Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163 | Case summary

Judgment (ex tempore)

The applicant Mr Antonio Di Liristi is or was the tenant under a residential tenancy agreement of premises in Austral of which the first respondent, Matautia Developments Pty Ltd ("Matautia"), is the lessor and registered proprietor. On 5 March 2020, Mr Di Liristi commenced proceedings in the Common Law Division by summons seeking relief in relation to disputes concerning that property. The relief sought included a declaration that there was a valid lease between Matautia and Mr Di Liristi, and that Matautia was estopped from terminating the lease, as well as judgment for damages arising from alleged failures by Matautia to repair or maintain the property in accordance with its alleged obligations under the lease.
On or about 23 March 2020, Matautia, by notice of termination given by its solicitors, purported to terminate the lease. After an unsuccessful application for summary dismissal of the proceedings, [1] the summons was amended on 28 July 2020. On 31 July 2020, Matautia filed a cross-claim for possession of the property. After a trial which proceeded over six days in March 2021 before Cavanagh J, his Honour on 11 June 2021 delivered a judgment, pursuant to which orders were made to the effect that: [2] 1. Mr Di Liristi's summons be dismissed; 2. it was declared that Matautia had validly terminated the lease; 3. it was declared that Matautia was entitled to possession of the property; 4. there be liberty to apply to have the matter relisted for determination of the issues relating to damages and costs; and 5. Matautia was directed to provide a schedule of unpaid rent.
Pursuant to a further judgment given on 23 June 2021, Cavanagh J on that day made orders to the following effect: [3] 1. Judgment for Matautia on its cross-claim against Mr Di Liristi in the sum of $311,389; 2. Mr Di Liristi pay Matautia's costs; and 3. the proceedings be transferred to NCAT for the making of an order for termination of the residential tenancy agreement.
On 5 July 2021, Mr Di Liristi filed a Notice of Appeal in this Court. It will be necessary to return to it shortly. Although it is not entirely clear, it seems that as a result of the transfer order made by Cavanagh J, the proceedings reached the New South Wales Civil and Administration Tribunal ("NCAT") on or about 7 July 2021. On 8 July 2021 NCAT made directions for the further conduct of the proceedings before it, including for evidence and submissions on behalf of the landlord by 16 July 2021, on behalf of the tenant by 23 July 2021, and in reply by 30 July 2021. The parties were directed to address in their submissions whether a hearing could be dispensed with and orders made on the basis of the written material provided. The Court has been informed that on Mr Di Liristi's application, the time for him to provide submissions has been extended to 30 July 2021. It appears that NCAT was notified of the pendency of the appeal on or about 20 July 2021, in the course of communications from Mr Di Liristi.
Although Mr Di Liristi submitted that on an application for a stay the Court did not inquire into the grounds of appeal, that is not correct, or at least not entirely so. It is fundamental to an application for a stay that, ordinarily, at least arguable grounds of appeal be demonstrated. While an applicant for a stay does not have to show that the circumstances are special or exceptional, the ability to identify reasonably arguable grounds of appeal is highly relevant to the exercise of a discretion to grant a stay, [4] and the absence of arguable grounds is likely to be a determinative consideration against a stay application. [5] If what Mr Di Liristi submitted is that the Court does not inquire in detail into whether individual grounds of appeal will or will not succeed, then to that extent the submission is essentially correct, but the Court does undertake a preliminary assessment at least of whether grounds are unarguable, as distinct from arguable.
In this case, an imperfect and incomplete summary of the grounds raised in the Notice of Appeal is that they fall into three categories: the first relates to the jurisdiction of the Court to have entertained Matautia's cross-claim for possession; the second relates to the validity of the notice of termination and in particular whether it was duly authorised by Matautia; and the third contests various findings of fact made by the primary judge. There are also some grounds which raise questions of procedural fairness.
The ground that goes to jurisdiction is to the effect that Residential Tenancies Act 2010 (NSW) ("RTA"), s 119, deprived the Court of jurisdiction to entertain Matautia's cross-claim for possession. When the cross-claim was filed, Mr Di Liristi agreed in writing that he would not raise a defence under s 119 of the RTA. If s 119 provides a defence, then he could and would by that correspondence have waived any entitlement to rely on it, just as a party may waive reliance on a statute of limitations, which also provides a defence, as distinct from depriving a court of jurisdiction. If, however, the effect of s 119 is to deprive the Supreme Court of jurisdiction, then jurisdiction cannot be conferred on a court by consent; nor could the fact that an objection to jurisdiction on that basis was not raised at first instance preclude it from being raised on appeal, as points going to jurisdiction of that nature may at least ordinarily be raised at any stage of proceedings, notwithstanding that they were not raised earlier.
