Australian Executor Trustees Ltd v Steak Plains Olive Farm Pty Ltd

NCAT Consumer and Commercial|2014-11-27|Before: Wright J

reasons for decision

This is an application by the respondent to transfer these proceedings to the Supreme Court of New South Wales. It is the second application, the first having been refused by the Tribunal on 13 August 2014 (first transfer application).
The appeal against the decision in the first application was dismissed by the Appeal Panel on 17 November 2014. (the Appeal Panel decision)
The basis of the second application is that it would avoid duplication of proceedings in circumstances where the Tribunal does not have jurisdiction to hear the respondent's claims for either equitable relief against forfeiture or damages in excess of $500,000. The application is recorded in the respondent's submissions for the hearing on 27 November 2014 which the Tribunal has initialled and dated.
The only evidence tendered in support of the application was a copy of a statement of claim which has been filed in the Supreme Court of New South Wales, proceedings 2014/176409. The plaintiff in those proceedings is the respondent in the Tribunal proceedings and the defendant is the applicant in the Tribunal proceedings. The statement of claim was apparently filed pursuant to orders of the Supreme Court and is dated 21 November 2014. It particularises various breaches and make claims for damages in consequence of those breaches. The statement of claim is marked Exhibit A in the application. It should be noted that the summons originally filed to commence these proceedings in the Supreme Court also sought damages.

Submissions.

The respondent says that it "does not agree that the Tribunal has power to determine a dispute about whether a party to an agricultural tenancy should be relieved against forfeiture and make orders in consequence of such a determination".
The respondent says that it is entitled to pursue the form of relief which it chooses and is not obliged to seek relief from forfeiture in the Tribunal. This submission appears to be made even in circumstances where the Tribunal is able to grant a remedy in the nature of relief against forfeiture in the manner found by the Tribunal in its decision of 13 August 2014 (original decision), as confirmed by the Appeal Panel in the Appeal Panel decision.
The respondent also submits that it has now pleaded a claim for damages exceeding $500,000 being the jurisdictional limit of the Tribunal and that the damages it suffered "could only be quantified after the most recent harvest on June/July 2014 was completed". The respondent submits that damages are continuing to accrue.
Having regard to the relief sought, the respondent submits that the Supreme Court is the only forum that can hear all of the issues which the parties wish to raise. The respondent also says that the Tribunal should not continue to hear these proceedings while any Supreme Court appeal remains pending as such action would "effectively render the appeal meaningless".
The respondent raised an issue about the applicant's foreshadowed application in the Supreme Court proceedings however at the time of the hearing on 27 November 2014 such an application had not been made, although at the date of these reasons that application has also been made.
In response, the applicant submitted that the amount of the claim for damages was the only new feature of the second transfer application.
In considering the second transfer application the applicant submitted Tribunal was obliged to balance the interests of the parties and have regard to the directions of the Appeal Panel listing the matter for the finalisation of evidence. The applicant submitted that if the respondent's proposed appeal against the Appeal Panel's decision was dismissed then further time will be wasted.
Lastly, the applicant submitted that whether or not to transfer proceedings was a matter of discretion which could not easily be upset on appeal.

Decision.

