupy (whether under the Resid**ential Tenancies Act 2010 (NSW) or otherwise) is strong.
By 5 June 2026, the plaintiff and the first defendant were in dispute. On that date, they were both arrested by police and charged with different offences. AVOs were made against both parties for the protection of the other, on different terms. The AVO in favour of the plaintiff prevented contact by the first defendant with the plaintiff. The AVO in favour of first defendant did not have an equivalent prohibition.
On 6 June 2026, the plaintiff says the first defendant told him she needed the keys because her parents were coming to visit. The plaintiff says he gave them to her because he trusted her as his partner. He also says he was afraid of her. While I recognise it is possible for all of this to be true at the same time, it is noteworthy that on 7 June 2026 the plaintiff sent messages indicating he regarded himself as entitled to exclude the first defendant from the premises and required the first defendant to obtain alternative accommodation.
The plaintiff says he was given “supervised access” on 7 June but has not had access since that time. The plaintiff says he has been excluded from the apartment since that date.
The plaintiff commenced proceedings in the NSW Civil and Administrative Tribunal against the first defendant on 10 June 2026 in relation to what he asserted was a subtenancy.
After that, the first defendant surrendered her lease to the owners. By 14 June 2026, the lease had been surrendered and the premises vacated.
On 14 June 2026, the plaintiff sent an email to the fourth defendant, who is the owner’s agent, BresicWhitney, which included the following:
The property has now been vacated, and my brother Jack Millar will return the keys to you tomorrow.
…
I had to break the lease early as I was a victim of domestic violence and that is unfortunately why I needed to leave Sydney as it was not safe for me to stay there I’m sorry to say.
I’m absolutely heartbroken, but I know that someone else will find a life in the beautiful apartment.
On 16 June 2026, a property inspection report was obtained for the benefit of the owners, the owners being the second and third defendants before me. The report records vacant premises. In the report there are photographs showing some chattels, two suitcases and certain other goods, which appear collected together in what the plaintiff says is a common area in the building that is not part of the premises.
By 22 June 2026, the premises had been listed for rent, apparently vacant and unfurnished, by the fourth defendant, BresicWhitney.
On the plaintiff’s case, the second and third defendants leased the property to the first defendant. The plaintiff does not allege any contractual or other direct relationship between him and the owners or their agent.
The third defendant had not been served and was not before me but the second and fourth defendants appeared before me, represented by counsel.
The plaintiff does not suggest that the second, third or fourth defendants had any notice of his asserted interest earlier than 24 June 2026. I will return to this.
The plaintiff says his chattels were in the apartment when he was excluded, including electronic devices, medication and passports. I will return to the chattels. The plaintiff appeared to accept before me that his chattels are no longer located at the premises, and the photographs in evidence clearly demonstrate that the premises are in fact vacant.
187 Orders that may be made by Tribunal
(1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders—
…
(e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,
81 Circumstances of termination of residential tenancies
…
(4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs—
(a) a person having superior title (such as a head landlord) to that of the landlord becomes entitled to possession of the residential premises,
The Tribunal observed that while the plaintiff may have a claim for damages, that did not require urgent relief.
In relation to the claim against the owners and BresicWhitney (ie, the second to fourth defendants before me), the Tribunal noted its power to order that a former tenant be given access to premises to recover goods (see s 187(1)(j)) but did not accept that this empowered the Tribunal to make an order on the application of a subtenant against a head landlord. It is not necessary for me to rule on the correctness of that holding by the Tribunal. On the material before me, the premises themselves are vacant and were vacant at the time of the hearing before the Tribunal.
The Tribunal noted that the plaintiff may have a basis for making an application under the Uncollected Goods Act 1995 (NSW), or bringing an action in bailment in an appropriate forum, but that the interim order sought before the Tribunal was not the way to proceed. In any event, as regards the owners and BresicWhitney, the Tribunal noted that the plaintiff did not before it presently allege that either owner had handled, moved or authorised the movement of any goods.
