This decision explains why we have decided to adjourn the hearing and determination of two appeals. The two appeals came before us on 24 November 2023 and, in the circumstances explained below, we made the orders and directions set out subsequently in this decision and indicated to the parties that we would publish our written reasons later. These are those reasons.
The relevant background is that the Appellant lodged an application in the Tribunal in October 2021 seeking to invoke the jurisdiction of the Tribunal granted under the Retail Leases Act 1994 (the RL Act). The Appellant's contention was that it was the lessee of the Respondent in respect of premises at Harris Park in which a restaurant had been operating.
By a document called "Heads of Agreement" dated 27 October 2022, those proceedings were settled and orders were made by the Tribunal by consent.
By an application lodged in the Tribunal on 23 June 2023, the Appellant sought orders to the following effect:
1. That the orders made on 27 October 2022 be set aside.
2. That a lease of 1 July 2019 be registered over the title of the premises.
3. The sum of $72,750 paid by the Appellant to the Respondent be returned.
4. The Appellant be able to occupy the premises in in accordance with the terms of the lease dated 1 July 2019.
5. The Respondent is to act reasonably in determining an application by a prospective purchaser of the Appellant's business as to a lease assignment.
6. In the alternative, the Appellant sought to have the matter dealt with by way of a renewal of proceedings application in accordance with sch 4 cl 8 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
The Respondent filed an application for summary dismissal of the Appellant's application. That application was determined on the papers and was the subject of a written decision published 24 August 2023. It is that decision, and a subsequent decision concerning costs, that is the subject of these two appeals.
By the decision of 24 August 2023 (the Decision) the Tribunal acceded to the Respondent's application and made an order dismissing the Appellant's proceedings pursuant to s 55(1)(b) of NCAT Act. Directions were made for the parties to makes admissions concerning costs. By the subsequent decision the Tribunal awarded costs in favour of the Respondent. The Appellant has also lodged an appeal in respect of the costs order.
On 30 June 2023, the Respondent commenced proceedings in the Supreme Court. In those proceedings the Respondent sought orders for possession of the property as well as other orders, including damages for unpaid rent. The Appellant has filed a defence to those proceedings. The Appellant also filed a motion seeking to have the Supreme Court proceedings transferred to this Tribunal. The Respondent sought to file an Amended Statement of Claim which was opposed by the Appellant.
These two motions (ie. one concerning the proposed transfer to the Tribunal and the other concerning the proposed filing of an Amended Statement of Claim) came before the Supreme Court on 1 September 2023 and a judgment of that court was published on 14 September 2023 (see Romanos v Punjabi Fusion Group Pty Ltd [2023] NSWSC1119). The effect of the judgment was to give leave to the Respondent to file the Amended Statement of Claim and to refuse the Appellant's application for the proceedings to be transferred to the Tribunal.
We are informed that the Supreme Court proceedings have been the subject of directions and are currently listed for hearing in early December 2023 (ie. a few weeks hence).
[2]
Notice of Appeal
By Notice of Appeal lodged 20 September 2023, the Appellant seeks to have the Appeal Panel make orders setting aside the Tribunal's orders dismissing the Appellant's application.
When the appeals came before us on 24 November 2023, we were concerned that the issues before us in deciding the appeals and the issues before the Supreme Court to be determined in December were overlapping, raising the possibility of the decision of this Appeal Panel and the judgment of the Supreme Court containing findings of fact or of principles, or affirming findings of fact made below, which were inconsistent with findings and/or rulings made by the Supreme Court.
At the outset of the hearing of the appeals we made our concerns known to the parties' representatives and heard submissions from each. We indicated that we were inclined to adjourn the proceedings. In substance, this was an approach agreed by counsel for the Appellant but it was opposed by counsel for the Respondent. After hearing from the parties, we made the decision to adjourn the appeals. The orders and directions are contained at the end of this decision.
In order to better understand the basis for our decision to adjourn the appeals, it is necessary to set out the issues arising from the Decision and the issues arising in the Supreme Court proceedings as recorded in the judgment of 14 September 2023.
[3]
The Decision under Appeal
The Decision considered the terms and effect of the Heads of Agreement dated 27 October 2022. The position of the Appellant was that the terms of that agreement had been repudiated by the Respondent and that the consent orders should be set aside. The Tribunal held at [64(a)] that there was no statutory avenue or power of the Tribunal to make an order setting aside the consent orders made on 27 October 2022. The Tribunal held that the Appellant's contention being an allegation of repudiation did not have the effect of vitiating or warranting that the orders be set aside.
With respect to the Appellant's contention that a lease entered into in 2019 be registered, the Tribunal held that the Appellant is estopped from relitigating that issue. In respect of the application for the sum of approximately $73,000 being returned, the Tribunal held that there was no "lawful avenue of review, renewal of proceedings or reinstatement that would permit such an order to be made". In respect of the Appellant's application to occupy premises in accordance with the terms of the lease entered into in 2019, the Tribunal held that that claim failed for res judicata, issue estoppel and substantive estoppel reasons earlier identified.
The Tribunal found that the Appellant's application was manifestly untenable due to the Tribunal's lack of jurisdiction. The Tribunal made an order dismissing the application relying upon the power granted in s 55(1)(b) of the NCAT Act which gives power to dismiss proceedings if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise are misconceived or lacking in substance.
