Singh v Fobubu Pty Ltd; Singh v Khan

The background facts

1. Mr Singh is currently occupying premises in Bringelly Road, Kingswood which comprise a ground floor and first floor. The ground floor is used for retail and the first floor for residential purposes. The premises were formerly occupied pursuant to a lease of the whole premises granted by the landlord to Anmol Holdings Pty Ltd for a term of three years commencing on 1 November 2006. Anmol Holdings Pty Ltd, a company associated with the plaintiff, has been deregistered.
2. By reason of the different statutes which apply depending on whether premises are used for a retail purpose or a residential purpose, the Tribunal has dealt with retail portion of the premises (the retail premises) separately from the residential portion of the premises (the residential premises). I note that Mr Singh, who appears on his own behalf, takes exception to this demarcation. He has referred me to s 7(h) of the Residential Tenancies Act 2010 (NSW), which provides that the Residential Tenancies Act does not apply to premises used for residential purposes if the predominant use of the premises is, relevantly, for the purposes of a business. It is not necessary for present purposes to address this contention.

Proceedings in the Tribunal

1. On 28 February 2018, the landlord lodged an application in the Tribunal for back rent and a termination order in respect of the residential premises (proceedings 18/10018). The landlord's application was heard by General Member Levingston on 19 April 2018. Mr Singh, who alleged that he was ill, did not attend. Senior Member Levingston refused to adjourn the proceedings and, after hearing from the landlord, ordered Mr Singh to pay the landlord a sum in the order of $3,700 for back rent and ordered that the tenancy agreement was terminated on 13 May 2018. A so-called "pay and stay" order was also made, which required Mr Singh to pay an amount ($300 per week or $42.86 per day) for his continued occupation of the premises until he gave vacant possession to the landlord.
2. Mr Singh appealed to the Appeal Panel of the Tribunal against the orders made by General Member Levingston. On 26 July 2018 the Appeal Panel (constituted by Deputy President Westgarth and Senior Member Charles) granted leave to the plaintiff to appeal but dismissed his appeal.
3. On 7 November 2018 the landlord commenced fresh proceedings in the Tribunal (proceedings 18/47679) seeking an order for possession of the residential premises on the basis of a 90-day notice given pursuant to s 85 of the Residential Tenancies Act. I note for completeness that the landlord had earlier sought a termination order against Mr Singh based on alleged breach but had been unsuccessful.
4. On 13 November 2018 Mr Singh filed a summons in this Court (in the Residential Proceedings) seeking leave to appeal on a question of law against the decision of the Appeal Panel on 26 July 2018 pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW).
5. On 22 November 2018 directions were made in proceedings 18/47679 for the parties to file evidence in the Tribunal. It is expected that the substantive hearing in the Tribunal will take place in 2019.

The application in the Residential Proceedings for an interim stay with respect to the proceedings concerning the residential premises

1. As referred to above, Mr Singh remains in occupation of the residential premises. He is paying an occupation fee for remaining in possession. No order requiring him to leave the premises has yet been made by the Tribunal. The power to grant a stay is conferred by s 67 of the Civil Procedure Act 2005 (NSW) and must be exercised in accordance with Part 6 of the Civil Procedure Act. An interim stay by this court would inevitably prevent the Tribunal from continuing to hear and determine proceedings 18/47679.
2. There would be, in my view, little utility in a stay. However, there would be substantial potential prejudice if a stay were granted since it would inevitably delay the proceedings before the Tribunal and lead to increased costs to the parties. Mr Singh has shown no demonstrable prejudice if the stay were refused. In the event that the Tribunal makes an order for possession against Mr Singh in proceedings 18/47679, he will have the option of seeking a stay from the Tribunal of any such order and exercising his rights to appeal to the Appeal Panel of the Tribunal against any such order.
3. Accordingly, the application for an interim stay of the residential premises in the Residential Proceedings is refused.