As regards to the plaintiff’s application against the first defendant in respect of the plaintiff’s goods, the Tribunal said, “the Tribunal is not satisfied that the urgency criteria are met”.
The application in this Court appears to be, at least in part, an attempt to relitigate these issues. In significant respects, the plaintiff’s application to this Court appears to an abuse of process, seeking the same relief at first instance in this Court, and overlapping interlocutory relief, as has been sought in extant proceedings in the Tribunal. That is a significant factor when it comes to the Court’s discretion.
(I would add for completeness that the second and fourth defendants contend that the decision of the Tribunal creates an issue estoppel. I am not persuaded that is necessarily the case, but it is not necessary for me to rule on that. I have reached independently the conclusion that, on the facts as alleged by the plaintiff, any subtenancy came to an end by termination of the lease between the owners and the first defendant.)
The applicant says he is planning to take steps to bring an appeal before the Tribunal’s Appeal Panel. That reinforces the concern that the current proceedings may be an abuse of process. I take this into account on balance of convenience. While I decline to make a concluded decision that the claim is an abuse of process, that being a matter for a later date, the fact that it is on its face an attempt to relitigate the matter dealt with before the Tribunal is a significant discretionary consideration on the balance of convenience.
The plaintiff accepts that the jurisdiction of the Appeal Panel of the Tribunal is not limited to staying decisions at the first instance. It includes other orders, provided there is an appropriate nexus consistent with the statute between the relief sought in the Appeal Panel and the order at first instance appealed from.
On 16 June 2026, the plaintiff was granted bail by the Local Court subject to conditions. The plaintiff relies on the fact that one of his conditions requires him to reside at the premises.
The Court does not have all of the information that was before the Local Court, but it appears that the bail conditions imposed on 16 June 2026 contemplated the plaintiff living at the premises even though the plaintiff knew that at the time he was locked out.
This is not the forum for assessing whether there has been a breach of bail, but I do not place any weight in the plaintiff’s favour on the fact that his bail conditions require him to reside at the premises.
The evidence does not disclose a prima facie case that the plaintiff has a right to possession of or access to the property in the hands of the owners or otherwise following termination of the lease between the owners and the first defendant.
The plaintiff does not suggest he gave notice to any of the second to fourth defendants of his asserted interest in the premises earlier than 24 June 2026.
On 23 June 2026, the plaintiff emailed the first defendant and her then-solicitor saying it appeared that the property had been vacated, and that the tenancy between the first defendant and the owners had been terminated. On the next day, the defendant emailed BresicWhitney. By that stage, on the evidence before me, vacant possession had been given by the first defendant to the owners. The plaintiff has produced a listing advertisement for the premises for rent with photographs of a vacant apartment, apparently published on 22 June 2026.
By the time the second to fourth defendants had notice of any claim by the plaintiff, on the evidence before me, they had been given vacant possession, in fact and in law, for over a week.
The plaintiff seeks to rely on s 77 which empowers the Tribunal, in certain circumstances, to make an order recognising a person as a tenant.
That matter was raised before the Tribunal, and accordingly the abuse of process or re-litigation concerns arise in relation to that issue.
In any event, s 77 is not engaged on its terms, given the evidence that vacant possession was given to the owners by 14 or 16 June 2026 at the latest.
The plaintiff also relies on s 95 of the Residential Tenancies Act, which empowers the Tribunal to make an order for possession in favour of an occupant of premises after a tenant no longer resides at the premises, but includes a carve out in subs (4):
95 Occupants remaining in residential premises
…
(4) The Tribunal is not to make an order for possession of the residential premises if the tenant is prohibited by an apprehended violence order from having access to the residential premises while the occupant resides in the premises and the occupant has not had a reasonable opportunity to obtain a final apprehended violence order and to apply to the Tribunal for an order under section 79.
In light of the evidence that the second to fourth defendants had no notice of the plaintiff’s position earlier than 24 June 2026 (well after vacant possession had been given), s 95 is not engaged and the plaintiff’s reference to s 95(4) does not assist him.
