Young v Roads and Maritime Services

1. [1]

   SIMPSON JA: The dispute the subject of the present application has a long and tortured history. It concerns the lease of a mooring near Mosman in Sydney, on which the applicant, Ms Young, has for many years moored her houseboat. The respondent, Roads and Maritime Services (“RMS”) is the owner and lessor of the mooring. The history of the litigation resulting from the dispute is largely (although not fully) recorded in a decision of this Court given on 1 September 2016: Young v Roads and Maritime Services [2016] NSWCA 238 (“the 2016 judgment”).

2. [2]

   The present application was made by notice of motion filed by Ms Young on 23 January 2018, the claims in which are set out at [12] below.

3. [3]

   Some appreciation of the history of the proceedings is necessary in order to understand the orders claimed in the notice of motion.

Background and history

1. [4]

   There was an earlier round of litigation between these parties which was finalised by a Deed of Release entered on 18 September 2009. A second round of litigation commenced in 2013, with RMS taking proceedings against Ms Young in the Local Court claiming unpaid rent on the mooring. Ms Young filed a defence and a cross-claim, in which she alleged misconduct on the part of RMS and the State of New South Wales. On 17 December 2015 (after many more skirmishes, outlined in the 2016 judgment) Button J ordered that the Local Court proceedings be transferred to the Supreme Court.

2. [5]

   However, on 22 April 2016 Button J struck out Ms Young’s then current defence and cross-claim. Ms Young unsuccessfully sought leave to appeal to this Court against (inter alia) that order. That application was dismissed by the 2016 judgment.

3. [6]

   On 17 January 2017 consent orders were made in this Court, the details of which do not need to be outlined. What is presently material is that RMS undertook not to seek judgment against Ms Young pending her then proposed application for leave to appeal to the High Court of Australia, and not to do so within a period of 28 days after dismissal of the application (if that were the result). Ms Young did seek, and, on 11 October 2017, was refused, special leave to appeal: Young v Roads and Maritime Services [2017] HCASL 243. Among the orders against which Ms Young sought leave to appeal was the order of this Court in the 2016 judgment dismissing the application to appeal against the order of Button J striking out Ms Young’s pleadings. Accordingly, after the decision of the High Court, there was no operative defence to RMS’s claim, and no extant cross-claim. Ms Young has not, since the High Court decision, sought to file any amended defence or cross-claim.

4. [7]

   The undertaking given by RMS expired 28 days after the order of the High Court refusing special leave, that is on 8 November 2017.

5. [8]

   Prior to the expiration of RMS’s undertaking, on 20 October 2017, Ms Young wrote to the solicitors for RMS. She said:

6. [9]

   On 9 November 2017, the day following the expiration of RMS’s undertaking, by notice of motion filed in the Supreme Court, RMS applied for default judgment. On 13 November default judgment was entered pursuant to which Ms Young was ordered to pay to RMS $8,661.14 (for unpaid rent). On 16 November 2017 Ms Young filed a notice of motion seeking a stay of the default judgment. That notice of motion was dismissed by Schmidt J on 23 November 2017. On 6 December 2017 Ms Young filed a notice of motion in the Supreme Court seeking, inter alia, an order setting aside the default judgment. That notice of motion came before Latham J on 15 December 2017. Her Honour dismissed the application: Roads and Maritime Services v Maureen Mary Young (NSW Supreme Court, 15 December 2017, unreported).

7. [10]

   On 9 January 2018 RMS issued a Notice of Termination of Lease to Ms Young.

8. [11]

   On 23 January 2018, Ms Young filed a summons in this Court, seeking leave to appeal against the decision of Latham J. She also seeks:

9. [12]

   On the same day (23 January 2018), Ms Young filed a notice of motion. That notice of motion is the subject of this judgment. The orders she seeks are stated as follows:

10. [13]

    Inserted into the notice of motion was the following notation:

11. [14]

    It may be discerned that what Ms Young seeks is to preserve her position pending the outcome of her application for leave to appeal against the decision of Latham J refusing to set aside the default judgment. Should she be granted leave to appeal, and be successful in her appeal, the default judgment may (depending upon the order of the Court) be set aside. Should she be unsuccessful either in her application for leave, or, if granted leave, in the appeal, RMS would be free to proceed to enforcement of the default judgment.

12. [15]

    Latham J set out at some length the history of the proceedings. She observed that:

13. [16]

    Ms Young’s submissions were contained, essentially, in the insert to the notice of motion which I have set out above. Although she was given every opportunity to do so, she did not identify any error in the judgment of Latham J.

14. [17]

    The principles on which a stay might be ordered were stated in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 694-5 and following. The Court said:

Determination

1. [18]

   In the circumstances of this case, to justify a stay of the execution of the default judgment (which is what Ms Young seeks) it would be necessary that she identify some error in the judgment of Latham J, and that she has an arguable defence on the merits. She has done neither.

2. [19]

   Ms Young has been unsuccessful in procuring a stay of the default judgment in her application to Schmidt J; she has been unsuccessful in her application before Latham J to have that judgment set aside. She has produced no evidence to demonstrate that there is a proper basis for a stay such as to nullify the effect of the default judgment. That she has filed no amended defence or cross-claim since the previous iterations were struck out gives no cause for confidence that she has any arguable defence to RMS’s proceedings for unpaid rent.

3. [20]

   The first order sought by Ms Young is refused.

4. [21]

   The second order she seeks is for an injunction restraining RMS from acting upon its Notice of Termination of Lease served 9 January 2018. She has provided no reason why this should be done. As noted by Latham J, she has acknowledged that she has not paid rent for some time and has not advanced any basis upon which it could reasonably be said that RMS is not entitled to act upon the notice of termination. The Notice of Termination of Lease is independent of the default judgment. That order is also refused.

5. [22]

   The notice of motion is, accordingly, dismissed.

6. [23]

   The orders I make are: