Singh v Fobupu Pty Ltd; Singh v Khan

NCAT Appeal Panel|2019-05-10

Solicitors: Dicembre & Co (Respondents)

Applicant (Self Represented) File Number(s): AP19/09967, AP19/28114 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 27 February 2019 Before: D Goldstein, Senior Member File Number(s): COM 17/53297; COM 18/39312

Appeal Panel proceedings

Mr Singh appealed the February Decision by Notice of Appeal dated 27 February 2019. This is appeal AP 19/09967 (First Appeal). The appeal was filed in time.
The grounds of appeal were as follows: 1. The Tribunal had no jurisdiction; 2. An order for possession was made in favour of a trust which does not comply with s 23C(1)(b) of the Conveyancing Act, 1919 (NSW) (Conveyancing Act); 3. an order for possession was made in favour of a trust which "does not show exists and complies" .
The orders sought in the First Appeal were that the landlord "provide proof of existence of the trust", "show trust is tax compliant" and an "order allowing set off".
Initially, this appeal was heard on 10 May 2019. At that time Mr Singh indicated the following: 1. Mr Singh no longer pursued any claims in connection with the Trustee Act, 1925 (NSW), in particular s 14A nor in respect of the Conveyancing Act, in particular s 23C; and 2. Mr Singh wished to pursue the following matters: 1. The tax invoices issued to Mr Singh were non-compliant with relevant tax legislation and therefore no obligation to pay rent arose until delivery of a complying tax invoice; 2. The Tribunal wrongly rejected valuation evidence relevant to matters in dispute; 3. The Tribunal wrongly rejected a transcript of telephone calls concerning discussions between Mr Singh and the landlord's representative; 4. In light of the orders made on 1 February 2019 by the Appeal Panel in application AP 18/52044, the Tribunal proceeded to determine Mr Singh's application in the wrong manner; 5. The Tribunal consider Mr Singh's claim he did not owe rent because he was entitled to set off against any amount payable to the landlord tax which Mr Singh contends he was required to remit to the Australian Taxation Office because he was not provided with a complying tax invoice.
Following the hearing of this First Appeal, the appellant appealed the May Decision by Notice of Appeal dated 17 June 2019. This is appeal AP 19/28114 (Second Appeal). The appeal was filed in time.
The orders sought in the Second Appeal were not set out in Part 5C of the Notice of Appeal. Rather, reference was made to an attachment. Similarly, the grounds of appeal were not set out in the Notice of Appeal, again reference being made to the attachment.
The attachment, called "Addendum 1", is a 40 page document narrating the complaints which Mr Singh makes of the May Decision. However it does not specify the orders being sought nor does it provide any precise articulation of the grounds of appeal.
We will return to this matter below.

Supreme Court and Court of Appeal Proceedings

In addition to these appeal proceedings, the appellant filed a summons seeking leave to appeal the February Decision in the Supreme Court of New South Wales. This appeal was said to be lodged pursuant to s 83 of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). In addition, relief in the nature of prerogative relief was sought.
The proceedings were heard by Button J on 27 February 2019. The proceedings were dismissed and Mr Singh was ordered to pay costs (Button J Decision).
In doing so the Court: 1. granted leave to appeal under s 83 of the NCAT Act; 2. said it was not disputed "Mr Singh has not paid rent for many, many weeks." 3. rejected the claims by Mr Singh that the tax invoices had anything to do with whether Mr Singh could be called upon to pay rent or that he could dispute the claim on the basis there was a trust of which the landlord (Fobupu) was the trustee.
The Button J Decision was the subject of an application for leave to appeal to the Court of Appeal. The application was dismissed with costs on 22 July 2019 (Court of Appeal Decision). The Court of Appeal published reasons: Singh v Khan [2019] NSWCA 196 (Appeal Decision).
Parties to the application for leave to appeal were Mr Singh, ABN 605 054 242 Pty Ltd, the Khans and the landlord, Fobupu.
The Court of Appeal noted that it was doubtful Button J had jurisdiction to entertain an appeal directly from the Tribunal sitting at first instance, appeals to the court under s 83 of the NCAT Act being limited to appeals from a decision in an internal appeal or external appeal determined by the Tribunal: Appeal Decision at [21]. However, the Court of Appeal went on to deal with the issues raised by Mr Singh in his application for leave to appeal.
