Singh v Fobupu Pty Ltd

NCAT Appeal Panel|2019-03-28

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against decisions made in the Consumer and Commercial Division of the Tribunal on 31 October 2018 and 27 November 2018.
The Notice of Appeal was lodged on 6 December 2018. The appellant seeks an extension of time to appeal the decision of 31 October 2018.
The respondent made an application for costs in the event that the appeal was not successful.
At the hearing the appellant was represented by a former lawyer, Mr N Jordan. Mr R Brown of Counsel appeared for the respondent.
For the reasons set out below, we have decided to: 1. Refuse the application for an extension of time; 2. Refuse the application for leave to appeal; and 3. Make a costs order in favour of the respondent.

Background

The parties are involved in an ongoing dispute concerning premises at Kingswood. The dispute has been the subject multiple applications brought by the appellant under the Retail Leases Act 1994 (the RL Act) and by the respondent under the Residential Tenancies Act 2010. It has also been the subject of multiple appeals to the Appeal Panel and of proceedings in the Supreme Court.
These appeal proceedings concern interim orders made under the RL Act on 31 October 2018 and the dismissal of an application made in respect of those orders on 27 November 2018.

Tribunal proceedings and decision0

Relevantly to this appeal, on 31 October 2018 the Tribunal made the following orders restraining the respondent from taking possession of the retail lease premises pending determination of proceedings Com 17/53297. 1. Provided the applicant pays an amount of $6,500.00 (plus GST) on account of rent per calendar month to Fobupu Pty Ltd on receipt of a rent invoice from Fobupu Pty Ltd as the trustee of the Khan Family Trust No 2 ABN 702 604 095 93 the respondents are restrained repossessing the premises the subject of these proceedings or otherwise disturbing the applicant's quiet enjoyment of those premises until the Tribunal has made a decision in application No COM 17/53297. 2. The rent payable by the applicant in November 2018 pursuant to order 1 is to be paid in 4 instalments of $1,625.00 plus GST on 8, 15, 22 and 29 November 2018. Thereafter rent is to be paid on the 10th day of the applicable month.
On 14 November 2018, the appellant made an application to the Tribunal concerning the 31 October 2018 orders. In that application, the appellant sought a number of orders, including an order that the respondent provide evidence that the Khan Family Trust No 2 was entitled to demand rent and provide a tax invoice. The appellant also sought an order staying the orders made on 31 October 2018.
The Tribunal considered the application on the basis of the written submissions provided and made the following orders on 27 November 2018: 1. A hearing of the applicant's application to the Tribunal dated 14 November 2018 is dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The applicant's application dated 14 November 2018 is dismissed.
The appellant lodged this appeal on 6 December 2018, challenging both the orders made on 31 October 2018 and the orders made on 27 November 2018. He also applied for a stay of the Tribunal's 31 October 2018 orders.

Appeal Panel proceedings in relation to the stay application

At a call over on 14 December 2018, the Appeal Panel made a stay order in the following terms: By consent, until further order of the Appeal Panel the operation of Orders 1 and 2 made by the Tribunal on 31 October 2018 (COM 18/39312), is stayed subject to the following conditions: 1. Fobupu Pty Ltd is restrained from repossessing the premises the subject of proceedings COM 18/39312 or otherwise disturbing the applicant's quiet enjoyment of those premises, until the Tribunal has made a decision in application No COM 17/53297, provided that Gurjit Singh pays to the trust account of Fobupu Pty Ltd's solicitors, McGrath, Diecembre & Co: a. By cob 21/12/18 an amount of $6,500.00 (plus GST) on account of rent per calendar month to Fobupu Pty Ltd on receipt of a rent invoice from Fobupu Pty Ltd as the trustee of the Khan Family Trust No 2 ABN 702 604 095 93 . b. By cob 21/12/18 the rent payable for December 2018, and c. Thereafter monthly rent is to be paid on the 10th day of the applicable month.
An application to amend the orders made by the Appeal Panel on 14 December 2018 was dismissed on 21 December 2018.
On 11 January 2019, the respondent applied to the Appeal Panel for an order lifting the stay order. The application was made because the conditions of the stay had not been met.
On 1 February 2019, the Appeal Panel lifted the stay order made by the Appeal Panel on 14 December 2018. The Appeal Panel published reasons for its decision in that regard: Singh v Fobupo Pty Ltd [2019] NSWCATAP 34.
The Appeal Panel's decision meant that the Tribunal's stay order made on 31 October 2018 remained in force.

