Mendonca v Tonna - [2020] NSWCA 224 - NSWCA 2020 case summary — Zoe

Mendonca v Tonna - [2020] NSWCA 224 - NSWCA 2020 case summary — Zoe

Judgment

BASTEN JA: The applicant, Renuka Maria Mendonca, has sought special leave to appeal in the High Court from a judgment of this Court delivered on 26 August 2020. [1] That judgment dismissed an appeal from a judgment and orders of Ward CJ in Eq in relation to a property dispute between the applicant and two other parties. [2] The dispute concerned the ownership of a property at Galston on the north‑western outskirts of Sydney. The applicant and the respondents both contributed to the purchase price of the property which was registered in the applicant's name. The primary judge held that the applicant held the property on a resulting trust in proportions referable to the payments made in purchasing the property. The applicant claimed, unsuccessfully at trial, that the respondents occupied the property pursuant to a residential tenancy agreement. That issue had been agitated in the Civil and Administrative Tribunal on the basis that there was such an agreement.
Those proceedings were transferred to the Supreme Court and formed part of the proceedings in the Equity Division. The applicant seeks to challenge that transfer on the basis that the Equity Division had no jurisdiction to make an order in relation to a residential tenancy and could not terminate such a lease. The matter was dealt with by the primary judge on the basis that no such lease existed. As I understand it, there was a ground of appeal in the Court of Appeal proceedings suggesting that that matter was not properly before the primary judge, but there was no order to terminate the lease and, least on its face, the existence of the jurisdiction of the Tribunal would have been a matter open to be considered by the Equity Division. In any event, that is one of the matters which is sought to be raised in the application for special leave to appeal to the High Court.
Returning to the matter in the Court of Appeal, the applicant was ordered to pay the respondents' costs of the claims between the parties, both at trial and on the appeal.
On 17 September 2020 the applicant filed an application in the High Court seeking special leave to appeal from the judgment of this Court. Prior to taking that step, on 2 September the applicant filed a notice of motion seeking a variation of the costs order made in this Court and of the order requiring that she execute documents for registration of the interests of the parties on the certificate of title of the property. On 4 September an amended notice of motion was filed (curiously bearing the applicant's signature with a date of signature of 5 September), which sought five orders. Orders (1) and (2) sought to reopen the judgment of the Court for the purpose of setting aside the decision and obtaining an order for a new trial. If those orders were denied, the motion sought a stay of orders (2), (7) and (8) made by the primary judge on 25 March 2020. Order (2), as has been noted, was the order requiring registration of the interests of the various parties. Order (7) gave liberty to apply in relation to the substantive orders made in the Equity Division; order (8) required the applicant to pay the respondents' costs of the trial.
Although the matter is not presently relevant, on 3 September 2020 the respondents filed a motion seeking to vary the costs order made by this Court on the basis of an offer of compromise supporting an order for indemnity costs to be payable from 23 May 2020. That motion is being dealt with separately.
The order of this Court dismissing the appeal has taken effect upon entry and requires no further steps in its execution. There is nothing to stay. To the extent that the applicant seeks to stay the enforcement of costs and the order for the registration of interests made in the Equity Division, pending consideration of her motion to reopen the appeal to this Court, there is no evidence before this Court that the respondents are presently taking steps to enforce the costs order nor that the steps to be taken by way of registration of the interests would be affected if there were to be further proceedings. The orders for the preparation of the documentation and the payment of costs appear not to have been stayed prior to the appeal being heard and determined. However, to the extent that they may yet be stayed pending determination of the reopening application, that order should not be made in the absence of evidence that there are reasonable prospects that this Court would reopen its judgment and vary the order dismissing the appeal. Such a step depends upon acceptance by the Court of two affidavits, each by persons having no part in the proceedings, each of which seeks to cast doubt on the credibility of the first respondent, Mr Mark Tonna. It is unlikely that the Court will agree to reconsider its judgment on the basis of that material; if it did reconsider the judgment, it is unlikely that the outcome would be affected if the evidence were admitted. This material does not warrant the grant of a stay of the orders made in the Equity Division.
So far as the orders are sought on the basis of the application for special leave to appeal to the High Court, it is appropriate that this Court deals with the stay application: see Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1]. [3] In describing the jurisdiction as the "extraordinary jurisdiction to stay", Brennan J identified the basis of the Court's jurisdiction as the need to preserve the subject matter of the litigation pending the application for leave to appeal. [4] In identifying the factors relevant to the exercise of that discretion, Brennan J stated that, [5] in each case, the Court is to be satisfied that a stay is required to preserve the subject matter of the litigation; that this Court should consider whether there is a substantial prospect that special leave to appeal will be granted, and whether the grant of a stay would cause loss or prejudice to the respondent.
The applicant submits that the failure to stay the proceedings will cause her a disadvantage in four respects. The first two related to the evidence contained in the new affidavits. That material was not before this Court and it is extremely unlikely that it would be accepted in the High Court, which deals with the matter as a strict appeal on the basis of the material before the Court below. It would only be if there were some ground for considering that the Court of Appeal should have admitted the evidence that the High Court would consider the evidence at all. So far the evidence has not been tendered nor sought to be tendered before this Court, there being no proceedings, other than a reopening application, presently on foot. I do not consider those affidavits provide any basis for supporting the likelihood of a grant of special leave.
Thirdly, it is said that the Court of Appeal did not consider a contribution made by Mr Tonna's mother to the purchase price of the property. If there is some claim by Mr Tonna's mother, then no doubt that is a matter which she would pursue. At the moment I do not understand her to be a party to the proceedings in this Court and I do not understand there to be evidence before the Court as to any contribution she made. That would not, even if it were the fact, provide a basis for interfering with the orders of the Court made by the Chief Judge in Equity, nor the dismissal of the appeal by this Court.
Finally, the applicant seeks to rely upon an argument that the NCAT proceedings were improperly transferred to the Equity Division. The NCAT proceedings were in fact dealt with by way of a cross‑claim heard in the Equity Division and, as I have noted, the primary judge rejected the contention that there was a residential tenancy agreement. The possibility that the Equity Division was required to make an order terminating the lease therefore did not arise. The basis on which it might have been inappropriate to ask the Equity Division to make orders in respect of a residential tenancy agreement are different from those which are directed to whether or not there was a residential tenancy agreement, without which NCAT would have had no jurisdiction to make orders.
I do not understand that to be any issue which would cause prejudice if the matter were to proceed in the High Court without a stay being in place. Any of the orders which have been made by the primary judge could be set aside on a further appeal if an application for special leave were successful, or indeed, if the reopening application in this Court were successful.
In this case, it could not be said that enforcement of the orders in the Equity Division would destroy the subject matter of the litigation. Given that each party has an interest in the property, there would be no difficulty in directing that those interests be adjusted if the applicant were, to some extent, successful either in this Court on the reopening or in the High Court.
Further, it is not demonstrated that enforcement of the costs order would, if the judgment of the Equity Division were to be reversed, result in irreparable damage to the applicant.
Finally, there is no basis for concluding that the application for special leave to appeal has substantial prospects of success. It is not clear that there is any issue of principle that arises, or any public importance. [6] The case largely turned on factual findings: although the applicant asserts that the judgment of this Court is inconsistent with earlier judgments and with principles established by the High Court, neither of those statements is plausible.
Accordingly, order (4) in the amended notice of motion filed on 4 September 2020 should be refused.
The orders are: 1. Dismiss the application for a stay, being order (4) in the applicant's amended notice of motion filed on 4 September 2020. 2. Order the applicant to pay the costs of today.