The Court of Appeal rejected Mr Singh's submission that he had a lawful excuse for not paying rent as a condition of the orders restraining the landlord from obtaining possession. The Court accepted that: 1. the landlord, as the legal owner of the land, was entitled to recover rent in respect of it: Appeal Decision at [25]; and 2. Mr Singh was "in possession of the premises without paying rent for a considerable period and made no offer to pay rent": Appeal Decision at [28].

Issues for determination by the Appeal Panel and rejection of the Amended Points of Claim

Having regard to the convoluted manner in which these appeals have been presented by Mr Singh, the lengthy and complex history to these proceedings and that Mr Singh is self-represented, it is appropriate to distil from the voluminous documents which Mr Singh has provided the issues for determination: see John Predergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12].
In doing so, we do not propose to make reference to every document that has been filed by Mr Singh. These documents include various emails that have been sent to the Tribunal after the time for submissions has closed and/or in circumstances where no leave to provide such material has been granted. We have also had regard to the oral submissions made by Mr Singh at various appeal hearings including the hearing on 16 October 2019 and the matters identified therein.
In identifying the issues for determination, we note Mr Singh expressly withdrew certain challenges made in the First Appeal which we have set out at [19(1)] above. We also note that by the time of the hearing on 16 October 2019 Mr Singh had vacated the property and no longer asserted a continuing right to possession. Rather, Mr Singh said he only wished to pursue claims for damages on the basis he was the lessee.
The damages to which Mr Singh claimed to be entitled were contained in a document entitled "Amended Points of Claim" dated 30 August 2018 which had been filed in the 2017 proceedings. This document was handed up at the hearing of the appeal on 16 October 2019 and marked "Substitute MFI 1" in the appeals. In this regard, we note that a different version was originally handed up to the Appeal Panel, the original version being marked MFI 1. For simplicity, we will refer to the substituted document as MFI 1.
At para 122 and following of MFI 1 the following amounts were claimed: 1. "An accounting and disclosure of all rental recoveries by the respondents for the residential units … including that the rent paid by the [tenant] for the occupation of the residential unit. The claim is based on 12 years, for both units, 52 weeks at $300 per week for each unit" - $374,400.00 (MFI 1 para 122). 2. "The extortion or overpayment credited to the [tenant's] rent ledger but not presently required as the [tenant] has paid all necessary rent and is entitled to a repayment of the said amount together with interest at 8% per annum" - $85,000.00 (MFI 1 para 123). 3. Interest in respect of item (2) - $42,400.00 (MFI 1 para 123). 4. "Loss of use of first-floor customer seating space in the restaurant for a period of 2 years 9 months without repair",being an amount of 30% of the annual rent in respect of shop 1 - $59,400.00 (MFI 1 para 124). 5. Interest in respect of item (4) - $5,400.00 (MFI 1 para 124). 6. Loss of use of premises and consequential loss of benefit of the [tenant's] renovations upon Mr Singh vacating the premises - $109,500.00 (MFI 1 para 125). 7. Recovery of improperly claimed GST and withholding tax payments - $340,000.00 (MFI 1 para 126). 8. "Loss of the operative and viable business conducted by the applicant across 12 years of tenancy" - $110,000.00 (MFI 1 para 127). 9. Damages for "fraud, harassments, abuse, lying, threats, unconscionable conduct, misleading and deceptive conduct and other infractions, imposed on the [tenant]" - $175,200.00 (MFI 1 para 128). 10. Claim in respect of water payments said to arise from the conduct of one respondent who "informed the [tenant] that if he wanted water, pay for it, thereby inferring that if the [tenant] wanted water for his business, he should satisfy the demands of Sydney Water rated against the whole of Lot 3 as to payment as the respondents would not be meeting those demands" - $84,087.10 (MFI 1 para 129). 11. Loss and damage resulting from the residential tenancy proceedings - to be formulated (MFI 1 para 130). 12. "Loss and damage suffered as a result of the [tenant's] illegal use of the first-floor party room - General damages, to be assessed" (MFI 1 para 131).
In respect of these claims, Mr Singh limits the total claim to the current jurisdiction of the Tribunal, namely $750,000, being the limit of an order the Tribunal is permitted to make in a retail lease claim as provided by s 73(3) of the RL Act.
This limit was increased from $400,000 by the Retail Leases Amendment (Review) Act 2017 (NSW) (RLAR Act). The RLAR Act commenced on 1 July 2017. However, the increase in jurisdictional limit does not apply to claims concerning a retail lease entered into before the RLAR Act commenced: see Sch 3 cl 48 of the RL Act.
