Quader v Nguyen

NCAT proceedings

1. On 16 July 2022 the defendant's real estate agent served upon the tenants a Notice of Termination pursuant to s 85 of the Residential Tenancies Act 2010 (NSW). In compliance with s 85(2) of that Act, the termination date was nominated as 16 October 2022 being not less than 90 days from the notice. The tenants did not vacate.
2. On 18 October 2022 the defendant/landlord filed application No RT22/46345 in the Consumer and Commercial Division of NCAT seeking orders for termination and for possession of the property pursuant to s 85(3) of the Residential Tenancies Act. Mr Quader represented the tenants in those proceedings in accordance with the tenants' written authority and pursuant to the facility for non-legal representation in the Tribunal which is provided for in s 45 of the Civil and Administrative Tribunal Act 2013 (NSW).
3. At the hearing before Tribunal Member Dr Katrina George on 20 January 2023 Mr Quader gave oral evidence, tendered documents and argued matters of defence. The Member resolved the proceedings in favour of the defendant/ landlord and made the following orders on 20 January 2023: 1 The Residential Tenancy Agreement is terminated in accordance with s 85 of the Residential Tenancies Act 2010 as the landlord has served a 90 day notice for termination of a periodic agreement. 2 The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3 The order for possession is suspended until 13 February 2023
4. Additional orders were made with respect to a daily occupation fee until vacant possession but those orders are not material to the issue now before this Court. Tribunal Member George delivered reasons for her decision on 25 January 2023. The difference in date has resulted in the orders being subsequently referred to on one occasion as orders of 25 January 2023. The decision of the Tribunal Member was a "general decision" within s 29 of the Civil and Administrative Tribunal Act and hence by force of s 32 it was amenable to internal appeal. The internal appeal lay to an Appeal Panel constituted in accordance with s 27(1)(a). The appeal was available as of right on any question of law but by leave only on any other ground: see s 80(2) of the Civil and Administrative Appeal Tribunal Act.
5. The tenants brought an internal appeal from the Member's decision. That appeal was heard and dealt with on 28 March 2023 by Senior Members G Sarginson and M Gracie: see case No 2022/33476. The Appeal Panel's orders made on 28 March 2023 were as follows: 1 Leave to appeal refused. 2 Appeal dismissed. 3 Previous stay orders of the Appeal Panel are lifted immediately. 4 Order 3 of the Tribunal in matter RT22/46345 dated 25 January 2023 [scil 20 January 2023] involving suspension of the date of vacant possession is varied pursuant to s 81 of the Civil and Administrative Tribunal Act 2013 to read: "the order for possession is suspended until 18 April 2023".
6. At the conclusion of the hearing on 28 March 2023 the above orders were pronounced and the Appeal Panel gave reasons orally. Mr Quader was present to hear the orders and the reasons, as the authorised representative of the tenants in the Tribunal proceedings. The terms of the orders were communicated to the tenants in writing by notification from the Panel dated 29 March 2023. The Appeal Panel's reasons have been transcribed and are available.

