[2014] FCAFC 10
Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193
[2004] SASC 102
Dokas v Gallagher (No 2) [2024] NSWCA 236
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
[2024] NSWCA 32
Fong BHNF Fong v Weller [2024] NSWCA 46
Forster v Jododex (1972) 127 CLR 421
[1998] HCA 27
Jarvis v Queanbeyan City Council [2002] NSWCA 20
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Source
Original judgment source is linked above.
Catchwords
[2014] FCAFC 10
Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193[2004] SASC 102
Dokas v Gallagher (No 2) [2024] NSWCA 236
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2024] NSWCA 32
Fong BHNF Fong v Weller [2024] NSWCA 46
Forster v Jododex (1972) 127 CLR 421[1998] HCA 27
Jarvis v Queanbeyan City Council [2002] NSWCA 20
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
[1989] HCA 23
Mao v AMP Superannuation Ltd [2018] NSWCA 72
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
[2011] HCA 48
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
[1981] HCA 45
Re Refugee Review Tribunal
ex parte Aala (2000) 204 CLR 82
[1982] HCA 47
The Queen v Australian Broadcasting Tribunal
Ex parte Hardiman (1980) 144 CLR 13
[1980] HCA 13
Tomko v Palasty (No 2) (2007) 71 NSWLR 61
[2007] NSWCA 369
Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184
[1981] FCA 65
Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527
Judgment (23 paragraphs)
[1]
Passion Projects (Allyouneedislove) Pty Ltd v Concept Moulding Pty Ltd [2014] NSWCA 415
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Samuel v Wadlow [2007] EWCA Civ 155
Shapkin v The University of Sydney & Anor [2024] HCASL 272
Shapkin v The University of Sydney [2024] NSWCA 156
Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184; [1981] FCA 65
Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105
Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353
Texts Cited: Chitty on Contracts (35th ed, 2023, Sweet & Maxwell)
D O'Sullivan KC, S Elliot KC and R Zakrzewski, The Law of Rescission (3rd ed, 2023, Oxford University Press)
Category: Principal judgment
Parties: 2022/00379809
Mr Vasily Shapkin (Plaintiff)
Ms Angele Lorenzato (First Defendant)
NSW Civil and Administrative Tribunal (Second Defendant)
Attorney General (NSW) (Amicus)
[2]
2022/00379871
Mr Vasily Shapkin (Plaintiff)
Ms Angele Lorenzato (Defendant)
Attorney General (NSW) (Amicus)
Representation: Counsel:
V Shapkin (Litigant-in-person)
S Hoare (Amicus)
[3]
Solicitors:
Crown Solicitor (NSW) (Amicus)
File Number(s): 2022/00379809; 2022/00379871
Publication restriction: Nil
Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal
Jurisdiction: 1. Consumer and Commercial Division
2. Consumer and Commercial Division
3. Consumer and Commercial Division
4. Appeal Panel
5. Consumer and Commercial Division
6. Appeal Panel
7. Consumer and Commercial Division
Date of Decision: 1. 15 December 2021
2. 28 January 2022
3. 1 March 2022
4. 25 March 2022
5. 8 April 2022
6. 24 June 2022
7. 21 July 2023
Before: 1. Senior Member L Wilson
2. Senior Member G Sarginson
3. Senior Member G Sarginson
4. Principal Member A D Suthers
5. Senior Member G Blake
6. Deputy President S D Westgarth, Senior Member G Ellis
7. General Member M McCue
File Number(s): 1. RT21/43089
2. RT22/52564
3. RT22/06803
4. 2022/00074365
5. RT22/14212
6. 2022/00106665
7. RT22/21474
[4]
JUDGMENT
In June 2021, Vasily Shapkin, the plaintiff, accepted an "Accommodation Placement Offer" dated 2 June 2021 (the June 2021 Agreement) to reside at accommodation in Liverpool, NSW (the Apartment), owned by Ms Angele Lorenzato, the first defendant in proceedings 2022/00379809 and the defendant in proceedings 2022/00379871. The June 2021 Agreement was for an initial period of 12 weeks but the plaintiff continued residing at the Apartment until 11 April 2022. The June 2021 Agreement spawned multiple applications, by both the plaintiff and Ms Lorenzato, before the NSW Civil and Administrative Tribunal (the Tribunal), and is the central focus of the proceedings now before this Court.
By amended summons filed on 8 September 2023, the plaintiff seeks leave to appeal on a question of law under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) against orders of the Appeal Panel of the Tribunal (the Appeal Panel) on 25 March 2022 (the appeal proceedings). The orders appealed against were made during a conciliation, by consent, varying earlier orders of the Tribunal on 1 March 2022, relevantly, so as to provide that:
"The Residential Tenancy Agreement [in context clearly meaning the June 2021 Agreement] is terminated by consent of the parties".
By a further amended summons filed on 8 September 2023 (to the extent pressed by the plaintiff at the hearing), the plaintiff also seeks judicial review under s 69, or declaratory relief under s 75, of the Supreme Court Act 1970 (NSW) in respect of a number of Tribunal decisions (the judicial review proceedings), being decisions or orders of:
1. 15 December 2021, in which the Tribunal acceded to an application by the plaintiff for an order that the June 2021 Agreement was a residential tenancy agreement as defined by the Residential Tenancies Act 2010 (NSW);
2. 28 January 2022, in which the plaintiff successfully opposed an application by Ms Lorenzato to terminate a residential tenancy agreement;
3. 1 March 2022, in which the Tribunal made orders on the application of Ms Lorenzato that "the Residential Tenancy Agreement" was terminated immediately and possession was to be given to Ms Lorenzato on the date of termination, but the order for possession was suspended until 15 March 2022;
4. 25 March 2022, on appeal against the decision of 1 March 2022, in which the Appeal Panel, having undertaken a conciliation, made orders by consent, including orders terminating the "Residential Tenancy Agreement" and for the plaintiff to vacate the Apartment on 8 April 2022;
5. 8 April 2022, in which the Tribunal dismissed renewed proceedings (under cl 8 of sch 4 of the Civil and Administrative Tribunal Act) alleging a failure by Ms Lorenzato to comply with certain of the consent orders made on 25 March 2022;
6. 14 June 2022, in which the Appeal Panel dismissed the plaintiff's appeal against the decision of 8 April 2022; and
7. 21 July 2023, in which the plaintiff was awarded compensation for a breach by Ms Lorenzato of the Residential Tenancies Act in entering the Apartment on 10 April 2022 when the plaintiff had not yielded up the premises.
[5]
Appearances before the Court
Consistent with the principles in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, the Tribunal played no active role in these proceedings. Ms Lorenzato appeared via audio-visual link before Harrison AsJ on 26 June 2024 when the matter was initially listed for hearing but was adjourned until 25 September 2024. Having already filed an appearance, on that occasion she indicated (through her daughter who was with her and largely spoke for her) that, whilst she considered that the Tribunal and Appeal Panel decisions were correct, "she will agree with your decision your Honour". Ms Lorenzato did not file submissions or evidence in these proceedings and did not appear at the hearing on 25 September 2024.
With the consent of both the plaintiff and Ms Lorenzato, by orders of 13 September 2024, the Attorney General of New South Wales (Attorney General) was granted leave to participate in the proceedings as amicus curiae. The Attorney General made both written and oral submissions.
[6]
Ms Lorenzato's legal capacity
During the course of the hearing on 26 June 2024, Harrison AsJ raised concerns as to whether Ms Lorenzato was a person under legal incapacity.
In light of this, by email from the Court, the parties were invited to address the question of Ms Lorenzato's capacity at the hearing on 25 September 2024. Ms Lorenzato did not respond to this email. The plaintiff indicated, by emails of 14 September 2023, that he was "willing to concede that Ms Lorenzato does not have legal capacity to conduct proceedings" and would consent to any orders that the Court may make in that regard. He indicated, further, that the Court was capable of informing itself as to the legal capacity of Ms Lorenzato independent of any consent orders, based upon evidence already before the Court. The Attorney General made no submissions on the question of Ms Lorenzato's capacity, but contended in his written submissions that, if the Court concluded that Ms Lorenzato was a person under a legal incapacity, the Court had the power to dispense with the requirement under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.14(1), that the proceedings could not be carried on without a tutor: Mao v AMP Superannuation Ltd [2018] NSWCA 72 at [11]-[15] (Basten and Leeming JJA).
The basis of Harrison AsJ's comments about Ms Lorenzato's capacity appears to be a letter on the court file dated 27 March 2024 from Professor Hugh Dickson, a director of ambulatory care, addressed to a Dr Ibrahim. This says of Ms Lorenzato:
"I consider that her cognitive impairment impairs her ability to manage her affairs.
I do not consider her competent as regards giving evidence to a court.
I predict that her intellectual function will continue to decline."