We will return to the question of jurisdiction below.
We note the claims in MFI 1 pursued by Mr Singh on appeal contain additional items of loss to those determined by the Tribunal at first instance.
This difference arose because the Tribunal had refused leave to the appellant to amend his application in accordance with MFI 1. The initial application to amend had been dealt with by the Tribunal in reasons for decision dated 5 October 2018 (Amendment Decision).
The original Points of Claim (Exhibit R1 in the appeal), which the appellant sought to amend in terms of MFI 1, recorded the following claims for compensation and damages: 1. Compensation in respect of loss of profits from 30 January 2016 to date in respect of a portion of the premises unable to be used by the [appellant] or its associated entities due to the respondents' breach and failure to rectify damage to the premises; 2. An award of $85,000 being a refund of an amount unlawfully demanded and received; and 3. Damages said to arise from "the failure of the respondents to invoice, provide written confirmation of receipt of, and acknowledge as duly paid, the applicant's numerous cash payments made to the respondent".
There was no claim in that document in respect of any liability to the Australian Taxation office.
As the Amendment Decision records at [2]: The proposed Amended Points of Claim are bought forward in a situation where the parties' evidence has been filed and served, the [appellants] have close their case and are part way through cross examination the respondent. A total of 4 hours has been allowed for the applicants to finalise the cross-examination of Dr Khan. Once cross-examination has been finalised, the parties will be in a position to prepare and serve their final submissions in the proceedings.
The Tribunal then explained in the Amendment Decision why the application to amend was refused. The Tribunal said that it was "not persuaded … that the amendments sought only relate to the evidence that has already been given in the proceedings" and that the documents and submissions provided in support of that application did not provide any particularity to the proposition that the claims made did no more than formulate a different case based on the actual evidence at trial: Amendment Reasons at [14]-[15].
There was no appeal against this interlocutory decision at the time it was made. The Notice of Appeal for the Second Appeal does not seek to appeal the decision to refuse the amendment, being limited to the May Decision.
Despite this failure, the appellants sought to pursue claims in MFI 1 and file submissions in the present appeals by way of a challenge to the refusal to grant leave to amend.
In our view they should not be permitted to do so.
We have reached this conclusion for a number of reasons. 1. No application was made to amend the Notice of Appeal to challenge the decision made on 5 October 2018. 2. No application was made to extend the time in which to appeal the decision to refuse leave to amend and no reasons have been offered as to why such an extension should be granted, the proceedings at first instance having concluded after a four-day hearing; 3. No explanation has been provided as to why the original application to amend in the Tribunal at first instance was only made after the appellants had closed their case; 4. While the appellants have submitted certain facts were concealed and only became known during the course of the hearing, any constraints on the use and operation of the restaurant which might have caused loss and damage to be suffered by the appellants during their possession of the premises must have been known to them prior to 5 October 2018 and prior to the commencement of the hearing. Again no explanation is provided as to why any action of the respondents might have prevented the appellants from identifying all claims they wished to make and providing points of claim and evidence consistent with such position prior to the commencement of the original hearing. 5. As recorded by the Tribunal in the Amendment Decision, the appellants had closed their case. The application was made at a point in time when Dr Khan, one of the respondents' witnesses, was being cross-examined. The Tribunal applied the principles set out by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, referring to the comments of the majority at [111]-[112]. That decision makes clear that there is no absolute entitlement for a party to amend the pleadings. While the Tribunal is not a court of pleading, nonetheless in complex matters a party may be required by directions of the Tribunal to formulate their case and state in writing the basis of the claims which they are making. This allows an opponent to know what issues are raised and the matters to which they must respond and facilitates an efficient and fair hearing. In the present case, this occurred through the provision of points of claim and points of defence as directed by the Tribunal. Pursuant to s 36(3) of the NCAT Act, a party is obliged to assist the Tribunal in ensuring there is a just, quick and cheap resolution of the real issues in dispute, the Tribunal being required to apply the guiding principle as stated in s 36(1). Allowing a party a reasonable opportunity to present their case and be heard must be weighed against modern case management practices and any failure of a party to comply with directions or make an application on a timely basis may justify the Tribunal refusing an application to amend: see eg Mesiha v Murrell [2017] NSWCATAP 1 at [29] and following. Here, the appellants did not comply with their obligation to provide points of claim on a timely basis and had provided no reasonable explanation to the Tribunal about why they failed to identify all the claims prior to the hearing commencing, why they were late in their amendment application and/or why they failed to comply with their obligations under s 36(3) of the NCAT Act. 6. The Tribunal had a discretion to exercise. Having regard to the matters stated in the Amendment Decision, nothing said by the appellants would lead us to conclude the discretion miscarried: see House v The King [1936] 55 CLR 499. We see no error in the Tribunal rejecting the submission in relation to the decision of the High Court in Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666; 9 ALR 437, the Tribunal determining that claims of fraud were now being asserted, the amended claims had not been adequately particularised by reference to the evidence already provided and that new evidence might be required.