Mr Quader's summons in this Court

1. Section 83 of the Civil and Administrative Appeal Tribunal Act provides as follows with respect to an appeal to this Court from the Panel's decision of 28 March 2023: 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. (5) Subject to any interlocutory order made by the Court hearing the appeal, an appeal under this section does not affect the operation of the appellable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.
2. Section 84(2) of the Civil and Administrative Tribunal Act requires that an appeal to this Court be made "within such time and in such manner as is prescribed by the rules of court for the court to which the appeal is made". Such appeals are not assigned to the Court of Appeal: see ss 48 and 49 of the Supreme Court Act 1970 (NSW). Pursuant to Pt 50 of the Uniform Civil Procedure Rules 2005, which make provision for appeals to the Court from NCAT and other tribunals, r 50.12 has the effect that a summons seeking leave to appeal from an Appeal Panel must be filed within 28 days of the material date. In this case the material date was 28 March 2023, by operation of r 50.2.
3. As noted above, the plaintiff filed his summons on 5 April 2023. The substance of the relief sought in the summons is to the following effect: 1. Leave to appeal against the whole of the Appeal Panel's decision. 2. A stay of execution of the orders of the Appeal Panel until finalisation of the application to this Court for leave and until finalisation of the appeal, if leave be granted. 3. If leave is granted and if the appeal is allowed, a declaration that the defendant/landlord's Notice of Termination is ineffective and that orders made by Tribunal Member George for payment of arrears of rent and occupation fee be set aside
4. On 5 April 2023 Mr Quader filed a notice of motion seeking, inter-alia, an order for an interim stay of the Tribunal's order for possession, pending the hearing of his summons. At that time, in accordance with the Appeal Panel's orders quoted above, the Tribunal's order for possession was order 1 made by Member George on 20 January 2023, suspended until 18 April 2023. On 11 April 2023 Mr Quader's application for an interim stay of execution of the Tribunal's order for possession was referred by the Registrar to the Common Law duty judge. The duty judge made the following order on the application of Mr Quader: The order made by NCAT for vacant possession is stayed until 3 May 2023 when the proceedings are listed for hearing of an application for leave to appeal.
5. During the hearing on 11 April 2023 that resulted in the above stay of execution, Mr Nhat Nguyen, solicitor for the defendant/landlord, pointed out to the judge that Mr Quader was not a party to the proceedings in the Tribunal, including before the Appeal Panel. The following exchange took place at page 10 of the transcript in the duty list on 11 April: HER HONOUR: What Mr Quader is seeking as I understand it is a stay of the orders made by NCAT for vacant possession to take place on 18 April. That is what he is seeking, is that your understanding? NGUYEN: That is my understanding. HER HONOUR: The reason he is seeking that because his submission is well if you don't grant the stay and the orders are executed on 18 April that means, as I understand it, that the appeal is negated or is rendered nugatory. Do you understand that that is his argument? NGUYEN: Yes, your Honour. HER HONOUR: What is wrong with that argument? How do you oppose the stay of the orders made by the Tribunal until 3 May? NGUYEN: The appellant in the Court proceedings at the moment is not the party to the NCAT proceedings. HER HONOUR: So Mr Quader is not a party to the NCAT proceedings? NGUYEN: Not a party in NCAT. He represented the case but he was not a party to the proceeding. HER HONOUR: Who was a party? NGUYEN: His children, his two sons. HER HONOUR: Alright. He is making the application on behalf of the parties to the proceedings? NGUYEN: He named himself as the appellant, the sole appellant against that decision. HER HONOUR: Are you saying that the application for leave to appeal is doomed to fail because he is not a party to the proceedings? NGUYEN: The sons should be. His sons should be the appellants in the case, not him. That is our opposition. HER HONOUR: Isn't that something to argue on the leave to appeal? NGUYEN: Perhaps, yes. HER HONOUR: Wouldn't you, I assume, on the date that it is listed for leave to appeal you would argue I think that Mr Quader here has no standing, he is not a party to the proceedings. I'm not sure if he's acting in some way on behalf of his children but isn't that something to argue on 3 May? NGUYEN: Yes, it might be
6. On that view of the matter, the duty judge made the order for a stay until 3 May as referred to above. The judge thought that the application for leave to appeal would be dealt with on 3 May. That was a misunderstanding. The proceedings were only listed on 3 May for directions with respect to the further conduct. The defendant's solicitor had correctly identified the ground upon which there was no arguable case for leave to appeal. The plaintiff's summons might well have been struck out there and then. That did not occur but, as will be seen, it should certainly be dismissed now.