Further proceedings in the Tribunal in relation to the 31 October 2018 orders

The respondent applied to the Tribunal to lift the 31 October 2018 orders. On 27 February 2019, the Tribunal made the following orders, which were published to the parties on the same date: 1. Gurjit Singh must surrender to Fobupu Pty Ltd possession of premises being shops 1 and 2 at 8 Bringelly Road Kingswood by 10.00 am on 28 February 2019. 2. Gurjit Singh must give Fobupu Pty Ltd all keys in his possession to the premises referred to in order 1 either at 10.00 am on 28 February 2019, or before then. 3. Gurjit Singh must pay Fobupu Pty Ltd its costs and disbursements of the application before the Tribunal on 27 February 2019, such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014. 4. Fobupu Pty Ltd must give possession of Gurjit Singh's fittings and equipment and movable stores to him within 24 hours of his written request.

Further appeal - AP 19/09967

The applicant lodged an appeal and an application for stay of the Tribunal's 27 February 2019 orders on the day the Tribunal's decision was published. These are appeal proceedings AP 19/09967.
On 27 February 2019 the Appeal Panel relevantly published the following orders in AP 19/09967: 1) The operation of the Orders 1 and 2 made on 27 February 2019 in matter number COM 18/39312 are stayed until 5:00pm on 5 March 2019. 2) The Stay Order is conditional upon the Appellant paying to the Registrar of the Tribunal by 4:00pm on 4 March 2019 an amount of $26,000 (equivalent to rent of $6500 per month rent for the months of November, December 2018 and January, February 2019) to be held by the Registrar pending further order of the Appeal Panel. 3) In the event the appellant fails to comply with the condition in Order 2 by 4:00pm on 4 March 2019 the stay may be lifted. 4) Nothing in these orders or conditions requires the respondent to deliver any tax invoice or take any other action. 5) Appeal to be listed for Call Over / Hearing of the Application for Stay on 5/03/2019 at 2:15pm. 6) On or before 5:00pm on 1/03/2019 the Appellant is to file and serve any evidence and submissions in support of the Stay Application. 7) On or before 4:00pm on 4/03/2019 the Respondent is to file and serve any evidence and submissions in opposition to the Stay Application.
The proceedings were listed for call over and determination of the stay application on 5 March 2019.
In relation to the stay application, the following orders were made by consent: 1. Orders 1 and 2 made on 27 February 2019 in matter number COM18/39312 are stayed until the hearing of this appeal on 10 May 2019. 2. The preceding order is conditional upon: a. $26,000.00 paid by the appellant by credit card to the Tribunal on 5 March 2019 not being cancelled and those funds being received by the Registrar. b. The appellant paying to the Registrar the following amounts on account of rent: i. $6500.00 on or before 11 March 2019; ii. $6500.00 on or before 1 April 2019; iii. $6500.00 on or before 1 May 2019, which amounts must be received by the Tribunal as cleared funds by the due dates specified. 3. The funds paid pursuant to the conditions in order 2 are to be held by the Registrar until further order of the Tribunal. 4. In the event the appellant does not comply with any condition, the respondent may apply to lift the stay.
The Tribunal's file indicates that the appellant has complied with the terms of the stay order and this was not in dispute at the hearing.
The appeal is listed for hearing on 10 May 2019

Scope and nature of internal appeals

Section 80 of the NCAT Act relevantly provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
The appellant argues that aspects of the Tribunal's decision of 31 October 2018 constitute an ancillary decision rather than an interlocutory decision and that in relation to those aspects he has a right to appeal on a question of law.