The plaintiff did not seek to tender this letter, a copy of which I have attached to this judgment. Consistent with the question of capacity to conduct litigation being "task specific": Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193; [2004] SASC 102 at [16]-[29], at the hearing of these applications I indicated to the plaintiff and counsel for the Attorney General that my provisional view was that the letter of 27 March 2024 did not satisfy me that Ms Lorenzato did not have legal capacity to conduct litigation. I indicated that I proposed to deal with the question of Ms Lorenzato's capacity to conduct litigation, and whether any order should be made in relation to this, in this judgment. Neither the plaintiff nor counsel for the Attorney General made any submissions on the issue or disagreed with my proposed course.
[7]
The plaintiff's contention that I should recuse myself
In an email of 24 September 2024 sent to my associate and copied to the Attorney General, the plaintiff identified that my associate had co-authored a submission as part of the Attorney General of the Commonwealth's review of the Modern Slavery Act 2018 (Cth) and raised a question whether this would "… influence the proceedings in any shape or form on an account of association? (reasonable apprehension?)". The plaintiff did not raise any issue at that time as to apprehended bias on the part of myself, as opposed to my associate. The plaintiff did not raise this matter at the hearing on 25 September 2024. However, by email to my associate of 5.21pm on 25 September 2024, the plaintiff said that he had to "raise my objections again on a reasonable apprehension of bias" and requested that I recuse myself on account of what he described as an association of my associate, and myself, with the Attorney General. In a subsequent email at 6.20pm the plaintiff described his objection as "based on the associate between the Attorney General and the associate, who is an associate to get [sic] Honour".
The plaintiff's contention that I recuse myself is rejected. The submission co-authored by my associate was submitted to the Attorney General of the Commonwealth, not to the Attorney General of New South Wales (who was appointed as amicus in these proceedings). In any event, such a submission by an associate would not lead to any apprehension of bias applying the well-established test of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. I add, that after I indicated that I would not recuse myself, the plaintiff sent an email to the court indicating that he withdrew his objection "on the account of bias by association".
[8]
The plaintiff's application to reopen his case
The appeal and judicial review proceedings were heard together on 25 September 2024. On 25 September 2024, the plaintiff sent an email to the Court indicating that he would be filing a notice of motion to reopen his case the following day. On 10 October 2024, the plaintiff filed a motion (which he apparently first gave to the registry of the Court, seeking a fee waiver) under UCPR, r 18.1 and s 23 of the Supreme Court Act seeking leave to re-open both the appeal and judicial review proceedings and an affidavit affirmed on 2 October 2024 in support of that motion. Following a directions hearing on 13 November 2024, the plaintiff filed an affidavit affirmed on 22 November 2024 identifying, in part only by way of description in the body of the affidavit, the evidence he sought to rely upon by way of reopening. This comprised some photographs of documents in Tribunal files, going to the question of what was before the Tribunal as regards the January and February 2022 Documents, and affidavit evidence that the plaintiff was in possession of full transcripts of "the other Tribunal proceedings in this matter" which had not yet been put on the record, together with photocopies of cover sheets of some transcripts of Tribunal hearings.
The context for the application to re-open is that, on a number of occasions during the hearing on 25 September 2024, I raised with the plaintiff that a difficulty for him in his applications was that he had not put before the Court all of the material or submissions relating to the January and February 2022 Documents that were before the Tribunal. It was made very clear to the plaintiff during the hearing on 25 September 2024 that the fact that the Court had not been given all the material before the Tribunal impacted upon the plaintiff's case because he bore the onus. A further difficulty I raised with the plaintiff during the hearing on 25 September 2024 was that he had not included any evidence that the January and February 2022 Documents were actually put before the Tribunal on any particular occasion. Again, that was a problem for the plaintiff given the onus resting on him.
At the conclusion of the hearing on 25 September 2024, the plaintiff sought leave to tender further evidence to identify what agreements were before the Tribunal. Given the timing of this application leave was refused, and I indicated to the plaintiff that it would be a matter for him whether he sought leave to reopen his case to tender further evidence on this issue.
[9]
The utility of the proceedings
These applications relate to a residential tenancy agreement that was entered into in June 2021. That is now over three years ago. The plaintiff ceased residing at the Apartment in April 2022 after the Appeal Panel made the orders by consent on 25 March 2022 that he should vacate the Apartment. In these circumstances, the issue of the utility of the proceedings looms large.
When the plaintiff was asked about the utility of the proceedings, his response was:
"PLAINTIFF: The utility is to understand where the parties currently stand. The consent orders were not an end to themselves. The parties subsequently entered into two subsequent agreements. It may be still possible, it's very highly possible that there is still a Residential Tenancy Agreement which is in periodic form pursuant to section 18 of the Residential Tenancies Act which has not been validly terminated or there was a lodging agreement.
So the utility is in - and that goes towards seeking an extension of time, if necessary. It's in the interests of the plaintiff to determine what his legal rights are and his legal positions are. So the utility is, basically the tenant was -I wouldn't say forced - but was under the impression that he has to leave the premises or move out of the premises because consent orders were entered into but those consent orders were entered into on 20 January - I withdraw that. The Wilson's agreement, I'll call it the Wilson's agreement, that's the Residential Tenancy Agreement which was entered into on 2 or 3 June 2021 and found by the Tribunal Member Wilson on 15 December 2021 to be a Residential Tenancy Agreement."
Elaborating upon this, the plaintiff subsequently submitted:
"PLAINTIFF: … So there are two branches of this agreement [referring to the February 2022 Document]. If it is a Residential Tenancy Agreement, even though there is a fixed term, it may very well be in periodic form under section 18 of the Residential Tenancy Act. This means that agreement is still in force because it is was not validly terminated.
HER HONOUR: You mean that there would still be a Residential Tenancy Agreement in force -
PLAINTIFF: That's correct.
HER HONOUR: with you in relation to that premises today?
PLAINTIFF: That is right…"
The plaintiff submitted that if the February 2022 Document were characterised as a lodging agreement (by which I presume he means an agreement falling within s 8(1)(c) of the Residential Tenancies Act, to which that Act thus does not otherwise apply), there was a possibility that it could be construed as an ongoing agreement such that, as at the present date, Ms Lorenzato has a continuing obligation to let him reside at the Apartment. The plaintiff also submitted that there was no evidence that Ms Lorenzato did not want him to move back into the Apartment or that he could not move back into the Apartment. He submitted that it was "very difficult to run the utility argument [in the] absence of evidence" and that utility "doesn't even work here" because the Apartment still exists. He also submitted that Ms Lorenzato was "losing rental income so there is utility in [her] receiving rental income which was the purpose of the agreement" and that there was some ongoing relationship between himself and Ms Lorenzato irrespective of whether the June 2021 Agreement had been terminated.
[10]
Should extensions of time for commencing proceedings be granted?
In both summonses, the plaintiff indicated that, if necessary, he was seeking an extension of time for the commencement of his applications. The principles governing an extension of time are not in doubt: Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [4] (Brennan CJ and McHugh J). In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Basten JA (Hodgson and Ipp JJA agreeing) identified four factors of general relevance (although these are by no means exhaustive of the matters that may be relevant): (1) the length of the delay; (2) the reason for the delay; (3) whether the applicant has a fairly arguable case; and (4) the extent of any prejudice suffered by the respondent to the application. The plaintiff bears the burden of persuading the Court that there are proper grounds to grant an application for an extension of time: Nanschild v Pratt [2011] NSWCA 85 at [38], [41], [44].
Whilst the applicant seeks solely declaratory relief as regards the Tribunal decision of 15 December 2021, in Buttrose v Attorney General of New South Wales [2015] NSWCA 221 ("Buttrose") at [13] this Court (Beazley P (as her Excellency then was) and Leeming JA) said:
"Contrary to the position taken by the parties, we would not lightly conclude that merely because the relief sought is declaratory that the general provisions in Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) do not apply. That Part applies generally to "proceedings under section 65 and section 69 of the Supreme Court Act and other proceedings in the supervisory jurisdiction of the Supreme Court": r 59.1(1)(a). Rule 59.10 provides that proceedings for judicial review must be commenced within three months of the date of the decision, and confers a power for that time period to be extended at any time. Although the rule does not apply "to any proceedings in which the setting aside of a decision is not required": see r 59.10(5), our preliminary view is that the three month period would either apply directly, or alternatively inform the Court's discretion to grant declaratory relief, even though the formal setting aside of a decision is not required. The substance of the rule is that challenges to the exercise of executive power should be brought reasonably promptly, or else be accompanied by an explanation as to why that did not occur."
Later, in Golden v V'landys [2020] NSWCA 120, Basten JA (at [9]) affirmed that the ordinary principles relating to judicial review apply to temporal considerations in respect of applications where a plaintiff seeks purely declaratory relief, and Macfarlan JA (at [33]) held that the preliminary view set out in Buttrose should be applied.
