Rayner v Rayner (No 2)

1. [1]

   This application for a stay of possession of the residence at which the plaintiff lived resumed hearing before me as duty judge on Thursday 13 June 2019. Mr McAuley solicitor appeared for the defendant and the defendant herself was present in court.

2. [2]

   Orders were made by me ex parte on 11 June 2019 and the reasons for making those orders, is set out in Rayner v Rayner [2019] NSWSC 714. The orders I made included a stay of possession until 9am, Friday 14 June 2019, and that the defendant be served with the notice of motion and be given an opportunity to be heard about any ongoing stay.

3. [3]

   The background of the proceedings is set out in that judgment. In short the plaintiff filed a summons on 7 June 2019 seeking leave to appeal from a decision of an NCAT Panel. The NCAT Panel had dismissed an appeal from a decision made by the Tribunal on 30 July 2018 enforcing the defendant’s termination notice under s 85(2) of the Residential Tenancies Act 2010 (NSW). Included in the Panel’s orders was an order for immediate possession, with a three week stay on that order.

4. [4]

   The plaintiff was notified on 7 June 2019 that possession was to be taken on 12 June 2019. The plaintiff had already instructed his solicitor to file the summons seeking leave to appeal the Panel’s decision. The summons was stamped as filed was filed one day late - 7 June 2019 - but the plaintiff’s solicitor says, and I accept , that it was forwarded for filing on 6 June 2019, and thus within the 28 day appeal window, but was not filed until 7 June 2019 once filing fees were paid. Nothing turns on this one day delay in terms of this application for the stay. The summons was listed for directions on 20 June 2019 before the Registrar.

5. [5]

   Affidavits of the plaintiff claim that there is an “equitable defence” to the NCAT proceedings based on a complex history which includes allegations of fraud by the plaintiff against the defendant, that various consent orders and agreements were not signed by him or he did not understand what they meant, and that he had, in effect, been cheated out of his entitlement to share in matrimonial property split in 2011 as part of family law proceedings with his ex-wife, the mother of the defendant.

6. [6]

   The plaintiff claims that he did not understand the document he signed was a tenancy agreement but thought it was a mortgage and that he was not paying rent but paying a contribution to help pay off the mortgage that was being paid by his daughter. He also claims that he thought he was the registered owner of the premises.

7. [7]

   It is not the purpose of an application for a stay to assess in detail the merits of these assertions. The argument put forward by the solicitor for the plaintiff as to why I should grant the stay is first, that he has an arguable appeal from the Panel decision because it did not properly deal with his equitable defence. Secondly he argued that the appeal proceedings will become nugatory if the stay is not granted because once the plaintiff is removed from the premises, he will never be able to regain possession.

8. [8]

   The solicitor for the defendant argued that the plaintiff’s summons seeking leave to appeal is doomed to failure and I should not grant the stay as the appeal from the Panel decision is hopeless.

9. [9]

   I granted leave to the defendant to file in Court an affidavit sworn by the defendant. In that affidavit she claims that the plaintiff is “always late” in paying rent and that she has complex financial circumstances and owes large sums of money by way of mortgages and loans from the mother and father in law. She also deposed to her understanding that the plaintiff would qualify for public housing given his circumstances, and so it was not true for him to say he had “nowhere to go”.

10. [10]

    Issue was taken by Mr Lynch as to whether what was said by the defendant about late rent payment – on a day to day basis as ordered by the Panel as a condition of the stay to 31 May 2019 – was true. His client was not present in court and he was unable to contact him to confirm the position.

11. [11]

    As a factor relevant to the exercise of my discretion to grant or refuse the stay, and given the issue about it, I took the view I could not decide the issue without objective evidence of the true position regarding payment of rent. I also took the view that there were matters raised in the defendant’s affidavit that ought to be replied to by the plaintiff.

12. [12]

    Accordingly I made the following orders:

    1. (1)

       The defendant is to provide a ledger of rent payments and other payments that have been made associated with the premises between the dates 30 July 2018 to date by 5pm on Monday, 17 June 2019.

    2. (2)

       The plaintiff is to file and serve an affidavit in reply to Ms Rayner’s affidavit on or before midday Thursday, 20 June 2019.

    3. (3)

       The matter is listed at 10am on Friday, 21 June 2019 for further argument or if possible, delivery of a decision and judgment with reasons.

