Ebbersten v Kanjian

Supreme Court of NSW|2009-10-06

The application by the landlord to have both proceedings transferred to the District Court is granted subject to the Tribunal's decision as to that part of the tenant's application relating to a refund of the Bond.

The Registry is directed to transfer proceedings RT 08/45563 and RT 08/60854 to the District Court once the Tribunal has determined the issue of the Bond.

The matter is to be listed on a date to be fixed by the Registrar for the Tribunal to make its determination in relation to the Bond Claim." 16 So at the conclusion of the hearing of 4 February 2009, an order to transfer the proceedings to the District Court had been made. The remaining issue whether the bond dispute had to remain in the Tribunal. 17 On 23 February 2009, Senior Tribunal Member Paull decided that the District Court did have power to determine the rental bond. 18 On 11 March 2009, Mr Ebbersten filed an application for rehearing. On 18 March 2009, Chairperson Ransom dismissed the application for rehearing. (1) Does the District Court have jurisdiction to hear s 81 applications? 19 On 24 November 2008, in his amended application, the tenant sought an order pursuant to s 81 of the CTTT Act for an extension of time in which to bring an application against the landlord pursuant to s 16 of the Residential Tenancies Act. 20 Section 16(1) of the Residential Tenancies Act provides: "16(1) If a landlord or a tenant under a residential tenancy agreement claims that a breach of a term of the agreement has occurred, the landlord or the tenant may, not later than 30 days after becoming aware of the breach, apply to the Tribunal for an order in respect of the breach." 21 Section 81 of the CTTT Act reads: "81 Extensions of time

(1) Despite any other provision of this or any other Act, the Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any Act in respect of which the Tribunal has jurisdiction.

(2) Such an application may be made even though the relevant period of time has expired." 22 The tenant submitted that unlike other statutes s 81 of the CTTT Act is drafted in a unique way in that most statutes of limitation set out the circumstances which enliven the power of an adjudicator to grant an extension of time. The tenant submitted that s 81 does not set out the grounds, but rather identifies the adjudicator empowered to grant an extension of time, namely the CTTT. The tenant submitted, that the District Court has no such power and it is only the CTTT that has power. 23 The tenant further submitted that the CTTT gave an erroneous ruling as to its jurisdiction, and had no jurisdiction to make the order, in determining that it had the jurisdiction to transfer proceedings to the District Court, when the District Court itself lacked the jurisdiction to grant the relief in the amended application sought pursuant to s 69 of the Supreme Court Act: see Craig v South Australia at [10]-[12] and MIMA v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [41]-[42] and [82]. The landlord submitted that s 81 is not a provision of jurisdiction but of procedure in the CTTT. 24 It is my view that s 23(1) of the CTTT Act gives the District Court jurisdiction to hear the s 81 application. 25 It reads: "23 Transfer of proceedings to courts or to other tribunals

(1) If the parties in any Tribunal proceedings 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 they had been instituted there." 26 Section 23(1)(a) empowers the Tribunal, on the application of a party and in this case, on the landlord's application, to transfer the proceedings to the District Court. More importantly, if the proceedings are transferred to the District Court, those proceedings are to continue in the District Court as if they were instituted there. Even if I am wrong and the District Court cannot hear an extension of time application pursuant to s 81 of the CTTT Act the District Court has power to extend time for the filing of an application pursuant to UCPR Rule 1.12. 27 Rule 1.12 reads: (1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires." 28 The tenant in respect of the s 81 submission fails. 29 The tenant also submitted that exclusive jurisdiction is conferred on the Tribunal to make declarations under s 47 of the Residential Tenancies Act. It reads: "47 Tenant may apply for an order that rent is excessive

(1) A tenant under a residential tenancy agreement may, at any time, apply to the Tribunal for an order declaring that the rent payable under a residential tenancy agreement or a proposed residential tenancy agreement for residential premises already occupied by the tenant is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the premises.

(2) This section applies whether or not the goods, services or facilities are provided under the agreement or a separate contract, agreement or arrangement or were provided under a previous contract, agreement or arrangement." 30 It is my view that s 23 is applicable and that once the proceedings are transferred to the District Court, the District Court is empowered to continue the proceedings. Hence, the District Court has jurisdiction to hear proceedings in which a claim has been made under s 47 of the Residential Tenancies Act. The tenant's submission in respect of s 47 of the Residential Tenancies Act also fails. (2) Denial of procedural fairness 31 The tenant submitted that he was denied procedural fairness when on 23 February 2009, Senior Tribunal Member Paull failed to afford him a reasonable opportunity to call or give evidence on his case for an extension of time and in breach of s 35 of the Act; peremptorily refusing an adjournment. 32 The tenant submitted that on 23 February 2009, Senior Tribunal Member Paull continued to hear the landlord's transfer application and the following events occurred:

(a) Submissions were made to the effect that the CTTT had exclusive jurisdiction to hear and determine the tenant's claim, and therefore the landlord's transfer application ought to be dismissed.