Further, and in any event, in respect of the claims relating to a dispute concerning a residential tenancy agreement, being damages claim items (1), (2), (3) and (11) above, it would otherwise be unnecessary to deal with these claims for the following reasons: 1. They are all claims relating to an alleged residential tenancy agreement and alleged breaches thereof which are regulated by the Residential Tenancies Act, 2010 (NSW) (RT Act). 2. They are not retail lease claims under the RL Act. 3. There have been separate residential tenancy proceedings which are not the subject of the present appeals. 4. Further, and in any event, the Tribunal has no power to make an order in the amount sought because the claim exceeds the jurisdictional limit imposed on the Tribunal in respect of orders for payment of money under s 187(4) of the RT Act. This limit is $15,000, there being no dispute concerning a rental bond: see reg 23(b) of the Residential Tenancies Regulation, 2010 (NSW) (RT Regulation).
Having regard to the above, our rejection of the Amended Points of Claim - MFI 1, paras 224-239 of the appellants' submissions filed 5 August 2019 (entitled "What the Appeal Panel should do"), and the appellants limiting the relief sought to orders for the payment of damages and/or reimbursement of money, it appears the real issues which the appellants raise by their appeals and which we must determine consist of the following: 1. Was the Tribunal in error in failing to find there was a retail lease between Mr Singh and the landlord which commenced from June 2009 or some later date, the former date being when the Tribunal found in the May Reasons that there was an agreement between Anmol and the landlord to exercise a 5 year option to renew the Anmol lease? 2. Alternatively, was the Tribunal in error in failing to find that Mr Singh was subrogated to the rights of Anmol in the Anmol lease? 3. Were the tax invoices issued to Mr Singh invalid and/or was the landlord incorrectly described, thereby relieving Mr Singh or his companies of an obligation to pay rent? 4. Was the Tribunal in error in failing to find Mr Singh was entitled to recover from the landlord GST and an amount equivalent to withholding tax which Mr Singh says he has a legal obligation to remit to the Australian Taxation Office by reason of allegedly noncomplying tax invoices? 5. Was the Tribunal in error in rejecting the claim for loss of profits arising from storm damage and any failure by the landlord to rectify damage to the premises? 6. Was the Tribunal in error in failing to find Mr Singh was entitled to recover $85,000 which was said to have been illegally demanded by the landlord to prevent the landlord from locking out Mr Singh in the restaurant?
While there are subsidiary issues identified in the submissions, for example findings in relation to credit, these matters essentially relate to the challenges which require leave to appeal. To the extent necessary, we will deal with the relevant findings of fact and any challenges thereto in respect of each of the issues we have identified above.

Consideration

There is a right of appeal on the question of law or otherwise leave to appeal is required: s 80(2)(b) of the NCAT Act. Where leave is required, it may only be granted if the appellants can demonstrate they may have suffered a substantial miscarriage of justice as provided in Sch 4 cl 12(1) of the NCAT Act. This is because the appeal is from a decision of the Consumer and Commercial Division. The principles applicable to the grant of leave are set out in the decision of Collins v Urban [2014] NSWCATAP 17.
It is convenient to deal with the submissions made in relation to each of the issues for determination under the topics we have set out above. In doing so, we have had regard to the combined effect of submissions in both appeals.
We had raised with the parties after the hearing of the First Appeal on 10 May 2019 that the orders made in the 2018 proceedings, particularly the order for possession in favour of Fobupu, might be susceptible to being set aside on various grounds. These grounds included: 1. that the 2018 proceedings, which sought the same relief as the 2017 proceedings, might be an abuse of process because they were commenced second in time. Consequently, the 2018 proceedings should have been dismissed for this reason; 2. that the Tribunal in the February Reasons appeared to conclude there was no retail lease with Mr Singh. Consequently, it was difficult to see how an order for possession could be made against him in those circumstances; 3. an order was made in favour of Fobupu even though no application had been filed by Fobupu and no relevant fee had been paid in any event.
