Corcoran v Far

Supreme Court of NSW|2018-06-29

Judgment

HER HONOUR: By notice of motion filed 25 May 2018, the defendant seeks, firstly, pursuant to the inherent jurisdiction of the Supreme Court and s 183 of the Civil Procedure Act 2005 (NSW), an order that the plaintiff provide security for the defendant's costs up to and including the hearing date in these proceedings in the sum of $25,000, or such other amount as the Court deems fit, within 28 days; and secondly, an order that the proceedings be stayed for as long as security is not provided.
During oral submissions, the defendant's counsel submitted that $7,000 to $10,000 would be an appropriate sum for security for costs, being an estimate of the defendant's legal costs that will be expended at the hearing.
The plaintiff is Aaron Cameron. The defendant is Peter Far. Neither party relied upon affidavit evidence. The plaintiff was self represented. The defendant was represented by Mr Ang of counsel.

Chronology of events

I have briefly set out the salient chronological events that I acknowledge has been taken largely from a chronology of events prepared by the defendant's counsel.
In March 2016, Mark XXXX vacated the room. He moved in with his girlfriend. Around that time, the plaintiff moved into Mark's room.
On 24 March 2016, the defendant placed an advertisement in Gum Tree for shared accommodation at the premises. The defendant received from the plaintiff amounts totalling $1,740. As stated in the text message, this comprised of "four weeks deposit and two weeks rent. Bills not included. Two weeks' notice required. Thanks." This text message was preceded by an earlier text message from the defendant to the plaintiff, which says "Received $300 as deposit for room of the premises balance and move in tomorrow."

First application in NCAT - 25 May 2016

On 25 May 2016, the defendant lodged an application in proceedings RT16/24568 seeking an order against the plaintiff for termination of occupancy due to serious damage or injury under s 90 of the Residential Tenancies Act 2010 (NSW). In addition, the plaintiff sought an order for compensation for rent arrears and damage to the premises pursuant to s 187(1)(d) of the Residential Tenancies Act.
On 26 May 2016, the plaintiff emailed Paul Dixon (a flatmate at the time) asking a few questions, including what the defendant had said to Paul Dixon about the nature of the arrangement and what types of bills are shared between the three tenants. (Aff, Far 27 June 2018, Annexure K).
On 30 May 2016, the conciliation and hearing group listed the matter for a directions hearing before Member McMurran. There was an issue before the Tribunal as to whether there was a written residential tenancy agreement for the purposes of the Tribunal's jurisdiction over occupants of shared households pursuant to s 10 of the Residential Tenancies Act. The Tribunal made directions for the parties to exchange documents. On 30 May 2016, the plaintiff was ejected from the premises.
On 3 June 2016, the Tribunal received an email from the defendant advising that he wished to discontinue the proceedings.
On 7 June 2016, the Tribunal ordered that the proceedings be dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

Second application to NCAT - 9 June 2016

On 9 June 2016, the plaintiff lodged a fresh application. (RT16/27121).
On 20 June 2016, a medical certificate is provided by Dr Ali Raza of Ultimo Medical Practice stating that the plaintiff was suffering from an adjustment disorder after being allegedly thrown out of his apartment on 30 May 2016.
On 27 June 2016, the plaintiff's application came before the Tribunal for a conciliation hearing group list. The defendant did not attend the hearing. The Tribunal noted the issue of jurisdiction under the Residential Tenancies Act and made directions that the parties exchange documents and proceed with a formal hearing.
On 15 July 2016, a 24 page bundle of documents was provided to the Tribunal. It included a chronology of events, the plaintiff's affidavit and the medical certificate of Dr Ali Raza dated 20 June 2016. I note here that these documents were later relied upon in the formal hearing on 8 May 2017.
On 20 July 2016, the plaintiff's application was heard. The Tribunal Member De Jersey dismissed the plaintiff's application.

Appeal against decision of NCAT - 20 July 2016

On 5 August 2016, the plaintiff lodged a notice of appeal. (AP16/36071).
On 28 September 2016, the appeal was heard by the Appeal Panel. The Appeal Panel comprised of Deputy President M Schyvens and Senior Member Professor G Walker.
On 25 January 2017, the Appeal Panel delivered its decision: see Corcoran v Far [2017] NSWCATAP 16. The Appeal Panel determined at [47] that the definition of a "residential tenancy agreement" in s 13 of the Residential Tenancies Act does not impose a requirement for a residential tenancy agreement to contain a fixed term. It also determined that s 3(1) of the Act expressly provides for the existence of a periodic tenancy agreements, which is defined as a "tenancy agreement other than a fixed term tenancy agreement". In other words, it is a residential tenancy agreement that does not contain a fixed term. The Appeal Panel concluded at [48]-[49] that the Tribunal had erred in law by concluding that it had no jurisdiction on the basis that there was no residential agreement due to the absence of a fixed term. The appeal was allowed at [49] and the matter remitted to the Consumer and Commercial division of the Tribunal for hearing on all issues in dispute.