Consent orders in this Court and in NCAT 25 April 2023

1. Subsequent to the hearing in the duty list on 11 April, on 25 April 2023 the parties and Insta Property Pty Ltd signed a minute of consent orders. In that document Insta Property Pty Ltd was described as "second defendant". It is in fact not a party to the proceedings. The title of the plaintiff's summons contains the following: First defendant/respondent: Xuan Nguyen (Landlord) represented by Insta Property (Landlord's agent) The words "represented" and following are superfluous and should not have been on the summons. Those words are ineffectual and do not make or purport to make Insta Property Pty Ltd a party to the proceedings.
2. On 11 April 2023 the defendant's solicitor filed an appearance that purported to be on behalf of both the defendant/landlord and Insta Property Pty Ltd. That document was irregular to the extent that it was filed on behalf of Insta Property Pty Ltd and it was ineffectual to make that company a party to the summons.
3. The consent orders signed on 25 April 2023 are in the following terms: 1. That the first plaintiff and his two sons, being the named tenants Waleed Wael Anis Quader and Anees Wael Anis Quader and any other occupants listed in the lease agreement (Tenants) are permitted to occupy the property 200A Marion Road Bankstown (Property) from the date of this order until 7 June 2023 (maximum stay period) at the agreed rent of $800 per week payable one week in advance plus water usage; 2. That the first plaintiff and the Tenants must vacate the Property on or before the maximum stay period and leaving the Property in a good and clean condition, wear and tear except [sic]; 3. That the parties have agreed to adjust the rental and water payments to remove the rental increase and water usage payment and to allow the deduction of the tenants payment order as per the attached spreadsheet calculation signed by the parties which is annexed and marked "Annexure A" which forms part of the Consent Orders. 4. That the first defendant shall be entitled to rely upon this [sic] Consent Orders to apply for an urgent writ of possession of the Property in the Supreme Court of New South Wales if the Plaintiff and the Tenants do not vacate the Property by the end of the maximum stay period; ie by 7 June 2023. 5. That all the current proceedings in the Supreme Court NSW will be discontinued. 6. That the parties will do all things and sign all documents to discontinue all current proceedings pending in NCAT. 7. The parties agree to file these consent orders before 3 May 2023 as directed by the Registrar. 8. That each party is liable for his own legal costs
4. A schedule was attached marked "A" showing that the tenants were in credit with the defendant/landlord in the amount of $770.89. The consent document was submitted to the Registrar on 26 April 2023 by email from the defendant's solicitor, in accordance with par 7 of the consent agreement. The solicitor's email was copied to the email address waqjordan@yahoo.com being the email address of the plaintiff endorsed on his summons and on subsequent affidavits and process filed in the Court. It is the email address from which and to which the plaintiff has communicated with my Associate for the purpose of arranging the listing of these proceedings on Friday 7 July 2023 and to provide further written submissions on 10 July 2023.
5. The defendant's solicitor's email to the Registrar of 26 April 2023 read as follows, under the subject heading of these proceedings and quoting the Court file number: Dear Registrar, We advise that the parties have reached an agreement to resolve these disputes by consent orders. We attach for your attention the signed consent order for approval and filing. The parties have requested that if the Court could approve the consent order in chambers and where possible vacate the direction hearing on 3 May 2023. We have included the plaintiff Mr Wael Anis Quader in this email communication for ratification. We look forward to receiving the Court sealed consent orders and/or further directions in this matter.