Submissions and evidence

In deciding the appeal, we have had regard to the following:

The Notice of Appeal lodged on 6 December 2018;
The Reply to Appeal lodged on 12 December 2018;
The parties' written and oral submissions;
The Tribunal's reasons for decision dated 31 October 2018, 27 November 2018
The Appeal Panel's orders of 14 December 2018 and 1 February 2019 and
The Appeal Panel's orders of 27 February and 5 March 2019 in proceedings AP 19/09967

Issues

The issues to be determined are: 1. Is the Tribunal's decision an interlocutory decision or an ancillary decision? 2. If it is an interlocutory decision, what principles apply to an application for leave to appeal an interlocutory decision? 3. Should time be extended to appeal the decision made on 31 October 2018? 4. Has the appellant established a basis for leave to appeal? 5. If not, should costs be awarded to the respondent?

Is the Tribunal's decision an interlocutory decision or an ancillary decision?

Ancillary decision is defined in s 4(1) of the NCAT Act as …. a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, ……
We are satisfied that the Tribunal's decision of 31 October 2018 was not a decision "concerning whether the Tribunal had jurisdiction to deal with a matter". Rather, it was a decision preliminary to a decision determining proceedings. The decision restrained the respondent from taking action to recover possession of the premises, upon conditions, pending determination of the appellant's substantive application. We find that the Tribunal's decision was an interlocutory decision. Leave to appeal is therefore required.

What principles apply to an application for leave to appeal an interlocutory decision?

In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 the Appeal Panel set out the principles relevant to a grant of leave to appeal an interlocutory decision: 35 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave.

Should time be extended to appeal the decision made on 31 October 2018?

As noted above, the Notice of Appeal was lodged on 6 December 2018, which is within the 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules) in respect of the 27 November 2018 orders, but outside that period in respect of the 31 October 2018 orders.
The appellant sought an extension of time in which to appeal the 31 October 2018 decision. The basis for the extension of time is set out in an attachment to the Notice of Appeal. In relation to this, the appellant submits that: 123. Based on a belief that that the senior member had not been fully informed and that it was inappropriate to proceed to appeal without providing the senior member with a complete and reliable submission on the question of tax compliance, an application was drawn and filed. 124. That application has led to the second decision by the senior member on the 27th of November. This appeal is instituted promptly after the delivery of those reasons. 135. The appellant seeks an extension of time to accommodate the few days this appeal is out of time because of the application to the senior member. The appeal is only out of time as to the decision of the 31st of October. The decision of the 27th of November is well within time.
In determining the application for an extension of time, we have considered the factors discussed by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22], namely: 1. The length of the delay; 2. The reason for the delay; 3. The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. The extent of any prejudice suffered by the respondent to the appeal.
In relation to the length of the delay, an appeal against the 31 October 2018 decision should have been lodged by 28 November 2018. The appeal was not lodged until eight days later, on 6 December 2018. The delay is relatively short and does not weigh strongly against granting an extension of time.
In relation to the reasons for the delay, we do not consider that they are sound. If the appellant considered that the Tribunal's decision was incorrect, he could have lodged an appeal rather than apply to the Tribunal to have those orders changed.
In relation to prejudice to the respondent, the respondent's written submissions do not suggest that any prejudice has been suffered arising from the delay.
We have dealt with the merits of the appeal below. We have concluded that an extension of time should not be granted because the appeal lacks merit.

Has the appellant established a basis for leave to appeal?

