Singh v Fobubu Pty Ltd

Grounds of Appeal

1. The Grounds of Appeal attached to the Notice of Appeal list the orders which are challenged. The orders (summarised above) which are challenged are orders 1, 2, 3, 4 and 7. Order 5 (requiring the tenant to pay to the landlord $300.00 weekly) is not challenged, nor is order 6 (which vacates the hearing date in RT 18/16723). However, the tenant's submissions suggest that these two orders are also challenged.
2. The Grounds of Appeal state that there are six errors of law, which may be summarised as follows: 1. That "this hearing and the orders generated from it constitute an unlawful appeal from the orders made and directions given by Member Alamali on 21 March 2018"; 2. That the step taken by the Tribunal and the order made was "prohibited and unlawful due to an interim order made by the Tribunal on 18 December 2017 and ongoing at the time the subject orders were made"; 3. That the Tribunal erred in ruling that s 7(h) of the Residential Tenancies Act, 2010 (RT Act) "did not apply in this situation because the tenancy agreement in relation to the residential property was a "collateral agreement" and not a portion of a single agreement related to both commercial and residential property"; 4. That the Tribunal erred in ruling that the tenant pay $300.00 per week to preserve the residential tenancy in circumstances where an interim order existed and an obligation to pay $6,500.00 per calendar month was provided for in the interim order. The interim order was granted in response to the "prayer for relief in relation to the landlord's breach of a tenancy agreement pertaining to both the commercial premises and the residential premises". The effect of the order is or could be that the tenant is ordered to pay rent twice; 5. That the Tribunal erred in ruling that the tenant pay $3,771.43 for arrears of rent. The arrears "are calculated by Rachelle Dimitri who has no knowledge of the interim order and no knowledge of payments made under that order at any material time. January and February payments were made and the quantum of the arrears is wrong"; 6. That the Tribunal erred in ruling that the tenant make payments contrary to Australian Taxation law. There is no "dealing with Australian Taxation law or obligations in the two orders requiring payments"; 7. The Tribunal erred in ruling that the tenant be refused an adjournment. The tenant was in hospital receiving treatment at the time the hearing occurred; and 8. That the Tribunal erred in ordering the tenant to file any relevant application by 27 April 2018. The tenant was unable to file such an application and affidavit due to "the extent of commitments before this Tribunal and his obligations running his Indian restaurant. This order was made and particularly as to timing without regard to the appellant's circumstances".
3. The Notice of Appeal then elaborates upon each of the grounds and in the following paragraphs we summarise the additional detail provided by the tenant.
4. On 21 March 2018 Member Alamali made orders and gave directions to the effect that the application was not to be listed other than with another matter: COM 17/53291. On 28 March 2018, Senior Member Simon varied the order. On 19 April 2018, the application was heard by Member Levingston. The tenant states that the matter was not dealt with by Member Levingston at first instance as that had already occurred before Member Alamali and the matter had been dealt with properly bearing in mind "the interim order". Accordingly, the tenant submitted that Member Levingston heard the matter by way of an appeal, "ultra vires and unlawfully". If the decision of Member Alamali is to be overturned, it should only be overturned by an effective and proper appellate process and not by a process of Member Simon making orders which usurp the appeal function. Accordingly, the "rehearing conducted by Member Levingston is unlawful".