    4. (4)

       Pending further order, the order for possession of the subject premises is stayed until 9am on Monday, 24 June 2019.

13. [13]

    Given that the summons for leave to appeal was returnable before the Registrar on 20 June 2019, I emphasised to the parties that it was essential that matter proceed quickly and that a timetable should be obtained from the Registrar to quickly progress to hearing the primary relief sought.

21 June 2019 hearing

1. [14]

   For reasons which are unclear, the matter was unfortunately removed from the Registrar’s list on 20 June 2019 and the parties did nothing to restore it, as they were unsure of the basis upon which it had been removed from the Registrar’s list.

2. [15]

   On 21 June 2019 at the further hearing of the motion, an affidavit of Mr Rayner annexing a rent payment ledger indicated the rent payment was up to date, although had on occasion been sporadic and late.

3. [16]

   In oral submissions, Mr Lynch attempted to articulate what he says are the bases for the appeal from the decision of the Appeal Panel. He seems, in summary, to be submitting that the Panel was in error because it interpreted s 83 of the Residential Tenancies Act as eliminating the right of the defendant to raise matters of equitable rights by way of a defence under ss 6 and 7 of the Law Reform (Law and Equity) Act 1972 (NSW), and that the Panel misinterpreted s 83 of the Residential Tenancies Act as requiring a mandatory possession order.

4. [17]

   Section 83 of the Residential Tenancies Act provides as follows:

5. [18]

   Sections 6 and 7 of the Law Reform (Law and Equity) Act provide as follows:

6. [19]

   Mr Lynch argued that the appeal grounds identified in the summons show reviewable errors in the Panel’s decision (Rayner v Rayner [2019] NSWCATAP 121) in [51] and [60]-[63]:

7. [20]

   Mr McAuley repeated his submissions that the appeal is hopeless and without merit.

8. [21]

   To maintain the position pending my judgment on the motion I made the following orders:

   1. (1)

      Pending further order, the order for possession of the subject premises be stayed until 9am on Wednesday 3 July 2019.

   2. (2)

      I list the matter for delivery of judgment of the Notice of Motion on 1 July 2019 at 2pm.

   3. (3)

      I note that no assumption should be made as to the stay of the possession order being continued, and in those circumstances Mr Rayner should explore accommodation options in case I determine the Notice of Motion against him.

   4. (4)

      The parties are directed to attend the Registrar this morning, immediately, and seek a timetable in respect of the summons and associated primary proceedings.

Decision

1. [22]

   On the evidence filed on the motion, I am unable to form a clear view as to the prospects of success of the plaintiff’s arguments. In particular the many pages of evidence filed on the motion by the plaintiff do nothing to identify what material was before the Tribunal or Panel on the “equitable defence” issue.

2. [23]

   It is clear in the affidavit material that there is animosity between the plaintiff and the defendant; fraud is alleged. It is clear that if the stay is not granted, the plaintiff will be removed and the appeal would be rendered otiose.

3. [24]

   As the Court stated in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694 the applicant is required to demonstrate a reason or an appropriate case to warrant discretion in his favour. Filing an appeal is not itself a reason. There is a requirement that the balance of convenience be considered and the competing rights of the parties be balanced.

4. [25]

   I suspect that the plaintiff’s appeal is without merit, but I do not have the benefit of completed evidence, or fully articulated submissions that would allow me to have an informed basis to say, as the defendant does, that the appeal is entirely baseless and doomed to fail.

5. [26]

   The appeal is listed for hearing on 6 November 2019 with a timetable ordered by the Registrar for service of evidence and submissions.

6. [27]

   The order sought in the motion only seeks a stay until the “hearing of the summons”.

7. [28]

   I reluctantly grant a further to stay of possession to expire two days after that 6 November 2019 hearing date, that is to 9am on Friday 8 November 2019. The Judge hearing the appeal will be in a better position to express a view as to whether the appeal is hopeless, and if it is, can refrain from ordering a further stay, and if it is not, or the position is uncertain, make such orders as he/she sees fit.

8. [29]

   I note that this order I have made does not affect the order made by the Panel requiring rent be paid of $28.57 per day and for abundance of caution I order that the stay be conditional upon the ongoing payment of that occupation fee.

   1. (1)

      Conditional upon the payment of the $28.57 per day occupation fee, the order for possession of the subject premises be stayed until 9am on 8 November 2019.

   2. (2)

      Costs reserved.