[11]
Leave to appeal
An appeal lies to this Court from a decision of the Appeal Panel, with the leave of this Court, on a question of law: Civil and Administrative Tribunal Act, s 83.
Leave to appeal will only be granted where the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice arising from a misapprehension which goes beyond something that is merely arguable (see, for example, Islam v Australian Real Estate Relations Pty Ltd [2023] NSWCA 131 at [27] (Ward P and Griffiths AJA); Mohareb v Office of the Director of Public Prosecutions (NSW) [2024] NSWCA 93 at [17] (Ward P and Payne JA) and the cases cited therein; Shapkin v The University of Sydney [2024] NSWCA 156 at [39] (Griffiths AJA, Meagher JA agreeing)). In appeals seeking to challenge a Tribunal order terminating a residential tenancy agreement, one matter going to the utility of the appeal may be whether the tenant has already been evicted: Dokas v Gallagher (No 2) [2024] NSWCA 236 at [71] (Kirk JA and Griffiths AJA).
Having regard to the matters set out below, leave to appeal against the Appeal Panel's orders of 25 March 2022 should not be granted. The appeal does not raise any issue of principle or public importance. It merely seeks to advance the plaintiff's interests. As is clear from my reasons set out below, I am also not persuaded that there is a reasonably clear injustice arising from any error on the part of the Appeal Panel which is more than being merely arguable. Indeed, I am not satisfied that there was any arguable error on the part of the Appeal Panel. Moreover, like the judicial review proceedings, the appeal proceedings lack utility, which is a further basis upon which leave to appeal should be refused: Passion Projects (Allyouneedislove) Pty Ltd v Concept Moulding Pty Ltd [2014] NSWCA 415 at [10] (Leeming JA, McColl JA agreeing).
[12]
Evidence
The plaintiff bears the onus of proving either that the Appeal Panel erred (for the purposes of his proposed appeal against the Appeal Panel's decision of 25 March 2022) or that there was jurisdictional error or error of law on the face of the record (as regards the decisions he challenges by way of judicial review): Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67], [91]-[92]. This includes the onus of proving the historical facts upon which he relies in support of his contentions of error: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [38]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
To the extent that, notwithstanding the evidence relied upon by way of re-opening, the Court does not have the complete picture as to what was put before or to the Tribunal at the various hearings leading to the decisions being challenged, that presents a difficulty for the plaintiff who bears the onus of proof.
[13]
The June 2021 Agreement
The June 2021 Agreement was entered into between the plaintiff and Ms Lorenzato, acting through an agency called Study Vision. Under the heading "Period & length of stay", the start date was 3 June 2021 and the booking length was 12 weeks. Further stay was "subject to availability" but "[e]ither you or Study Vision may decide to end the accommodation agreement after 12 weeks for any reason, as long as 2 weeks' notice is given". As to payment, it was provided that "[y]ou will need to continue paying your Rental to Study Vision every 2 weeks until you move out of this accommodation".
[14]
The plaintiff's proposed challenges
It is convenient to deal with the plaintiff's challenges to the various Tribunal decisions in chronological order.
[15]
The decision of the Tribunal on 15 December 2021
On 18 October 2021, the plaintiff applied to the Tribunal for orders that the June 2021 Agreement was a residential tenancy agreement within the meaning of s 13 of the Residential Tenancies Act. The plaintiff also sought an order under s 111 of the Residential Tenancies Act declaring that purported termination notices given by Ms Lorenzato to the plaintiff on 12 August 2021 and 17 September 2021 were not notices given in accordance with the requirements of that Act. Following a hearing on 15 December 2021, as observed in her written reasons for decision (given on 31 December 2021 after the plaintiff requested written reasons for the decision), Senior Member Wilson "determined the application entirely in favour of the applicant": Shapkin v Lorenzato [2021] NSWCATCD [no further reference is given] at [2].
In her written reasons, Senior Member Wilson said that after its fixed term, the June 2021 Agreement continued as a periodic agreement under s 18 of the Residential Tenancies Act. Thus, under s 82 of the Residential Tenancies Act, a termination notice, to be effective, had to meet certain requirements. None of the notices relied upon by Ms Lorenzato met those requirements. Senior Member Wilson observed in her reasons that it was very clear to her "that Ms Lorenzato wants [the plaintiff] to leave her apartment, as stated in her evidence, written submissions and at many times during the hearing". That finding is made good from the transcript of that hearing (at which Ms Lorenzato appeared through her daughter, Ms Minaway), which was tendered by the plaintiff.
As regards the Tribunal's decision of 15 December 2021, the plaintiff seeks a declaration that a term of the June 2021 Agreement, which required 2 weeks' notice of any termination, is void as being inconsistent with ss 15, 21 or 22 of the Residential Tenancies Act.
The plaintiff's application for declaratory relief lacks any merit. The Tribunal was not asked to, and did not, make any orders as to the validity or enforceability of the requirement in the June 2021 Agreement for 2 weeks' notice of termination. In these circumstances, the application for declaratory relief does not bear any relationship to how the application was put before the Tribunal, or what the Tribunal found, on 15 December 2021.
As already indicated, even if there were merit in the application, I would have declined relief in the exercise of my discretion: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 ("Aala") at [57] (Gaudron and Gummow JJ, Gleeson CJ and Hayne J agreeing), citing Lord Denning MR in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 320. There is also no utility in the proposed declaration. In addition to the matters discussed at [24]-[31] above, nothing in the decision of 15 December 2021 prevented arguments later being made as to whether the term of the June 2021 Agreement providing for termination on two weeks' notice was valid and enforceable. I would add, although this was not argued and thus I have not relied upon this in refusing relief, there is real doubt whether there would be any jurisdiction to grant declaratory relief in circumstances where, on any view, the June 2021 Agreement was terminated over two and a half years ago, whether this was by order of the Appeal Panel or (as the plaintiff contends) by agreement, and there is thus no real controversy as to the validity of its provisions as to notice: Forster v Jododex (1972) 127 CLR 421; [1972] HCA 61 at 437-438 (Gibbs J).
[16]
The decision of the Tribunal on 28 January 2022
On 28 January 2022, the Tribunal (Senior Member Sarginson) conducted a conciliation, which did not result in agreement, and then heard and dismissed an application by Ms Lorenzato to terminate a residential tenancy agreement for non-payment of rent. Senior Member Sarginson found that the termination notices given by or on behalf of Ms Lorenzato failed to comply with the requirements of the Residential Tenancies Act and that he should not, under s 113 of that Act, make a termination order notwithstanding the defects. The plaintiff seeks judicial review of this decision on the basis that the decision was predicated upon the June 2021 Agreement being an extant residential tenancy agreement, when in fact as at 28 January 2022 it had been lawfully terminated by the January 2022 Document.
The plaintiff's contention that the Tribunal's decision was tainted by jurisdictional error should be rejected. The Tribunal had been asked, by Ms Lorenzato, to terminate a residential tenancy agreement for non-payment of rent. The Tribunal rejected that application. Irrespective of whether, as the plaintiff now contends, the June 2021 Agreement had already been terminated by the agreement of the parties, the Tribunal did not err in rejecting Ms Lorenzato's application.
To the extent that the plaintiff also contends that the Tribunal adopted an erroneous construction of the Residential Tenancies Act, that complaint has no basis. It derives from a passage in the transcript during the conciliation on 28 January 2022, before the hearing of Ms Lorenzato's application. When discussing with the plaintiff and Ms Lorenzato what they had discussed during the conciliation, Senior Member Sarginson said:
"There's a much more straightforward way to deal with this dispute, is there not, which is that if the parties agree to terminate the current residential tenancy agreement and then there's a date of vacant possession then that's an order of the Tribunal. Things in here in this agreement about either party can terminate the agreement at any time for any reason by providing to the other party or its agent a two-week written notice, that's not consistent with the provisions of the Residential Tenancies Act and you can't enter into a residential tenancy agreement that's inconsistent with the provisions of the Residential Tenancies Act. So, for example, if the landlord thought by entering into a new agreement they could just send a notice to terminate to the tenant on any grounds and say, 'You've got two weeks to leave,' then that would not be enforceable."
[17]
The January 2022 Document and what was said to the Tribunal on 28 January 2022
My conclusions as set out above are unaffected by the question of what was put to the Tribunal as to the January 2022 Document at the hearing on 28 January 2022. However, the plaintiff relies upon the fact that, as already alluded to, the January 2022 Document was before the Tribunal on 28 January 2022. Given the significance of the January 2022 Document to the plaintiff's contentions as regards all Tribunal and Appeal Panel decisions from 28 January 2022 onwards, it is necessary to address what inferences should be drawn as to the nature and effect of the January 2022 Document from what was put to the Tribunal during the hearing on 28 January 2022.