The argument that s 119 is jurisdictional rather than defensive faces some obstacles, but it seems to me that it cannot be said to be unarguable. Uninstructed by authority, I would have construed s 119, which prohibits a landlord or former landlord from commencing proceedings to recover possession of residential premises subject to a residential tenancy agreement in the Supreme Court, the District Court, or the Local Court, as denying those courts jurisdiction, rather than merely providing a defence to such proceedings if instituted. That is because it involves a prohibition on the institution of proceedings, expressed in mandatory terms, and suggests that proceedings instituted contrary to it would be an abuse of process.
However, although some others have taken a similar view, there is authority of this Court to the contrary. The principal authority to that effect is Whiteford v Commonwealth ("Whiteford"), [6] in which two judges of this Court followed the obiter dicta of three judges of the High Court in Commonwealth v Rhind ("Rhind"). [7] Rhind was a case which concerned not s 119 but s 2A of the Landlord and Tenant Act 1899 (NSW), which was not materially different to s 119, while Whiteford concerned s 71 of the former Residential Tenancies Act 1987 (NSW), which again was not materially different to either s 119 or s 2A. The judge at first instance in Rhind, another Brereton J, took the same view as I have indicated above, namely, that the provision denied a jurisdiction to this Court. On that basis, he directed entry of judgment for the defendant tenant. [8]
On appeal to this Court, a constitutional point was raised by the Commonwealth and the matter was removed into the High Court, where it was decided on issues that did not depend on the effect of s 2A, although Barwick CJ, with whom McTiernan J and Menzies J agreed, expressed the view that s 2A merely provided a defence and did not deprive the Supreme Court of jurisdiction. [9] The other two judges, who were experienced on the common law side of this Court before joining the High Court, were Owen J, who did not express a view on the question, and Taylor J, who expressed a view contrary to that of Barwick CJ. [10] It was in that setting that in this Court, in Whiteford, Kirby P and Sheller JA preferred the majority view in the High Court and gave effect to it. [11] However, as Powell JA, who expressed no view on that issue, pointed out, it was not necessary to decide the issue to resolve the case in Whiteford. [12]
As Ms Avery-Williams, counsel for the first and second respondents, helpfully pointed out this morning, Whiteford has been recently referred to in this Court with apparent approval in Case v Frimont, [13] but it was a reference in passing without detailed consideration. Against that background, it seems to me that the applicant would require leave to argue that Whiteford was wrongly decided, but that there is a respectable basis for advancing such an argument. It is not an unarguable ground of appeal.
The second group of grounds to which I have referred concerns the validity of the notice of termination, and essentially with whether its issue was duly authorised. As it was issued by the solicitors for Matautia, it seems to me that there is little that can be said for that ground of appeal.
The third group of grounds involves challenges to findings of fact made by the primary judge, largely based on an evaluation of the credit of Mr Di Liristi. Mr Di Liristi proposes to mount an attack on those findings of credit. The difficulties which confront an appellant who wishes to impugn findings of fact made by a trial judge based on an evaluation of credit founded in whole or in part on observations of the witness giving evidence are well known. [14] Again, the prospects of such an attack succeeding do not look high. However, Mr Di Liristi has pointed to matters adverse to the credit of some of the witnesses on the other side of the record, which he says the judge did not adequately take into account. It seems to me that his Honour did refer at least to some of those matters and that this is not a strong ground of appeal, but I do not think it can be said to be utterly unarguable.
In those circumstances, I am not prepared to conclude that the appeal is an unarguable one, and it is therefore necessary to address questions of the balance of justice and convenience. In that respect, it is, as it often is, of considerable significance that failure to grant a stay might render the right of appeal nugatory. The relevant provisions of the judgment involve a monetary sum in excess of $300,000, in circumstances where Mr Di Liristi says, and it does not appear to be in dispute, that he does not have substantial assets, and an order remitting the proceedings to NCAT so that Matautia may obtain an order for possession of the property. It may be concluded in those circumstances that failure to grant a stay would render the right of appeal nugatory.
Against that, Matautia points out, with justification, that it has never received any rent for the premises during Mr Di Liristi's occupation, that this will continue so long as it is kept out of possession, and that it has obligations to the local council to remediate the property. It is not clear to me that such remediation as is required cannot be undertaken without taking possession of the property, and there is some controversy as to who is presently subject to the remediation notice; in particular, whether it is Matautia or Mr Di Liristi. The circumstance that Matautia will be kept out of rent is significant, but must be seen in the light of the circumstance that it did not receive rent for a year or so after the lease commenced, apparently without objection, and that non-payment of rent was not one of the grounds relied on in the notice of termination, although it is said that this was because of the COVID-19 moratorium regulations in place at that time. [15]
The prejudice to the respondent can be minimised by bringing on the hearing of the appeal expeditiously. Mr Di Liristi is not in a position to give security over real property, but he does have some personal property, including motor vehicles and livestock, over which a charge may be taken. This should go some way to ensuring that the respondent's position is not further prejudiced in the meantime.
