Kyriakou v Long [2013] NSWSC 1904

Kyriakou v Long [2013] NSWSC 1904

The stay application was refused because the Plaintiff had already pursued substantially the same complaint by an error of law appeal to the District Court and by an application under s 65 of the Consumer Trader and Tenancy Tribunal Act 2001, making the present application an abuse of process; he did not identify significant new evidence to support a further rehearing application; and, in any event, the Supreme Court had no jurisdiction under s 69 to stay execution of the Tribunal's order.

Jurisdiction
Australia
Judgment Date
10 December 2013
Procedural Posture
Interlocutory Application for Stay of Eviction / Supreme Court Common Law Duty Judge Application After Refusal of Tribunal Rehearing, Unsuccessful District Court Appeal, and Dismissed Equity Division Application
Outcome
Stay application refused; summons dismissed; Plaintiff to pay the Defendant's costs of the application.
Legal Topics
['residential Tenancy Agreement Termination' 'stay of Tribunal Order' 'rehearing Application' 'procedural Fairness' 'error of Law Appeal' 'abuse of Process' 'jurisdiction to Stay Consumer, Trader and Tenancy Tribunal Orders']
['landlord and Tenant' 'administrative Law' 'civil Procedure'] ['residential Tenancy Agreement Termination' 'stay of Tribunal Order' 'rehearing Application' 'procedural Fairness' 'error of Law Appeal' 'abuse of Process' 'jurisdiction to Stay Consumer, Trader and Tenancy Tribunal Orders']

Case Brief

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Procedural Posture

Interlocutory Application for Stay of Eviction / Supreme Court Common Law Duty Judge Application After Refusal of Tribunal Rehearing, Unsuccessful District Court Appeal, and Dismissed Equity Division Application

Legal Issues

  1. 1 ['Whether the Supreme Court should stay eviction following Tribunal orders terminating a residential tenancy agreement and giving possession to the landlord.' 'Whether the application was an abuse of process given earlier District Court and Supreme Court Equity Division proceedings concerning substantially the same complaint.' "Whether the Supreme Court had jurisdiction under the Consumer Trader and Tenancy Tribunal Act 2001 to stay execution of the Tribunal's order." 'Whether a proposed further rehearing application under s 68(9A) justified a stay.']

Ratio Decidendi

The stay application was refused because the Plaintiff had already pursued substantially the same complaint by an error of law appeal to the District Court and by an application under s 65 of the Consumer Trader and Tenancy Tribunal Act 2001, making the present application an abuse of process; he did not identify significant new evidence to support a further rehearing application; and, in any event, the Supreme Court had no jurisdiction under s 69 to stay execution of the Tribunal's order.

Court Disposition

Stay application refused; summons dismissed; Plaintiff to pay the Defendant's costs of the application.

Orders

  • ['Stay application refused.' "Plaintiff to pay the Defendant's costs of the application." "The Plaintiff's summons is dismissed."]