A photocopy of photographs of what appears to be a two page typed document with the date 20 January 2022 and some handwritten annotations, one of which has what appears to be Ms Lorenzato's initials next to it, appears to have been before the Tribunal on 28 January 2022. Handwritten at the bottom of the document in the photographs are the names of both Ms Lorenzato and the plaintiff, with their initials and the date of 20 January 2022 handwritten next to each of the names. I accept that this photocopy was before the Tribunal on 28 January 2022. The document in the photographs is described as a "lodging or 'homestay'" agreement between Ms Lorenzato and the plaintiff. A copy of this document is attached to this judgment.
There is no reference to the January 2022 Document in the Tribunal's reasons for its decision on 28 January 2022. If either the plaintiff or Ms Lorenzato had told the Tribunal, on 28 January 2022, that the June 2021 Agreement had already been terminated by the January 2022 Document, then I would have expected there to be some reference to this in the Tribunal's decision. The inescapable inference is that neither party submitted to the Tribunal that this was the case. This, in turn, supports an inference that, at that date, neither Ms Lorenzato nor the plaintiff understood there to be any extant agreement between them that the June 2021 Agreement should be terminated.
That, in turn, suggests either that the January 2022 Document was not a finalised agreement that the parties intended to have legal effect or that, prior to 28 January 2022 the parties had agreed either that any apparent agreement set out in the January 2022 Document had been vitiated or that they should continue to be bound by the terms of the June 2021 Agreement, whether by agreeing that this should happen or by agreeing to rescind any agreement constituted by the January 2022 Document: see eg Chitty on Contracts (35th ed, 2023, Sweet & Maxwell) at [26-027], thereby reviving the June 2021 Agreement: see eg D O'Sullivan KC, S Elliot KC and R Zakrzewski, The Law of Rescission (3rd ed, 2023, Oxford University Press) at [13.28]; Samuel v Wadlow [2007] EWCA Civ 155 at [65] (Toulson LJ, Wilson and Ward LLJ agreeing) and Crystal Palace FC (2000) Ltd v Dowie [2007] EWHC 1392 at [209] (Tugendhat J).
[18]
The decision of the Tribunal on 1 March 2022 and the February 2022 Document
Ms Lorenzato subsequently made another application to the Tribunal to terminate the tenancy under ss 87, 89, 90, 92, 93 and 95 of the Residential Tenancies Act. This application was heard on 22 February 2022. By orders of 1 March 2022, the Tribunal (Senior Member Sarginson) made the following orders:
"1. The Residential Tenancy Agreement is terminated in accordance with:
• s 92 (b) of the Residential Tenancies Act 2010 as the tenant/occupant has intentionally engaged in conduct in relation to the landlord or the landlord that would be reasonably likely to cause the landlord to be intimidated or harassed; and
• s 93 of the Residential Tenancies Act 2010 as the landlord would in the special circumstances of the case suffer undue hardship if the Tenancy Agreement is not terminated.
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 15-Mar-2022
4. The tenant shall pay the landlord a daily occupation fee at the rate of $34.29 per day from the day after the date of termination, namely 23-Feb-2022 until the date vacant possession is given to the landlord.
5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing."
The plaintiff seeks to challenge this decision on two bases: first, because the decision is predicated upon the jurisdictional fact of the June 2021 Agreement continuing in effect, which the plaintiff contends was not in fact the case; second, because the Tribunal failed to consider a mandatory relevant consideration, being the January and February 2022 Documents. As regards the January 2022 Document, it follows from my analysis set out above that this contention must be rejected. As regards the February 2022 Document, it follows from the analysis at [75]-[76] above, together with the matters set out below, that the plaintiff's contention must also be rejected.
There is nothing in the Tribunal's reasons that suggests that either party contended on 22 February 2022 that the June 2021 Agreement was no longer in effect. To the contrary, the Tribunal recorded in its reasons for decision that:
"There is no issue that there is a residential tenancy agreement between the parties (as found by Wilson SM). The rent is $240 per week. The agreement is a period[ic] agreement under s 18 of the [Residential Tenancies Act]; having been a fixed term from 3 June 2021 to 26 August 2021."
[19]
The orders of the Appeal Panel on 25 March 2022
On 14 March 2022, the plaintiff filed a notice of appeal against the decision of 1 March 2022. There was a conciliation before Principal Member Suthers on 25 March 2022, at the conclusion of which he made the following orders by consent:
"1 By consent of the parties:
Orders made by the Tribunal on 1 March 2022 in Proceeding RT 22/06803 are varied, as follows:
1) Orders 1 and 2 are varied to read - 'The Residential Tenancy agreement is terminated by consent of the parties.'
2) Order 3 is varied to suspend the order for vacant possession to '8 April 2022.'
3) Order 4 is varied to provide that 'The [plaintiff] shall pay [Ms Lorenzato] a daily occupation fee at the rate of $0 per day until 8 April 2022, and at the rate of $34.29 per day thereafter until the date vacant possession is given to [Ms Lorenzato].
4) By insertion of a new order 6. - ' [Ms Lorenzato] is to pay to the [plaintiff]the sum of $1,600.00, as follows: a) $1,000.00 by 27 March 2022; and b) 600.00 on the [plaintiff] vacating the premises in a good and clean order together with return of all keys and access cards for the premises to [Ms Lorenzato].'
5) By insertion of a new order 7. - 'The parties have leave to request a renewal of the proceeding within 30 days from 25 March 2022 if the other party fails to comply with an order herein.'
2 The appellant hereby withdraws all extant applications made by him to the Consumer and Commercial Division of the Tribunal, save for the application for miscellaneous matters lodged 22 December 2021 in proceeding RT 21/43089, and they are each dismissed.
3 The appeal is otherwise withdrawn and dismissed."
It is clear from the transcript of the hearing on 25 March 2022 that the agreement that is referred to in order 1 is the June 2021 Agreement.
The plaintiff seeks both leave to appeal against, and judicial review of, this decision. The plaintiff relies upon essentially the same grounds in support of both applications. These are that the Appeal Panel failed to have regard to a mandatory relevant consideration, being the January and February 2022 Documents, and that there was no jurisdiction for the Appeal Panel to make the orders because the June 2021 Agreement had already been terminated by one of the January or February 2022 Documents.
My conclusions as set out above suffice to reject the plaintiff's contention that the Appeal Panel had no jurisdiction to make the orders of 25 March 2022.
[20]
The further decisions challenged
On 31 March 2022, exercising the liberty reserved by the 25 March 2022 consent orders, the plaintiff commenced proceeding RT 22/14212 seeking to "renew" the 1 March 2022 proceedings, as varied on 25 March 2022, on the basis that there had been non-compliance with the relevant orders. This proceeding was heard on 6 April 2022 by Senior Member Blake and was dismissed on 8 April 2022.
On 14 June 2022, the Appeal Panel dismissed an internal appeal by the plaintiff from the 8 April 2022 decision.
On 21 July 2023, on the plaintiff's application, the Tribunal ordered Ms Lorenzato to pay the plaintiff a small sum by way of compensation in respect of her re-entry into the property in April 2022, following some confusion about the precise time at which the plaintiff had vacated it in accordance with the consent orders of 25 March 2022.
All three of these decisions were predicated upon the consent orders made on 25 March 2022. The plaintiff's challenge to these decisions by way of judicial review was predicated upon the success of his challenge to the consent orders of 25 March 2022. It necessarily follows that the plaintiff's challenges to these decisions are not fairly arguable and, to the extent necessary, extensions of time to challenge these decisions should be refused. For completeness, I would add that I would in any event have refused relief in the exercise of my discretion for the reasons outlined previously.
[21]
Section 34 of the Civil and Administrative Tribunal Act
The Attorney General also contended that the Court could refuse to conduct a judicial review in reliance upon s 34(1)(c) of the Civil and Administrative Tribunal Act, which provides:
34 Inter-relationship between Tribunal and Supreme Court
(1) The Supreme Court may -
…
(c) refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision.
Whilst the plaintiff contends that s 34(1)(c) cannot exclude the jurisdiction of the Supreme Court to grant remedies in proceedings by way of judicial review, that contention was rejected by this Court in Shapkin v The University of Sydney [2024] NSWCA 156 and an application for special leave to appeal against that decision was refused: Shapkin v The University of Sydney & Anor [2024] HCASL 272. In any event, as is clear from my judgment, I have not relied upon s 34, but have instead relied upon my discretion, as a matter of common law, to refuse relief.
[22]
Conclusion
In the circumstances, both of the plaintiff's summonses should be dismissed. The Attorney General did not make any application for costs.
The orders of the Court are:
1. An extension of time is granted to seek leave to appeal from the orders of the Appeal Panel of the New South Wales Civil and Administrative Tribunal of 25 March 2022, but the summons seeking leave to appeal filed 8 September 2023 is dismissed.