In light of the fact that Mr Singh no longer seeks possession of the premises, it is unnecessary to resolve these matters in these appeals. However, for reasons which will become apparent, it is necessary to determine whether Mr Singh had a lease with Fobupu and, if so, when.

Was the Tribunal in error in failing to find there was a retail lease between Mr Singh and the landlord which commenced from June 2009 or some later date, the former date being when the Tribunal found in the May Reasons that there was an agreement between Anmol and the landlord to exercise a 5 year option to renew the Anmol lease?

This issue is necessary to decide, being relevant to the question of whether Mr Singh was a party to a retail lease in 2010. Inter-alia, he contends that at this time a demand was wrongly made by Fobupu for the payment of the sum of $85,000 and he is entitled to a refund.
There is no dispute in this appeal that the Anmol lease was in writing and that the parties to that lease were Fobupu and Anmol. Mr Singh was a guarantor.
The Anmol lease contains the following provisions: 1. The initial term commenced 1 November 2006 and was for a three-year period to 31 October 2009: see item G. 2. There was an option to renew, the initial renewal period being 5 years from 1 November 2009 to 31 October 2009: see item 12. 3. The rent was $78,000 plus GST yearly, to be paid by monthly instalments of $6500 plus GST: see item 13.
There is no term of the Anmol lease that provided it terminated if Anmol was placed under external administration and no evidence to which we have been referred which would indicate the landlord purported to terminate the lease in consequence of any external administrator being appointed. There is no provision of the RL Act that otherwise provides for a retail lease to automatically terminate in circumstances where a lessee is placed under external administration.
The Anmol lease was the agreement by which Mr Singh and his associate companies commenced to carry on the business of an Indian restaurant in 2006, Anmol then being the lessee.
The Tribunal was asked to make declarations that Mr Singh was the lessee in consequence of the conversations concerning renewal of the Anmol lease in about 2009. It was also asked to make a determination about liability for storm damage which occurred in 2016. Lastly, it was asked to make a determination about any lease which came into being in consequence of a proposal by Mr Singh to renovate the restaurant. Related to these matters was a claim for $85,000 which Mr Singh asserted was "key money" and unlawfully demanded.
At [49]-[51] of the May Reasons the Tribunal recorded the declarations sought as follows: 49. First, Mr Singh seeks a declaration that [Mr Singh] is the tenant of a portion of the premises pursuant to the lease, and the lease and the terms of the lease are varied from time to time across the term of the tenancy by Mr Singh together with Mr Singh's trading company in place from time to time now JSDK Pty Ltd, and that the lease expires pursuant to its terms and exercised renewals on 31 October 2019. 50. Secondly, Mr Singh seeks a declaration that he is a tenant of residential premises at 8 Bringelly Road Kingswood pursuant to 'an agreement between the parties' in which the agreement, it was an express term, or in the alternative, an implied term of the lease itself that the applicant will remain in possession of and occupy the residential premises in which the applicant has lived during 12 years of the tenancy, for the term of the lease. 51. Thirdly, Mr Singh seeks a declaration that he and the lessor made an agreement in relation to the premises in or about October 2015 (the 'renovation agreement') where by Mr Singh at his own expense would perform a substantial renovation and upgrade to shop one (1) of the premises (which renovation is completed) in consideration for the lessor agreeing that the rent would remain at its level as of September 2015 for the premises, for a period commencing at the completion of the renovation for 3 years. Mr Singh asserts that the renovation was completed on 31 October 2017 and that the term of the renovation agreement extends from 1 November 2017 to 31 October 2020.
In relation to the second declaration, the Tribunal noted there were separate proceedings under the RT Act and that it had no jurisdiction under the RL Act to make such a declaration. No error is shown in this decision and, in any event, it is irrelevant to a resolution of the issues raised in connection with the retail lease claims now pursued in these appeals.
In relation to the first declaration, the Tribunal concluded at [54] of the May Reasons that the "evidence does not support a finding that there ever was an agreement that Mr Singh personally would be a lessee of the premises".