6. The Registrar duly made the consent orders and entered them on 27 April 2023. The duty judge's interim stay order of 11 April had expired on 3 May 2023. The effect of the consent orders was that Mr Quader purported to have agreed on behalf of the tenants that they be allowed to remain in the property until 7 June and that they would vacate no later than that date. Orders 1, 2 and 4 purported to enable the defendant/landlord to apply to the Court for a writ of possession to be issued, merely upon the basis of the parties' agreement. Those provisions were not effectual for their apparently intended purpose, firstly because there was no consent to the entry of judgment for possession and secondly because the tenants in possession of the property were not parties to the proceedings in this Court or to the agreement. However, after 7 June 2023, consistently with the agreement comprised in the consent orders the landlord would have been free to enforce the order for possession that had been made by Tribunal Member K George on 20 January 2023, from which the tenants' appeal had been dismissed by the Appeal Panel.
7. As at 25 April 2023 there remained on foot NCAT proceedings No RT22/47958, in which there was an outstanding dispute concerning rental adjustment. This was separate from the possession proceedings in the Tribunal. The tenants were the applicants in that proceeding and the defendant/landlord and Insta Property Pty Ltd were the respondents. On 25 April 2023, all parties to Tribunal proceedings No RT22/47958 signed consent orders in the following terms: 1. That the parties have agreed to adjust the rental and the water payments (to remove the rental increase and water usage payment and to allow for the deduction of the tenants' payment order) as per the attached spreadsheet calculation signed by the parties which is annexed and marked "Annexure A", which forms part of this [sic] Consent Orders. 2. That the tenants have agreed to vacate the property 200A Marion Road, Bankstown (Property) on or before 7 June 2023 (the maximum stay period) and that the parties have agreed to keep the rent payment to $800 per week until 7 June 2023. 3. That the parties agree that the terms of this [sic] Consent Orders will release each other from any compensation claims, liabilities, money owed against each other and that each party shall be entitled to use this [sic] Consent Orders as a bar to any future proceedings in connection to this matter. 4. That the parties agree to discontinue the current proceedings and each party to pay their own costs.
8. The spreadsheet calculation of rental adjustment, Annexure A, was the same as the equivalent document accompanying the consent orders in this Court. Order 1 in the NCAT consent orders mirrored order 3 in this Court. Order 2 mirrored orders 1 and 2 in this Court.
9. On 26 April 2023, Mr Quader sent a PDF of the executed consent orders dated 25 April 2023 to the registrar and presiding member of the Tribunal at Liverpool, with copies to the defendant/landlord's solicitor and Insta Property Pty Ltd. His email stated the following: "Dear Registrar and Presiding Member, The parties (the applicant and the respondent) ask the presiding member on the hearing of the matter RT22/47958 at NCAT Liverpool the following: Not to proceed with the formal hearing on papers listed for today 26 April 2023 at 3.15pm. We are asking NCAT to grant leave to accept today's initial filing, by email, the form "NCAT request for a consent order", agreed on and signed by the parties in order to stop the hearing on paper of the above matter. The original hard copy of the consent order will be sent by Australia Post or delivered by hand. Both the applicant/tenant and the landlord/Insta Property (his agent) agreed to send by email to NCAT Liverpool the completed, agreed on and signed consent form with the spreadsheet the basis for the consent. Insta Property Pty Ltd sent an email to the Tribunal on 26 April 2023 in substantially the same terms.

