Yee v Vu

1 HIS HONOUR: These proceedings were commenced in the Court by a summons filed 20 December 2002 pursuant to leave granted by Barr J. The summons was accompanied by an affidavit of Ne Yee, whom I shall refer to as the appellant. It will be necessary to record formally some of the curial history since 20 December, but I should first indicate that this morning when the matter was listed at 10 am Ms Yee was present in court, although, as the record of proceedings will show, she declined to respond to any questions which I directed to her. 2 She claimed that she was ill, and indeed that was the only communication from her, apart from the production of two documents, which I have described and had noted in the transcript. 3 I also repeat my observations that Ms Yee coughed on multiple occasions, producing thereby an emission from her person. As the record will show, I adjourned at about quarter to eleven and indicated to her that I would resume at 11.30, thus giving her a chance to compose herself. I expressly told her that if she did not return at 11.30 I proposed nevertheless to proceed with the matter. 4 It is now about twenty four minutes to twelve and Ms Yee does not appear. I should record that I have been informed by a sheriff's officer that Ms Yee has been reported as attending the Registry and demanding that an ambulance be summoned for her. Whether this occurred or not I do not know. 5 The reason that I propose to proceed is that the present proceedings are in any event hopeless and I should record my reasons for reaching that conclusion. 6 There has been no formal tendering of evidence before the Court. But for present purposes I advert to the affidavit filed on 20 December 2002 already referred to and certain material appearing in and annexed to the affidavit of Van Tuong Vu, whom I shall refer to as the respondent. That affidavit was filed in court on 5 February 2003. 7 Mr Benn, Solicitor, has appeared today for the respondent, as he has on previous occasions. He has, in accordance with the rules, filed an appropriate notice of appearance. 8 This litigation has its origins in proceedings before the Consumer Trader and Tenancy Tribunal. 9 I have reached this point and it should be noted that Ms Yee has returned to the courtroom. It is now twenty to twelve. 10 The affidavit filed by Ms Yee claims, among other things, that she had a verbal lease agreement for four years to lease premises at 3/53 Hughes Street, Cabramatta from a Mr and Mrs Chan. It is of significance to note that the appellant apparently produced evidence before O'Keefe J on Friday 10 January 2003, which was to the effect that she went into occupation of the premises in about February 2002, and at the time agreed to pay rental at the rate of $150 per week to them. 11 It is not essential for me to find whether or not there was a lease for a term such as four years, although on balance, if it were necessary, I would be unpersuaded that this was so. 12 Mr and Mrs Chan sold the premises to the respondent. The conveyance was obviously completed whilst the appellant remained in occupation of the premises. 13 I have interrupted the proceedings as Ms Yee has come forward of the Bar Table and the sheriff's officer is directing her to resume her seat. 14 I resume my observations, which are extracted from a deed annexed to Mr Vu's affidavit, which was apparently entered into on 3 July 2002 between Mr and Mrs Chan and the respondent. Of interest, are the recitals that the purchaser, that is to say Mr Vu, is - "aware that the current tenant is occupying the property under private agreement with current owner and she has not paid any rents for the last four months, "and further that Mr Vu as purchaser" is aware that the sale of the property is subject to the unauthorised occupancy by that person." 15 As later events reveal, applications were made to the Tribunal, which I have mentioned, on various occasions. The first formal document that is before the Court by way of annexure to Mr Vu's affidavit is a certified copy of an order made pursuant to s 51 of the relevant Statute on 3 December 2002. That order requires the appellant to pay the respondent the sum of $2,357.30 for rent owed under the terms of the Residential Tenancy Agreement for the period from 15 August 2002 to 3 December 2002 immediately. 16 It is against an order made on that day, which I presume to be the one that I have just recited, that the appeal instituted by the summons of 20 December 2002 is directed. Indeed, the document has filled in on its face that it is an appeal against the decision of the Residential Tribunal, Sydney made on 3 December 2002. 17 As I shall observe from extracts of judgments made by other judges who have had to deal with interlocutory matters, it does seem that the real thrust of the appellant's desire for relief in this Court is directed towards her continued occupation of the property. The observation I make is simply that there does not appear to be any order to vacate the premises or for possession in favour of the respondent made on 3 December 2002. 18 In response to my enquiry of Mr Benn, however, I have been shown a document, apparently emanating from the Tribunal, which does refer to an order for possession on or about 8 January 2003. Mr Benn indicated that he understood that the ordinary routine would be for the file to be produced to the Court at the behest of the appellant, but no such file has been forwarded. 19 I am prepared for present purposes to accept that such an order does exist and for that matter I will make reference to matters as if the current proceedings sought in some way to challenge that order. As I have already indicated, that challenge is doomed to fail. 20 I am now being interrupted by Mr Benn. (Counsel addressed) 21 As has been recorded, Mr Benn has pointed out there were some other proceedings before the Tribunal dismissed on 3 December. These proceedings were instituted apparently by the appellant. The nature of them is not disclosed, although I might infer it has something to do with the references in the appellant's affidavit to her claim that she paid some money to repair the premises and the implication that she wished to remain. 22 I should remark in passing that one of the complaints in her affidavit is that the defendant was represented by an agent at the hearing but she was not. One of the documents evidencing orders made by the Tribunal shows that there was on October 22 at some pre-trial direction-type hearing an order made permitting either party to be represented by an agent or a fair rents advocate. There is specific provision in the Statute excluding legal representation but allowing for representation of the type that I have mentioned. 