2. Extensions of time for seeking judicial review, where needed, are otherwise refused.
3. The amended summons seeking judicial review filed 8 September 2023 is dismissed.
Professor Dickson letter (1382308, pdf)
20 January 2022 document (477797, pdf)
2 February 2022 document (1781336, pdf)
[23]
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: 17 December 2024
Whilst the plaintiff also sought orders that two of the terms of the June 2021 Agreement were void, as there is no dispute that this agreement has been terminated (whether by agreement (as the plaintiff alleges) or by order of the Appeal Panel), it is unnecessary to consider this aspect of his application further. That is so irrespective of whether similar terms were included in subsequent agreements which the plaintiff contends were entered into between him and Ms Lorenzato.
The plaintiff's primary (but not only) contention in support of the relief that he seeks is that the June 2021 Agreement was terminated by agreements that he says were entered into between him and Ms Lorenzato on 20 January 2022 and 2 February 2022 (respectively, the January 2022 and February 2022 Documents). He says that the Tribunal and the Appeal Panel were bound to but failed to have regard to the January or February 2022 Documents or had no power to make orders which, he says, were premised upon the continuing effect of the June 2021 Agreement. For this reason, he says the Tribunal's decision of 1 March 2022 and the Appeal Panel's orders of 25 March 2022 were beyond jurisdiction, and the orders of 8 April 2022, 14 April 2022 and 21 July 2023, which he submits were all predicated upon the validity of the orders of 25 March 2022, are similarly flawed.
For the reasons set out below, this primary contention is rejected. An extension of time for seeking leave to appeal against the decision of 25 March 2022 is granted but leave to appeal is refused. To the extent necessary, extensions of time for bringing an application for judicial review are refused and the application for judicial review is dismissed.
Consistent with the provisional view I expressed at the hearing, and with the authority set out above, I am not satisfied that Ms Lorenzato is a person under legal incapacity within the meaning of UCPR, r 7.13, or Civil Procedure Act 2005 (NSW), s 3. This is because there is nothing in the letter referred to at [11]-[12] above, nor in any evidence before the Court, that indicates that she does not have the capacity to give instructions on matters arising in this litigation. It follows that it is unnecessary to make any orders under UCPR, Pt 7.
The plaintiff's explanations for not having filed the evidence sought to be relied upon by way of re-opening before the hearing on 25 September 2024 are not satisfactory. It is apparent that he had at least a full transcript of the hearing before the Tribunal on 22 February 2022 as this was tendered on 25 September 2024 but that tender was subsequently rescinded by the plaintiff. The plaintiff also said in his affidavit of 3 October 2024 that the parties were told, in advance of the hearing before Harrison AsJ on 26 June 2024, not to file all the evidence in the proceedings before the Tribunal, but "only evidence which is relevant, including only the relevant extracts of the transcripts". In fact, after that the plaintiff filed an affidavit in April 2024 which (as had his earlier affidavit filed in March 2023) included full transcripts of Tribunal hearings (those affidavits were initially tendered on 25 September 2024 but the plaintiff then rescinded the tender). Further, he says that further issues were raised in the Attorney General's written submissions, which were filed on 20 September 2024, and he did not have an adequate opportunity to put on documentary evidence to respond to those matters before the hearing on 25 September 2024.However, the matters raised by the Attorney General were matters of which the plaintiff would have had to satisfy the Court in any event.
The plaintiff also relies upon the fact that he had previously requested that the hearing be adjourned. As to this, the plaintiff, by email of 20 September 2024, suggested that he "would probably be asking for an adjournment" having regard to the issues raised in the written submissions of the Attorney General but did not in fact make any such application either before or at the commencement of the hearing on 25 September 2024. Indeed, by email to the Court in the early hours of the morning on 23 September 2024 the plaintiff indicated that he was "ready" for the hearing. Later that morning, the plaintiff sent a further email to the Court suggesting that "it may be prudent to [have] an adjournment and to allow the parties to refile their submissions, submissions in reply etc", relying upon matters relating to dates of filing of which the Attorney General did not seem to be aware, and asking the Court to make orders on these matters before the filing of submissions. No adjournment was sought at the commencement of the hearing on 25 September 2024 but at 4.30pm, at the conclusion of the hearing, the plaintiff sought an adjournment on account of the difficulties he said he had experienced by reason of the timetable for preparation for hearing, but this was refused.
As set out by Stevenson J in Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168 at [46]-[47]:
"The principles upon which the Court acts when faced with an application to reopen are settled. Those principles are that:
(a) the overriding question is whether the interests of justice are better served by allowing or refusing the application;
(b) the power to grant leave should be exercised with great caution having regard to the public interest in maintaining the finality of litigation and, generally speaking, should not be exercised unless the applicant can show that by accident without fault on his or her part, he or she has not been heard;
(c) classes of cases in which leave may be granted include, but are not limited to where:
(i) fresh evidence, unavailable or not reasonably discoverable before, becomes known and available;
(ii) there has been inadvertent error;
(iii) there has been a mistake in the apprehension of the facts; and
(iv) there has been a mistaken apprehension of the law.
(d) the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the Court.
(e) nor is leave to be granted 'simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put';
(f) what must be shown is that the Court has 'apparently proceeded according to some misapprehension of the facts or the relevant law and that that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing'; and
(g) where, as here, the case has been closed, and judgment reserved and delivered, exceptional circumstances must be shown.
It is implicit in all the cases considering this question, that some explanation must be offered as to why the evidence sought to be deployed was not tendered at the appropriate time." (footnotes omitted)
At the end of the day the question for the Court is whether the interests of justice are better served by granting or refusing the application to re-open. Given that the key matters upon which the plaintiff relies on these applications turned very much on evidence of what was put to the Tribunal or said during the various Tribunal hearings, and having regard to what appeared to be a fundamental misapprehension by the plaintiff of how he could prove the matters upon which his applications depend, I determined that his application to re-open his case should be allowed to the limited extent of allowing the plaintiff to file and rely upon documents either identified in, or annexed to, his affidavit of 22 November 2024. I determined that this course was in accordance with the overriding purpose of the Civil Procedure Act and the UCPR to facilitate the just, quick and cheap resolution of the real issues in the proceedings (CPA, ss 56(1), 56(2); UCPR, r 2.1). I thus granted the plaintiff leave to rely upon his affidavit affirmed 22 November 2024 and upon transcripts of the hearings in proceedings RT21/43089 (on 15 December 2021), RT21/51564 (on 28 January 2022), RT22/06803 (on 22 February 2022), 2022/0074365 (on 25 March 2022), RT22/14212 (on 6 April 2022) and 2022/00106665 (on 14 June 2022), but only to the extent that those transcripts had not already been tendered in these proceedings.
In his application to reopen the plaintiff did not seek leave to file the entirety of the material that was before the Tribunal for the purposes of any of these hearings. Thus, even after the plaintiff sought and was granted leave to re-open his case, the position remained that the Court did not have a full picture of what was put to the Tribunal or the Appeal Panel at the various hearings on the subject of the status of the June 2021 Agreement or as to the circumstances in which the January and February 2022 Documents were prepared and what became of them.
I am not satisfied that there is any utility in the proceedings. The applications Ms Lorenzato made to the Tribunal and the transcripts of Tribunal hearings indicate that Ms Lorenzato wanted the plaintiff to cease residing at the Apartment and the only issue was how this could be effected and on what terms. The consent orders agreed between the plaintiff and Ms Lorenzato on 25 March 2022 included agreement for the plaintiff to give vacant possession of the Apartment. This shows that, as at that date, Ms Lorenzato wished to terminate the plaintiff's lawful occupation of the Apartment.
Further, there is no evidence that either the plaintiff or Ms Lorenzato took any steps to enable the plaintiff to remain living at the Apartment after April 2022, either pursuant to the January or February 2022 Documents or otherwise. To the contrary, Ms Lorenzato took steps to exclude the plaintiff from the apartment in April 2022, giving rise to the plaintiff's successful application to the Tribunal for compensation. The position is thus that even if the plaintiff were correct that the June 2021 Agreement had been terminated by agreement constituted by one of the January or February 2022 Documents, his entitlement to reside at the Apartment under any agreement has long since ended.
I would also reject the plaintiff's contention that it is in Ms Lorenzato's interests that the plaintiff be granted the relief he seeks. There is no hint in anything before the Court that Ms Lorenzato has, or considers that she has, any interest to be served by the plaintiff's applications succeeding. Moreover, on 2 April 2024, Ms Lorenzato filed an appearance stating that she objects to the making of all orders sought and the giving or entry of judgment in respect of all claims made and wishes for all Tribunal decisions to stand. That is consistent with her position as communicated to Harrison AsJ on 26 June 2024, that she just wanted to affirm the decision of the Tribunal.