A question however arises as to whether the Court can stay the transfer to NCAT of the proceedings for possession. The jurisdiction to stay an order is prospective; a stay cannot be granted of an order that has already been implemented. [16]
Order 1 made on 11 June 2021 was the dismissal of the summons; there is nothing to be stayed in that respect. Orders 2 and 3 were declarations; the Court does not stay declarations, which merely declare the rights of the parties. Orders 4 and 5 have already been implemented. As to the orders made on 23 June 2021, order 1, which gave judgment for a monetary sum, and order 2 for costs, at least theoretically, could be stayed. Order 3 transferred the proceedings to NCAT. In my view, that order, having been implemented by the matter having been transferred to NCAT, cannot now be stayed.
The proceedings having been transferred to NCAT, quite difficult questions arise as to NCAT's jurisdiction to proceed to deal with them. The relationship between proceedings in a Court and proceedings in NCAT is regulated by cl 5 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW). In short, cl 5(3) has the effect that if, when an application was made to NCAT, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court is deprived of jurisdiction to hear or determine any such issue. On the other hand, cl 5(7) has the effect that if, when an application is made to NCAT for the exercise of a function, an issue arising under the application was the subject of a dispute in proceedings before a court, NCAT on becoming aware of those proceedings ceases to have jurisdiction to hear and determine the issue.
Although for a time I wondered whether the reference in cl 5(7) to "the time when an application is made to the Tribunal" might refer not to the institution of the proceedings but to any time during the conduct of the application until the order was made), [17] it seems to me that the bifurcation between cll 5(3) and 5(7) means that this cannot be the case, and that "the time when an application is made to the Tribunal" must refer to the time at which proceedings in NCAT were instituted.
That still produces a number of complications. Clause 6(2) of Sch 4 has the effect that where a court, either of its own motion or on the application of a party, directs that proceedings be transferred to NCAT, they continue before NCAT "as if the proceedings had been instituted in the Tribunal". There are, it seems to me, a number of possibilities. One is that the application is taken to have been made to NCAT when the transferred proceedings were commenced in NCAT by receipt of the transfer there. If so, in the present case, that was on or about 7 July 2021, after the appeal was filed in this Court. Since then, NCAT has become aware of the appeal proceedings, and on that analysis would cease to have jurisdiction.
Ms Avery-Williams has foreshadowed that Matautia's argument as to jurisdiction in NCAT would be that, as the proceedings continue before NCAT "as if the proceedings had been instituted in the Tribunal", they should be taken to have been instituted when Matautia's cross-claim was filed in this Court, which was on 31 July 2020. That argument has the potential difficulty that on 31 July 2020, Mr Di Liristi's proceedings, in which he claimed, inter alia, that Matautia was estopped from terminating the lease, were pending in this Court, and that upon NCAT becoming aware that those proceedings were pending when the proceedings were deemed to be instituted in NCAT, it would be deprived of jurisdiction in respect of the transferred cross-claim.
Another possible analysis is that cl 5(8) provides that cl 5(7) ceases to apply "to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn". The proceedings in the Supreme Court were not dismissed or quashed for want of jurisdiction or without deciding the issue on its merits, but were resolved on their merits, and an appeal is now pending. At least arguably, the proceedings initiated by the summons in the Supreme Court remain pending by virtue of the appeal having been commenced with in time in this Court.
As I foreshadowed in the course of argument, the proceedings having been transferred to NCAT, the ordinary course would be for an objection to jurisdiction to be taken before NCAT, and if NCAT were to determine that it has jurisdiction, an application for prohibition could then be brought. I have considered leaving the matter to take that course. However, in view of the apparent complexity of the argument, the undesirability of having concurrent proceedings in two different jurisdictions (namely, in this Court and in NCAT). and the likelihood that if NCAT were to assume jurisdiction there would likely be a further application for a writ of prohibition, it is desirable, if possible, for this Court to resolve, at least by way of case management, how the matters should proceed, and to do so in a manner which avoids two jurisdictions concurrently dealing with the matter. As it seems to me, the argument over NCAT's jurisdiction in the light of the pendency of the appeal is an unnecessary and sterile one which can be avoided by this Court ultimately resolving the substantive issues between the parties.
While the Court cannot stay the transfer of the proceedings to NCAT, one means of avoiding the inconvenience of parallel proceedings in NCAT while an appeal is pending would be an anti-suit injunction prohibiting Matautia, on an interlocutory basis, from proceeding to obtain an order for possession in NCAT. When I foreshadowed this possibility in the course of argument, Ms Avery-Williams fairly and properly recognised that the arguments and evidence that Matautia would wish to raise in opposition to an application for such an injunction would not differ from those which it raised and advanced on the present stay application.
