[2017] NSWSC 1294

Michelle Ann Ehrenfeld & Gabriel Ehrenfeld v Nun Sun

See [15]

Catchwords

EQUITY – application by plaintiffs to extend stay of NCAT orders that terminated lease between plaintiffs and defendant for unpaid rent – whether stay should be extended given the previous extensions of time and conduct of the plaintiffs in this Court, their failure to seek expedition, and the inherent weakness of the procedural unfairness claim in the substantive matter, i.e. the setting aside of the NCAT orders

Cases cited

Craig v South Australia (1995) HCA 58; (1995) CLR 163
State Rail Authority of NSW v Codelfa Construction Pty Ltd[1982] HCA 58

Legislation cited

Residential Tenancies Act 2010 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Supreme Court Act 1970 (NSW)

Judgment

[1]
This is a Duty List matter and I shall endeavour to state briefly my reasons for refusing the plaintiffs’ notice of motion for a stay today.
[2]
The first named plaintiff is a tenant of a property in Dover Heights, and her husband, the second named plaintiff, also resides there. On 26 April this year, the New South Wales Civil and Administrative Tribunal “NCAT” made an order terminating the lease between the defendant landlord and the first named plaintiff on the basis of the failure of the first named plaintiff to pay rent on numerous occasions and ordering the first named plaintiff to vacate the premises and pay the outstanding rent. By the time the matter was before NCAT rent in excess of $8,000 owed by Mrs Ehrenfeld. The next day the plaintiffs commenced proceedings in this Court seeking to impugn NCAT’s determination.
[3]
The history of the matter is referred to in the judgment of Slattery J on 9 May 2017. On that date his Honour extended an earlier stay of the NCAT orders that he had granted until 30 June 2017.
[4]
The second of his Honour’s orders was in the following terms:
[5]
At the request of the plaintiffs, his Honour adjourned the matter to the Registrar’s List on 15 May. I will say more about what his Honour said in the course of reaching the orders to which I have just referred.
[6]
The matter came before Kunc J of this Court on 6 June 2017 and, on that occasion, following the suggestions by his Honour, the stay that Slattery J had ordered was extended until today. The landlord today does not agree to any further extension of the stay.
[7]
Mr Ehrenfeld yesterday sought leave, and was granted leave, to appear on behalf of himself and his wife on this application. He is not legally qualified. Ms Wen, who is employed by the second defendant, the managing agent retained by the landlord, sought, and was granted leave, to appear for the landlord. She is also not legally qualified.
[8]
By an affidavit of Mr Ehrenfeld dated 18 July 2017, the plaintiffs now concede that the longest period which they could remain in the property after notice would be 90 days. This, I think, is based on the fact that notice can be given by a landlord where the lease is a holding over (see s 85 of the Residential Tenancies Act 2010 (NSW)).
[9]
The plaintiffs previously sought a stay pending the outcome of their claim that the NCAT members’ determination on 26 April was flawed by a failure to accord natural justice to the plaintiffs, relying for that contention on Craig v South Australia (1995) HCA 58; (1995) CLR 163; State Rail Authority of NSW v Codelfa Construction Pty Ltd [1982] HCA 58; s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 69 of the Supreme Court Act 1970 (NSW).
[10]
I have examined the orders given by Slattery J and the transcript of proceedings before his Honour on 9 May 2017. I note that Mr Ehrenfeld told Slattery J on that occasion that the plaintiffs would “likely” wish to continue with their claim that NCAT’s determination was invalid, notwithstanding his Honour’s suggestion that there would be little utility in such a course. His Honour told Mr Ehrenfeld that he could take that up with the Registrar.
[11]
His Honour also said this at T5.6 – T5.20:
[12]
Subsequently, his Honour pointed out, in response to something Mr Ehrenfeld said: “I just do not see the point of that because you will have given up possession anyway.”
[13]
Mr Ehrenfeld told me yesterday that Justice Slattery had made an order for expedition, or indicated that the matter should be expedited. Having examined the transcript, I reject that assertion and Mr Ehrenfeld today resiled from any such contention. What his Honour did on 9 May 2017 was to inform Mr Ehrenfeld, and hence Mrs Ehrenfeld through him, that if they wanted to do something about the orders that had been made by NCAT on 26 April 2017, notwithstanding his Honour’s view that such an application had little point, they would have to do so before the expiry of the time to which his Honour had extended the injunction i.e. 30 June 2017.
[14]
