Conway v Sun

1. [1]

   On 13 June 2024, the plaintiffs in this proceeding, Vashti Elizabeth Conway and Farshad Amirbeaggi entered into a residential tenancy agreement (“the Agreement”) with respect to the property (“the premises”) for 104 weeks. The rent payable under the Agreement was initially $5,000 per week. That amount increased to $5,500 per week after the first year of the tenancy.

2. [2]

   The landlords shown under the Agreement were Quidi Sun and Jiamchao He (“the landlords”).

3. [3]

   On 19 August 2024, Mrs Conway filed a Tenancy and Social Housing Application (“the application”) with the New South Wales Civil and Administrative Tribunal (“NCAT” or “the Tribunal”) (“the proceedings”). In the application, Mrs Conway nominated that there is a dispute regarding “repairs” and sought an order, inter alia, that the rent be abated to $3,000 per week from the commencement of the Agreement until the landlords completed “the works required to the property to achieve the standard and quality at which the property was advertised and upon which the lease was negotiated”.

4. [4]

   On 3 October 2024, Mrs Conway filed an affidavit in the proceedings in which she elaborated upon the claims made by the plaintiffs. The further orders sought included repairs to the timber flooring of the premises; costs associated with moving and storing furniture or seeking alternative accommodation during the execution of the repairs; and compensation for loss of enjoyment of the premises.

5. [5]

   On 25 February 2025, those proceedings were transferred to the District Court of New South Wales by Member Terceiro of the Consumer and Commercial Division of NCAT. In a short decision, Member Terceiro stated that he had transferred the proceedings of his own motion because, inter alia, the amount sought by the plaintiffs exceeded the maximum statutory limit of the Tribunal for claims brought under the Residential Tenancies Act 2010 (NSW) (“RTA”) and also exceeded the maximum claim amount of $100,000 for consumer claims under the Fair Trading Act 1987 (NSW). Member Terceiro also found:

6. [6]

   On 1 July 2025, Mrs Conway filed a Statement of Claim (“SOC”) in the District Court seeking orders for damages for breach of the Agreement; damages and compensation pursuant to s 236 of Sch 2 of the Competition and Consumer Act 2010 (Cth) (“ACL”) and orders pursuant to s 237 of the ACL varying the Agreement, including that no rent was payable under the Agreement from its inception until the date of any orders made by the Court. Various pleadings were made, including that the plaintiffs had, since occupation of the premises, made numerous requests to the landlords to repair damage, but the landlords refused to affect the repair.

7. [7]

   On 23 July 2025, the agent for the landlords issued a Notice to Terminate Tenancy Agreement due to the non-payment of rent (“Notice of Termination”). I will return to the non-payment of rent below.

8. [8]

   On the same day, Mrs Conway filed a Notice of Motion (“the District Court Motion”) in the District Court proceedings, seeking that the Notice of Termination be set aside, and that the rent payable under the Agreement be reduced to such sum as the court “reasonable [sic] determines”.

9. [9]

   On 8 August 2025, the landlords brought an application, described as an “application notice” (“the Termination Application”). In that Application, the landlords sought an order to terminate the Agreement due to the plaintiffs’ non-payment of rent for more than 14 days pursuant to s 88 of the RTA and an order for vacant possession of the premises. The landlords also sought an order for the plaintiffs to pay rent arrears.

10. [10]

    On the same day, the Tribunal gave notice of a conciliation and hearing of the termination application, scheduled for 1 September 2025.

11. [11]

    In the affidavit of Sheng Xu, the managing agent of the premises filed in these proceedings (“the Xu affidavit”), it was posed that as at 1 September 2025 the plaintiffs were in arrears of rent of more than 14 days in the total amount of $43,725. He also deposed that as at 19 September 2025, total rent arrears and occupation fees owing were $57,867.86.

12. [12]

    On 1 September 2025, the Tribunal constituted by Mr D Nash, General Member, made orders terminating the Agreement effective that day and giving vacant possession to the landlords (collectively, “the Tribunal orders”). The Tribunal suspended the operation of the order of possession until 3 November 2025 and ordered that the plaintiffs pay the landlords a daily occupation fee.

13. [13]

    The Tribunal gave reasons for decision which were annexed to the orders but dated 3 September 2025 (“Reasons for Decision”). In his reasons for his decision, Mr Nash nominated, as the central basis for his decision, that the plaintiffs had breached the Agreement by failing to pay rent. He also dealt with, by way of rejection, an application by the plaintiffs for an adjournment upon the basis that the Tribunal did not have jurisdiction to deal with the termination application because of the existence of the SOC and the District Court Motion.