Proceedings in the Tribunal

1. The history of the proceedings in the Tribunal concerning the retail premises is somewhat complicated. I will endeavour to do justice to it in short form in these reasons.
2. Mr Singh applied to the Tribunal for an order against the landlord and the landlord's directors, extending the term of the original lease granted by the landlord to Anmol Holdings Pty Ltd on the basis of an alleged oral agreement to create a new lease (or novation of the original lease) to be granted by the landlord to Mr Singh personally. He also claims damages if the lease is not extended or recognised. On 23 January 2018, Senior Member Charles made an interlocutory order restraining Mr and Mrs Khan and the landlord from attempting to terminate the retail lease on condition that Mr Singh paid an amount of $6,500 (inclusive of GST) on account of rent by monthly instalments commencing 1 February 2018.
3. On 6 March 2018 Senior Member Simon directed the plaintiff to file material in support of his application within 14 days. Mr Singh appealed against that direction made by Senior Member Simon. On 18 April 2018 Principal Member Harrowell refused leave to appeal against Senior Member Simon's decision. However, because of the time taken to have the matter brought before the Appeal Panel, Mr Singh obtained an extension to file material. Ultimately, in April 2018, Deputy President Westgarth granted a further extension for material to be filed.
4. Subsequently, the plaintiff's substantive application was heard by Senior Member Goldstein. The evidence was adduced over a period of four days: 19, 20 and 23 July and 26 October 2018.
5. On 17 August 2018, after the first three days of evidence, Mr Singh filed a summons in this Court for leave to appeal against the decision of Principal Member Harrowell refusing leave to appeal against the direction made by Senior Member Simon.
6. On 26 October 2018 the hearing resumed before Senior Member Goldstein and the evidence concluded. The matter was stood over for submissions which I understand will take place later this year or early in 2019.

The application for an interim stay in the Retail Proceedings with respect to the proceedings concerning the retail premises

1. Mr Singh submitted that, as the evidence is complete before Senior Member Goldstein, it would be appropriate for his application for leave to appeal against the decision of Principal Member Harrowell to be determined.
2. Mr Dicembre, who appears on behalf of the defendants, submits it would be quite inappropriate for this Court to grant a stay at this stage because that would prevent the Tribunal from hearing submissions and making a decision following the four days of evidence which, as I have referred to, have already occurred. Mr Dicembre also submitted that that would cause great prejudice to the defendants because it would prolong proceedings which have been on foot in the Tribunal for some period, and cause further delay and cost. Further, Mr Dicembre submitted that it would be inappropriate for this Court to grant a stay since Mr Singh has other avenues for relief if Senior Member Goldstein finds against him which include the right to apply for a stay of Senior Member Goldstein's decision and the right to appeal to the Appeal Panel.
3. In my view, it would be inappropriate for this Court to grant an interim stay and thereby disrupt the orderly conduct of the proceedings before the Tribunal. It is, in my view, appropriate that the Tribunal be permitted to conclude the hearing in respect of which all the evidence has been given. I accept Mr Dicembre's submission that there is no identifiable prejudice to Mr Singh and substantial prejudice to the landlord if a stay were granted.
4. It is difficult, in any event, to see how this Court would grant leave to appeal against a decision made by Principal Member Harrowell to refuse leave to appeal against a procedural direction. The original direction would appear to have been entirely overtaken by events in circumstances where Senior Member Goldstein has spent four days hearing evidence. However, that question is a matter for another day and does not need to be determined by this Court now.
5. For these reasons I propose to refuse the application for an interim stay in the retail proceedings.

Costs

1. Following the refusal of the plaintiff's application, Mr Dicembre applied for the costs of the applications for interim stays. Mr Singh resists that application and submits that the costs of the applications for interim stays should be reserved.
2. The general rule, as set out in Uniform Civil Procedure Rules 2005 (NSW), r 42.1, is that costs ought follow the event. The applications for interim stays have been successfully resisted by the defendants, who, and which, have incurred the costs of the applications before me. I see no reason to depart from the general rule in the present case.

Orders

1. For the reasons given above, I make the following orders:

In proceedings 2018/348479 1. Refuse the plaintiff's application for an interim stay sought in prayer 1 of his notice of motion filed on 21 November 2018. 2. Order the plaintiff to pay the defendant's costs of the application.

In proceedings 2018/278850 1. Refuse the plaintiff's application for an interim stay sought in prayer 1 of his notice of motion filed on 21 November 2018. 2. Order the plaintiff to pay the defendants' costs of the application.

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