Michelle Ann Ehrenfeld & Gabriel Ehrenfeld v Nun Sun [2017] NSWSC 1294

Michelle Ann Ehrenfeld & Gabriel Ehrenfeld v Nun Sun [2017] NSWSC 1294

The stay was not extended because the plaintiffs had not sought or obtained an expedited hearing before the stay expired, their conduct before Kunc J was inconsistent with pressing for determination of the substantive challenge, the procedural fairness challenge was inherently weak and unsupported by a recording or transcript of the NCAT hearing, the plaintiffs had already remained in the premises for approximately 83 days after obtaining injunctive relief, and the one-year lease ended on 19 July 2017 with the landlord having given notices seeking possession.

Jurisdiction
Australia
Judgment Date
19 July 2017
Procedural Posture
Equity Duty List Application to Extend Stay of NCAT Orders Terminating a Residential Tenancy / Notice of Motion for Further Stay Heard Ex Tempore
Outcome
Plaintiffs' application to extend the stay refused.
Legal Topics
['stay of NCAT Orders' 'termination of Residential Lease for Unpaid Rent' 'procedural Fairness' 'judicial Review of Tribunal Decision' 'expedition']
['equity' 'residential Tenancies' 'administrative Law'] ['stay of NCAT Orders' 'termination of Residential Lease for Unpaid Rent' 'procedural Fairness' 'judicial Review of Tribunal Decision' 'expedition']

Case Brief

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Procedural Posture

Equity Duty List Application to Extend Stay of NCAT Orders Terminating a Residential Tenancy / Notice of Motion for Further Stay Heard Ex Tempore

Legal Issues

  1. 1 ['Whether the Court should further extend the stay of NCAT orders terminating the lease and requiring vacation of the premises.' "Whether the plaintiffs' substantive challenge to the NCAT orders on procedural fairness grounds provided a sufficient basis for continuing the stay." "Whether the plaintiffs' failure to seek an expedited hearing before expiry of the stay weighed against further relief." 'Whether the lease or any holding-over or periodic tenancy position justified further time before enforcement.']

Ratio Decidendi

The stay was not extended because the plaintiffs had not sought or obtained an expedited hearing before the stay expired, their conduct before Kunc J was inconsistent with pressing for determination of the substantive challenge, the procedural fairness challenge was inherently weak and unsupported by a recording or transcript of the NCAT hearing, the plaintiffs had already remained in the premises for approximately 83 days after obtaining injunctive relief, and the one-year lease ended on 19 July 2017 with the landlord having given notices seeking possession.

Court Disposition

Plaintiffs' application to extend the stay refused.

Orders

  • ["The plaintiffs' application to extend the stay is refused." 'The plaintiffs must leave the premises immediately, within the next seven days being contemplated by the Court.' "NCAT's orders must now take effect."]