14. [14]

    Two other aspects of the reasons for the decision warrant mention. First, the Tribunal made some observations to the effect that the Tribunal was the only forum in NSW that could make the orders sought by the landlords. That passage of the decision was as follows:

15. [15]

    The second aspect of the reasons for decision concerned a contention by the plaintiffs that the Tribunal lacked jurisdiction to determine the Termination Application having regard to the operation of s 5(7) of Pt 5 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the CAT Act”). The Tribunals decision in that respect was as follows:

THE PRESENT PROCEEDINGS

1. [16]

   By an amended Summons filed on 16 September 2025 (“the Amended Summons”), the plaintiffs sought interim and final relief.

2. [17]

   In the application for final relief the plaintiff sought the following:

   1. (1)

      The Tribunal orders be set aside.

   2. (2)

      Relief against forfeiture of the Agreement.

   3. (3)

      The defendants pay the plaintiffs costs of the proceedings.

3. [18]

   The interim relief sought by the plaintiffs was as follows:

   1. (1)

      A stay on the operation of the Tribunal orders.

   2. (2)

      Until further order, a restraint on the Tribunal on making any further Orders concerning the Agreement (“the application for interim relief”).

4. [19]

   The grounds for relief were, inter alia, the Tribunal lacked jurisdiction to make any of the Tribunal orders including terminating the Agreement and ordering vacant possession of the premises.

5. [20]

   With respect to the relief against forfeiture, the grounds for relief in the Amended Summons stated that “[the] plaintiffs will plead their claim for relief against forfeiture pending the outcome of the application for interim orders.”

6. [21]

   As will become evident, the plaintiffs, in fact, took a different course during the hearing before the Court regarding the application for interim relief, to which I will return.

7. [22]

   By a Notice of Motion filed on 5 September 2025, the plaintiffs sought relief replicating the application for interim relief in the Amended Summons.

8. [23]

   In oral submissions, the plaintiffs contended that the application for interim relief was predicated upon two bases:

   1. (1)

      Judicial review of the Tribunal orders on jurisdictional grounds upon the basis that, as stated in the Amended Summons, the Tribunal lacked jurisdiction to make the Tribunal orders.

   2. (2)

      The grant of the stay pending the determination of the relief against forfeiture.

9. [24]

   This judgment concerns the Amended Summons so far as the plaintiffs made an application for interim relief and the Notice of Motion both relevantly adjusted by the oral submissions of Mr Andrew Fern SC for the plaintiffs, in reliance upon relief against forfeiture as a further basis for the grant of the stay.

10. [25]

    The plaintiffs relied upon the affidavit of Mrs Conway of 12 September 2025 (“Mrs Conway’s first affidavit”) with the accompanying Exhibit VEC-1 and the affidavit of Mrs Conway of 23 September 2025 (“Mrs Conway’s second affidavit”).

11. [26]

    The defendants relied upon the Xu affidavit.

12. [27]

    Neither Mrs Conway or Mr Xu were required for cross examination.

LEGAL PRINCIPLES

1. [28]

   Whilst various issues of law were raised in relation to the issue of the Tribunal’s jurisdiction and relief against forfeiture, there was no dispute as to the essential criteria for establishing a proper bases to grant interlocutory relief.

2. [29]

   The granting of an interlocutory relief is to be determined by assessing whether the Plaintiffs have established a serious question to be tried (or a prima facie case), that damages is not an adequate remedy and that balance of convenience favours the granting of relief (see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [19], [65]-[71]).

Judicial Review

1. [30]

   For the purposes of the judicial review proceedings, the question which arises is whether the provisions of s 5(7) of Pt 5 of Sch 4 of the CAT Act (“the subject provision”) operated so as to exclude the jurisdiction of the Tribunal to make the Tribunal orders.

2. [31]

   Sch 4 concerns the Consumer and Commercial Division of the Tribunal, in which applications under the RTA are heard.

3. [32]

   The subject provision is in the following terms:

4. [33]

   The Tribunal was aware of the existence and subject of the District Court proceedings before making the Tribunal orders.

5. [34]

   Those District Court proceedings and the operation of the subject provision was the subject of argument and reasons for decision by the presiding Member Mr Ash. The issue of the District Court proceedings and the jurisdiction of the Tribunal was considered at [5]–[25] of the reasons for decision.