Incompetence of the proceedings in this Court

1. The proceedings in this Court have been incompetent from the outset because Mr Quader was not a party to the proceedings in NCAT from which the application for leave to appeal purports to have been brought. Mr Quader has never had any right to apply to this Court for leave to appeal from the Appeal Panel's decision of 28 March 2023. The right to apply to this Court for leave to appeal is solely conferred by statute, namely the Civil and Administrative Tribunal Act. So far as is relevant to the present proceedings, s 83 of that Act confers the right only upon a "party to an internal appeal". The right is not conferred upon a person who merely claims to be affected by the Appeal Panel's decision, such as Mr Quader. Mr Quader says that he is affected because he says that he resides in the property and describes himself as a co-tenant. That does not confer on him a right to apply for leave to appeal.
2. This point was raised by the Court with Mr Quader when the matter was listed before me on Friday 7 July 2023, in circumstances to which I will refer shortly, and he was given an opportunity to make further submissions in writing over the weekend on the question of his claimed right to apply for leave to appeal. Rather than immediately dismissing the proceedings as incompetent on 7 July 2023, the matter was stood over to this morning, 10 July, specifically for the purpose of enabling Mr Quader to refer to sources of law that he claimed would substantiate his entitlement to proceed on his summons.
3. In exercise of that opportunity, Mr Quader emailed to my associate at 6:30 am today 13 pages of written submissions referring to various legislation and authorities. He further elaborated the arguments in that document orally before me this morning. Mr Quader has not identified, either in writing or orally, any source of a legal right to bring an application for leave to appeal from a decision made in the Tribunal, by its Appeal Panel, in proceedings to which he was not a party.

Summons dismissed, consent orders of 27 April 2023 set aside

1. It follows that the summons must be dismissed as incompetent and all orders made in the proceedings that have not already expired or otherwise ceased to have effect should be vacated. That includes orders 1, 2, 4 and 5 entered by consent on 27 April 2023. Paragraph 3 of those orders is a matter of agreement between Mr Quader and the defendant/landlord. It is interdependent with the making of the consent orders as part of an entire agreement. The consideration from Mr Quader in exchange for the settlement with respect to rent is the making of the consent orders. That consideration has wholly failed because the orders could not be made with legal effect in proceedings that have been incompetent from the commencement. Paragraph 3 cannot stand as an agreement binding the parties once the consent orders are vacated.
2. Further, as par 3 purports to be an agreement for quantification of rent it is a nullity because Mr Quader is neither a party to the terminated residential lease nor bound by the Tribunal's orders for payment of an occupation fee. As noted above, par 1 of the consent orders made in the Tribunal in proceeding No RT22/47958 is to the same effect as par 3 of the consent orders in this Court. Paragraph 1 of the Tribunal consent orders is capable of operating as an agreement in settlement of rent obligations, subject to any other considerations that may affect the validity or performance of that agreement, because it is made between the tenants and the landlord.
3. It follows that it is appropriate to vacate the whole of orders 1-4 that were entered by consent in this Court on 27 April 2023. Order 5 was not performed. Discontinuance lay in the hands of Mr Quader and, far from filing a notice to that effect, on 2 June 2023 he filed a notice of motion seeking that the consent orders of 27 April be stayed, that orders 1, 2 and 4 be set aside and other relief. Consent order 6 of 27 April did not require any action on the part of the defendant/landlord because he was not and is not the moving party in any of the NCAT proceedings. That order was inherently of no utility because Mr Quader is not a party to the NCAT proceedings, on either side of the record, and is therefore not in a position to discontinue those proceedings. Order 7 is a mere machinery direction, which has been carried out, although to no substantive effect because the consent orders must be set aside.
4. Order 8 must be set aside because the basis for the parties having accepted that they bear their own costs was, very clearly, that the whole proceeding would be brought to an end on the terms of pars 1-6. That has not happened because Mr Quader did not file a notice of discontinuance. Instead, he repudiated the agreement by filing his notice of motion of 2 June 2023 to have the substantive consent orders 1, 2 and 4 set aside. As Ms Chan of counsel submitted on behalf of the defendant/landlord, there has been a total failure of consideration for any promises made by her client in the consent orders in this Court.