(b) In response, the CTTT, without prior notice or warning, called on the tenant to conduct his case to finality as to extension of time, which required the tenant to conduct his entire case to finality. Notwithstanding that the tenant's counsel had informed the CTTT that the tenant was unable to do so, emphasising that there had been no notice that the tenant was to conduct his case at all and that this was accepted as correct by the CTTT.

(c) The CTTT, pre-empting an application for an adjournment by the tenant for an opportunity to conduct his case, indicated that no adjournment would be granted.

(d) There being no evidence led by the tenant on his case, the CTTT summarily dismissed the tenant's application for an extension of time.

(e) It followed there was then no matter on which the CTTT had exclusive jurisdiction.

(f) The CTTT then determined the landlord's transfer application in favour of the landlord, namely ordering the proceedings to be transferred to the District Court. 33 The landlord submitted that on 4 February 2009, if either in antecedent written submissions or in oral submissions during the hearing in the CTTT, the tenant had raised the s 16 jurisdictional point, the landlord could have responded to it by consenting to the time limit being extended. The landlord says that it now somewhat perverse for the tenant to allege jurisdictional error on the part of the CTTT, and in so doing to seek to profit from or to take advantage of his [the tenant's] very own failure to raise the matter on 4 February 2009 which was the relevant time to have raised it. By 23 February 2009, it was simply to late too raise the point as the CTTT proceedings, so far as they concerned the s 16 claim, as an order had already been made transferring the proceedings to the District Court. 34 The landlord submitted that the tenant's complaint that the CTTT failed to give him a fair hearing in relation to the extension of time under s 16 of the Residential Tenancies Act, can be met simply by pointing to the decision of 4 February 2009 to transfer the proceedings to the District Court, with the exception of the rental bond issue. The landlord says that this left the tenant's claim under s 16 intact and able to be prosecuted in the District Court; and that the CTTT had no jurisdiction to deal with the tenant's application to extend time and that the CTTT's jurisdiction extended only to the question of whether the rental bond dispute would also travel to the District Court.

35 The landlord further submitted that the transcript of 23 February 2009 reveals, that the CTTT did in fact give the tenant an opportunity to apply for the s 16 extension of time but he declined and, therefore, the decision to dismiss the tenant's application for a rehearing was correct and there is no error. Procedural fairness in Tribunal 36 Section 28 of the Consumer Trader and Tenancy Tribunal Act reads: "28 Procedure of Tribunal generally

(1) The Tribunal may, subject to this Act, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand: (a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings.

(g) may dismiss any proceedings if the applicant fails to attend a hearing, …" 37 Section 35 reads: "Opportunity for parties to present case

The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:

(a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and

(b) to make submissions in relation to the issues in the proceedings." 38 Section 35 provides that the CTTT "must ensure" that each party is given "a reasonable opportunity" to present its case. There are provisions which allow the CTTT a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness - see Italiano v Carbone [2005] NSWCA 177 at [105] and [106]. The Tribunal hearing of 23 February 2009 39 On 23 February 2009, Mr Doyle Gray of counsel appeared for the tenant at the Tribunal. He had not previously appeared. The landlord, a solicitor, appeared for himself. 40 At the outset the Tribunal Member stated (at t 3): "… I made the decision and gave the ruling that this matter was going to the District Court. I had, and I'm not revisiting that.

I had a, in my mind, I raised there's some doubt about the bond issue, and I want to clarify because, as I noted in my earlier direction, the tenant's application includes a refund of the bond.

Having read that provision, I don't think there's any such problem, so this - the bond will travel - follow the rest of the files, and will transfer to the District Court." 41 Mr Doyle Gray then sought to be heard. He agreed that the District Court had jurisdiction to decide the bond issue. He then sought to make submissions that the CTTT had exclusive jurisdiction under s 81 of the CTTT Act. After making his submissions, the following exchange took place (at t 4, 7, 8, 9, 10): "MEMBER: I'm not revisiting it again. I'm just not, Mr Doyle. I don't known what's happened, but it went on for a long time. This matter has gone on for a long time here. Now in the end, I can't revisit my orders. I've made them. I've clarified the bond position. Is there anything further you'd like to say?