However, as we recorded above, the Tribunal did accept there was an agreement in June 2009 by which Anmol was permitted to exercise the first 5 year option under the Anmol lease without giving relevant notices as required by cl 4.4 of that lease.
In reaching this conclusion, the Tribunal also accepted that Mr Singh informed Dr Khan at the time of these discussions, namely about June 2009, that he was proposing to carry on the restaurant business under a new company called Zaika Indian Pty Limited. Zaika Indian Pty Limited was not incorporated at that time. Rather, it was incorporated on 5 July 2010, and it commenced trading under the name Zaika Indian Restaurant in August 2010: May Reasons at [75]-[79].
It follows that Zaika could not have exercised any option or entered into a new lease in about June 2009.
In his submissions, Mr Singh challenges the conclusion that the option was exercised by Anmol on a number of bases.
First, Mr Singh asserts that the Anmol lease, being the written document we have identified above, did not constitute the agreement between the parties prior to the exercise of any option in 2009. Mr Singh submits that there was an "oral tenancy agreement supported by the law of contract negotiated and completed in December 2006": appellants' August 2019 submissions at para 37 p 7.
This submission has no merit. The Anmol lease was signed by the parties and there is no evidence to which we have been referred that would support a conclusion that the agreement was not operable or had otherwise been varied. The submission is inconsistent with the assertion that the option in the Anmol lease was exercised in 2009.
Secondly, Mr Singh asserts that he personally exercised the option. In the appellants' August 2019 submissions at para 48 p 7, Mr Singh refers to a conversation in which Dr Khan said to him "you have the renewal". Mr Singh submits that "[t]his can mean nothing other than Mr Singh having taken up the renewal".
We do not accept this submission for the following reasons: 1. Mr Singh asserts the Anmol lease was renewed, not that a new lease was entered into in June 2009 with him as the lessee/tenant. 2. The only party capable of renewing the lease by exercising the option in the Anmol lease was Anmol. 3. Mr Singh was a director and/or representative of Anmol. 4. While Anmol was in administration at the time the option was exercised in June 2009, there is no evidence to suggest that any administrator of Anmol was preventing the option being renewed. In this regard the search of Anmol shows it was subject to administration under a deed of company arrangement from 14 March 2008 until 25 November 2011 and was then deregistered and struck off on 19 February 2012: see historical company search filed in the appeal being Vol 1 Exhibit A-O p 254-5. 5. Mr Singh himself gave evidence that Anmol operated the restaurant and was a tenant, at least from 21 October 2006 until August 2010: see respondent's version of transcript, Day 1 at p 72.5 and following. 6. Having accepted that the requirement for writing to exercise the option had, in effect, been waived, and having regard to the credit findings and the findings that the parties dealt with each other informally, the only logical conclusion was that reached by the Tribunal, namely the option had been exercised by Anmol by its representative Mr Singh. 7. The statement to which Mr Singh refers is not inconsistent with the Tribunal's findings concerning Mr Singh taking the action on behalf of Anmol to renew the Anmol lease, the statement "you have the renewal" being to Mr Singh as a director or representative on behalf of Anmol. 8. Otherwise, there is no evidence to support a conclusion that a new lease was entered into between Fobupu and Mr Singh at this time, nor is there any evidence to support a conclusion that the Anmol lease was assigned to Mr Singh or some other person or entity.
It follows from the above that we are not satisfied the Tribunal was in error in concluding that Anmol exercised an option to renew the Anmol lease in 2009 for a period of 5 years. Thereafter, Anmol continued to operate the business, its involvement ceasing no later than when it was deregistered on 20 February 2012.
In relation to the third declaration, the Tribunal did not accept Mr Singh's evidence that there was an agreement on terms "that the rent for the premises would remain as it was at September 2015, for a period of 3 years commencing at the completion of the renovation". Consequently, the Tribunal declined to make the declaration in the terms sought: May Decision at [125].
The Tribunal reached this conclusion because it accepted the evidence of Dr Khan which is recorded in the May Decision at [121]. Then, at [123] of the May Decision, the Tribunal said: In addition the fact that Dr Khan's lawyers wrote to Mr Singh soon after the finalisation of the renovation offering a lease of one year with a one year option at a rent of $7500 per month plus GST accords with [Dr Khan's] evidence of what he states was agreed with Mr Singh. Importantly, there is no evidence which I can find which shows there was any response by Mr Singh to the lessor's solicitor's letters of 23 November and 13 December 2017.