6. [35]

   The Tribunal’s reasons for making the Tribunal orders were, in substance, that, given the Tribunal has exclusive jurisdiction under the RTA to consider the issue of termination, there could be no relevant issue before the District Court.

7. [36]

   The essential question raised by the plaintiffs in the judicial review proceedings was whether the Tribunal lacked jurisdiction to make the Tribunal orders because of the subject provision.

8. [37]

   Counsel for the defendants did not dispute that the plaintiffs had an arguable case with respect to that jurisdictional issue, but contended that there would be a “real debate about whether or not simply claiming an abatement of rent unilaterally, and before that claim has been determined, means a determination order cannot be made”.

9. [38]

   As I understand the argument which would be advanced by the defendants in respect to the jurisdictional question, it was as follows:

   1. (1)

      Whether an issue arising under the application for termination of the Agreement was the subject of the dispute in proceedings pending before the District Court. In substance, the defendants would argue that there was a separation between issues associated with the failure to pay rent and the abatement of rent giving rise to the termination order and proceedings for the termination of the Agreement.

   2. (2)

      Whether the District Court proceedings were, in substance, no more than the Tribunal proceedings transferred to that Court.

10. [39]

    In my view, as to the jurisdictional question raised by the Amended Summons, there is, at least, a serious question to be tried for the following reasons:

    1. (1)

       The subject provision is amenable to a construction that the provision will operate in any circumstance where there is a relevant issue before a court. Thus, the provision may operate where the issue is before the court, irrespective of whether the relevant issue is properly before the court. The relevant redress in that respect would be to have the question of the court’s jurisdiction ventilated before that court.

    2. (2)

       In any event, in this case, there was before the District Court, the transferred proceedings from the Tribunal together with the District Court Motion and the SOC. The proceedings before that court included issues as to what rent was payable under the Agreement from its commencement, to where the rent should be paid and the issue of setting aside the Notice of Termination. There is also a claim for damages brought for the breach of the Agreement and for misleading and deceptive conduct. It is arguable that relief may be granted under the ACL to set aside the termination of the Agreement. The defendants’ submissions that, in substance the transfer proceedings before the District Court essentially constituted the Tribunal proceedings or something akin thereto, would not seem to be a very strong argument.

    3. (3)

       The plaintiffs advanced a submission that the Tribunal was in error in finding that it had exclusivity in relation to the Termination of Application so far as it covered the termination of the Agreement in contrast to any part of the application seeking orders for possession. In that respect, it was contended that the Tribunal had discounted the operation of the subject provision because it had misunderstood the scope of ss 81 and 119 of the RTA. There is some real force in the submissions advanced by the plaintiffs in that respect.

    4. (4)

       Section 119 of the RTA only restricts power where the landlord seeks possession of premises. Section 81 of the RTA concerns only orders for termination. It is doubtful that neither section says anything about proceedings to vary the RTA, including the rent payable and the validity of a termination notice, which is a perquisite to commencing termination proceedings.

    5. (5)

       Paragraph [20] of the reasons for decision refers to alleged exclusivity in the Tribunal to make an order for termination under s 111 of the RTA. Section 111 of the RTA does not give exclusive jurisdiction to the Tribunal about the validity of the termination notice. As noted by Ward CJ in Eq (as her Honour then was) in Talatala v Esguerra [2020] NSWSC 994 (at [16]), whilst s 119 of the RTA gives exclusive jurisdiction, sections such as 187 and 190 of the RTA only give the Tribunal jurisdiction, not exclusive jurisdiction. The same reasoning applies to the jurisdiction granted by ss 81, 83 and 111 of the RTA.

    6. (6)

       As Griffiths AJA held in Hawkins v Wimbledon 1963 Pty Ltd [2024] NSWSC 1465 at [88] – [89]:

11. [40]

    The plaintiffs have a prima facie case to challenge the jurisdiction or the Tribunal to make the Tribunal orders having regard to the considerations above.

Relief against Forfeiture

1. [41]

   The principles for relief against forfeiture were set out be Robb J in Sneakerboy Retail Pty Ltd (t/as Sneakerboy) v Georges Properties Pty Ltd [2020] NSWSC 996; (2020) 19 BPR 40,443 (“Sneakerboy”) (albeit relating to a retail lease during the COVID-19 period). In my view, those principles potentially apply generally across all leases, including residential leases (see Kofoo Sussex Pty Ltd v Commerce Building Pty Ltd [2014] NSWSC 1079; (2014) 17 BPR 33,147 (“Kofoo”) per Robb J at [111]- [114]).

