Kaur v Sharma

NCAT Appeal Panel|2023-03-29|Before: Blake AM

Overview

The issue in these proceedings is whether the Appeal Panel should stay a decision of the Tribunal to extend the time for landlords Umesh and Krishna Sharma to apply for a warrant for possession of premises. On 15 March 2023 the Tribunal extended the time for the landlords to apply for a warrant for possession to 3 February 2023: Sharma v Kaur [2023] NSWCATCD 14. On 17 March 2023 the Appeal Panel made an interim order that the landlords were not to seek execution of the warrant for possession until after 5 pm on 29 March 2023. The application for a stay of the Tribunal's decision was listed for 2.15 pm on 29 March 2023.
I have decided not to grant the stay. The effect of my order is that the landlords may seek execution of the warrant for possession of the premises after 5 pm on 29 March 2023.

Legal principles

Lodging an internal appeal does not affect the operation of the orders from which a party has appealed unless the Appeal Panel makes an order staying or otherwise affecting the operation of the decision: NCAT Act, s 43(2). The power to stay the operation of a decision is in s 43(3): (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.
The Appeal Panel summarised the relevant principles in Bentran v Sabbarton [2014] NSWCATAP 37. (1) Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour - s 43(2) and (3) of the Act, Kalafair Pty Limited v Digitec (Australia) Pty Limited (2002) 55 NSWLR 737 at [28], Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (2) In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Vaughan v Dawson [2008] NSWCA 169 at 16. (3) The mere lodgment of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay - s 43(2) and (3) of the Act, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (4) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal - s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (5) The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (6) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies - ss 43(3) and 58 of the Act. (7) In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [21] and [22]. (8) Finally, the overriding principle in an application for a stay is to ask what the interests of justice require - New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83] and Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18].
Another convenient summary was set out by Slattery J in Beck v Colonial Staff Super Pty Ltd & Ors (No. 2) [2015] NSWSC 1360 at [35]: [35] The principles governing a stay of a judgment pending appeal are well established. The applicant must demonstrate that there is a reason for the grant of a stay or that a matter is an appropriate case in the exercise of the Court's discretion: Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 ("Cambridge Credit") at 694. It is not necessary for the applicant for the stay to establish special or exceptional circumstances: Cambridge Credit at 694. The stay is likely to be granted if the appeal would otherwise be rendered nugatory. The Court considering the grant of a stay is not required to determine the merits of the appeal but usually considers whether the applicant has at least an arguable case; and the Court may impose conditions on the grant of a stay including that the applicant pay a sum of money into Court or otherwise secure the payment of the disputed sum: Cambridge Credit at 694-5. The central determinant as to whether a stay would be granted, and if so upon what terms, if any, is the Court's assessment as to what is a fair balance of the rights of the parties, given that an appeal does not of itself operate as a stay and the party who has succeeded at trial is entitled to the fruits of its victory: Cambridge Credit and see also Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd [2015] NSWCA 227 ("Woodlawn") at [7]-[9].:
In Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383, at [18], the Court made the following observation, recently confirmed in Yolarno Pty Ltd v Shandong Delisi Food Co Ltd [2022] NSWCA 30 at [4]: Thus the relevant principles are analogous to those which govern the grant of interlocutory relief before trial to protect the status quo. The appellant must show that the appeal raises serious issues for the determination of the appellate court, and that there is a real risk that he will suffer prejudice or damage, if a stay is not granted, which will not be redressed by a successful appeal. This requirement will be satisfied if the appeal will be rendered abortive or nugatory unless a stay is granted. If these pre-conditions are established the Court will then consider the balance of convenience.
The respondents are entitled to the benefit of the decision at first instance unless the appellants can demonstrate that it is appropriate to grant a stay of the orders made. The appellants must identify the circumstances that warrant a departure from the general rule that the judgment at first instance should be presumed to be correct and is appropriate to be enforced: Hickie v Land and Enviro Corp Pty Ltd [2014] NSWSC 472 at [17]. The appellants must then demonstrate a proper basis for a stay that will be fair to all parties: UGL Rail Pty Ltd v Wilkinson Murray Pty Ltd (No 2) [2015] NSWSC 23 at [10].