The effect of the May Reasons is that the Tribunal concluded Mr Singh was never a tenant of Fobupu. However, the Tribunal does not otherwise make any finding about who was the tenant of Fobupu at this time.
The appellants challenge the Tribunal's finding that Mr Singh was never a tenant of Fobupu. In this regard we would infer the Tribunal concluded there was no lease because, as recorded at [123] of the May Reasons, there was no response by Mr Singh to the correspondence of Fobupu's lawyers dated 23 November and 13 December 2017.
Initially, the respondents said in their written submissions in the Second Appeal, that the Appeal Panel would be in error to embark upon a fact finding enquiry outside the pleadings as no tenancy was advanced other than in connection with one arising from the renewal of the Anmol lease or from the renovation agreement and the declarations sought. Further, the respondents said Mr Singh had expressly stated Anmol, Zaika Indian Pty Ltd, ABN 605 054 242 Pty Ltd and another company, JDSK Pty Ltd, had paid the rent during the various periods since 2006. As such, not having paid rent personally and not having personally entered into possession under a lease, s 8 of the RL Act could not assist Mr Singh in establishing an entitlement as a lessee under the RL Act: see respondent's submissions at paragraph 46 and following.
In relation to the pleading point, the Tribunal is not a court of pleading. Further, and in any event, it is clear that the Tribunal was considering the broader question of whether Mr Singh had any rights as a lessee. The Tribunal's conclusion that Mr Singh did not have such rights is found in the May Reasons at [54]. That is, although the declarations sought were in a particular form, the Tribunal considered and determined the broader question as to what agreement existed in relation to the use and occupation of the premises from time to time between Fobupu and Mr Singh and his companies.
Despite their initial position, the respondents said in oral submissions, at the hearing on 16 October 2019, that Mr Singh was a tenant from 2018. The respondents conceded Mr Singh was the tenant in light of the decision of Button J.
This concession was made with the respondents variously submitting that: 1. in October 2018 the rent was $6500 plus GST; and 2. from February 2018 until April 2018 the rent was $6500 inclusive of GST.
How their position was arrived at was not clearly explained by the respondents by reference to the evidence before the Tribunal.
They do not explain how rent of $6500 plus GST which was required to be paid under the Anmol lease was reduced to $6500 inclusive of GST. The only submission made orally was that this occurred when an order was made by the Tribunal imposing a condition to pay rent as part of the restraining orders made. However, such an order could not, of itself, give rise to an agreement between the parties.
Further, the respondents did not contend that the Tribunal was in error in relation to the findings made in the May Reasons at [121]-[127] and they do not deal with the legal position in light of those findings, their oral submissions being to the effect there could be no lease because there was no agreement and the parties to that agreement could not be identified.
In support of their position, reference was made to the decision of the Court of Appeal in Darzi Group Pty Ltd v Nolde Pty Ltd [2019] NSWCA 210 per Basten JA at [39]. The respondents said that s 8(1) only operates to fix a date for commencement of a lease but the payment of rent or letting into possession does not of itself create an agreement.
We will return to these matters and the issue of who, if anyone, was the lessee of Fobupu below.
We note in passing, there was evidence before the Tribunal from Mr Singh that from August 2011 Dr Khan wanted Mr Singh "to pay $500 in cash and $6000 by bank cheque" which Mr Singh did: see affidavit of Mr Singh apparently sworn 9 July 2018, which is part of Exhibit A1 in the appeal at p 25. This evidence would suggest that before the deregistration of Anmol in February 2012, Mr Singh on behalf of Anmol and Dr Khan on behalf of Fobupu had agreed to vary the terms of the Anmol lease. This is consistent with the Tribunal's findings that Dr Khan requested cash payments for rent, that there was an "informal approach to the lease relationship" taken by the parties and that "so long as Mr Singh was paying the rent, Dr Khan was content to let the lease relationship, or Mr Singh's possession of the premises continue": May Reasons at [39] and [40].
The position of the appellants is that they challenged the Tribunal's conclusion that there was no lease with Mr Singh on several bases.
It is convenient to deal with the factual challenges first.
The appellants challenge the findings in relation to credit and the Tribunal's acceptance of Dr Khan's evidence.
Although the appellants submitted otherwise, this challenge does not raise a question of law. Consequently, leave to appeal is required.
We are not satisfied the appellants may have suffered a substantial miscarriage of justice.