2. [42]

   The relevant principles were set out in [69]-[70] of Sneakerboy as follows:

3. [43]

   Having regard to these principles, there would appear to prima facie be a basis for the plaintiffs to obtain relief against forfeiture.

4. [44]

   The only relevant breach concerns payment of rent. Whilst the bases for the non-payment of rent advanced by Mrs Conway as to the state of the premises appears on the evidence to be somewhat exaggerated, any arrears determined to be due could, on the evidence, be made good and the rent paid on an ongoing basis.

5. [45]

   This reasoning proceeds upon the basis that the plaintiffs clearly have a capacity to repay unpaid rent and to continue paying the rent charged. Furthermore, I have had regard to a concession made by senior counsel for the plaintiffs, they would be prepared to pay the whole sum of the rent due rather than a portion of the sum due and the balance being paid into court in order to obtain relief against forfeiture. That concession is instrumental in my consideration of the question of relief against forfeiture.

6. [46]

   The defendant advanced a number of propositions against the court finding a serious question to be tried with respect to this issue, as follows:

   1. (1)

      The plaintiffs did not plead in the Amended Summons the basis for relief against forfeiture but left that issue pending the resolution of the application for interim relief.

   2. (2)

      The defendants have a lease in the form of the Agreement. There is a large debt that has arisen because the plaintiffs have decided to take a “self-help remedy before any determination of their claim for abatement of rent”. The abatement of rent they seek is to zero, or alternatively, some other amount. This is not a case where the defendants have sought to unfairly exploit a legal position. It is the plaintiffs that are the agitators.

   3. (3)

      There is a logical difficulty with the plaintiff’s position which amounts to the defendants being kept out of their money by the plaintiffs making a claim in another jurisdiction. There is a jurisdiction available to ventilate their concerns and that is an appeal to the Appeal Division of the Tribunal with respect to the Tribunal orders.

   4. (4)

      The RTA squarely deals with the rights and procedures to be followed in the case of a dispute with respect to a residential tenancy agreement. It covers the field. There is a significant debate to be had about that proposition.

   5. (5)

      That difficulty is not overcome by reliance upon the obiter observations of Robb J in Kofoo at [13]. Particular attention was drawn to section 111 of the RTA which provides very broad powers to the Tribunal in relation to a dispute about a termination notice. The plaintiffs were served the Notice of Termination but chose not to avail themselves of the provisions of s 111 of the RTA.

7. [47]

   I accept that the last two propositions excite some triable issues. However, I do not consider that observation results in a conclusion other than the plaintiffs have a prima facie case in this respect for the following reasons:

8. [48]

   I have been informed there appears to be limited authority on the question raised by the defendants. Nonetheless, the decision of Robb J in Kofoo is at least suggestive of the relief against forfeiture in the case of a residential lease. His Honour observed at [134] as follows:

9. [49]

   Further, there is some real force in the plaintiffs’ submissions that the judgment of Kirby P in Minister for Lands & Forests v McPherson (1991) 22 NSWLR 687; (1991) NSW ConvR 55-573 would raise doubts about the proposition advanced by the defendants in this respect.

10. [50]

    Kirby P described the matter before him as an appeal concerning the availability of equitable relief against forfeiture in the case of an interest in a statutory lease under the Western Lands Act 1901 (NSW). His Honour observed that it was necessary to explore the operation of the long established and beneficial equitable relief in the context of a comprehensive statutory system of leases (at 688).

11. [51]

    Kirby P made the following observations about relief against forfeiture (at 691-692):

12. [52]

    There appears to me to be at least a serious question to be tried that the availability of a relief against forfeiture is available to the plaintiffs in this case, notwithstanding the statutory scheme under the RTA. This is particularly so in circumstances where the Agreement contains no provision in relation to relief against forfeiture.

13. [53]

    Further, reference may be made to the extract from the book by Butt P, Land Law, referred to Kofoo at [113], as follows:

14. [54]

    This conclusion is also relevant to the application for interlocutory relief.

WHETHER DAMAGES ARE AN ADEQUATE REMEDY AND BALANCE OF CONVENIENCE

1. [55]

   The defendants’ contentions in this respect may be summarised as follows.

2. [56]

   First, apart from NCAT, no other jurisdiction is empowered to make a termination order in relation to a residential residency.

3. [57]

   Secondly, the plaintiffs have available to them the making of an application to dispute the Notice of Termination pursuant to s 111 of the RTA.