Background to landlord's application to extend time

At [82] - [85] the Tribunal set out the background to the landlord's application for an extension of time and the reasons for granting an extension: As indicated by order 1 of the 6 February 2023 CCD orders, the 3 February 2023 Sharma CCD application has been treated as an application for an extension of time to apply for a warrant for possession of the premises. The landlords submit that the time for making an application for a warrant for possession of the premises should be extended for the following reasons: on 17 November 2022, when the Registrar issued a warrant for possession of the premises and sent it to the sent to the Office of the Sheriff of NSW, Mr Singh and the tenants commenced the 2022/00346122 proceedings; on 8 February 2023, the Supreme Court dismissed the 2022/00346122 proceedings: Singh v Tidball [2023] NSWSC 96. The tenants relied on the same submissions as they made in support of the Singh/Kaur 21 February 2023 CCD application. I am satisfied that the time for making an application for a warrant for possession of the premises should be extended to 3 February 2023 pursuant to s 121(2) of the RT Act for the following reasons: the tenants remain in possession of the premises; on 17 November 2022, which was within the period of 30 days of the lifting of the stay of order 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order on 27 October 2022 by the Appeal Panel, Mr Singh and the tenants commenced the 2022/00346122 proceedings; in view of the relief sought by Mr Singh and the tenants in the 2022/00346122 proceedings it was reasonable for the landlords not to comply with the requirements set out in the 17 November 2022 notice and not to apply for an extension of time for a warrant of possession until their determination.

Tenants' submissions

In the Application for a stay filed on 15 March 2023, Mr Singh gives the reasons for the stay as: Granting a stay is crucial to preserving the subject matter, as there is a significant risk that an appeal may prove fruitless if the appellants are successful but stay is not granted. Failure to provide adequate reasons is prejudicial to tenants to argue their case strongly in favour of stay. Tribunal below gave no opportunity to tenants to argue against the arguments, applicable principles, applicable legal tests and case authorities decided in favour of respondents in circumstances where respondent neither relied nor argued those arguments, applicable principles, applicable legal tests and case authorities. Member simply argued for the Tenants in his chamber and decided his own forwarded argument. Respondents have misled the tribunal in material facts through their Real Estate Agent Sarvjot Singh and now simply relied on Member Blake to ignore the grounds, facts, evidence and submissions in relation to their act and conduct which is at every least (sic) amounts to perjury. Perjurer must not be r3ewarded by the Tribunal or Appeal Panel. There is no dispute that property is uninhabitable.
In his written submissions dated 27 March 2023, Mr Singh made the point that if a stay is not granted the warrant for possession will be enforced and the appeal will be a waste of time.
In the notice of appeal, Mr Singh seeks orders the following orders: Set aside all decisions and orders made by Member Blake Declaration that proper construction of the power to issue a warrant for possession under 121 of the Residential Tenancies Act once spent cannot be exercised by the registrar again and again unlimited times. Declaration that Respondent and their representatives lied in relation to material facts in proceedings involving RT 22/15982 on 8 June 2022 and 28 June 210
The grounds of appeal are as follows: Failure to conduct an open and public enquiry in which procedural fairness (or natural justice) was observed. A failure to consider factors required by legislation to be considered. Impermissible delegation of the decision to someone other than the person chosen by parliament. First defendant applied correct legal tests with wrong interpretation of the relevant laws and facts. Decision not to determine the Singh/Kaur 21 February 2023 CCD application so far as Mr Singh and Ms Kaur seek the summary dismissal of the 3 February 2023 Sharma CCD application without any valid or adequate reasons amounts to jurisdictional error. Relied on irrelevant material and ignored relevant material. Mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature of the limits of jurisdiction. Victimisation of complainant of racial discrimination by refusing to exercise jurisdiction to consider and determine ground of racial discrimination. White race is a superior race and other races are inferior races is a mindset that continue to victimise the tenants of (address deleted) in the hands of decision maker in NCAT who are majority white and only concerned to protect their own white counterparts or policies formed by their white counterparts.
Mr Singh went on to quote the circumstances outlined in Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58 where a decision is a nullity. In his written submissions, Mr Singh did not provide particulars of many of these grounds of appeal.
Mr Singh elaborated on his written submissions at the hearing. His submissions included that in previous proceedings he had been denied an opportunity to be heard, that the Tribunal had made several jurisdictional errors, that a member in previous proceedings had committed perjury and had applied the wrong legal test about the habitability of premises.
On the issue of balance of convenience, Mr Singh proposed that a stay be granted subject to conditions. Those conditions were: That the tenants pay rent of $525 per week into the trust account of the legal representative until the landlord engages qualified professionals to fix the issues outlined below within the specified time frame.
Mr Singh then lists six tasks where the landlord should engage a builder, plumber, microbiologist or fire safety expert to address various issues which he says make the premises uninhabitable.