5. The second Ground of Appeal concerns an order made on 18 December 2017 in application COM 17/53291. That order was renewed on 23 January 2018 by order of Senior Member Charles. That order has not been terminated, withdrawn or varied as of 19 April 2018. The tenant submitted that the effect is that the landlord is prohibited by "the injunction from terminating the tenancy in the residential unit". The tenant submitted that the landlord was similarly "prohibited by the injunction from making an application in this Tribunal for an order terminating the tenancy in the residential unit". The tenant's submission is that the "path set out by Member Alamali on 21 March 2018 should be followed".
6. Ground 3 of the appeal concerns s 7(h) of the RT Act. That section states that the RT Act does not apply to premises used for residential purposes "if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture". The tenant referred to application COM 17/53291/7 which the tenant said concerned "one agreement". The tenant stated that there is a "single agreement providing for both shop 1 and the residential unit. The consideration for each aspect of the single tenancy is one consideration".
7. The tenant's submission is that the Tribunal can deal with the dispute which is the subject of application COM 17/53291/7 as a single tenancy agreement in relation to both the shop and the residence.
8. In short, the tenant's argument is that the Decision contained an error of law in determining that the residential tenancy agreement is collateral, whereas in fact, there was one agreement.
9. Ground 4 concerns the order that the tenant pays $300.00 per week (see order 5 summarised earlier in these reasons). The tenant says that there is in place a separate order requiring him to pay $6,500.00 per month and that the effect of the order made in the Decision requiring him to pay $300.00 per week is to require him to pay an amount twice. The tenant submits that the Member had no evidence as to whether the $300.00 per week he ordered be paid was a duplication of an amount in the interim order concerning the payment of $6,500.00 per month or not. To the extent that the effect of the Decision was to order the payment of rent twice, there is an error of law.
10. Ground 5 relates to the order to pay $3,371.43 and this ground is a repeat of the above ground. In other words, the tenant submitted that the effect of the order in the Decision is that he has been ordered to pay rent twice.
11. Ground 6 is to the effect that the landlord has received payments for rent without providing a tax invoice or a receipt. The tenant submitted that during the period of the tenancy, he paid rent in cash but did not receive an invoice or a receipt. The tenant submitted that where tax invoices have not been provided, the "payer" (presumably the tenant in this case) is "obligated to withhold 47% of the payment and pay the same to the ATO in BAS reporting". The tenant submitted that the order made in the Decision requires the tenant to breach taxation law and therefore such an order constitutes an error of law.
12. Ground 7 concerns the refusal to adjourn the proceedings as the tenant submitted that he was in hospital at the time of the hearing.
13. The tenant submitted that the Appeal Panel should make the following orders: 1. Orders 1 to 5 made in the Decision be "recalled and cancelled"; 2. That these proceedings be listed with application COM 17/53291; 3. That the rental or monthly payments be determined in action COM 17/53291; 4. That the landlord and its director, Ghulam Khan has "intentionally, seriously and extensively mislead the Tribunal"; 5. That Senior Member Simon be "excused from further involvement" in cases involving the tenant; 6. Costs; and 7. Such further or other order as the Appeal Panel seems appropriate.