Supreme Court Act 1970 (NSW), s 46(2), empowers a single judge of appeal to exercise the powers of the Court of Appeal to make any order or give any direction in any appeal or other proceedings other than an order or direction involving the determination or decision of the appeal or other proceedings. I am satisfied on that basis that I may make an order restraining Matautia from prosecuting the proceedings in NCAT.
Mr Di Liristi referred to observations that it was erroneous, at least in the circumstances of a particular case, for the Court to require an appellant to pay part of the judgment as a condition of a stay. However, it is conventional to require an appellant to give security in connection with a stay. This does not involve requiring an appellant to make a payment, but simply to provide security, essentially so that the respondent's position is not further prejudiced pending the hearing of an appeal.
Collecting those considerations, then, my view may be summarised as follows: first, the appeal, though not having strong prospects of success, is not unarguable; secondly, failure to grant a stay would render the right of appeal nugatory; thirdly, granting a stay will inflict prejudice on Matautia at least insofar as it will be kept out of rent, but that can be mitigated by expedition of the appeal; fourthly, on balance, a stay should be granted; fifthly, while it is not possible to stay the transfer of the proceedings to NCAT, the transfer having already occurred, the effect can be achieved through an anti-suit injunction; and finally, to the extent that such relief is granted, it will be conditioned on Mr Di Liristi's undertaking as to damages, which he has proffered, the giving of a fixed and floating charge over all his personal property, and his undertaking to prosecute the appeal expeditiously.
For those reasons, the orders of the Court are: Upon the applicant, Antonio Di Liristi, giving to the Court the usual undertaking as to damages and further undertaking that he will prosecute the appeal expeditiously, and upon condition that by 10 August 2021, the applicant execute and deliver to the registrar a general security deed in the nature of a fixed and floating security over all his circulating and non-circulating assets, including motor vehicles and livestock, as security for the judgment under appeal, such security to be in a form agreed with the respondent, or if not agreed then as settled by the registrar, the Court orders that: 1. Execution on and proceedings under orders 1 and 2 made on 23 June 2021 in the Common Law Division be stayed until the hearing of the appeal or earlier further order; 2. Until the hearing of the appeal or earlier further order, the respondent be restrained from prosecuting any application for an order for possession in proceedings in the New South Wales Civil and Administrative Tribunal, including the transferred proceeding file number RT21/29690; 3. The hearing of the appeal be expedited; 4. The respondent by 2 August 2021 deliver to the appellant a draft security deed for the purpose of the condition referred to above; 5. There be liberty to apply by arrangement with my associate in the event of any difficulty arising in settling the terms of the security deed; 6. There be liberty to apply by arrangement with my associate for dissolution of the stay in the event that the security is not given; and 7. Costs of the application for a stay be costs in the appeal.
These orders are to be entered forthwith.

Endnotes

See Di Liristi v Matautia Developments (No 2) [2020] NSWSC 862.
Di Liristi v Matautia Developments (No 6) [2021] NSWSC 663 at [210]-[219] (Cavanagh J).
See Di Liristi v Matautia Developments (No 7) [2021] NSWSC 760 at [51] (Cavanagh J).
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695 (Kirby P, Hope and McHugh JJA) ("Alexander"); Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 at 189 (Maxwell J).
Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 at [48] (Tobias JA); Chen v Lym International Pty Ltd [2009] NSWCA 121 at [15] (Beazley P); Alexander at 695 (Kirby P, Hope and McHugh JJA).
(1995) 38 NSWLR 100.
(1966) 119 CLR 584; [1966] HCA 83.
Rhind at 590 (Barwick CJ; McTiernan J agreeing).
Rhind at 598 (Barwick CJ; McTiernan J agreeing), 606-607 (Menzies J).
Rhind at 602-603 (Taylor J).
Whiteford at 104-106 (Kirby P), 112 (Sheller JA).
Whiteford at 114-115 (Powell JA).
[2021] NSWCA 30 at [23] (Leeming JA; Basten JA and Gleeson JA agreeing).
See, eg, Johnson v Mackinnon [2021] NSWCA 152 at [115] (Brereton JA; Macfarlan JA and Simpson AJA agreeing), citing Lee v Lee (2019) 266 CLR 129 at 148-149 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28.
See Residential Tenancies Amendment (COVID-19) Regulation 2020 (NSW), Sch 1.
Attia v Health Care Complaints Commission [2017] NSWSC 178 at [25] (McCallum J); AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302 at 307 [16] (Basten JA), 321 [95] (Campbell JA; Handley JA agreeing); [2010] NSWCA 81; McBride v Walton (Court of Appeal (NSW), Handley JA 27 August 1993, unrep).
Cf Leue v Reynolds (1986) 4 NSWLR 590 at 596-598 (Hodgson J). 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: 04 August 2021

Di Liristi v Matautia Developments Pty Ltd

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