The plaintiff also contends that there was or may have been a breach of s 120 of the Residential Tenancies Act. Section 120 prohibits a person from entering for the purpose of taking possession before or after the end of a residential tenancy unless the person has a warrant arising out of an order for the possession of the Tribunal or a court, or the tenant has abandoned the premises or given vacant possession of the premises.
On the facts of this case, the first defendant had plainly given vacant possession before the owners took possession.
The submission was made to me that the chattels in the hall on the common property were an indication that the premises were still occupied. I do not accept that. The suggestion that the premises was still occupied is said to be supported by the suspicion the plaintiff says he has because he does not have all the communications between the first defendant and the agent, and the fact that the conditions report included a photograph of the suitcases. I do not accept that any of this provides a prima facie case for breach of s 120.
The plaintiff says further that, but for his exclusion from the property, he was not able to exercise the rights set out under s 125 of the Retail Tenancies Act. The fact is, s 125 is not available to him on its plain terms.
I do not accept that there is any arguable basis on which it can be contended that the allegations against the second to fourth defendants could engage s 219 of the Residential Tenancies Act. There is no objective basis for contending that any of the second to fourth defendants entered into “any contract or other agreement, with the intention, either directly or indirectly, of defeating, evading or preventing the operation of this Act or the regulations”: see s 219(2). None of the other subparagraphs of s 219 could be engaged on the facts of this case.
While there was a separate argument that is advanced by the defendants before me based on the definition of “landlord” and “tenant” in relation to subtenancies in the Act, it is not necessary to decide that matter.
The plaintiff also sought to rely on s 122 of the Conveyancing Act 1919 (NSW).
122 When reversion on a lease is surrendered etc the next estate to be deemed the reversion
When the reversion expectant on a lease of land made either before or after the commencement of this Act is surrendered or merges after the commencement of this Act, the estate which for the time being confers as against the tenant under the lease the next vested right to the land, shall, to the extent and for the purpose of preserving such incidents to, and obligations on, the reversion as, but for the surrender or merger thereof, would have subsisted, be deemed the reversion expectant on the lease.
If the plaintiff has a “next vested right to the land”, then on his case he had the contractual rights of a subtenant for the purposes of the common law or with s 122. If so, he would have a residential tenancy and the Residential Tenancies Act would be engaged.
I am further satisfied so far as the premises are concerned that damages would be an adequate remedy and that the plaintiff can reside elsewhere. The plaintiff has adduced evidence that he earns approximately $20,000 per month and has $50,000 in his bank account. If that is the case, I am comfortably satisfied that the plaintiff is able to obtain alternative accommodation.
The plaintiff says he has an emotional attachment to the property. He also says he thinks it is a good rental price. I am not satisfied on the basis of this that damages would not be an adequate remedy on the facts before me.
When I take all of these matters into account, I am satisfied that even if there were a prima facie case against the second to fourth defendants – and I am not persuaded that there is – I would regard the balance of convenience as favouring the defendants.
I refuse any relief sought in relation to the premises.
The first defendant has plainly vacated the premises. Her tenancy is at an end.
In light of the view I reach vis-à-vis the second to fourth defendants, there is no basis for any urgent relief against the first defendant in respect of the alleged subtenancy. If the plaintiff succeeds in his allegations against the first defendant that a subtenancy was breached, that may sound in damages. This is being ventilated in the Tribunal.
The plaintiff’s evidence included an email exchange with NSW Police on 1 and 2 July 2026 indicating the police officer’s understanding that the plaintiff’s goods were being held in a particular location and giving instructions for their collection. That information appears to have been received from the first defendant’s solicitor. This is consistent with the applicant’s own evidence about his tracking data in respect of his two suitcases that he says were among the chattels.
The Court received into evidence a photograph of the contents of a storage unit. That photograph appears to show the same chattels that are photographed in the conditions report as being outside what I am told is the front door of the premises.