Reply to Appeal

1. A Reply to Appeal to appeal has been filed by the landlord and its terms may be summarised as follows: 1. The tenant was notified in writing on 19 December 2017 that he was to be issued with a 90 day notice and letter for "rent increase to which he Mr Singh refused to sign new lease due to the increase in rent"; 2. The tenant stated in an email dated 18 December 2017 that he had paid up to 31 December 2017; 3. The tenant made payment on 16 January 2018 for an amount of $1,328.57 for the period 1 January 2018 to 28 January 2018; 4. The tenant was issued with a termination notice for non-payment of rent dated 22 February 2018; 5. The tenant has failed to comply with the 90 day notice which expired on 28 March 2018; and 6. The tenant continued to fail to pay rent until orders were made on 19 April 2018 whereby the lease was terminated on the later of 31 May 2018 or 7 days after the Appeal Panel's decision (which was dismissed) and the tenant was required to pay weekly rent of $300.00 and all outstanding arrears by 30 May 2018.
2. The Reply attaches a tenant ledger which appears to show that the rent was paid to 28 January 2018 when the Decision was made on 19 April 2018.

Appeal Directions and Tenant's Submissions (filed following the directions hearing on 29 May 2018)

1. On 29 May 2018 an Appeal Panel conducted a directions hearing for this appeal. Directions were made for the parties to exchange evidence and submissions in support of and in opposition to the appeal. In addition, the Tribunal made an order that the order for possession made on 19 April 2018 be suspended until further order on the following conditions: 1. The tenant pay weekly in advance the amount under order 5 made on 19 April 2018; 2. After 31 May 2018 the tenant paying the occupation fee weekly in advance ($300.00) (pursuant to order (d)) below; 3. The tenant paying the sum of $2,828.57 to the Tribunal on or before 30 June 2018, such amount to be held by the Registrar pending further order of the Tribunal; and 4. On and from the day after the date of termination namely 1 June 2018, the tenant is to pay an occupation fee at the rate of $42.86 a day being the weekly fee of $300.00 per week.
2. The documents filed by the tenant following the above directions hearing are described in the following paragraphs.
3. On 29 May 2018 a document headed "Respondent's Dealing With Payments of Rent" was filed. This document sets out the tenant's contentions with respect to the residential tenancy agreement and with respect to the dispute concerning the retail lease of the shop. In that document, the tenant acknowledges being in arrears with respect to the residential tenancy agreement in the sum of $900.00 but contests the amount ($3,700.00) determined in the Decision.
4. The tenant lodged a document headed "Application for Orders". In that document, the tenant applied for the hearing of this appeal to be vacated, an order that the landlord serve a reply in the appeal and that the timetable for the exchange of evidence be extended. The tenant also applied for an order extending the time for the payment of rental arrears. The tenant also filed an affidavit. That document stated that the tenant has not been served with the landlord's Reply. In the affidavit the tenant asked for an order that the time to pay the arrears be extended until the determination of the tenant's application regarding rent records and the landlord's failure to maintain and repair.
5. The tenant also filed an application for orders to the effect that the landlord provide rent records, perform repairs to the property and that payment of the "contended arrears be delayed until this application is finalised". That document was accompanied by an affidavit in which the tenant recorded that he and his family had lived in the residential unit since 2013. The affidavit states that the tenant has paid the rent in full since taking occupation "other than for a brief period in 2018 which is in dispute".
6. The tenant also lodged a package of material relating to the proceedings prior to the Decision and that package included the tenant's submissions filed in opposition to the landlord's application.

Landlord's Submissions

1. The landlord has filed and served its package of material in opposition to the appeal. The landlord submits that the appeal is out of time and should therefore be dismissed. The submissions state that both the landlord and the tenant agree that rent has been paid to 28 January 2018.