Notices of Motion dismissed

1. Mr Quader's notice of motion of 2 June 2023 has been listed for hearing on 17 July 2023, however, it must be dismissed as it has been made irrelevant by the fate of the consent orders to which it is addressed. The notice of motion cannot be prosecuted within a substantive proceeding that has been incompetent from its inception.
2. On 14 June 2023, the defendant/landlord filed a notice of motion seeking an order for joinder of the tenants as parties to the proceedings and declarations that Mr Quader has at all times acted as the tenants' agent in relation to the proceedings and that the consent orders of 27 April 2023 are valid and binding on Mr Quader. The defendant/landlord's notice of motion seeks orders for the enforcement of the consent orders. On 7 July 2023 counsel informed the Court that the defendant does not wish to pursue that notice of motion and he accepts that the orders of 27 April 2023 should be vacated, given the incompetence of the entire proceeding. The consequence is that the defendant's notice of motion, filed 14 June 2023, should also be dismissed.
3. On 23 June 2023, Registrar Jones listed the two motions, that of 2 June filed by Mr Quader and that of 14 June filed by the defendant, before herself for hearing on 17 July 2023. On 3 July 2023, the plaintiff filed a further notice of motion seeking orders that Registrar Jones should not hear the notices of motion. That was, in effect, an application for recusal. It was made returnable for hearing today, 10 July. That notice of motion must also be dismissed, for the same reasons as the others.

Listing before duty Judge on 7 July 2023

1. On 7 July, Mr Quader requested that the proceedings be listed before the duty judge, in which capacity I was acting at the time, on an urgent basis. From his emails to the Duty Registrar and to my Associate, and from so much as I could gather from his oral submissions to me on 7 July, his concern was that he wished to challenge the directions that the Registrar had made on 23 June for interlocutory preparation of the two motions listed for 17 July. Registrar Jones had directed that all evidence be served by Friday 7 July and that written submissions be filed and served by 10 July.
2. Mr Quader wished to contend that Registrar Jones' directions were "illegal and contravened Court orders" and that his motion for the Registrar to recuse herself was "ignored". His email correspondence to the registry and to my Associate was replete with assertions of "irregular orders", "made against good faith" and conduct by the Registrar "in order to disadvantage the applicant (self-represented)". An exhaustive review of the file by myself has revealed no support for these contentions, which appear to be generated by a combination of Mr Quader's lack of understanding of the proceedings and the relevant underlying legal framework, his emotional volatility and his readiness to allege impropriety and misconduct on the part of opponents and judicial officers whenever he perceives that his applications and arguments are not prevailing.
3. In the hearing before me on 7 July 2023, I found it impossible to calm Mr Quader sufficiently to disabuse him of his misconceptions. He did not absorb what I explained to him about what appeared to be the fundamental defect in his attempt to litigate an application for leave to appeal in this Court in circumstances where he was not a party to the decision appealed from. Throughout the hearing on 7 July, Mr Quader remained fixated upon his erroneous understandings. He endeavoured to drown out my attempts to explain to him what I perceived to be the fundamental defect in the proceedings, to the point where I frequently found it necessary to raise my voice and direct him to resume his seat and remain silent so that his attention could be directed to the realities of the case. Mr Quader protested that the legal issue which I was trying to direct his attention should not be raised and that the only matter I should attend to was his complaint about Registrar Jones' interlocutory directions for the hearing of the notices of motion on 17 July 2023 and his objection to Registrar Jones dealing with those matters.
4. [Upon revising the transcript of these reasons I record that Mr Quader's interruptions and protestations continued throughout their oral delivery. This reached the point of interfering with my ability to discharge my duties. I found it necessary to inform Mr Quader that I was requesting a Court security officer to attend the hearing room and be ready to remove him if he continued with his disruption].