Nor, contrary to the plaintiff's submission, do the proceedings have utility because they enable the plaintiff to clarify or know his legal rights. Any such "legal rights" ceased to have any practical significance over two years ago. In these circumstances, I am satisfied that these proceedings lack utility. As Stein JA (with whom Heydon JA and Mathews AJA agreed) said in Jarvis v Queanbeyan City Council [2002] NSWCA 20 at [10], "it is axiomatic that a court should not consider matters and grant declarations where the subject matter is spent and there is no longer any live dispute". Whilst, in the interest of completeness I have considered the merits of the plaintiff's various challenges below, I would in any event have refused to grant any relief to the plaintiff in the judicial review proceedings given the lack of utility.
There is some complexity both as to the date when the plaintiff commenced proceedings and when the plaintiff sought to challenge particular Tribunal decisions. As to the commencement of proceedings, in oral submissions Mr Shapkin said that two summonses were "accepted for filing" on 22 April 2022. In his written submissions, he said that the two summonses were filed on 26 April 2022. It appears that what happened is that the plaintiff sought, either on 22 or 26 April 2022, to file two summonses, both of which sought leave to appeal against or judicial review of, the decision or orders of 1 March 2022 and 25 March 2022 and a declaration as to the proper construction of s 38(2) of the Civil and Administrative Tribunal Act. At the same time the plaintiff also sought a fee waiver. His application for a fee waiver was subsequently granted, and both summonses were stamped "filed 26 April 2022". Under UCPR, r 50.3 any appeal against a decision of the Appeal Panel must be brought within 28 days, or such further time as the Court may allow. Given the uncertainty as to the date on which the plaintiff first sought to file his application for leave to appeal, I would, if necessary, extend the time for commencing the appeal proceedings as regards the decision of 25 March 2022. The plaintiff no longer presses an appeal against the decision of 1 March 2022.
Subsequently, on 15 December 2022, the plaintiff filed two further summonses. In the first he again sought leave to appeal, or alternatively judicial review, of the decisions or orders of 1 March 2022 and 25 March 2022. In the second he sought judicial review of decisions of the Tribunal of 8 April 2022, and 14 June 2022 (in addition to the decisions already challenged). The applications for judicial review of the decisions of 8 April 2022 and 14 June 2022 were made significantly beyond the 3 month period prescribed in UCPR, r 59.10. No explanation was given for the delay. Further, for the reasons set out at [119] below the plaintiff's proposed challenges to these decisions are not fairly arguable. In these circumstances, no extension of time should be granted to challenge these decisions.
On 14 April 2023, the plaintiff filed an amended summons which sought judicial review (and declarations that the decisions were void for jurisdictional error) of the decisions challenged in the summons filed on 15 December 2022, but also decisions of the Tribunal on 15 December 2021 and 28 January 2022 and a decision of 30 March 2023, which appears in fact to be a reference to the date of the hearing of the plaintiff's application for compensation for alleged breaches of the orders of 25 March 2022. The delay in commencing proceedings as regards the decisions of 15 December 2021 and 28 January 2022 is significant. No explanation was given for the delay. For the reasons set out below, the plaintiff's proposed challenges to these decisions are not fairly arguable. No extension of time should be granted to challenge the decision of 28 January 2022 and, having regard to delay and the lack of utility I would have declined relief in the exercise of my discretion as regards the decision of 15 December 2021.
In this passage, Senior Member Sarginson was simply identifying to the parties that a two week notice term (as was proposed in the January 2022 Document which the parties initially proposed could be the subject of consent orders) would be inconsistent with the terms required by the Residential Tenancies Act, and thus would not be enforceable. That is an accurate explanation of how s 21 of the Residential Tenancies Act operates, when read together with s 15 which provides for a prescribed form of standard residential tenancy agreement as well as cl 4 and Sch 1 of the Residential Tenancies Regulation 2019 (NSW), which provide that at least 90 days' notice must be given to terminate a periodic residential tenancy agreement. After Senior Member Sarginson gave this explanation, as explained in greater detail below, the parties did not press for him to make consent orders reflecting the terms set out in the January 2022 Document.
Having regard to the matters set out above, the application for judicial review of the Tribunal's decision of 28 January 2022 is not fairly arguable, and (as already indicated) for this reason and having regard to the delay, no extension of time should be granted to challenge this decision.
I would in any event have refused relief in the exercise of my discretion. For the reasons set out at [24]-[31] above there is no utility in relief being granted. Also, the plaintiff had the available and effective alternative remedy of a right of appeal against the decision under the Civil and Administrative Tribunal Act, s 32: Fong BHNF Fong v Weller [2024] NSWCA 46 at [29], [58] (Kirk JA, Gleeson and Mitchelmore JJA agreeing); CSL Australia Pty Ltd v Minister for Infrastructure and Transport (2014) 221 FCR 165; [2014] FCAFC 10 at [219] (Allsop CJ, Mansfield and Rares JJ agreeing).
I would in any event draw those inferences having regard to the following matters that are apparent from the transcript of the conciliation on 28 January 2022. First, Mr Minaway, acting on behalf of Ms Lorenzato, submitted that:
"Well, Member, can I say that over the past two weeks a number of discussions have taken place. A number of agreements have been written up and we've really exhausted every possibility of coming to an agreement that suits both parties and this is why we're here today".
Second, neither Ms Lorenzato (through Mr Minaway) nor the plaintiff appears to have taken Senior Member Sarginson up on the following suggestion that he made:
"If the parties reach an agreement about terminating the tenancy and about what the date of vacant possession is then I would make the agreement about that issue into consent orders of the Tribunal so there would be an order of the Tribunal, okay."
Third, Mr Minaway then said:
"… we're always happy to not waste the Tribunal's time and try and reach an amicable agreement for both parties, yes, sir."
The plaintiff did not respond to this statement with any suggestion that the parties already had an effective agreement in place to terminate the June 2021 Agreement.
Fourth, after a break for the parties to have discussions, Senior Member Sarginson asked whether the parties were "able to reach an agreement about any issue". The plaintiff told Senior Member Sarginson that the parties had been able to reach an agreement and said:
"So, I'm happy to terminate the tenancy agreement with the date of vacating the premises being 18 April with opportunity to extend it of course - it's going to be up to the landlord - provided they do not withdraw or don't refuse payment for the rental - government rental assistance. I think that was the agreement."
Fifth, Mr Minaway drew Senior Member Sarginson's attention to pages 35 and 36 of the documents that were submitted to the Tribunal, being the photocopy of photographs of the January 2022 Document. The following exchange then took place:
"Minaway: That's the document we say those terms and conditions were the ones that were agreed to until handmade amendments were done to them and - and it was rescinded so basically that document and the terms on that document, this is my discussion with Mr Shapkin just a few minutes ago, and if he's happy with that that's what you know, we understand we've reached so that will remain, so the two weeks' notice by either party will remain. The end date remains as 18 April so so far so good. Now though Mr Shapkin has undertaken to pay all outstanding rent within seven days, the full amount of the outstanding rent within seven days. Is that correct, Vasily?
[the plaintiff]: Yes, provided you also apply for the rental assistance - within seven days, yes, that's correct. If you don't I'm going to pay the full amount, yes."
Sixth, after some discussion before the Tribunal as to what the plaintiff and Ms Lorenzato (through Mr Minaway) had agreed during the conciliation on 28 January 2022, the following exchange occurred:
"Minaway: Except, Member, the purpose of this agreement is to cancel the residential tenancy agreement -
[the plaintiff]: We can't do that. We have to terminate it.
Senior Member Sarginson: Just wait. Just wait, wait, wait. Just wait one moment.
Minaway: Okay. And that is the paragraph in the agreement which is on page 36 which is the parties are now entering into a new agreement."
Subsequent to this, Senior Member Sarginson said that if the parties "can't agree", then the Tribunal would have to make a decision or determine the proceedings. There then followed the passage of transcript extracted at [52] above and Senior Member Sarginson suggested that it would be better for everyone for the Tribunal to make an order terminating the June 2021 Agreement rather than the parties entering into "the sort of agreement that's proposed here". He said that to make an order in the terms proposed would "invite the parties into even more disputation in the future". The plaintiff then said:
"Your Honour, may I also say under section 28 such an agreement is actually illegal and the terms -".
Seventh, on 28 January 2022, Senior Member Sarginson repeatedly made it clear to the parties that he could make consent orders to terminate the June 2021 Agreement if they reached agreement that he should do so. Notwithstanding that during the conciliation Mr Minaway referred on occasion to "our agreement" or to what had been agreed, ultimately no consent orders were made. It should thus be inferred that no agreement was reached between the parties as to the terms on which the June 2021 Agreement should be terminated.
Eighth, at the end of the conciliation Senior Member Sarginson said:
"If there's no agreement there's no agreement. I'm not critical of either party. I've explained the benefits of trying to reach an agreement. If there's not a mutual agreement there's not a mutual agreement."
Mr Minaway responded:
"The case is we had discussions. We came - we presented to yourself -
… - the terms and conditions of our agreement and you're saying I can apply some of them but not all of them and therefore that doesn't suit us."