The hearing of the appeal

1. At the hearing of the appeal, the tenant appeared for himself and Ms Connolly, real estate agent appeared for the landlord. Leave had been given previously for Ms Connolly to represent the landlord.
2. The tenant had asked for an interpreter to be present and the Tribunal file records that an interpreter had been engaged. However, there was no interpreter present. The Appeal Panel discussed with the tenant whether he would be able to proceed in the absence of an interpreter. The tenant agreed that he would be able to proceed and did not seek an adjournment on the basis of the absence of an interpreter. The Appeal Panel formed the view that the tenant was able to speak and understand English sufficiently well to adequately represent his interests. Accordingly, the Appeal Panel was of the view that no injustice would arise by reason of the absence of an interpreter.
3. The tenant applied for an order that the hearing of the appeal be vacated by reason of the fact that the Reply filed by the landlord had not been served upon him. The Appeal Panel found a copy of the Reply on the Tribunal's file and provided a copy to the tenant. However, he submitted that he would be unable to consider its contents immediately and would need time and access to a legal advisor. The tenant's sworn evidence that he had not been served with a Reply was disputed by Ms Connolly's sworn evidence to the effect that she had served a copy of the Reply upon the tenant on one occasion and on a separate occasion had served on him a copy of the package of evidence and submissions lodged with the Tribunal later (following the directions hearing on 29 May 2018).
4. During the course of the tenant's application to vacate the hearing, the tenant submitted that he had paid more rent then he was obliged to pay. He submitted that although he had not paid all rent due in respect of the period since 28 January 2018, he had, prior to 31 December 2017 paid more than he should have and that that credit would result in him being fully paid if the whole of the period (both before and since 28 January 2018) is taken into account.
5. Ms Connolly gave evidence that the tenant had complied with Appeal Panel directions made on 29 May 2018 to pay rent from 20 April 2018 and the occupation fee to date, but had not paid the arrears of $2,828.57 to the Tribunal. The tenant acknowledged that the arrears had not been paid.
6. After hearing the tenant's and the landlord's submissions, we refused the tenant's application to vacate the hearing and adjourn the appeal. We gave oral reasons. In summary, our reasons were to the following effect: 1. The tenant as appellant has the onus of establishing errors in the Decision; 2. The failure to serve a Reply upon the tenant does not necessarily lead to the result that the tenant is at a disadvantage. A disadvantage was not established by the tenant. The failure to serve a Reply (if that occurred) should have been interpreted by the tenant to mean that all points raised in the Notice of Appeal were contested by the landlord; and 3. In any event, we directed, with Ms Connolly's consent, that the Reply should be ignored for the purposes of the appeal and that the landlord's contentions should be restricted to the evidence and submissions filed subsequent to the Appeal Panel's directions, and to Ms Connolly's oral submissions.
7. The tenant then made a second application for an adjournment upon the basis that he had a claim against the landlord for repairs and maintenance and that he sought damages against the landlord. He also submitted that there was a dispute as to the amount of the arrears, and that he had asked for access to the landlord's records to demonstrate the amounts he had paid.
8. This application was also refused and reasons were given orally. Essentially, we determined that the claim proposed by the tenant for damages was a separate matter which should be the subject of a separate application. In our view, that proposed application does not bear upon the question of whether the Decision should stand or should be set aside or varied.
9. This ruling then led to the tenant making a third application for an adjournment upon the basis that there was no interpreter present. During the submissions concerning this application, the tenant acknowledged that everything he wished to say in support of his appeal had been provided in writing to the Tribunal and that anything he wished to say orally would not be in addition to or different from that material filed with the Tribunal.
10. We declined this last application for an adjournment upon the basis that we would be able to read the material provided by the tenant and that because that material constituted the whole of the evidence and submissions which the tenant wished us to consider, there would not be any injustice to the tenant in continuing without an interpreter.
11. Ms Connolly relied upon her package of material. Essentially, her submission was that the appeal was filed out of time and leave to extend time should not be granted, that the arrears of rent identified in the stay order have not been paid to the Tribunal as required, and that the substance of the appeal does not disclose any basis for setting aside or varying the orders recorded in the Decision.
12. In reply the tenant submitted that the reason he had filed the appeal out of time was that he thought that the relevant deadline was 28 days rather than 14 days. He also submitted that he had not paid the arrears as directed by the Appeal Panel on 29 May 2018 because he had sought an extension of time to do so.
13. In his closing submissions, the tenant submitted that he was absent from the hearing on 19 April 2018 because he was in hospital and he could not make the points that he wanted to make to the Tribunal.
14. At the conclusion of the hearing, we informed the parties that the appeal should be dismissed and that the stay order lifted. We indicated that our written reasons would follow. The formal orders made at the conclusion of the hearing were: 1. The appeal is dismissed; and 2. The stay order made on 29 May 2018 is lifted.
15. In the following paragraphs we provide our written reasons as foreshadowed.