Landlords' submissions

The landlords filed submissions setting out the history of the litigation and claiming that, as of 27 March 2023, the tenants owe approximately $24,525.00 in outstanding rent and occupation fees. At the hearing before me, Mr Singh said he could not say exactly how much he had paid in occupation fees but that he initially paid $900.00. I accept the landlord's assertion as to the rental arrears.
The landlords support all the orders made by the Tribunal including those based on the principle of abuse of process. They provided evidence as to their financial position and point to the tenants' evidence as to their financial situation. The landlords also provided evidence as to the availability of other rental properties in the area. Mr Singh did not provide any documentary evidence which contradicted that material.

Consideration

The grounds of appeal do not challenge the Tribunal's decision to extend time for the making an application for a warrant for possession. Rather, they focus on decisions made in previous proceedings before the Tribunal and the Appeal Panel.
In relation to a submission that the Tribunal in other proceedings should not have made certain orders because the premises were uninhabitable, the Tribunal held that: The Appeal Panel refused to accept the Mycotec report in the appeal: Kaur v Sharma [2022] NSWCATAP 336 at [17]-[21]. It is an abuse of process to bring a proceeding in order to make a collateral attack upon an unappealed decision of a court, or upon a decision which, having been appealed, has been affirmed: Smits v Loel [2014] FCA 1341 at [67]; Smits v Loel (No 3) [2015] FCA 77 at [23(b)]; McLean v Power [2013] NSWSC 193 at [14]-[15]. The Singh/Kaur 21 February 2023 CCD application to the extent that Mr Singh and Ms Kaur rely on the Mycotec report to relitigate matters that have already been determined against the tenants constitutes an abuse of process, and should be dismissed.
Mr Singh attempted this again in the submissions he made in relation to the stay application. He focused on errors he said had been made in previous proceedings rather than challenging the decision in Sharma v Kaur [2023] NSWCATCD 14. If an appeal goes ahead, it is highly likely that the Appeal Panel would apply the same principles as to abuse of process as the Tribunal applied in Sharma v Kaur. For that reason the tenants do not have a reasonably arguable case on appeal in relation to any ground relying on decisions made in other Tribunal proceedings. In my view the tenants appealed in the hope of delaying immediate execution of the decision: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; Aquaqueen International Pty Ltd v Titan National Pty Ltd [2015] NSWCA 9 (McColl JA) at [48]].
In rejecting the submissions as to lack of jurisdiction, the Tribunal applied the principles set down by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11, Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58 and by the Supreme Court in Attorney-General of NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254. (See [64] - [75] of the Tribunal's decision.) Reliance on those cases is uncontroversial. Again, the tenants do not have a reasonably arguable case on these grounds.
As for the balance of convenience and the competing rights of the parties, I take into account that there are outstanding rental arrears and occupation fees of some $24,525.00. There is no evidence that the tenants are unable to pay the rent or the occupation fee. The reason for non-payment is that Mr Singh asserts that the premises are uninhabitable. As I have pointed out, the Tribunal held that it was an abuse of process to seek to re-litigate the habitability issue and that finding is likely to be upheld on appeal.
The landlords provided evidence of other rental properties available in the area. Mr Singh submitted that the rental market is tight. I accept that that is the case but Mr Singh did not say that the tight rental market was preventing him from relocating. Rather he pointed out that if the tenants are evicted it will be very difficult for them to provide rental history or references to a prospective new landlord. While that is no doubt correct, it is not a factor that weighs in favour of the tenants.
In my view the balance of convenience is firmly in favour of the landlords. I reject Mr Singh's proposal to impose conditions on the stay order because given the tenants' previous record, I am not satisfied that they will pay the rent. In addition, no findings have been made about the habitability of the premises in the decision appealed against.
The fact that the appeal will be nugatory if the stay is not granted is a strong consideration in favour of granting a stay. However, in this case the appeal is so weak, and the balance of convenience is so strongly in favour of the landlords that it is in the interests of justice for the application for a stay be dismissed.

Orders 1. Leave is granted for Mr Singh to represent the appellants as their agent in these stay proceedings. 2. Leave is granted for Neil Lawyers to represent the respondents as their legal representative in these stay proceedings. 3. The application for a stay is dismissed. Note: The effect of this order is that the respondents may seek execution of the warrant for possession of the premises after 5 pm on 29 March 2023.

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: 04 April 2023

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Cases Cited (29)