Hearing on remittal

On 27 February 2017, the matter came before the Tribunal for directions. There was no appearance by the defendant. The Tribunal directed the parties to exchange documents. Outlines of submissions were to be exchanged and leave was granted for the plaintiff to issue a summons to NSW Police Limited to incidents and reports at the premises between 1 March 2016 and 30 May 2016.
On 20 March 2017, there was no appearance by the defendant. The NSW Police had not produced any documents and the summons was adjourned to formal hearing on 27 March 2017.
On 27 March 2017, a formal hearing took place. There was no appearance by the defendant. The application was adjourned for the Tribunal to consider whether it was empowered to make an order for payment of money in the sum of $19,319. The Tribunal noted the plaintiff's submission that there was jurisdiction within a monetary limit of $30,000. It directed the plaintiff to provide submissions in regards to the proper construction of clause 23 of the Residential Tenancies Regulation 2010 (NSW).
On 29 March 2017, when the plaintiff's submissions on monetary limit were received, Principal Member K Rosser set aside the order for hearing on the issue of jurisdiction and directed that the jurisdictional and substantive issues be heard together. The defendant was given an opportunity to provide submissions in relation to clause 23 and it was noted that the substantive issues would be heard on the next occasion.
On 8 May 2017, the hearing was heard by Senior Member Charles. In order to afford procedural fairness, he allowed each party to present their own case by way of sworn oral evidence and allowed cross examination of oral evidence by the other party.
On 25 May 2017, Senior Member Charles handed down his decision and. He ordered the defendant to pay to the plaintiff the sum of $1,160, being the rental bond amount paid by the plaintiff to the defendant on or about 24 March 2016: Corcoran v Far [2017] NSWCATCD 40.

Appeal from decision of 25 May 2017

On 13 June 2017, the plaintiff lodged a notice of appeal seeking dismissal of claim for compensation under s 187(l)(d) of the Residential Tenancies Act. He also sought payment to of $19,319 plus further costs incidental to the appeal. The plaintiff sought leave appeal. The Appeal Panel can grant leave only if it is satisfied the plaintiff may have suffered a substantial miscarriage of justice because of the decision.
On 22 August 2017, the appeal was heard by the Appeal Panel constituting of Principal Members M Harrowel and R Titterton.
On 8 January 2018, the Appeal Panel handed down its decision in Corcoran v Far [2018] NSWCATAP 13. The Appeal Panel set aside order 2 made on 23 May 2017 and in lieu thereof made an order that the defendant was to pay the plaintiff the sum of $615 for damages immediately, otherwise the appeal was dismissed. Each party was ordered to pay their own costs of the appeal in proceedings of first instance.

Proceedings in this Court

By amended summons filed 7 February 2018, the plaintiff seeks leave to appeal and that the appeal be allowed. Section 83(1) of the Civil and Administrative Tribunal Act reads: "83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings."
Leave to appeal is sought from the Appeal Panel's decision of Corcoran v Far [2018] NSWCATAP 13 dated 8 January 2018. There are 14 grounds of appeal that I need not repeat here. Leave to appeal is granted on a question of law only. The plaintiff's grounds of appeal do not raise a question of law so the chances of success for the plaintiff in being granted leave to appeal are not good.
There is a protracted history of proceedings between these parties in NCAT. I have set these out earlier in this judgment.
The plaintiff stated that he did not receive an affidavit from the defendant. The defendant's affidavit of service revealed that he had served it on the plaintiff at an incorrect address for service. As non receipt of a large affidavit was prejudicial to the plaintiff, the defendant was not permitted to rely upon it.

