This is the third judgment I have given today concerning various interlocutory issues that have arisen in these proceedings. Notwithstanding the consideration that I ordered these proceedings be stayed pending compliance with order 3 pronounced by me on 17 July 2023, Mr Sethi has purported to file a notice of motion dated 29 July 2023, an amended summons, not complying with my order 3, dated 28 July 2023 and an affidavit in support also filed on 28 July 2023.
The gravamen of the amended summons is to join as a second defendant his sometime landlord Mr Joe Cho, who is represented in court today by Ms Patrick, solicitor. In all other respects the purported amended summons appears to me to be identical with the summons that I struck out under r 14.28 Uniform Civil Procedure Rules 2005 ("UCPR") on 17 July 2023. The legal effect of that order is that the summons no longer exists and there is nothing to amend.
I also observe that even were it otherwise; that is to say, were there no stay; were there something called a summons that could be amended, the document does not in any way either claim any relief directly against Mr Cho, nor does it contain any averment of any material fact that might assert any basis for any legal liability in him which might be actionable in this Court. That much is obvious from a consideration of the contents of the document and its prayers for relief, where it refers to the defendant, singular, clearly a reference to the only defendant, just as the now defunct summons I struck out did.
The notice of motion claims a stay of orders made in NCAT terminating the residential tenancy agreement between Mr Cho and Mr Sethi and it seeks a stay for an indefinite period of time expressed in this way:
"up until these current Supreme Court proceedings or any other arising, upcoming, or forthcoming related matters are completely resolved and to be finalised".
It also seeks an order, which I assume to be in the nature of a mandatory injunction, that the tenancy, which Mr Sethi previously enjoyed, be continued, "as the termination of the tenancy was never ordered".
Before saying more about that form of relief, I wish to go directly to the main point of this judgment and that is that given that these documents were filed in contravention of the stay I ordered on 17 July 2023, they should be removed from the Court file, reference to them should be removed from the Court record and they should be returned to Mr Sethi forthwith. Ms Patrick, solicitor, who appears for Mr Cho submits that those are the orders I should make in the circumstances. Mr Sethi opposes them. The matter is straightforward, and I will make those orders in due course.
However, I wish to say something about the merits, or lack thereof, of the application before making those orders. It is quite apparent to me that the application for these orders is in effect an abuse of the Court's processes, quite apart from Mr Sethi's contravention of the stay. They are an abuse of the Court's processes because they are made not in furtherance of the stayed but pending proceedings in this Court but as a collateral attack on orders apparently lawfully made in the Civil and Administrative Tribunal, otherwise known as NCAT.
From material that has been provided to me in the amended court book, I am aware that proceedings were taken by Mr Cho in NCAT to terminate the residential tenancy agreement on what is the permissible so-called "no grounds termination" under the provisions of s 85 Residential Tenancies Act 2010 (NSW) ("RTA"). As was his right, Mr Sethi apparently brought a competing application under s 115 RTA alleging that the application for termination was a retaliatory eviction under that provision. That counterclaim, if I may put it that way, was unsuccessful in the Consumer and Commercial Division of NCAT, where Senior Member Ellis SC dismissed it and allowed the landlord's application for termination on 1 March 2023. He made orders accordingly.
Mr Sethi then appealed to the Appeal Panel of NCAT challenging those orders and seeking to have them set aside. His appeal was heard on 9 May 2023 by a panel constituted by Senior Member Robertson and Senior Member Burton SC. Mr Sethi's application for an adjournment that day having been refused. The Appeal Panel reserved its decision, which was given on 30 June 2023 refusing leave to appeal and dismissing the appeal from Senior Member Ellis's decision. The Appeal Panel extended a stay previously granted in support of the appeal for an additional period of 28 days. Mr Sethi disputes my interpretation of the Appeal Panel orders but nothing turns on this for the substance of my decision.