Recusal application

1. Today, upon Mr Quader being accorded the opportunity to address orally on his standing to bring the application for leave to appeal, in elaboration of the 13 page written submission sent to my Chambers at 6:30 am, he requested that I recuse myself on the grounds of actual or apprehended bias.
2. He claimed that bias had been exhibited, firstly, by the order in which I sought to deal with the issues before me both on Friday 7 July and again today. During the course of the two days of hearing I requested Ms Chan to explain her client's position and I discussed with her the consequences if I should be correct in my initial impression that the proceedings are fundamentally flawed and must be dismissed. Ms Chan had provided, at the outset of the hearing on 7 July, written submissions to the effect that Mr Quader's summons was incompetent. Ms Chan had been briefed subsequent to the earlier steps in the proceedings that had been taken by her instructing solicitor without having brought that issue to a head. In order to understand what may be the consequences of a determination that the proceedings are not properly constituted, I asked Ms Chan to make submissions about what orders should be made and to state what costs order she would seek.
3. Towards the conclusion of the hearing on Friday 7 July, when I determined that I should accede to Mr Quader's request for an opportunity to submit authorities concerning his standing to seek leave to appeal, I invited Ms Chan to provide, after the adjournment, an application and a supporting affidavit with respect to costs, to be dealt with in the event that I should remain of my initial view that the proceedings must be dismissed as incompetent. I reject Mr Quader's contention that my seeking from Ms Chan submissions and an affidavit concerning costs followed from prejudgment of the matter. At the point when those matters were raised I had read the entirety of the very substantial Court file and I had considered the applicable law, the reasons for decision of the Tribunal Member and the Appeal Panel, the three notices of motion that were yet to be heard and the affidavits filed in connection with those notice of motion. The incompetence of Mr Quader's summons appeared reasonably clear from this material. Such views as I was able to form late on 7 July 2023 were not "pre-" anything. They were based upon a comprehensive review of the proceedings. The potential utility of the hearings on 7 and 10 July 2023 was to correct any misapprehensions on my part and to obtain any necessary clarification of the history of the matter, from both parties. I was careful to state that the defendant's assistance with respect to costs was sought with a view to disposing of the matter efficiently should it be my final conclusion that the summons be dismissed. I certainly had not made up my mind about final determination prior to reading the additional material that I gave Mr Quader leave to submit to me over the weekend.
4. Secondly, Mr Quader contended that I should recuse myself because I had "ambushed" him by raising the question of his standing to apply for leave to appeal. I reject that characterisation. As is apparent from the transcript of 11 April 2023, Mr Quader has been on notice of the inappropriate constitution of his proceedings since that date. The problem was further brought home to him by the filing of the defendant/landlord's notice of motion on 14 June 2023, seeking that the tenants be joined. On 22 June 2023 Mr Quader obtained affidavits from each of the tenants providing their explanations of why they had not become parties to the summons filed in this Court. Those affidavits were annexed to an affidavit of Mr Quader himself affirmed on 3 July 2023 and filed in support of his motion of that date seeking, inter alia, recusal of Registrar Jones.
5. Still further, on 5 July 2023, the defendant/landlord's solicitors wrote a letter to Mr Quader fully explaining the incompetence of the summons by reference to s 83 of the Civil and Administrative Appeal Tribunal Act. He was well aware, before he came before me on 7 July, that the defendant had long contended that he is not a proper party to seek leave to appeal. Then at the commencement of the hearing on Friday 7 July, Ms Chan provided both to the Court and to Mr Quader her detailed written submissions on that topic. Mr Quader's perception of an "ambush" could only arise from his insufficient understanding of the legal underpinning of the proceedings and his inability to listen to and comprehend things that he has been told repeatedly about the defect in his application.
6. A third reason Mr Quader gave for his purported apprehension of bias was that I was not giving him an opportunity to speak. The reality is that Mr Quader does not conduct proceedings in an orderly manner. He intervenes and speaks over the presiding judge. He speaks extremely rapidly so that it is difficult to understand what he is saying, let alone to have it recorded. Mr Quader interrupts his opponent when the judge is attempting to engage with the opponent. He repeats submissions over and over. He seems not to register that he is repeating himself and he does not take any notice or amend his behaviour when the repetition is pointed out.
7. Having filed written submissions, Mr Quader insisted upon reiterating what is in them and doing so more than once. He would not respond to my indication to him that his material had been read. The difficulty in taking submissions from Mr Quader arose acutely on 7 July in relation to the notice of motion that he filed on 3 July. The notice of motion does not merely set out orders that are sought. It contains nine pages of highly repetitive, misconceived and jumbled submissions. Before coming onto the bench on 7 July I had read that notice of motion to try to understand Mr Quader's current contentions. So far as he is able to articulate them, they appear in that document. Nevertheless, Mr Quader's manner of presenting his case in Court was to repeat numerous times the matters as he had already set out at length in writing.
8. The same experience affected the Court's attempts to deal with the matter today. Before resuming the hearing I had read the 13 pages of detailed written submissions filed pursuant to the leave granted on Friday 7 July. Notwithstanding my repeated assurances to Mr Quader of having read his arguments, he insisted upon repeating and reading much of what was in the document and then repeating that over again. It is not correct that he has been refused opportunity to speak or that he has been silenced in Court. He has been given ample opportunity but he has misused it and attempted to occupy the Court's time and attention in a way that is unreasonable and does not assist in resolution of the matter.
9. In granting an opportunity to be heard, the Court is not obliged to listen in silence while misconceived submissions are endlessly repeated and while Mr Quader resists any attempt to test his arguments, by over speaking and by disregarding. The Court endeavours to exercise patience in receiving the submissions of a self-represented litigant. Mr Quader's demands upon patience have been extreme, by reason of the aspects of his presentation in court referred to above. The Court must balance the degree to which patience is extended and hearing time is consumed against the Court's duty to other litigants and its duty, owed to the public generally, to conserve judicial resources. When Mr Quader demands that the Court listen to him repeating submissions that are made from ignorance of the applicable law and in disregard of all legal guidance given to him, the judge hearing the case must take account that there are other litigants waiting upon reserved judgments and still more seeking to have their cases heard. It is not open to a judge simply to remain passive while hearing time is wasted in this manner. In Mr Quader's case I found it necessary to intervene repeatedly and forcefully to try to contain and direct the proceedings, with a view to ascertaining whether there was anything material that he could say that I might otherwise overlook in working towards the making of dispositive orders.
10. I do not accede to Mr Quader's application that I disqualify myself on the ground of bias, actual or apprehended, and I proceed to make the orders that I consider appropriate.