Decision

1. This is an internal appeal brought under the provisions of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). The tenant is able to bring the appeal as of right on any question of law or with leave of the Appeal Panel on any other grounds (see s 80). In addition, the grounds in respect of which leave may be given are limited by the provisions of cl 12 of Sch 4 to the NCAT Act. In essence, cl 12 provides that an Appeal Panel may grant leave only if the Appeal Panel is satisfied that the tenant may have suffered a substantial miscarriage of justice because: 1. The Decision of the Tribunal under appeal was not fair and equitable; or 2. The Decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The appeal was not filed within the time required by r 25(4(b) of the Rules. That rule would have required the Notice of Appeal to have been filed no later than 3 May 2018. It was in fact filed on 14 May 2018. However, under s 41 of the NCAT Act the Tribunal may extend the period of time for the lodgement of an appeal. The principles applicable to the consideration of whether time should be extended were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. In that case the Appeal Panel held that it is necessary to consider the length of the delay, the reason for the delay, the appellant's prospects of success and the extent of any prejudice suffered by the respondent. Here, the length of the delay was relatively short (11 days). The reason for the delay was, according to the tenant, that the tenant thought he had 28 days to lodge an appeal. There does not appear to be any prejudice to the landlord occasioned by the late filing of the Notice of Appeal. The tenant's prospects of success require further consideration and we will consider the substantive issues raised by the tenant in the following paragraphs.
3. It is also relevant to draw attention to the fact that the power to grant an extension of time must be exercised having regard to the statutory command in s 36 of the NCAT Act, that the guiding principle for the NCAT Act is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". It is also relevant to record that in Jackson v NSW Land and Housing Corporation the Appeal Panel said that generally, time limits should be strictly enforced.
4. As should be apparent from the earlier paragraphs of this decision, the background to this appeal concerns an agreement between the landlord and tenant entered into some years ago in respect of shop 1 and unit 2 at the same address. The shop is used as a restaurant and unit 2 is the residence of the tenant and his family. They have been in that residence since 2013. The terms of the agreement or agreements between the parties is disputed.
5. The first ground of appeal concerned the tenant's argument that the Decision was "ultra vires" and unlawful because earlier, the Tribunal had on 21 March 2018 made orders and given directions to the effect that this application was not to be listed other than with the retail lease application. In fact, on 21 March 2018 the only orders made by the Tribunal were to adjourn the application to a date to be fixed. Subsequently, there were directions made and those directions were the subject of an appeal. The appeal was dismissed. In our view, there is no basis for the tenant's argument that the conduct of the application after 21 March 2018 was ultra vires or unlawful. Indeed, if that were to have been the case, the Appeal Panel decision dismissing the tenant's appeal would also have been beyond power.
6. Section 38 of the NCAT Act provides that the Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or the procedural rules do not otherwise make provision. Although the exercise of such determination is subject to the rules of natural justice and procedural fairness, there is, in our view, no basis to the tenant's argument that the Tribunal was unable to hear and determine the application on 19 April 2018 because of the effect of the order made on 21 March 2018 (which simply adjourned the application).
7. The second ground of appeal concerns the meaning and effect of the order made on 23 January 2018 in the retail lease application. We have been provided with a copy of that order. The relevant parts state: "Provided the applicant pays an amount of $6,500.00 (inclusive of GST) on account of rent by monthly instalment commencing 1 February 2018, the respondent is restrained from attempting to terminate the retail lease the subject of this application, from repossessing the premises or otherwise disturbing the applicant's quiet enjoyment of the premises until this dispute is resolved at mediation (or otherwise) or until the Tribunal has made a decision pursuant to the application in file number COM 17/53297 [i.e. the retail lease application]."
8. In addition, the orders go on to state that the "intent of the order for interlocutory relief is to preserve the status quo (by reference to the monthly rental payable at the commencement of the term of the lease in 2006).
9. The provisions of the order quoted in the above paragraph together with a reading of the balance of the order makes it clear, in our view, that that order was concerned only with requiring the tenant to pay $6,500.00 on account of obligations arguably required to be performed by the tenant under the retail lease of the shop. Accordingly, it is our view that there is no basis for the tenant's submissions that the tenant is required to pay rent twice as a result of the orders made in the Decision. The order refers only to the retail lease (and not the residential tenancy agreement) and is concerned with maintaining the status quo of 2006 (and not 2013 when the residential tenancy began).
10. The third ground of appeal concerns s 7(h) of the RT Act. The tenant contends that the agreement between the parties concerning the rental and occupation of the residential unit is not subject to the provisions of the RT Act by reason of s7(h). In summary, that section provides that the RT Act does not apply in respect of premises "used for residential purposes, if the predominant use of the premises is for the purpose of a trade, profession, business or agriculture".