4. [58]

   Thirdly, in any event, an appeal lies to an Appeal Panel of the Tribunal in relation to the Tribunal orders.

5. [59]

   Fourthly, the Appeal Panel has a full suite of powers to determine every aspect of the issues the plaintiffs sought to ventilate in this Court, including the power to stay the Tribunal orders.

6. [60]

   Fifthly, the plaintiffs chose not to exercise that right but rather came to this Court to seek relief by way of judicial review. The proceedings are in substance, creating a de facto appeal on a ground of law.

7. [61]

   Sixthly, there can be no doubt this is a conscious strategy by the plaintiffs because both of them are legal practitioners experienced in litigation.

8. [62]

   Seventhly, the defendant submitted that abundant case law makes clear the well settled position that this Court will ordinarily not exercise its discretion to exercise powers of judicial review over a first instance decision where an appeal avenue already exists, particularly in a specialist tribunal such as the NCAT, because, even if the Court ultimately disagrees with the first instance decision, it is well established that the only power it has is to remit the matter back to the original jurisdiction for rehearing: Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531; [2010] HCA 1 at [110].

9. [63]

   Mr E Young of counsel referred to a number of authorities of this Court in support of the seventh proposition. His submissions as to those principles were uncontroversial in the proceedings and, in my view, correct. I set out the submissions as to relevant principles below.

10. [64]

    Eighthly, by way of elaboration of the seventh contention, the defendant submitted that this was a case similar to Ballam v Higgins (1986) 17 IR 131 (“Ballam”) as a specialist tribunal had been granted a range of powers specifically to deal with residential tenancy disputes, and that the Tribunal had a superior range of remedies at its disposal than this Court. Even if this Court was to hear and determine the plaintiffs’ application for judicial review, and the plaintiffs were successful, the only remedy this Court could order would be to remit the matter back to the Tribunal, giving rise to the prospect of additional appeals.

11. [65]

    Ninthly, the approach the plaintiffs would have this Court adopt is an exceptional and unusual one. There is no evidence before the Court warranting such an approach. Further, it is not appropriate for the plaintiffs to now, having contested and lost the case in the Tribunal, to approach a different forum to seek to obtain an alternative means of obtaining a different result. The usual approach is much more cost effective, namely, an appeal.

12. [66]

    Tenthly, there is no reason why the plaintiffs could not move out of the premises into alternative equivalent accommodation. They have simply chosen not to do so. The evidence disclosed alternatives available to them and demonstrated the incorrectness of the plaintiffs' asserted evidence that there is no such alternative available to them, despite their claimed efforts to locate such an alternative.

13. [67]

    By supplementation to this tenth contention, the defendants contended that the evidence demonstrated that there was an abundance of alternative accommodation available to the plaintiffs, equivalent to (and possibly superior to) the premises for similar rent (being 4 and 5 bedroom residences, with rents both below and above the present rent for the premises, which from 1 July 2025 was $5,500 per week).

14. [68]

    Mrs Conway’s second affidavit responding to the Xu affidavit actually supported the defendants’ position in relation to the termination and weighs against the balance of convenience of a stay on the orders of the Tribunal for two reasons:

    1. (1)

       her evidence demonstrated “the pickiness of the plaintiffs in relation to the perfection they apparently expect of properties”;

    2. (2)

       her evidence demonstrated that two of the houses they inspected in the very same suburb, but rejected for various imperfections, are still commanding high rents of $6,000 and $4,250 per week.

15. [69]

    Eleventhly, it follows that damages will be a sufficient remedy if the plaintiffs are ultimately successful in their District Court case.

16. [70]

    Lastly, the defendants contended that the plaintiffs have not demonstrated anything extraordinary in their case.

17. [71]

    For the purpose of addressing these issues, I accept the legal principles outlined by counsel for the defendants as to the exercise of the Court’s discretion, which I have extracted above.

18. [72]

    There is also merit in the submission advanced on behalf of the defendants that the Tribunal had a power to make a termination order in relation to a residential tenancy resides in the Tribunal and that the plaintiffs have available to them an appeal from the orders of the Tribunal to an Appeal Panel of the Tribunal.

19. [73]

    In broad terms, I accept the submission advanced by the defendants that those matters represent discretionary factors in favour of refusing the interim relief sought by the plaintiffs.

20. [74]

    However, I do not consider that the defendants are correct to submit, in the context of these proceedings, that the Tribunal has “a full suite of powers to determine every aspect of the issues” the plaintiffs seek to raise in this Court.