The reason that the Tribunal found that the Appellant's application was manifestly untenable was due to the related finding that the Tribunal lacked jurisdiction to determine the application. The Tribunal considered the effect of the RL Act, which gives jurisdiction to the Tribunal in respect of a retail tenancy claim which means a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned. The Tribunal held that there was no retail lease grounding jurisdiction.
The Tribunal also dismissed the renewal application under Schedule 4 cl 8 of the NCAT Act.
[4]
Supreme Court Judgment
The court noted that NCAT had dismissed the Appellant's application for want of jurisdiction and further that even if the Appellant had a retail tenancy claim, there was no suggestion that the Supreme Court does not have jurisdiction to deal with what is claimed in the proceedings [at 44].
At [25] the court noted that the Appellant claimed in its Defence that the Heads of Agreement were not binding. The judgment also stated at [28] that in final submissions the Appellant advanced the case that the Heads of Agreement are a lease to which the RL Act applies. The Respondent's case was summarised as to the effect that the Heads of Agreement are not themselves a lease but were binding on the parties.
[5]
Consideration
We have outlined the issues in the appeals arising from the Decision and in the Supreme Court proceedings.
The issue which is of concern to us is that the controversies in the Supreme Court and in the Tribunal, whilst not identical, are overlapping. It seems to us that there is a reasonable prospect that inconsistencies could arise between our decision and that of the prospective judgment of the Supreme Court. Further, the jurisdiction of the Tribunal is limited by the ambit of the RL Act, whereas the jurisdiction of the Supreme Court is unlimited. This means that the Supreme Court has the capacity to resolve the whole of the dispute between the parties, whereas the capacity of the Tribunal to resolve the dispute is limited to a finding that the Tribunal has jurisdiction within the confines of the RL Act and, if it does, then the Tribunal may only make orders with respect to the dispute insofar as it has jurisdiction.
In Douglas v Kik; Douglas v Kekatos [2020] NSWSC 1734, his Honour Rothman J stated, at [73], that the "avoidance of multiplicity of proceedings must be one of the fundamental and primary aspects of the interests of justice". That case was concerned with an application to make cross-vesting orders from one court to another. In George Weston Foods Ltd v Heat & Control Pty Ltd [2023] NSWSC 655, his Honour Stevenson J was concerned with whether two sets of proceedings should be amalgamated. Although his Honour ultimately decided that there was an undesirability of the proceedings being heard together [14], his Honour was concerned with and considered the "spectre" of the possibility that a judge determining one of the proceedings might come to different conclusions than the judge determining the other proceedings as to one or more of the issues. These concerns are held by us in the context of whether we should now determine the appeals or order that the appeals be adjourned pending the outcome of the current Supreme Court proceedings.
We are also mindful of the provisions of s 36 of the NCAT Act. That section provides as follows:
36 GUIDING PRINCIPLE TO BE APPLIED TO PRACTICE AND PROCEDURE
(1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The Tribunal must seek to give effect to the guiding principle when it--
(a) exercises any power given to it by this Act or the procedural rules, or
(b) interprets any provision of this Act or the procedural rules.
(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal--
(a) a party to proceedings in the Tribunal,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
It can be seen that we are required to facilitate the "just, quick and cheap resolution of the real issues in the proceedings" and to facilitate the resolution of the issues "in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings".
Before the Supreme Court issues arise as to the effect of the Heads of Agreement: see [73(iii)] of the judgment. At [74] her Honour stated that she was not satisfied that a transfer order to NCAT could justly be made of even a part of the proceedings had the Heads of Agreement, contrary to her Honour's conclusions about the Heads of Agreement, fallen within NCAT's powers.
In the substantive appeal, the Appellant seeks to argue that the Heads of Agreement created a lease and that thus, the Tribunal has jurisdiction to determine the dispute. In the Supreme Court, the Appellant appears to put forward the argument, at least in its Defence, that the Heads of Agreement are not binding.
It is clear to us that an issue in this appeal involves construing the Heads of Agreement with a view to determining whether the Tribunal erred in its conclusion that the Tribunal had no jurisdiction to determine the dispute. The issue of construing the Heads of Agreement arises in the Supreme Court. For this reason, as well as for the reason that her Honour determined that the proceedings commenced by the Respondent in the Supreme Court should continue without any part being transferred to NCAT, we of the opinion that it would be inconsistent with our obligations under s36 of the NCAT Act to continue to hear and determine the appeal prior to and without due deference to the judgment of the Supreme Court.
In coming to this view, we have considered whether the Respondent is prejudiced by the delay in resolving these appeals. The Respondent submitted that it would be prejudiced. In our view any prejudice is marginal. This is because it is likely that a Supreme Court judgment will be made available in the relatively near future and further that, to the extent required, these appeals can be listed for hearing early in the New Year. Furthermore, any prejudice in delay might well be offset by the possibility that the Supreme Court will resolve the whole of the dispute between the parties and the prospects of costs being incurred in two proceedings will also be avoided.
For the above reasons, we made the following orders in respect of both appeals:
1. Both appeals are adjourned pending further directions.
2. Both appeals are listed for directions on a date after publication of the judgment of the Supreme Court in the proceedings between the same parties.
3. The parties are directed to request the Tribunal to relist the appeals for further directions and to do so within 14 days after receipt of the Supreme Court judgment.
4. The directions/call-over hearing currently listed for 1 December 2023 in respect of the costs appeal is vacated.
5. It is noted that this Appeal Panel is not part-heard.
[6]
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
[7]
Amendments
01 December 2023 - Coversheet - Date of orders amended.
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: 01 December 2023