11. The contention of the tenant is that there is one agreement between the parties for the rental of the shop and the residential unit. The tenant argues that s 7(h) applies with the consequence that the RT Act does not apply.
12. In our view, the tenant's submission is misconceived. Although there may be, on the tenant's contention, one agreement for both the shop and the residential unit (as to which we make no finding) the relevant question to be addressed so far as s 7(h) is concerned, is whether the agreement concerns two premises (i.e. the shop and the unit) or single premises. If the latter, the question then is can it be said whether the premises, although used for residential purposes have the predominant use of being for the purposes of a trade, profession, business or agriculture.
13. In the Decision the Tribunal was satisfied that the evidence showed the existence of an oral residential tenancy agreement "albeit as a collateral agreement to the retail lease". The Tribunal found that the parties had made a retail lease agreement for a ground floor restaurant and, at the same time, the parties had made a collateral agreement for the tenant to occupy residential premises on the first floor or the same building.
14. In our view, the critical issue is whether the premises referred to in the residential tenancy agreement are one and the same premises as the premises the subject of the retail lease. The tenant's own evidence describes the two premises as shop 1 and unit 2. Neither the landlord nor the tenant took issue with the finding of fact contained in the Decision that the restaurant is in the ground floor and the residential unit is on the first floor. Nor did the tenant seek to argue that the residential unit was in fact part of the same premises the subject of the retail lease.
15. In our view, the provisions of s 7(h) are not engaged in the circumstances of this matter. Ground 3 is rejected.
16. Ground 4 concerns the tenant's submission that the effect of the orders made in the Decision is that he is required to pay rent twice. We have already explained that the interim order was concerned only with the retail lease. This ground is rejected.
17. Similarly, ground 5 is rejected on the same basis.
18. Ground 6 concerns the tenant's submission that the landlord has not complied with obligations to the Australian Tax Office by reason of not submitting tax invoices or receipts. In our view, even if that contention is accurate, the tenant's obligations under the residential tenancy agreement remain and he is not excused from compliance by reason of the possible non-compliance of the landlord of obligations to the Australian Tax Office. That ground is also rejected.
19. Ground 7 concerns the refusal of the Member at the hearing on 19 April 2018 to grant an adjournment in circumstances where the tenant was in hospital at the time. The tenant has, in the material provided in this appeal included a copy of a document headed "medical certificate". The document is dated 19 April 2018 and is unsigned. It states the author of the certificate is a medical officer, Rachel Smith and that that person considered Mr Singh "unable to attend normal duties until 19 April 2018 (inclusive)". It does not contain any description of the tenant's state of health or the reason he attended for examination at Nepean Hospital emergency department. In our view, this document does not establish to our satisfaction that the tenant was sufficiently ill on 19 April 2018 to be unable to attend the Tribunal. In the Decision, the Tribunal recorded receipt of an email from the tenant sent at 4:39am stating that he was unwell and going through tests at Nepean Hospital. The Tribunal considered at some length the tenant's request for an adjournment and refused the application for adjournment. In the appeal, the tenant has not provided any reasons which would cause us to form the view that the Decision contains an error in the reasons given for the refusal of the adjournment application. In the absence of probative evidence justifying the grant of the adjournment application, the Tribunal was obliged to have regard to the interests of the landlord. The landlord sought termination of the tenancy on the basis of non-payment of rent. The tenant concedes that rent since January 2018 has not been fully paid. The tenant asserts that when one considers payments made prior to 1 January 2018, it will be found that the tenant was in credit to the landlord. However, no evidence has been provided which would support that assertion. Rather, the tenant asserts that the landlord should provide access to its books and records to establish the truth of the tenant's assertions. In our view, the tenant seeks to reverse the onus of proof by asking the Tribunal to assume that the tenant is in credit unless and until the landlord can establish otherwise.
20. Having regard to the evidence before the Tribunal, and the medical certificate provided in this appeal as well as having regard to the tenant's concession that since January 2018 rent has not been fully paid, we are of the opinion that no injustice has arisen by reason of the Tribunal refusing the tenant's application for an adjournment. Ground 7 of the appeal is rejected.
21. Given the relatively short time in which the tenant was late in lodging the Notice of Appeal and the absence of any prejudice to the landlord by such late lodgement, we are inclined to the view that the time for lodgement of the appeal should be extended and leave to appeal should be granted. However, as each of the grounds of appeal have been rejected, the appeal should be dismissed as was indicated at the conclusion of the hearing.

Orders

1. Accordingly the Appeal Panel makes the following orders: 1. The time for lodgement of the appeal is extended to 14 May 2018; 2. Leave to appeal is granted; 3. The appeal is dismissed; and 4. The order made on 29 May 2018 staying the operation of the orders made on 19 April 2018 is lifted.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 26 July 2018 - Cover page - date of orders corrected 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: 26 July 2018