A right of appeal by leave, restricted to a point of law alone, lies to this Court from the Appeal Panel of NCAT under s 83 Civil Administrative Tribunal Act 2013 (NSW). I should say that Mr Sethi has not filed and served any summons under Pt 50 UCPR to exercise that, qualified, statutory right. He told me from the Bar table that he had filed a notice of intention to appeal. There were two things to say about that. The first is that the notice of intention to appeal procedure is available only under Pt 51 UCPR, concerned with appeals to the Court of Appeal. The second thing to say is that even if it were an available procedure, it is not the institution of an appeal or an application for leave to appeal. I make those observations because the Court undoubtedly has the power to grant a stay in a matter where an appeal over which it has jurisdiction is properly instituted. That discretionary power is to preserve the utility of the statutory right of appeal where it appears to the Court that the appeal may have some merit, and that the refusal of the stay would deprive the appellant of his statutory rights. Obviously, as the successful party in litigation is entitled to the fruits of the litigation, a balancing exercise is always involved.
However, where, as here, no appeal has been instituted, it is impossible for the Court to carry out that exercise and I would not have been disposed to grant a stay of NCAT's orders even could I fashion the documents that Mr Sethi has filed in contravention of the stay of these proceedings as somehow being restricted to relief of that type in aid of an appeal under s 83 Civil and Administrative Tribunal Act 2013 (NSW).
As I have said, when one considers the relief sought, Mr Sethi does not restrict himself to an application for a stay of that type. He seeks a stay of indefinite duration in aid of any proceedings he may bring in the future, which includes, as he puts it, "[until] these current Supreme Court proceedings, the stay proceedings, or any other arising, upcoming or forthcoming matters are completely resolved". That to my mind would be a completely abusive exercise of the Court's power.
From his written submissions it is apparent that Mr Sethi invokes s 65 and s 66 Supreme Court Act 1970 (NSW). Section 65 permits the Court to order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested. An order may be made on terms of an interlocutory character. No subsisting duty has been identified. The lease that Mr Cho formerly granted Mr Sethi has been terminated. There is no identified legal duty which requires fulfilling and no basis in law for the exercise of the s 65 power.
Section 66 provides that the Court may at any stage of any proceedings by interlocutory or other injunction restrain any threatened or apprehended breach of contract or other injury. There is no subsisting contract between Mr Cho and Mr Sethi. The lease has been terminated and no longer exists in law. There is no identified "other injury" that is applicable in the present case. Mr Sethi has made it quite clear that the injury he suffers and for which he blames Mr Cho is the injury of the loss of his tenancy, which is no injury but the result of legal proceedings.
One may be sympathetic to a person in Mr Sethi's position who is undesirous of leaving his home of seven years. But on the material before me, were it open for me to determine it today, it seems that the lease has been terminated lawfully and Mr Sethi's remedy, if any, is restricted to his statutory right, subject to leave, under s 83 Civil and Administrative Tribunal Act.
As I said at the outset of these reasons, I am refusing these applications because they are purportedly filed by Mr Sethi in contravention of the stay I imposed on 17 July 2023. However, were it open to me to consider them on their merits, for the reasons I have given I would refuse the relief sought.
I have so far overlooked dealing with the notice to produce for inspection that Mr Sethi purported to serve upon Mr Cho in these proceedings yesterday seeking records which he tells me today are records that he requires in relation to attempting to obtain a reconsideration of the Appeal Panel's decision. Quite apart from the stay, which also covers this document and therefore makes this document an abuse of process to the extent to which it contravenes the stay, it would be an abuse of process for coercive powers of the Court to be invoked in this way for the purpose of aiding or assisting other unrelated proceedings.
My order is that,
1. Direct that the notice of motion of 29 July 2023, the affidavit of 28 July 2023 and the amended summons of 28 July 2023, filed in contravention of the stay ordered on 17 July 2023, be removed from the Court file, expunged from JusticeLink and returned to Mr Sethi.
2. Order that the notice to produce for inspection is set aside.
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Decision last updated: 02 August 2023