Okay. So is your argument, your client's claim proceeds under section 16, 47 and 49, none of those provisions allow for an extension of time in themselves; therefore if this Tribunal is dealing with it , it would have to deal with it under section 81 of the CTTT Act.

… it is my understanding of that interpretation that the Tribunal can extend jurisdiction when - sorry, can extend time when it has jurisdiction. I have already ruled there is no jurisdiction. Section 81 is not applicable.

I will then proceed to do what this matter was listed for today, and transfer the bond matter as well. Anything further?

You've come here asking me to extend time and you can't tell me why--

GRAY: No. No, I've drawn your - no, I've drawn your attention to the claim for final relief which seeks an extension of the time. The expression that is really facile, we're out of - the tenant was out of the period prescribed, that's why an extension of time is sought. I'm not in a position to argue the extension of time today.

MEMBER: Well this was your time to do it. Because I'm giving you another - it can't keep coming here. You can argue it in the District Court. If you're not in a position to argue it today, I'm not re-listing it.

GRAY: Can I say then, just for the record? That there's been no notice that we were to argue the matter for an extension of time finally today.

MEMBER: That's right. It's absolutely without doubt, because there is no notice that that was ever on the record. Read the directions again, Mr Doyle. Okay? So I'll just clarify this. In relation, an application was made to me to extend time for the tenant's claim. I initially took the view that I couldn't apply it under section 81, and I'm still of that view, that I can only extend time in relation to matters where I have jurisdiction. It was only in the landlord's claim that I found I have no jurisdiction because the landlord's claim is not in excess of the $10,000, which is the monetary limit imposed on us.

Orders 4 and 5 of 4 February 2009 are amended as follow: Order 4 will read "The application by the landlord have both proceedings transferred to the District Court is granted."

Order 5 will now read: "The Registry is directed to transfer proceedings 08/45563 and 08/60854 to the District Court."

Secondly, I order that the tenant's application to have the Tribunal extend time in relation to the tenant's claim is refused as counsel for the tenant advised that he was not in a position to argue the basis of that application in today's proceedings." 42 In Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11, the Court of Appeal said (at [14]-[15]): "[14] First, where a point is not taken in the Court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it can not be taken afterwards ( Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; see also Coulton v Holcombe (1986) 162 CLR 1 at 7-8 and Water Board v Moustakas (1988) 180 CLR 491 at 497). Similarly, the point can not afterwards be taken where, if the point had been raised, the respondent might have conducted the case differently at trial ( Multicon Engineering Pty Ltd v Federal Airports Corporation (NSWCA, 15 October 1997, unreported)). The strength of this principle is demonstrated by Suttor v Gundowda Pty Ltd . It was accepted that the defence which the appellant sought to raise for the first time on the hearing of the appeal would not naturally have occurred to him before judgment, because it was grounded on a particular finding, but it was said that it had been open to the appellant to ask the trial judge to restore the proceedings to the list and hear argument on the effect of the finding, and if necessary to reopen the case and hear further evidence. It was held that it was "by no means clear that, if the defence had been raised in the court below, further relevant evidence might not have been tendered" (at 439), and that it was too late to raise the defence. There is no reason why this principle should not extend to points of the kind involved in the errors asserted by the appellants.

[15] The second principle is that generally parties must be bound by the course they adopted at the trial ( Browne v Dunn (1894) 6 R 67 at 75-76; Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Multicon Engineering Pty Ltd v Federal Airports Corporation ). At least in part this principle is founded on public policy considerations favouring the finality of litigation (see Rowe v Australian United Steam Navigation Co Ltd; Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 284), and it may be that the appellant will not be permitted to make a new case on appeal even if the point is unaffected by possible further evidence or the way the opposing party would have conducted the case at trial (as is illustrated by Multicon Engineering Pty Ltd v Federal Airports Corporation ). And this principle may come into play not only when the course taken at the trial was deliberate, but also if the appellant's conduct of the trial was affected by inadvertence. The statement of the principle in University of Wollongong v Metwally (No 2) was in the terms -