The appellant lodged voluminous documentation in support of the appeal. The grounds of appeal are nevertheless unclear and the submissions provided in support of the appeal unhelpful.
At the hearing, the appellant's representative Mr Jordan indicated that in relation to the grounds of appeal he relied principally on the most recent written submission, which is undated and unsigned, but is headed "Submission for hearing 28th March, 2019".
The submission identifies the following as issues on the appeal: 1. Tax law covers the field, no Tribunal jurisdiction, issue of law, ancillary decision; 2. Respondent is not tax compliant, issue of law, ancillary decision; 3. Oral undertaking inadequate to establish tax compliance, issue of law, ancillary decision; 4. No evidence of trust, issue of law, Conveyancing Act, section 23C. Oral undertaking inadequate to establish existence of trust, issue of law, ancillary decision; 5. Tribunal has no jurisdiction to determine tax compliance, issue of law, ancillary decision; 6. Respondents, particularly Ghulam Khan, continue to refuse to provide state statutory and Federal tax compliance, issue of fact, interlocutory decision, leave required; 7. Acceptance of the undertaking in fact, ancillary decision, leave required; 8. Set-off is a question of combined law and fact. In the context of whether a debt actually exists, this is a combined question of law and fact. Whether the applicant is entitled to set-off is also a combined question of law and fact. 9. The payment amount under the condition, ancillary decision, leave required.
In our view a central issue in this appeal is its utility, particularly in view of the orders made by the Tribunal on 27 February 2019 and by the Appeal Panel on 5 March 2019.
We raised this issue with the parties at the hearing.
The appellant pressed the grounds identified above. However, while Mr Jordan submitted that the orders made by the Tribunal on 31 October 2018 remained in effect, he also indicated that he had no submissions to make in relation to the utility of the appeal. He submitted that the issues he had raised could be pursued in the context of the appeal against the Tribunal's orders of 27 February 2019. Mr Jordan suggested that these appeal proceedings could be adjourned to be determined with the other appeal.
Mr Brown for the respondent submitted that the orders appealed against were dissolved by the orders of 27 February 2019, that the orders are interlocutory in nature and that leave to appeal is required.
We are not satisfied that the appellant has established a basis for leave to appeal to be granted.
First, we do not accept the appellant's submission that the Tribunal's orders of 31 October 2018 remain in force. Rather, we find that the orders made by the Tribunal on 27 February 2019, which granted possession of the leased premises to the respondent, had the effect of dissolving the orders of 31 October 2018. The orders made on 31 October 2018 no longer have any operative effect. The only orders currently in force that require the appellant to make any payments are the consent orders made by the Appeal Panel on 5 March 2019. In such circumstances, we conclude that there is no utility to the appeal, as there is no longer any controversy to resolve arising from the 31 October 2018 orders.
Second, the appellant's substantive rights in relation to the orders made by the Tribunal on 27 February 2019 will be determined in the context of proceedings AP 19/09967, which will be heard on 10 May 2019. In such circumstances, there is no basis for this appeal to be adjourned to be heard with appeal proceedings AP 19/09967. The parties' substantive rights in relation to other issues between the parties in connection with the leased premises will be determined when the Tribunal makes a decision in proceedings Com 17/53297.
Third, issues raised by the appellant in respect of tax invoices and jurisdiction were dealt with by the Appeal Panel, constituted by Principal Member Harrowell, in the decision of 1 February 2019 lifting the stay order made on 14 December 2018. We agree with the findings made by Principal Member Harrowell in relation to those issues.
Fourth, taking into account the principles set out in Champion Homes Pty Ltd v Guirgis extracted at [26] above, we are not satisfied that the appellant has demonstrated that any substantial injustice results from the Tribunal's 31 October 2019 orders.
In conclusion, the application for leave to appeal has no merit. Accordingly, there is no basis for an extension of time to be granted to appeal the Tribunal's decision of 31 October 2018. The application for an extension of time is refused and leave to appeal is refused.

Should costs be awarded to the respondent?

The respondent sought an order for costs of the appeal, including costs of the application to lift the stay order. The Tribunal reserved costs of that application when it made a decision on 1 February 2019.
In making a decision on the costs application, we have considered the oral submissions made on behalf of the parties at the hearing.