The plaintiff says that from the photograph, three items are missing: two computer monitors (one of which has a broken screen), and a heated towel rail.
On the basis of information provided by the plaintiff which the defendants accepted the Court should receive from the Bar Table, the plaintiff’s laptop last notified its location using data tracking technology in a way consistent with a laptop at the time being located at first defendant’s solicitor’s office in the CBD. The plaintiff says that this is consistent with the laptop being located in one his suitcases and having since been moved to the storage unit. He accepts that the absence of notification of movement would be consistent with the laptop having run out of battery or not having been revived at any time from a dormant state since it was located in the CBD.
The plaintiff relies on emails that he sent to the first defendant’s solicitor 25 June 2026 and 29 June 2026. The plaintiff says the apparent movement of the goods after receiving these emails indicates bad faith. I am not prepared at this stage in these proceedings to make a finding of bad faith. If the further movement involved additional acts of conversion or if a detinue continued, that may sound in damages or other relief. While I take into account the plaintiff’s allegations in relation to this, I need to weigh it up alongside all the other considerations on the balance of convenience.
The plaintiff says that, as at 5 June 2026, he had goods at the premises, including:
passports and identity documents (the plaintiff says that he has two Australian and two US passports but he has retained in his possession only one of the two US passports);
computers and storage devices containing data, which he described as irreplaceable (a matter to which I will return);
medication**;**
other electronics (monitors, scanner, keyboard, mouse and related equipment); and
the two suitcases, clothing, toiletries and other personal effects.
**********
Williams
Millar
The plaintiff says he could not have obtained all the relief he seeks in this Court from the Appeal Panel. That is not the issue. The issue is whether it is an abuse of process to seek the same and substantially overlapping relief in circumstances where the Tribunal proceedings are ongoing.
The plaintiff says he commenced proceedings in this Court as a matter of “judicial economy” because of other relief he sought in this Court which he says he could not obtain in another Court. I am not persuaded adequate relief was not available, and identifying additional relief available only in this Court – especially if such relief is not necessary to deal with the real issues between the parties – does not prevent an argument that, so far as the application in this Court is an attempt to relitigate matters decided in the Tribunal, it is an abuse of process.
Ultimately, it is not necessary to rule that this application is an abuse of process. The availability of adequate relief in the Tribunal, where the applicant is pursuing litigation at the same time as these proceedings, is a significant discretionary consideration in any event.
Similarly, when I come to the claims in relation to chattels, the availability of relief under s 31B of the Uncollected Goods Act, or under s 93 of the Civil Procedure Act 2005 (NSW) in the Local Court or District Court (or s 30 of the Local Court Act 2007 (NSW)) is a relevant discretionary factor.
On the plaintiff’s evidence, the two suitcases contain his “clothing and daily essentials, [his] work devices and business data, [his] passport and identity documents, and [his] medication”.
The most significant hurdle for the plaintiff in the application before this Court is that the Tribunal considered the plaintiff’s claim against the first defendant in relation to the goods and held that the urgency criteria were not met. The plaintiff contended in the Tribunal that the removal of his goods and the failure to deliver them was a breach of the asserted residential tenancy agreement between him and the first defendant. The Tribunal has power to order a party to a residential tenancy agreement to perform such work or take such other steps as the order specifies to remedy a breach of the agreement: see s 187(1)(e). The plaintiff expressly asked the Tribunal to exercise this power in relation to his chattels.
The Tribunal did not hold that the plaintiff was left to the Uncollected Goods Act or claims in bailment as between the plaintiff and the first defendant. Rather, the Tribunal held that the urgency criteria was not met.
The plaintiff’s decision to approach this Court in its original jurisdiction, separately from an appeal in the Tribunal, again may be an abuse of process. While I do not make a concluded ruling on that, I regard it as a significant discretionary factor that the plaintiff has brought an application about this in the matter before the Tribunal, the relief has been refused and the applicant has indicated that he is pursuing his appeal rights in the Tribunal.