21. [75]

    Whilst it is true that the Appeal Panel of the Tribunal has a substantive power to set aside the orders of the Tribunal and to stay those orders pending appeal, the Tribunal does not have the power to deal with the question of relief against forfeiture which, in my view, is also applicable to the consideration of the interlocutory relief sought by the plaintiffs.

22. [76]

    Further, whilst I accept the submission of the defendants that the grant of relief to the plaintiffs in judicial review in this matter the Court would be confined to remitting the matter back to the Tribunal, it must be acknowledged that the sole issue raised for judicial review is the jurisdiction of the Tribunal. It follows that a determination of that question by this Court must be ultimately determinative of that question before the Tribunal, notwithstanding that there may be a remitter to the Tribunal to determine the question of jurisdiction in accordance with the law as stated by this Court. I do not accept the prospect of numerous appeals in this Court is a realistic proposition.

23. [77]

    The question of alternative accommodation ultimately requires the Court to consider the untested evidence of Mr Xu and Mrs Conway.

24. [78]

    I do not doubt that Mrs Conway genuinely holds the belief that the alternative accommodation which has been identified in the immediate area to the premises is unsuitable for her family. However, I do have some doubts as to whether that opinion can be entirely objectively validated.

25. [79]

    Whilst the properties in question have suffered from the fact that they were fully furnished or only for a short term lease, the more general proposition advanced by the plaintiffs that the properties were unsittable for their family needs to be approached quite cautiously as I agree with the submission of the defendants that the evidence does demonstrate “the pickiness of the plaintiffs in relation to the perfection they apparently expect of properties”. For example, Mr Fernon was driven to arguing in these proceedings that one property in Mosman was not suitable as there was a large non-working internal waterfall feature and a pit in the loungeroom which was a trip hazard. The property also suffered from having a water feeder that was non-functional for the whole duration of the lease.

CONCLUSION

1. [80]

   Notwithstanding Mr Xu’s diligence in attempting to identify alternative rental properties said to be suitable for the plaintiffs, there is no escaping the fundamental consideration that the premises constitute the present home of the plaintiffs and their three teenage children. The eldest child is currently undertaking her HSC. All children attend school within walking distance of the home. This consideration also concerns whether damages are an adequate remedy.

2. [81]

   Furthermore, on the evidence there appears to be some real issues with available alternative accommodation, notwithstanding the plaintiffs’ pedantry.

3. [82]

   In those circumstances, the balance of convenience favours the plaintiffs.

4. [83]

   When that consideration is combined with the prospect of relief from forfeiture, which I have found is a serious issue to be tried and is only available as a remedy in this Court, in my view, the plaintiffs have demonstrated exceptional circumstances which would warrant departure from the principles stated in Ballam and the other line of authority referred to in the extract from the defendants’ submissions above.

5. [84]

   The above discussion establishes, in my view, a proper basis to grant the relief sought by the plaintiffs, subject to conditions attached to the making of such orders.

6. [85]

   Mrs Conway, in her evidence, stated that rent had been withheld given the claim for damages and the concern that the defendants may not have funds to meet the plaintiffs’ claim.

7. [86]

   Reliance was placed upon the evidence of Mr Ellis. He opined that the issues associated with the property were such that the market rent was, at best, between $2,500 and $3,000 per week when the current rent was stipulated at $5,500.

8. [87]

   The plaintiffs accepted, in that light, that for the period in which no rent is paid and ongoing until the dispute is determined, a sum of $3,000 per week would be paid to the defendants and the balance paid into Court.

9. [88]

   Whilst the fixing of conditions upon any interim relief granted in this case is an appropriate course, I do not consider that the approach proposed by the plaintiffs is adequate.

10. [89]

    I do not consider that Mr Ellis’ opinion may be treated as an expert opinion. He has not provided that opinion under the expert code of conduct. The opinion does not fully establish the foundations for the opinion expressed by him. His evidence has not been tested in those circumstances because the defendants received his evidence late and were not in a position to deal with the evidence other than by submissions. In my view, the Court should, on the present application, attach limited weight upon Mr Ellis’ opinion.

11. [90]

    Further, the condition advanced by the plaintiffs is not sufficient, in my view, to obtain relief against forfeiture, even on an interim basis.

12. [91]

    The proper resolution of those issues on the application for the stay is that the defendants should pay the entire sum of the rent for the period in which the rent or full rent was not paid and make ongoing payment of the rent.

Orders

1. [92]

   The plaintiffs shall bring in Short Minutes of Order reflecting this decision within 24 hours of the publishing of this decision.