The plaintiffs did not take any steps to obtain an expedited hearing and to have their substantive case heard at any time before 30 June 2017. Mr Ehrenfeld accepts that he did not make any application or take any steps to have the matter expedited, although his explanation is that was because he assumed that, since the matter was before the Registrar, the Court would take steps to have the matter listed expeditiously and, inferentially, before 30 June.
[15]
The question before me today is whether this Court should grant any further stay of the operation of the NCAT orders, given Slattery J’s orders on 9 May, and the agreement of the parties to extend the time from 30 June until today, and also having regard to what was said by Mr Ehrenfeld to Justice Kunc on 6 June. In my view the Court should not extend the stay for the following reasons:
1. (1)
  The plaintiffs have not obtained an expedited hearing to enable their substantive claims to be heard before the expiry of the stay, on 30 June and, by extension, until today.
2. (2)
  Before Kunc J on 6 June Mr Ehrenfeld said on page T3 line 40, that he accepted that the lease runs until 19 July, but then said, the lease allows for periodic occupation thereafter. There was the following exchange between the second plaintiff and his Honour at T5, lines 27 to 40:
3. (3)
  The claim for substantive relief, i.e. setting aside the NCAT orders, is predicated on a version of events given by Mr Ehrenfeld in his affidavit concerning what occurred at NCAT, which is quite different to the events recorded in the learned member’s recitation of the facts: see Notice of Order annexed to the affidavit of Mrs Ehrenfeld of 27 April 2017. Although Mr Ehrenfeld has been made aware that sound recording, I assume in the form of cassettes, is available, so that he can obtain a record of what occurred before NCAT, he has not obtained a copy of that sound recording and produced it, or a transcription of it, to this Court. It is possible that the plaintiffs’ version will ultimately be accepted, but there is real doubt as to the veracity of his account, with potential significant impact upon his claim to a lack of procedural fairness.
4. (4)
  Even on the plaintiffs’ version, in his affidavit and his wife’s corroborative affidavit, I do not think it is at all clear that there has been any procedural unfairness given that:
5. (5)
  The practical side of the matter is that, as a result of the application for stay, the plaintiffs have been able to reside in the property for approximately 83 days, inclusive of 27 April and beyond, not far short of the 90 days’ notice to which they would be entitled by reason of s 85 of the Residential Tenancies Act.
6. (6)
  The lease was, in fact, a one-year lease until today, 19 July 2017. This is a point that was emphasised by Kunc J on 6 June and which, as I have indicated, Mr Ehrenfeld appeared to accept on that date.
7. (7)
  Today, Mr Ehrenfeld sought to persuade me that the lease, because it refers to periodic tenancy, would become a periodic tenancy today, for which 90 days’ notice of termination would be required. I think that is met by the fact that, firstly, the lease is expressed to be a lease for one year, ending 19 July 2017, i.e. today, and that the landlord has indicated on numerous occasions that it wants the plaintiffs out of the property and it has done so by notices, some of which preceded the hearing before NCAT, but one of which (Exhibit 3) was given on the day of the NCAT’s determination. There is a further notice which was given by the landlord on 2 June 2017. These notices have not been able to be put into effect because of the injunctive relief that the plaintiffs obtained from this Court lasting up until today, but, if the stay is not continued, the landlord may well be able to rely on them.
8. (8)
  When all these matters are taken into account, I am not persuaded that there is sufficient basis for any further extension of time for the stay of the NCAT orders. I accept that it may well be that, as Mr Ehrenfeld contended, the consequence of that conclusion will be that that, insofar as the summons contains implicitly an application for a determination as to whether or not the NCAT orders should be set aside, any determination pursuant to it will have little or no practical effect. The consequence of my refusal to extend the time would then be that the summons should be dismissed.
[16]
It follows that the plaintiffs’ application to extend the stay is refused and they must leave the premises immediately, and I have in mind within the next seven days, because NCAT’s orders must now take effect. If the plaintiffs need additional time to secure the services of a removalist and find alternative accommodation that will need to be negotiated with the landlord or her agent, but the plaintiffs have long been on notice that the lease would be coming to an end today.