Senior Member Sarginson then went on to make orders refusing Ms Lorenzato's application to terminate the June 2021 Agreement.
There is in any event a further difficulty with the plaintiff's contention as to the effect of the January 2022 Document (and, for that matter, the February 2022 Document). As the plaintiff contends in his written submissions, s 81(1) of the Residential Tenancies Act provides that a residential tenancy agreement terminates only in the circumstances set out in the Act. Section 81(3) provides for termination by order of the Tribunal. Section 81(4) provides for other means of termination, which do not include termination simply by agreement between the parties. Rather, s 81(4)(e) provides that a residential tenancy agreement terminates if "the tenant gives up possession with the landlords consent, whether or not that consent is subsequently withdrawn". As the plaintiff did not give up possession until April 2022, the June 2021 Agreement could not have been terminated prior to 1 or 25 March 2022 (the date when the orders challenged by the plaintiff on this basis were made) under s 81(4)(e).
The plaintiff contends that the January or February 2022 Documents would fall within s 81(4)(g) of the Residential Tenancies Act, namely effecting termination of a residential tenancy agreement by repudiation (accepted by the landlord) which amounts to a disclaimer of the residential tenancy. Breach of contract by repudiation occurs when a party "evinces an intention no longer to be bound by the contract... or shows that [they intend] to fulfil the contract only in a manner substantially inconsistent with [their] obligations and not in any other way": Shevill v Builders Licensing Board (1982) 149 CLR 620 at 625-626; [1982] HCA 47 (Gibbs CJ). In Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23, Deane and Dawson JJ at 658 said that it "suffices [for repudiation] that, viewed objectively, the conduct of the relevant party has been such as to convey to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it".
An issue of repudiation involves "the characterisation of conduct to see whether it meets (or is capable of meeting) the requisite standard" and "must be analysed with reference to its entire factual setting. That setting… includes all the events and correspondence leading up to [the allegedly repudiatory conduct]": Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353 at [92], [109] (McDougall J, Beazley P (as her Excellency then was) and Simpson JA agreeing). It follows that the issue of whether the June 2021 Agreement was terminated by disclaimer under s 81(4)(g) of the Residential Tenancies Act turns not simply upon the existence of the January and February 2022 Documents. Rather, those documents must be considered in their full factual context to understand what their intended effect was, and how Ms Lorenzato responded to them. In the context of this case, the mere fact of her signature on the documents does not meet the requisite standard for repudiation.
Having regard to these principles, and in the light of the way in which the parties presented their contentions to the Tribunal on 28 January 2022, I am not satisfied that the January 2022 Document amounted to a termination of the June 2021 Agreement by disclaimer under s 81(4)(g) of the Residential Tenancies Act. Having regard to my analysis of the material presented by the parties, and their contentions, at the hearings on 22 February 2022 and 25 March 2022 (as set out below), I would reach the same conclusion as regards the February 2022 Document. The plaintiff tendered only limited evidence of the factual context in which these documents were created, and as to how the parties treated these documents in communications after they were created, and the plaintiff did not tender all of the documents going to this topic that were part of the tender rescinded by the plaintiff at the hearing before this Court. In any event, the evidence the plaintiff relies upon falls well short of showing that either the January or the February 2022 Documents constituted a repudiation by him of the June 2021 Agreement which was accepted by Ms Lorenzato.
This is a further reason why the plaintiff's contentions of jurisdictional error in the Tribunal's decisions or orders of 28 January, 1 March and 25 March 2022 must be rejected.
The inference I would draw is that the parties' position before Senior Member Sarginson on 22 February 2022, when Ms Lorenzato's application was heard, was that the June 2021 Agreement continued to govern their legal relationship. I would infer from this that, as at 22 February 2022, there was no effective agreement between the parties to terminate the June 2021 Agreement.
Whilst the parties' written submissions before the Tribunal on 22 February 2022 are not in evidence before this Court, the inference set out above is supported by the transcript of the hearing on 22 February 2022. This shows that, early in the hearing, Senior Member Sarginson suggested that the parties should be given an opportunity to speak with each other privately and the plaintiff responded:
"[the plaintiff]: I don't mind either way, but I think because of your experience and expertise, you might be able to help us come to some sort of an agreement. I don't mind either. So, I'm - I don't object. I don't mind speaking with him privately but I'm also happy for you to help."
In these circumstances, and also having regard to my conclusion at [75]-[76] above, the plaintiff's contention that the June 2021 Agreement had been terminated by the February 2022 should be rejected.
That conclusion is not affected by the fact that, at least one, and possibly two, versions of the February 2022 Document were relied upon by Ms Lorenzato before the Tribunal on 22 February 2022. The February 2022 Document included in the court book tendered in this Court by the plaintiff is dated 2 February 2022. A copy of this document is attached to this judgment. This version of the February 2022 Document is signed by the plaintiff (and by Mr Minaway as witness) but is not signed by or on behalf of Ms Lorenzato. By way of reopening the plaintiff relies upon a second version of the February 2022 Document, which is signed by Ms Lorenzato but not by the plaintiff. Before the Tribunal, the plaintiff submitted that "the agreement that they rely on has not been signed, okay", which would suggest that the Tribunal did not have before it a copy of the February 2022 Document signed by both parties.
Before the Tribunal, the material Ms Lorenzato relied upon included the following documents all of which may have been relevant to the issue of the nature and ongoing effect of the January and February 2022 Documents:
1. Written submissions on behalf of Ms Lorenzato.
2. An email from the plaintiff dated 20 January 2022 headed "Vasiliy contract cancel per your request". An email with this header was part of the tender rescinded by the plaintiff at the hearing before this Court.
3. A photograph of a document that's torn up. A photograph of a torn up document (which appeared to be the January 2022 Document) was also part of the tender rescinded by the plaintiff at the hearing before this Court.
4. An email headed "Vasily party settled". An email with that header was tendered by the plaintiff by way of reopening. It is described at [109] below. It may be that this is the email relied upon by Ms Lorenzato at the 22 February 2022 hearing.
5. An email dated 15 February 2022 which was either headed or contained the text "Vasiliy .. (not transcribable) .. agreement is .. (not transcribable) .. no more". Three emails of 15 February 2022 with the header "Vasiliy - gentlemen's agreement is void and no more" are relied upon by the plaintiff by way of reopening. These emails are described at [110] below. It may be that one of these was the document tendered by Ms Lorenzato at the hearing on 22 February 2022.
6. Statutory declarations from each of Ms Lorenzato and Mr Minaway. Statutory declarations dated 19 February 2022 from each of them were part of the tender rescinded by the plaintiff at the hearing before this Court.
7. 42 pages of written submissions, and attachments, from the plaintiff. These are not before this Court.
The plaintiff's failure to tender some of these documents before this Court means that the Court has been deprived of at least some of the factual context relevant to the question of the nature and effect of the January and February 2022 Documents, and as to what was put to the Tribunal about these documents.
In any event, the parties' respective positions, as apparent from the transcript of the hearing on 22 February 2022, are inconsistent with the conclusion that, as at 22 February 2022, there was an extant agreement to terminate the June 2021 Agreement or a repudiatory breach that had been accepted by Ms Lorenzato.
First, the plaintiff submitted to the Tribunal that he would show in his evidence that "the agreement that they rely on has not been signed".
Second, Senior Member Sarginson indicated to the parties that he would be focussing upon Ms Lorenzato's application to terminate and that, in that context, any evidence about agreements between the parties about the plaintiff moving out of the premises were of limited weight. Neither the plaintiff nor Ms Lorenzato suggested, in response, that the June 2021 Agreement had in fact already been terminated or that there had been a repudiatory breach by the plaintiff which had been accepted by Ms Lorenzato. Moreover, Senior Member Sarginson made it clear that the parties could refer to "that agreement" in oral evidence but neither suggested in their oral evidence that there was an effective agreement between them to terminate the June 2021 Agreement.
Third, during his evidence before the Tribunal, the plaintiff said that Mr Minaway (representing Ms Lorenzato) was relying upon "some dubious agreement where apparently rent was four weeks in advance and not two weeks in advance, and that is why I wanted to rely on my written submissions" (in fact Mr Minaway's submission was based upon a default in payment of rent of over $1,500). The plaintiff then submitted that rent was only payable two weeks in advance. By way of context, paragraph 8 of the February 2022 Document says that "Vasiliy will pay [Ms Lorenzato] the sum of $240 (crossed out and a handwritten $200 added) per week paid four weeks in advance" whereas the June 2021 Agreement provides for rent to be paid every two weeks.