Principles applicable to costs

The general rule in relation to costs in the Tribunal is that unless special circumstances are established, the parties pay their own costs: s 60(1) and s 60(2) of the NCAT Act.
Clause 38 of the Civil and Administrative Tribunal Rules 2014 (the Rules) modifies the application of s 60 in proceedings before the Consumer and Commercial Division of the Tribunal. Clause 38(2)(a) provides that in proceedings where the amount claimed or in dispute is more than $30,000, the Tribunal may award costs in the absence of special circumstances. The effect of cl 38A of the Rules is that the costs provisions that apply at first instance apply in appeal proceedings.
Mr Brown submitted that s 60 applies to the costs application. We agree with that submission.
Section 60(3) of the NCAT Act sets out factors to which regard may be had in deciding whether there are special circumstances. These factors are: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
The term "special circumstances" is not defined in the NCAT Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11].
In Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 at [14] the Appeal Panel stated: 14. An assessment whether circumstances are "special" involves the exercise of a value judgement carried out by way of comparison between what is not "special", and what is special. There are no scientific means by which the former can be ascertained. The evaluative process is necessarily one of impression informed by the particular provisions of section 60, which by sec 60(3)(f) incorporates also a consideration of section 36(3) of the Act.

Submissions on costs

The respondent submitted that the appeal is misconceived, particularly following the orders made by the Tribunal on 27 February 2019 and the Appeal Panel on 5 March 2019 in proceedings AP 19/09967. The respondent further submitted that prior to 27 February 2019 the lack of merit of the appeal amounted to special circumstances warranting an order for costs. In relation to the costs of the application to lift the 14 December 2018 stay order, the respondent submitted that that application was made because of the appellant's failure to comply with the consent orders made on 14 December 2018.
The appellant opposed the costs application for costs. The appellant submitted that he had not complied with the consent orders because the orders were made as a result of both parties making concessions and the respondent "reneged on their concession". The appellant submitted that the 14 December 2018 consent order was "not a cut and dried consent order".

Consideration

The respondent seeks costs of the appeal as a whole.
We are not satisfied that the relative strengths of the parties' cases constitute special circumstances warranting an order for costs of the entire appeal. In relation to this, at the time the appeal was lodged, while the appellant's case could be described as weak, we are not satisfied that it could be described as so weak as to amount to special circumstances warranting an order for costs.
However we consider that this situation changed once the appellant failed to comply with the consent orders made on 14 December 2018. We note the appellant's submissions concerning the consent orders. However, in deciding the respondent's application to lift the stay order, Principal Member Harrowell set out the bases on which the appellant claimed that he was not in breach the stay order at [25] of the reasons for decision of 1 February 2019. Principal Member Harrowell found against the appellant in relation to each of those bases.
We find that the appellant's failure to comply with consent orders necessitated the respondent's successful application to have those orders lifted. We are satisfied that this constitutes special circumstances warranting an order for costs of an incidental to the application to lift the stay order made on 14 December 2018.
We have found that the appeal had no utility once the Tribunal made orders granting possession to the respondent on 27 February 2019. The appellant should have withdrawn this appeal once those orders were made, as the orders subject to this appeal had ceased to have any operative effect. We conclude that by failing to withdraw the appeal, the appellant has been responsible for prolonging unreasonably the time taken to complete the proceedings. This constitutes special circumstances warranting an order for costs of an incidental to the proceedings from 27 February 2019.

Orders 1. The application for an extension of time in which to appeal the orders made by the Tribunal on 31 October 2018 is refused. 2. Leave to appeal is refused. 3. The appellant is to pay the respondent's costs, as agreed or assessed, on the ordinary basis: 1. of and incidental to the application to revoke the stay orders made on 14 December 2018; and 2. otherwise from 27 February 2019.

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 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: 01 May 2019

At a glance

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Judgment (19 paragraphs)

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Cases Cited (15)

Cited By (4)