Boscolo v Consumer Trader and Tenancy Tribunal [2011] NSWSC 1564

Boscolo v Consumer Trader and Tenancy Tribunal [2011] NSWSC 1564

The stay was refused because the lease had expired, Mr Boscolo had no legal basis for continuing occupation, no rent had been paid since February, no steps had been taken to resume or pay outstanding rent despite the undertaking, and the further application advanced no fresh basis beyond dissatisfaction with Garling J's refusal of a stay. Having regard to the overriding purpose and the interests of the defendants, any further such application would be an abuse of process, although Mr Boscolo remained entitled to pursue an application for leave to appeal Hoeben J's judgment.

Jurisdiction
Australia
Judgment Date
15 December 2011
Procedural Posture
Notice of Motion Seeking a Stay of Orders Made by the Consumer Trader and Tenancy Tribunal / Motion Before Duty Judge
Outcome
Motion dismissed; plaintiff restrained from further applications in respect of the January 2011 Tribunal decision without prior leave, apart from any application for leave to appeal; costs ordered for the second and third defendants if any.
Legal Topics
['stay of Tribunal Orders' 'repeated Applications' 'abuse of Process' 'overriding Purpose' 'costs']
['civil Procedure' 'tenancy'] ['stay of Tribunal Orders' 'repeated Applications' 'abuse of Process' 'overriding Purpose' 'costs']

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Procedural Posture

Notice of Motion Seeking a Stay of Orders Made by the Consumer Trader and Tenancy Tribunal / Motion Before Duty Judge

Legal Issues

  1. 1 ['Whether the Court should stay the Consumer Trader and Tenancy Tribunal orders made on 11 January 2011.' 'Whether Mr Boscolo should be restrained from filing or serving further applications in respect of the Tribunal decision without prior leave.' 'Whether costs should follow the event.']

Ratio Decidendi

The stay was refused because the lease had expired, Mr Boscolo had no legal basis for continuing occupation, no rent had been paid since February, no steps had been taken to resume or pay outstanding rent despite the undertaking, and the further application advanced no fresh basis beyond dissatisfaction with Garling J's refusal of a stay. Having regard to the overriding purpose and the interests of the defendants, any further such application would be an abuse of process, although Mr Boscolo remained entitled to pursue an application for leave to appeal Hoeben J's judgment.

Court Disposition

Motion dismissed; plaintiff restrained from further applications in respect of the January 2011 Tribunal decision without prior leave, apart from any application for leave to appeal; costs ordered for the second and third defendants if any.

Orders

  • ["Mr Boscolo's motion filed on 6 December 2011 is dismissed." 'Apart from any application for leave to appeal, Mr Boscolo may not file or serve any further applications in respect of the January 2011 decision of the Consumer Trader and Tenancy Tribunal, without prior leave of a judge of this Court.' "Mr Boscolo is...