The power of the Tribunal to transfer these proceedings is found in Schedule 4 clause 6(1) of the NCAT Act which provides: Transfer of proceedings to courts or to other tribunals (1) If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are: (a) to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and (b) to continue before that court as if the proceedings had been instituted there.
There is a discretion to be exercised by the Tribunal in making such an order.
Matters to be considered include: 1. The fact here are claims made in other proceedings that cannot be determined in the Tribunal, 2. The history of the Tribunal proceedings and the conduct of the parties, 3. Whether the Tribunal is a convenient forum and has power to make orders to resolve particular controversies, 4. Whether or not a different form of relief is available in another forum 5. Whether resolution of particular issues within the jurisdiction of the Tribunal will be delayed; 6. The objects of the NCAT Act including those found in section 3(b)(i) and 3(d).
A party to proceedings cannot be compelled to raise a particular defence. However, a party is obliged to act in accordance with its obligations under section 36 (3) of the Civil and Administrative Tribunal Act 2013 and assist the Tribunal in a manner to ensure that the real issues in dispute are resolved in a just, quick and cheap manner as provided in the guiding principle.
It has not been suggested that the Tribunal does not have power to deal with the applicant's claims, including its claim seeking an order for possession under section 21 (1) (i) of the Agricultural Tenancies Act.
Obviously, an issue in dispute between the parties is whether or not the applicant is in fact entitled to possession in all the circumstances.
Absent a successful appeal or an order from the Court restraining the Tribunal from hearing this dispute and resolving the issue, in my opinion the Tribunal is entitled to proceed to hear and determine this dispute in accordance with the law as determined by the Appeal Panel.
It is a matter for the respondent to determine whether or not it wishes to invoke any available jurisdiction of the Tribunal to relieve it against the consequences of any order for possession being made. While failure to pursue an available remedy in the Tribunal may have consequences for the respondent, it is not necessary for the Tribunal to determine what those consequences may be.
It is sufficient to conclude that the applicant has applied to the Tribunal for an order for possession, a remedy available to it under the Agricultural Tenancies Act. It made that application on 12 February 2014 in relation to alleged breaches which it says occurred in 2013. Absent good reason not to do so, the Tribunal is obliged to ensure that this claim is resolved as soon as possible.
The reasons offered by the respondent to transfer the proceedings are that: 1. the respondent does not accept the Tribunal has power to grant orders in the nature of relief against forfeiture; 2. the proceedings will be duplicated because there will be a need to have the respondents claim for damages and the issue of relief against forfeiture result by the Supreme Court of New South Wales; and 3. the proceedings should therefore be transferred to the Supreme Court of New South Wales.
In the opinion of the Tribunal, the second application to transfer the proceedings to the Supreme Court of New South Wales should be dismissed for the following reasons: 1. the mere fact that a party seeks to invoke an alternative remedy to one which is available within the jurisdiction of the Tribunal and which would adequately resolve the issues between the parties is not a basis to transfer the proceedings nor does it make the Tribunal an inconvenient forum; 2. these proceedings were originally commenced on an urgent basis because an order for possession was sought. The proceedings were originally listed for final hearing on 18 June 2014 and by reason of the respondent's first transfer application being made, the issue of the applicant's entitlement to possession has not been resolved; 3. it is clear from the statement of claim, for the reasons set out above, that the claim for damages by the respondent includes damages which it says it suffered in 2012 or 2013, well before the commencement of these proceedings and well before the original date fixed for hearing on 18 June 2014; 4. these are matters which could have been raised on the first transfer application and to allow them to be made at this time will further delay resolution of the proceedings, particularly the entitlement to possession; 5. in any event, no evidence has been provided to support the assertion that the claim for damages is in excess of the order making power of the Tribunal (other than perhaps the fact that the statement of claim has been verified by a director of the respondent). 6. Finally, even if the respondent successfully appeals the Appeal Panel decision in relation to the order making power of the Tribunal concerning claims in the nature of relief against forfeiture, the issue of whether or not the applicant is entitled to an order for possession is a matter within the jurisdiction of the Tribunal and is a matter which should be resolved at the earliest possible time. To transfer the proceedings will have the consequence that the applicant will be deprived of an early resolution of this issue in circumstances where the respondent has not otherwise shown that detriment will not be suffered by the applicant in being kept out of possession of the farm if the circumstances alleged to establish a breach and warrant the making an order for possession are made out. In this regard the Tribunal notes the proceedings are fixed for final hearing commencing 16 February 2014 and directions have been made in connection with filing and service of any further evidence, evidence having been previously filed in anticipation of the final hearing originally being fixed on 18 June 2014.
Accordingly, the second application to transfer should be dismissed.
The Tribunal makes the following orders: 1. the application by the respondent to transfer the proceedings to the Supreme Court of New South Wales is dismissed; 2. Any application for costs in relation to this matter is to be made on or before 9 January 2014. The application is to be supported by any evidence and submissions, including any submissions in relation to rule 38 of the Civil and Administrative Tribunal Rules, 2014 and in relation to whether or not an order should be made for the hearing to be dispensed with and the matter dealt with on the papers in accordance with section 50 (2) of the Civil and Administrative Tribunal Act 2015. 3. Any submissions by the respondent in reply are to be filed on or before 16 January 2015; 4. any submissions by the applicant in reply to the respondent's submissions are to be filed and served on or before 20 January 2015. M Harrowell Principal Member Civil and Administrative Tribunal of New South Wales 24 December 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2015

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Judgment (4 paragraphs)

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