Fourth, the plaintiff's contention to the Tribunal was that there was a 90 day notice requirement for termination. That would only apply to a residential tenancy agreement under the Residential Tenancies Act. Neither the January or February 2022 Documents included a 90 day notice period. Further, he submitted to the Tribunal:
"And if they are going to be asking me to terminate, why should I terminate a, a lawful residential tenancy agreement? It is ultimately, at the end of the day, my choice and I do also have legal rights to, to be provided with statutory notice of 90 days, unless I breach anything else. So, just because somebody wants you to move out - so that's one reason. Now, whether they actually want me to move out is also very tricky. There is plenty of evidence that [Ms Lorenzato] has signed agreements where I am staying there until fourth, or until April okay -".
As is readily apparent, that submission was not made in support of any contention that the June 2021 Agreement had been terminated.
The plaintiff's contention that the Tribunal failed to have regard to the January or February 2022 Documents as mandatory relevant considerations should also be rejected. It was for Senior Member Sarginson to determine what, if any, weight he should give to the documents in evidence before him: Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [196]. The plaintiff has not established that he failed to do so. In particular, it should not be inferred from the lack of reference to specific documents in his reasons that Senior Member Sarginson did not have regard to all of the evidence before him: see, by analogy, Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184; [1981] FCA 65.
Having regard to the matters set out above, the plaintiff's application for judicial review of the 1 March 2022 decision should be dismissed.
Nothing in the analysis set out above should be taken as accepting that the existence of a valid residential tenancy agreement was a jurisdictional fact upon which the Tribunal's power to make the orders of 1 March 2022 depended. There is no need to answer that question given my findings as set out above.
I would in any event have dismissed the application to review the 1 March 2022 decision in the exercise of my discretion. This decision was the subject of an internal appeal by the plaintiff, which was resolved by consent (see [97] below). That was an effective available remedy and those consent orders are now the effective orders of the Tribunal on Ms Lorenzato's application for orders terminating the June 2021 Agreement. Moreover, in entering into consent orders resolving an appeal against this decision (as discussed below), and subsequently bringing the further proceedings before the Tribunal (set out at [116]-[118] below), which were predicated upon those consent orders, the plaintiff has acquiesced in the alleged invalidity or waived it: Aala at [57] (Gaudron and Gummow JJ, Gleeson CJ and Hayne J agreeing); Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 at [160] (Allsop CJ, Markovic and Colvin JJ).
I would also have found that the plaintiff should not be permitted before this Court to advance the contention that the June 2021 Agreement was no longer effective at the time of the Tribunal's decision of 1 March 2022 in circumstances where he did not advance that contention before the Tribunal. In the circumstances of this case, it was unreasonable for the plaintiff not to have raised that contention before the Tribunal: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598, 602-3; [1981] HCA 45 ("Anshun") (Gibbs CJ, Mason and Aickin JJ); Lambidis v Commissioner of Police (1995) 37 NSWLR 320 at 325, 329 (Kirby P).
The plaintiff's contention that Principal Member Suthers failed to have regard to the January or February 2022 Documents should also be rejected. The plaintiff's evidence relied upon by way of re-opening indicates that those documents were before Principal Member Suthers on 25 March 2022. During the hearing, Principal Member Suthers told the parties that he had read all of the documents that the parties told him that they were relying upon. There is no reason to doubt that he did so. In these circumstances, the plaintiff's contention that he failed to consider the January and February 2022 Documents, on my assumption that they were both before him, must be rejected.
It follows that the plaintiff's challenge to the consent orders of 25 March 2022 must be dismissed, and that the plaintiff's contentions lack sufficient merit to warrant the grant of leave to appeal.
Further, the material that was before the Tribunal on 25 March 2022 (as relied upon by the plaintiff by way of re-opening), and the transcript of the conciliation, support the conclusions that I have already reached regarding the nature and effect of the January and February 2022 Documents.
First, one of the documents in the Tribunal's file for the internal appeal proceedings conciliated on 25 March 2025 is headed "Nature of the dispute". This appears to have been drafted by the plaintiff for the purpose of seeking a stay of the decision of the Tribunal of 1 March 2022. It commences:
"The landlord and especially her 'agents' or representatives (daughter, nephew) want to break the lease early and do not want to give a proper 90 day no grounds notice, so they are 'looking' for other grounds to get a quicker eviction".
This is wholly inconsistent with the plaintiff understanding that the June 2021 Agreement had already been terminated by the January or February 2022 Documents. In neither of those documents was a 90 day notice period provided for, and both expressed themselves as not being residential tenancy agreements under the Residential Tenancies Act. It is in any event clear from the terms of this document that the "lease" that the plaintiff was referring to was the June 2021 Agreement.
Second, there is no suggestion in this document that the June 2021 Agreement had been terminated, but the plaintiff wrote:
"In the meantime, they tried to force me to sign a few new agreements for me to stay here as a 'student' and not as a tenant, to still have the flexibility of 2 week's [sic] notice to vacate without properly ending our current agreement."
Third, the plaintiff contended in this document that "on the balance of probabilities I have a very strong case" in his appeal against the Tribunal decision of 1 March 2022 terminating the June 2021 Agreement.
Fourth, by way of re-opening, the plaintiff also relied upon a photocopy of some but not all of the pages of a document with the heading "Brief submission setting out the facts". This also appears to have been drafted by the plaintiff. At the start of this document there is reference to "our first gentleman's agreement" under a sub-heading "13 January 2022 - negotiations with Nabil" (presumably a reference to Mr Minaway). There appear then to be two pages missing (as the page numbers go from 9 to 12), before, under a sub-heading "20 January 2022", in the context of discussing the January 2022 Document, the plaintiff wrote "I understand that all of this is void".
Fifth, the plaintiff also relied, by way of re-opening, upon a photocopy of an email from the plaintiff to Mr Minaway on 20 January 2022 which includes a statement that "we have now signed all the papers". Mr Minaway appears to have then responded (although the date of the email is obscured in the copy tendered) that the plaintiff had "taken advantage of" Ms Lorenzato, had convinced her to "sign a document that you have amended and that she did not understand", and that when the effect of the document was explained to Ms Lorenzato she was "in tears". Mr Minaway also wrote: "We put you on notice that the agreement is void and we will assess our legal options, including a formal complaint to the law society".
Sixth, the plaintiff also relied, by way of re-opening, upon an email from Mr Minaway to the plaintiff dated 15 February 2022, which has an email subject "Vasiliy - gentlemen's agreement is void and no more" (and thus may well have been responding to an email from the plaintiff with that subject). In this email, Mr Minaway refers to "the said agreement" and writes, "I refute your claim that is invalid" and "[f]or the time being we will continue to rely and enforce the agreement executed on 02 February 2022." At the bottom of the email it is stated "quoted text hidden", which appears to indicate that the email to which this email responds has not been printed. There is also a photocopy of an email from the plaintiff to Mr Minaway, which appears to respond to the email described above, which includes the following:
"No such agreement is in force and is truly void under section 219…".
Seventh, there is also nothing in the transcript of the hearing on 25 March 2022 that suggests that either party submitted to Senior Member Suthers that the June 2021 Agreement was no longer in effect by reason of either the January or February 2022 Documents, or that they had agreed that this should be the case.
Eighth, the transcript of the conciliation on 25 March 2022 shows that the position of the parties before the Appeal Panel was that the June 2021 Agreement remained effective and binding on the parties as at 25 March 2022:
1. The plaintiff said that he had "made multiple offers before" in respect of negotiating an outcome to the proceedings, but did not suggest that there was a binding, extant, agreement by reason of which the June 2021 Agreement was no longer in effect.
2. Principal Member Suthers then said that he would draft what he understood the parties to have agreed to, which included an order terminating the June 2021 Agreement by consent, and that both parties should indicate whether or not they agreed with those orders.
3. After this, both Mr Minaway (who was there on behalf of Ms Lorenzato) and the plaintiff thanked Principal Member Suthers and Mr Minaway said:
"I mean, we haven't been able to do this for, for months, so what you've done now is a miracle."
1. The plaintiff then said that he consented to the orders, as did Mr Minaway.
As was the case with the decision of 1 March 2022, nothing in the analysis set out above should be taken as accepting that the existence of a valid residential tenancy agreement was a jurisdictional fact upon which the Tribunal's power to make the orders of 25 March 2022 depended.
I would, in any event, have refused relief by way of judicial review in the exercise of my discretion. The plaintiff had an equally effective and convenient remedy, namely an application for leave to appeal. There was no issue of principle raised in the judicial review proceedings that was not, or could not have been, raised in the appeal proceedings: see in Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32 at [35] (Kirk JA, Meagher JA and Simpson AJA agreeing). As already discussed, I am also not satisfied that the application is of any utility. In addition, subsequent to 25 March 2022, the plaintiff made three applications/appeals (set out at [116]-[118] below) which were predicated upon the consent orders of 25 March 2022. Such conduct amounts to a waiver of any right to challenge these orders which were, in any event, made by consent.
Further, the principles from Anshun set out at [96] above apply equally as regards the plaintiff's challenges, by way of application for leave to appeal and judicial review, to this decision.