Geoffrey Stephen Hudson v Arap 1

EX TEMPORE Judgment 1HIS HONOUR: The plaintiff seeks relief against two or more decisions of the New South Wales Civil and Administrative Tribunal. The last of those decision is Hudson v Arap 1 (NSW) Pty Limited [2014] NSWCATAP 61 of 15 October 2014. 2The summons, filed in Court, seeks judicial review of a decision of an Appeal Panel (the first decision) on a question of jurisdiction and also seeks to appeal the last decision referred to above. The question of law is not separate and identified in a way that renders the jurisdiction of the Court obvious. Nevertheless, there are issues of law that are raised in the summons, including issues relating to the jurisdiction of the Civil and Administrative Tribunal. 3His Honour Wright J, President of the Tribunal, was a member of the Appeal Panel that issued the decision of 15 October 2014. As a consequence, any appeal from that decision is assigned to the original jurisdiction of the Court of Appeal: see s 48(1)(a)(vii) and s 48(2)(c)-(f) of the Supreme Court Act 1970. 4The first decision of the Tribunal is also impugned or sought to be impugned. Those proceedings seek orders under s 69 of the Supreme Court Act. The order that is sought to be impugned was the first Appeal Panel determination as to whether the right of occupancy is granted under a residential tenancy agreement. That determination was interlocutory and, as a consequence of the determination as to jurisdiction, it remitted it to another member of the Tribunal to determine in accordance with the first decision of the Appeal Panel. 5The decision by the single member of the Tribunal on remittal was against the interests of the plaintiff in these proceedings and operated on the basis of the correctness of the original Appeal Panel determination. No criticism is made of the Tribunal in that respect. 6There was a subsequent appeal, to which I have already referred, to an Appeal Panel consisting, inter alia, of his Honour Wright J, the President. At the hearing of the appeal, application was made to vary the grounds of appeal, seemingly to re-agitate the issue decided by the previous Appeal Panel. 7That application for amendment was refused, as was an application for adjournment, in order to make an application for amendment in writing and to give the respondent to the appeal time to consider its position. It is probably appropriate to state very briefly what I understand to be the relationship between the parties. 8The plaintiff was the owner of premises, being the premises that are currently the subject of these proceedings. On or about 19 November 2012, the plaintiff and the defendant entered into a contract for sale of the premises. Clause 41 of that contract provided for a situation where the vendor occupied the property at the contract date and was not required to provide vacant possession at the date of completion of that contract, subject to the parties entering into a tenancy agreement. 9The contract also provided that completion of the contract was subject to and conditional upon the plaintiff and defendant entering into the tenancy agreement to which I have just referred. 10There was another condition, namely the entering into an option contract. The Option Contract is not in evidence, nor is there any statement, hearsay or otherwise, as to its terms, but I understand from that which has been put to me from the bar table that the above agreement allows the plaintiff to re-purchase the property subject to complicated arrangements as to the price of that re-purchase, which re-purchase could not occur during the subsistence of the tenancy agreement. 11The jurisdictional question that was before the first Appeal Panel was whether the right of occupancy arose under the tenancy agreement or under the contract of sale of land. They determined it arose under the tenancy agreement. 12The matters that were determined by the Tribunal on remittal were the technical issues associated with whether a termination had been effected under the Residential Tenancies Act 2010 for the tenancy agreement to which I have referred. The foregoing was decided without reference to what, if any, effect the Option Agreement or the contract for sale had on the terms of the tenancy agreement or the relationship between the parties and/or the capacity to terminate. 13On its face, the first Tribunal panel decision, being the decision of 1 July 2014, is a determination that is not governed by the provisions of s 48, rendering it a matter not within the original jurisdiction assigned to the Court of Appeal. 14The summons seeks orders in the nature of judicial review against the first Appeal Panel decision and an appeal from and it seems judicial review of the second Appeal Panel decision. 15It would be inappropriate, given the related nature of the relief sought and the terms of the challenge to the various decisions, for the s 69 proceedings against the first Appeal Panel to be heard and determined differently or separately from the appeal or judicial review of the second Appeal Panel decision. 16Nevertheless, pursuant to the Supreme Court Act, the first matter is a matter before the Common Law Division and the second matter is a matter originally assigned to the Court of Appeal. 17One other matter should be noted. Nothing in what I am now doing ought to be taken as the expression of a view on the merits of the challenge, other than there is a question of jurisdiction raised genuinely. There are some disturbing features of the transactions with the plaintiff, who, I understand, suffers a relevant disadvantage that may have affected the whole transaction. Such matters are not within the jurisdiction of the Tribunal. It may well be that other proceedings and other causes of action may be a preferable approach to these challenges, without foregoing the jurisdictional issue. It is inappropriate to say more. 18Further, none of the decisions in the Tribunal examined the total arrangement. The Option Agreement was not before the Tribunal and is not before the Court. At least arguably, Clause 41 of the Contract for Sale gave a right to occupy, which was effective once the Residential Tenancy Agreement was executed. But the Option Agreement seems, from the information provided to the Court, to have been a relevant document in determining the purpose of the arrangement and the construction of each of the documents. 19There are a couple of procedural matters that are required. As earlier stated, the first Appeal Panel decision was interlocutory. While I have not been addressed on it, there is authority for the proposition that a challenge to a final determination of a court or tribunal allows a party challenging it to challenge any earlier interlocutory decision that arose in the course of the proceedings and upon which the ultimate order depends. That is certainly the case on jurisdictional issues. 20It would seem, therefore, notwithstanding the concern expressed by counsel appearing for the plaintiff, that the challenge to the original appeal panel is not, in a sense, out of time. Nevertheless as a matter of abundant caution, counsel has sought an order extending time for commencement of the proceedings in relation to the decision delivered on 1 July 2014. Further, the second Appeal Panel dealt, albeit by reference to the first Appeal Panel decision, to the jurisdictional issue. 21Given the interlocutory nature of the first decision and the problem associated with bringing before this Court challenges to interlocutory decisions before there is a final resolution of the substantive issues between the parties, it seems to me appropriate that the challenge to the final determination should be allowed to include a challenge to this interlocutory jurisdictional decision that have been made in the process. 22As a consequence, I will issue an order extending time for commencement of s 69 proceedings, that is proceedings by way of judicial review, against the judgment of the New South Wales Civil and Administrative Appeal Panel delivered on 1 July 2014 in Arap 1 (NSW) Pty Limited v Geoffrey Stephen Hudson [2014] NSWCATAP 30 in matter number AP14/0017 to 17 October 2014. 23I will further order that there be a stay of the operation of orders 1 and 2 made in matter number RT13/66464, being orders issued on 21 August 2014 by Member K. Rosser, such stay to operate until further order of the court or 28 days, whichever occurs first. 24Otherwise pursuant to the terms of s 51(1)(b) of the Supreme Court Act and to the extent necessary pursuant to the terms of s 53(5)(a) and/or s 51(6) of the Supreme Court Act 1970 the matter is removed into the Court of Appeal. 25I grant leave to file the summons for the judicial review in court. I have waived the fee. 26I will grant leave to amend the summons and to file an amended summons that takes account of the fact that the matter is in the Court of Appeal and also my statements about the question of law and the grounds of appeal.