23 Be that as it may, the appellant returned to the Court on 10 January, where she saw O'Keefe J. His judgment is with the papers. It sets out some matters of background, including the circumstance that there was some challenge to what he described as "proceedings before the Tribunal". It is understandable that his Honour could only deal with the matter in the vaguest of terms. However, his Honour was persuaded to make on that day, that is to say 10 January, certain injunctive orders which in effect secured the appellant in the interim possession of the premises. 24 However, this was conditional upon the appellant paying into court the amount of $3,000 by Wednesday 15 January 2003 and thereafter an amount of $150 per week to abide the outcome of the proceedings. No such payments have been made. 25 In the meantime, it does appear that Mr Vu attempted to take possession of the premises. This provoked a return to the Court by the appellant and the matter came before Adams J. He did not hear from the respondent, but in relation to the complaints of the appellant he made certain orders, including what I have described as a type of mandatory injunctive order that a key, apparently in the possession of Mr Vu, the respondent, be handed to the officer in charge of the police station at Cabramatta, to be retained until further order of the Court. 26 His Honour also appears to have observed that he noted that the appellant would pay the amount of $150 into the Court on Friday 24 January and each successive Friday until the proceedings are completed. No such payments have been made. He adjourned the matter to 5 February. There was some alteration in the dates which had to do, I gather from the file, with a number of ceremonial sittings that occurred during the first week of term. Be that as it may, there was a mention before James J on 4 February, but nothing of significance occurred, and then the appellant appeared before Dunford J on 6 February 2003. 27 I have in the course of exchange - and I use that word somewhat loosely so far as the appellant is concerned as she has not responded to my enquiries - earlier made reference to his Honour's judgment. On that occasion the appellant sought an adjournment. The lengthy adjournment sought by her was not granted, but it was adjourned until today, when the matter was listed for hearing. His Honour did not require payment of the $3,000 in the meantime, and he did not make his adjournment conditional on payment of weekly instalments, but he did observe that "if the weekly instalments have not been paid by the adjourned date it may throw some light on the good faith of the plaintiff". 28 The matter came before me this morning and I have recorded the failure of the appellant to respond to my enquiries and the conclusion which I reached that this was not a case which should be further adjourned. 29 The jurisdiction of this Court to deal with matters which are the subject of the jurisdiction of the Consumer Trader and Tenancy Tribunal is extremely limited. Under section 67 of the relevant Statute if in respect of proceedings a Tribunal decides a question in respect to a matter of law a party may appeal to this Court. Neither in respect of the proceedings on 3 December nor any proceedings in January of this year has there been identified to the Court any error of law which would be within jurisdiction. So far as any appeal under s 67 is concerned, the proceedings before this Court are doomed to failure. 30 Section 65 of the Statute provides a possible alternative by way of exclusion. It provides that except as provided in the section, the Court has no jurisdiction to grant relief or remedy by way of judgment in the nature of prohibition, mandamus, certiorari or other relief or by declaratory judgment or by injunction. The exceptions are: applications made to this Court on the basis that either the Tribunal had no jurisdiction or in relation to the hearing or determination a party has been denied procedural fairness. 31 There is nothing before this Court to indicate that the Tribunal was not properly seized of any matter that it dealt with, either in December or in January. The jurisdiction of that Tribunal in relation to residential tenancies is express and insofar as orders were made for the payment of money, such orders are expressly authorised by s 51 of the Statute. 32 The only other possible avenue by which any matter might be brought to this Court is to demonstrate that there has been a denial of procedural fairness. As I have observed, in her affidavit the appellant has complained that at the hearing on 3 December 2002 the defendant was represented by an agent, but she was not represented. On 22 October 2002 the hearing before the Tribunal was adjourned and certain directions were given, which included that the landlord may have a real estate agent and the tenant may have a real estate agent or tenant's advocate as representatives. 33 I should mention in passing that an order was made on that occasion that the appellant should pay $150 per week towards rent and arrears into the respondent's bank account, but no such payments have been made. Orders that similar amounts be paid either into the Tribunal or into this Court have not been complied with by the appellant, the only explanation being that she feared that such money would find its way into the hands of Mr Vu in any event. 34 She does complain that as long ago as September the respondent had attempted to take possession of the premises, but this does not seem to me to relate to denial of procedural fairness in the proceedings before the Tribunal. 35 There is simply nothing before this Court to sustain any assertion of denial of procedural fairness and it follows that any application to this Court, whether relating to proceedings on 3 December or, notionally by way of amendment, to proceedings in early January, is also doomed to fail. It therefore follows that to further adjourn this matter would be a futility and, for the reasons which I have given, I propose to dismiss the summons and I so order. (Mr Benn addressed on costs) 36 The orders I therefore make are these: 1. The summons filed on 20 December 2002 is dismissed. 2. I discharge the order made by Adams J on 15 January 2003 in relation to the delivering up of the key to the officer in charge of the police station at Cabramatta. 3. I order the appellant to pay one-half of the respondent's costs of the summons. **********

After oral delivery of the foregoing and adjournment of the Court, information was received that an ambulance had attended but no treatment administered to the appellant. If precise detail is required ambulance officers and their records might be consulted.

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