"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence , he failed to put during the hearing when he had an opportunity to do so."" [emphasis added] 43 The s 81 extension point, although pleaded, was not raised by the solicitor representing the tenant at the hearing to determine whether the proceedings were to be transferred to the District Court. The Tribunal hearing of the discrete issue on 4 February 2009 was the time when the tenant should have argued that the Tribunal had exclusive jurisdiction and that the District Court had no jurisdiction. He did not do so. At the conclusion of that hearing orders were made transferring the proceedings to the District Court. The only matter that may have remained in the Tribunal was the bond issue. 44 The hearing on 23 February 2009 was for the purpose of clarifying whether the CTTT had exclusive jurisdiction in relation to the bond. On 23 February 2009, counsel appeared for the tenant and raised the s 81 jurisdiction issue for the first time (see transcript 4/2/09 at pp 3-4). In my view, on 4 February 2009, the tenant had a reasonable opportunity to put his submissions concerning jurisdiction before the Tribunal Member. He did not do so. The tenant now submits that he was not afforded an adjournment. It is my view that the tenant was not denied procedural fairness. The issue had already been heard and determined. While the procedures in the Tribunal are perhaps more flexible than in this court, they are not laissez faire. The rehearing application 45 The tenant submitted that on 11 March 2009, he filed an application for rehearing on the grounds that the CTTT failed, to a fair minded lay observer, to bring an impartial and unprejudiced mind to the resolution of the questions necessary to be decided; and that it failed to afford the tenant a reasonable opportunity to call or give evidence. On 11 March 2009, the transcript of 23 February 2009 was not available and the tenant sought to put further submissions before the CTTT on the rehearing once the transcript became available. 46 On 18 March 2009, Chairperson Ransom, without prior notice or warning, summarily dismissed the tenant's application for rehearing on the basis, firstly, that the application was misconceived as there had not been a hearing nor a determination by the CTTT; and secondly, in the alternative, if there had been a hearing and a determination, then what has occurred was a denial of procedural fairness, which was an error of law, and the CTT had no jurisdiction to entertain errors of law on application for rehearing. The rehearing 47 Section 68 of the CTTT Act deals with rehearings. Section 68(2) sets out the grounds upon which a rehearing application may be made. They are that the applicant may have suffered a substantial injustice because firstly, the decision of the Tribunal in the completed proceedings was not fair and equitable, or secondly, the decision of the Tribunal was against the weight of evidence, or thirdly, significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard). 48 Importantly, s 68(8)(c) provides that the Chairperson's decision on whether or not to grant a rehearing "is final and not subject to review of any kind." It is my view that a rehearing decision is not subject to review in this Court. 49 In Mah v Consumer Trader & Tenancy Tribunal [2005] NSWSC 476 Master Malpass (as he then was) at [21] to [23] stated that ss 65 and 67 of the Act have no application in relation to such a decision and that the legislature makes it clear that such a decision is to be final and not subject to review of any kind. I respectfully agree with this view. 50 The application for judicial review fails. The summons filed 1 April 2009 is dismissed. 51 Costs are reserved. The court orders

19/11/2009 - Spelling of Counsel for First Defendant should be R Graton, not Gratton - Paragraph(s) Coversheet 19/11/2009 - R Gratton (Graton) should read R. Gration - Paragraph(s) Cover Sheet

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.

CITATION : Ebbersten v Kanjian [2009] NSWSC 1185 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Browne v Dunn (1894) 6 R 67 Chilcotin Pty Ltd v Cenelage ty Ltd [1999] NSWCA 11 Coulton v Holcombe (1986) 162 CLR 1 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Italiano v Carbone [2005] NSWCA 177 CASES CITED : Mah v Consumer Trader & Tenancy Tribunal [2005] NSWSC 476 MIMA v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Multicon Engineering Pty Ltd v Federal Airports Corporation (NSWCA, 15 October 1997, unreported) Obieta v CTTT [2009] NSWCA 220 Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 Water Board v Moustakas (1988) 180 CLR 491

The judicial review 5 The tenant relied upon s 69 of the Supreme Court Act 1970. Relevantly it reads: "69(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings." 6 At the hearing, I asked counsel for the tenant why he did not rely upon either s 65 or s 67 of the Consumer, Trader and Tenancy Tribunal Act. Counsel replied that there was some confusion. While the District Court can now hear matters under the CTTT Act, Obieta v CTTT [2009] NSWCA 220 leaves open the making of s 69 application to this court. Counsel relied on ss 65 and 67 if he needed to do so. Counsel for the landlord submitted that while there was judicial review available under s 69 of the Supreme Court Act, it was more limited under s 65 of the CTTT Act. It is common ground that this court has jurisdiction under s 69 of the Supreme Court Act. 7 In Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, the High Court referred to different ways in which an inferior court might commit a jurisdictional error. It described the "most obvious" case as one where the inferior court acted "wholly or partly outside the general area of its jurisdiction". It went on to say that such a court: "… would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach" (at 177). 8 The High Court then identified some less obvious examples of jurisdictional error and concluded with the following comment:

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