Furthermore, if there were any doubt about the Tribunal’s jurisdiction, it is not obvious why the plaintiff has not brought proceedings in the Tribunal under s 31B of the Uncollected Goods Act (or in the District Court under s 31B to the extent that this matter involves federal jurisdiction), on the basis that these are uncollected goods, or in the Local Court, to ask it to exercise its powers in s 30 of the Local Court Act and s 93 of the Civil Procedure Act.
The evidence suggests that the total value of all the chattels is less than the limit of the Local Court’s Small Claims Division.
I recognise that the Local Court does not have the same asset preservation powers as this Court, but the District Court has significant asset preservation powers as does the Tribunal.
These are significant discretionary considerations.
So far as the replaceable goods are concerned (including some electronics, suitcases, clothing and so forth) the evidence does not establish that damages would not be an adequate remedy, nor is there any special urgency to the relief sought. I also take that view about the two screens and the heated towel rack which are the only goods the plaintiff says do not appear to be in the storage unit.
The plaintiff says he needs his medication now and cannot safely go without it.
He accepts that he has obtained part of his medication but says that some of it can only be obtained from a psychiatrist. If he needs it urgently, there is no explanation for why the medication cannot be obtained by attending a hospital emergency department. I have no evidence from which I can conclude that the need for the medication is so urgent that it warrants orders of this Court.
Given his evidence that he earns a substantial income and has $50,000 in a bank account, there is no reason to think he cannot take appropriate steps to obtain medication. In any event, the availability of the chattels in the storage unit may resolve this issue.
As for the laptop and storage devices, the applicant says he needs them back so he can “resume [his] work, meet [his] clients’ needs and reduce the loss [he] suffer[s] each day without them”. That loss is not explained or particularised. There is no evidence of particular data that is only stored on those devices, and not backed up elsewhere, and necessary for the applicant’s business. Given the applicant’s IT experience (the applicant provided a CV amongst in his evidence), it is not obvious why damages would not be an adequate remedy.
So far as the claim for threatened breach of confidence is concerned, the plaintiff’s evidence does not identify the nature of the confidential data, why it is said to be confidential (apart from describing it as “sensitive client information”) or what prejudice may flow from its disclosure. More significantly for present purposes, the plaintiff says the devices on which data was stored had “significant and almost impossible-to-bypass security features”. There is no prima facie case for concluding that there is a presently threatened breach of confidence.
In any event, even assuming that damages may not be an adequate remedy, I need to take into account all the other considerations in the balance of convenience, as well as the paucity of evidence about why his need for the devices is urgent or requires the intervention of this Court.
The plaintiff says he wants to access his passport so that he can travel to Thailand and then Italy next week. However, the plaintiff has said that he has one of his US passports. I am not persuaded that any urgent orders are warranted in this regard.
On the undertaking as to damages, the plaintiff says he earns approximately $20,000 per month and has $50,000 in his bank account. That is unverified and no security was offered. However, I do not ignore that evidence altogether. Ultimately, while I accept that there is some evidence at least in affidavit form of the plaintiff’s ability to meet some damages order should it be made, I cannot confidently conclude that the plaintiff will be able to meet any obligation in respect of an undertaking as to damages.
When I take all of these matters into account, I am satisfied that the balance of convenience is against granting the plaintiff relief in respect of the chattels.
As for costs, I declined to make a costs order as between the plaintiff and the first defendant, considering that costs should be reserved between those two parties. I was satisfied that it was appropriate to order the plaintiff to pay the second and fourth defendant’s costs. While the second and fourth defendants sought their costs on an indemnity basis, I was not persuaded that this application needed to be dealt with in the duty list.
Accordingly, I made the following orders:
Dismiss the notice of motion.
Reserve costs as between the plaintiff and the first defendant.
The plaintiff is to pay the second and fourth defendants’ costs as agreed or assessed on the ordinary basis.
Note that order 3 is not intended to preclude an application by the second or fourth defendants for indemnity costs.