Orders

1. On 7 July 2023, I sought to explain to Mr Quader that, although he had the matter listed before me on an urgent basis to address Registrar Jones' directions of 23 June to prepare the motions for hearing on 17 July, that aspect of the proceedings had to be deferred until I had resolved the difficulty with his standing as the plaintiff on the summons. Mr Quader agitated that his motion be heard first and that his arguments concerning the directions be dealt with in priority. That would have been futile where the question whether the whole proceedings were incompetent clearly emerged on the papers and had been raised as early as 11 April 2023.
2. Having now reviewed the additional written submissions that Mr Quader filed over the weekend and having researched the authorities myself to try to find any basis upon which it may be permissible for someone in his position to bring an application for leave to appeal to this Court where he was not a party in the Tribunal, I have concluded that the proceedings have been incompetent from the outset and, accordingly, I consider that the following orders are appropriate: 1. The summons is dismissed. 2. The notices of motion filed by the plaintiff on 2 June 2023 and 3 July 2023 and by the defendant on 14 June 2023 are dismissed. 3. The plaintiff is to pay the costs of the defendant of the entire proceedings. 4. The costs payable by the plaintiff to the defendant are to be assessed in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW). 5. The orders entered by consent on 27 April 2023 are set aside. 6. Direct that by 5pm on Wednesday, 19 July 2023, the plaintiff deliver to my chambers by email to the Associate any affidavit or submissions that he wishes to make or place before the Court to dispute the quantum of the costs claimed by the defendant.
3. The effect of these orders is that Tribunal Member K George's original order 2 of 20 January 2023, that "possession is to be given to the landlord on the date of termination", remains in force. The property that is the subject of that order is the property at 200A Marion Street, Bankstown.
4. All stays and deferrals of execution of that order - whether by the Tribunal Member, by the Appeal Panel, or by this Court, have now expired. The purported agreement of the parties to permit the tenants to remain in possession until 7 June 2023, as included in the consent orders filed in this Court on 27 April 2023 and in the Tribunal on 26 April 2023, has also expired.
5. On 23 June 2023, when the matter was before Registrar Jones for directions with respect to the motions that were to be heard on 17 July, the Registrar included the following amongst the orders then made: 5. That the respondent [being the defendant/landlord] will not seek to enforce the terms of the consent orders made on 27 April 2023 before close of business on 17 July 2023 contingent upon the plaintiff paying the rental arrears by close of business on 26 June 2023.
6. That order no longer has any effect upon the defendant/landlord's entitlement to enforce his right of possession of the property, by writ or warrant. That is because the orders of 27 April 2023 are set aside. The defendant/landlord's right of possession does not derive from those consent orders but from the original order of the Tribunal Member, made 20 January 2023. Further, by virtue of the Court's ascertainment that the proceedings in this Court are wholly misconceived and must be dismissed, including the notices of motion, there would be no justification for the defendant/landlord to be restrained from enforcing his right of possession until 17 July 2023. That date was adopted by the Registrar as the date up to which the defendant/landlord would refrain from enforcing possession on the basis that there were to have been heard notices of motion that day. Those notices are no longer proceeding.
7. Accordingly, the defendant landlord is entitled to apply to the Tribunal, through its registry, for the issue of a warrant for possession pursuant to s 121 of the Residential Tenancies Act and the defendant/landlord is entitled to have such warrant executed by the Sheriff at the earliest convenience.
8. The application for a warrant would normally be required to be made within 30 days of the date for possession, which has, by today's date, expired. If it is necessary for the Tribunal to consider whether a warrant should nevertheless be issued outside 30 days, by exercise of the discretion under s 121(2) of the Residential Tenancies Act, a significant consideration is that the defendant/ landlord has been delayed in seeking a warrant first by the order of the duty judge in this Court on 11 April and then by arrangements made with Mr Quader in an endeavour to resolve the proceedings in this Court.
9. Mr Quader has now sworn an affidavit on 2 June 2023, but bearing a title page of "3 April 2023" which includes the following: 6. I didn't have and still don't have authorisation from the named leaseholders Waleed Quader and Anees Quader to represent them at the Supreme Court of New South Wales.
10. That assertion was made by Mr Quader in support of his notice of motion of 2 July 2023, by which he sought to extricate the tenants from the agreement he had made with the defendant/landlord to enter into the consent orders of 27 April 2023. Notwithstanding Mr Quader's assertion, the tenants were at all times well aware that Mr Quader was bringing the proceedings in this Court and did nothing to restrain him from doing so. Waleed Quader affirmed an affidavit in these proceedings on 22 June 2023, giving his occupation as "Custom Reports Specialist at the University of Sydney student" and deposing in par 2 as follows: I chose not to be a party to any Supreme Court proceedings; therefore, I gave an unwitnessed statutory declaration to Wael Quader confirming his co-tenancy and that I did not have any objection to his appeal at the Supreme Court on questions of law.
11. Anees Quader affirmed an affidavit in these proceedings, on the same date, giving his occupation as "flight instructor" and deposing in par 6 as follows: I chose not to be a party to any Supreme Court proceedings, but I didn't object to co-tenant Wael Quader appealing the decision and orders made by NCAT internal appeal on our tenancy on questions of law which he felt strongly about because it affects all NSW tenancies and sets a precedent.
12. From those affidavits it is apparent that the tenants were well aware that Mr Quader was prosecuting his summons in this Court. They bear responsibility for the defendant/landlord having been delayed in recovery of possession by reason of the Supreme Court proceedings. No doubt that would be taken into account by the Tribunal in considering any extension of time that may be required for the issue of a warrant of possession and for giving priority to the matter in order to bring this now long-running dispute to an end.

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: 12 July 2023