Security for costs - the law

The defendant relies upon the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), 42.21 and 50.8, and this Court's inherent power to order security for costs. UCPR 42.21 reads: "42.21 Security for costs (1) If, in any proceedings, it appears to the court on the application of a defendant: (a) that a plaintiff is ordinarily resident outside New South Wales, or (b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or (c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or (d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or (e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, or (f) that there is reason to believe that the plaintiff has divested assets with the intention of avoiding the consequences of the proceedings, the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given. …"
UCPR 50.8 reads: "50.8 Security for costs (cf SCR Part 51A, rule 9) (1) In special circumstances, the court may order that such security as the court thinks fit be given of the costs of an appeal to the court. (2) Subject to subrule (1), no security for the costs of an appeal to the court is to be required. (2A) If an appellant or cross-appellant fails to comply with an order under this rule, the court may order that the appellant's appeal or cross-appellant's cross-appeal be dismissed. (3) Subrules (1), (2) and (2A) do not affect the powers of the court under rule 42.21 (which relates to security for costs)."
The defendant submitted that the plaintiff should provide security for costs, firstly, as there have been hearings in NCAT where the plaintiff was awarded $1,160 and the Appeal Panel reduced the amount to $615; secondly, the amount of costs incurred by the defendant is not proportionate to the amount awarded to the plaintiff in NCAT; thirdly, most of the findings in NCAT were adverse findings to the plaintiff's credibility and unlikely to be overturned in this Court, or in other words, the plaintiff's chances of success are weak; and finally, that the plaintiff should be prevented from continuing to litigate without responsibility.
The defendant also submitted that the order could be made pursuant to UCPR 50.8 in 'special circumstances'. In these proceedings, the small amount that the plaintiff would be awarded, coupled with the fact that a dispute over such a low amount is now in the Supreme Court and that the continued bringing of applications are borderline on an abuse of process, would suggest that the "special circumstances" provision is engaged.
The plaintiff submitted firstly, the motion should be stayed or the hearing adjourned until the defendant provides his true address; and secondly, the defendant should pay the two money ordered to be paid by the Tribunal.
The plaintiff also submitted that none of the criteria in UCPR 42.21(1) (a) to (f) refer to his position, the result of which is that the criteria in UCPR 42.21(1)(a) are not enlivened. In other words, those criteria in UCPR 42.2(1)(a) cannot be considered until one of the subparagraphs in 42.21(1) is made out.
The plaintiff also asserted that the inherent jurisdiction of this Court to order security for costs under UCPR 50.8 is also not satisfied. The fact that there have been multiple decisions made at different stages and now an appeal to the Supreme Court does not constitute "special circumstances". Rather, the plaintiff asserted that he is simply exercising his right of appeal and has indicated the strength of his case in respect of the errors of law in the Appeal Panel's reasons. Insofar as the reasons of the Appeal Panel are concerned, the plaintiff submitted that they are simply "lip service and fudge" (T7.24), particularly those reasons concerning the issues of aggravated damages and procedural fairness. The plaintiff submitted that it was highly probable that the Court would ultimately make an order in his favour.
So far as payment of the judgment sum on 11 January 2018, three days after the appeal decision, the defendant emailed the plaintiff as follows (Ex 1): "NSW Civil & Administrative Tribunal - AP 17/26430 - Aaron Corcoran vs Peter Far … WITHOUT PREJUDICE Aaron Please advise how you would like to receive the judgment money. Peter."
The plaintiff says that he did not receive this email because he blocked the defendant's email address. He asserts that any correspondence should be sent to his post office box. That address appears on the summons as his address for service.
The plaintiff submitted that the defendant bears an evidential burden of establishing an arguable case for an order for security for costs. The plaintiff says that as the defendant is not permitted to rely on affidavit evidence he cannot establish an arguable case and the power to make an order for security for costs does not arise. Therefore, the motion should be dismissed with no order as to costs.

Conclusion

So far as UCPR 42.21 is concerned, the plaintiff is a natural person. The plaintiff is an Australian. (T6.23). I agree that there is no evidence that the plaintiff falls within any of the requirements set out in UCPR 42.21(1). Hence, UCPR 42.21 is not enlivened. Therefore, the plaintiff cannot be ordered to provide security for costs pursuant to UCPR 42.21.
UCPR 50.8 empowers this Court to make an order for costs if there are "special circumstances". The plaintiff is entitled to seek leave to appeal despite being awarded a modest sum by the Appeal Panel in NCAT. He has an entitlement to seek leave to appeal. Although the judgment is for a modest sum, this alone does not constitute "special circumstances". There is no basis to award security for costs under the inherent power of this Court.
The result is that the defendant's application for security for costs fails. The defendant's notice of motion filed 25 May 2018 is dismissed. The plaintiff's amended summons filed 7 February is listed for directions before the Registrar at 9.30 am on Friday, 27 July 2018.
Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff's costs on an ordinary basis.

The Court orders that: (1) The defendant's notice of motion filed 25 May 2018 is dismissed. (2) The plaintiff's amended summons filed 7 February 2018 is listed for directions before the Registrar at 9.30 am on Friday 27 July 2018. (3) The defendant is to pay the plaintiff's costs on an ordinary basis.

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 July 2018

Residential Tenancies Regulation 2010(NSW)

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