It is clear from reading the documents provided as part of the appeal, including the transcript of the proceedings and the parties' submissions, that each of the parties took positions that were different over time and, at least to some extent, not corroborated by documentary evidence upon which they sought to rely. In the case of Mr Singh, an example is that Mr Singh asserted he had an entitlement to exercise a renewal option in the Anmol lease while at the same time contending that the written document did not constitute the actual agreement reached in 2006. Mr Singh was also content to pay cash to Dr Khan without any invoices being provided and now, years later, asserts a breach because Fobupu failed to provide such invoices.
In respect of the respondents, an example is that Dr Khan was asserting there was no lease relationship, at least with Mr Singh, despite having accepted payments from Mr Singh or his associated companies and despite agreeing that Mr Singh could carry out renovations to the restaurant in about 2015, a matter we will return to below. Indeed until late 2017/2018 all the respondents appear to have conceded was that Anmol and Fobupu were originally parties to a written retail lease. This is despite Mr Singh and his associate companies being permitted to retain possession of the premises and operate an Indian restaurant for more than 11 years, particularly after Anmol was deregistered. This is also despite Fobupu receiving rent payments from various companies other than Anmol and Dr Khan having signed a letter dated 14 June 2015 (Exhibit A1 p 92 in the appeal documents), which letter asserted "Zaika Indian Pty Ltd was our tenant till a few weeks ago".
The Tribunal was required to do its best to assess the evidence provided, that evidence being disjointed, inconsistent and often not corroborated by the documents. In doing so the Tribunal was required to assess the witnesses and their credibility and determine the true state of affairs in relation to any agreements by which Mr Singh or his associated companies were permitted to carry on the business of an Indian restaurant over an 11 year period.
Quite clearly the Tribunal did not accept the whole of the evidence from any witness, particularly Mr Singh and Dr Khan: May Decision at [42].
Against this background, we have not been pointed to any material that would show "the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach": Collins at [77].
Further, there is no error demonstrated in the Tribunal's approach to finding the facts or in the facts as found.
Accordingly, leave to appeal on grounds other than a question of law is refused.
The second matter to deal with is whether, at law, there was a retail lease and, if so with whom, having regard to the findings about the renovations carried out to the restaurant between about 2015 and 2017 and the findings of the Tribunal on that aspect, particularly in the May Reasons at [111]-[125].
We have set out above the respondents' position concerning who may have been a lessee from time to time following deregistration of Anmol and on what terms.
The appellants' position is as follows.
In Addendum 1 to the Notice of Appeal at para 72 page 33 the appellants challenge the finding of the Tribunal in the May Reasons at [121] where the Tribunal accepted the evidence of Dr Khan given orally. This challenge is a factual challenge which, for the reasons given above, we will not grant leave to pursue. In this regard, we do not accept there is any basis for the assertion of "fraud, lying, concealment, deceit, misleading and deceptive conduct and unconscionable conduct" of Dr Khan in his dealings with Mr Singh.
Similarly, the challenge as recorded in Addendum 1 at para 73 page 33 to the findings at [122]-[124] of the May Reasons is rejected. As we indicated above, the Tribunal was required to make decisions concerning conflicting versions of events and no sufficient reasons have been given as to why leave to appeal should be granted.
The appellants' written submissions provided in support of the appeal are devoid of any detail concerning the exact legal agreement which was reached and its terms. In the submissions filed in August 2018 (under the heading "when the applicant was permitted to remain in November 2014") the appellants seek to attack the credit of Dr Khan and assert that the Tribunal failed to consider relevant evidence. The appellants then embark on an examination of the authorities concerning what evidence might be sufficient to prove a particular claim.
However, the submissions do not articulate clearly what agreement, if any, was entered into in connection with the proposed renovation work, who were the parties to that agreement or the terms thereof (including in connection with any continuing right to use and operate the restaurant).
Reference is made by the appellants to their submissions to the Tribunal at first instance. One of those documents was a 94 page document headed "The Applicants' Final Submissions". There the appellants said at para 640 page 89: 640. The [appellants contend] the Tribunal should find, the correct version of the renovation agreement is the [appellants'] version. There is consideration of Mr Singh undertaking the renovation at his own cost of $147,000, [Dr Khan] agreed to an extended three-year term for the subject matter of the tenancy. The rental was $5000 for shop 1 and $1300 for residents. That is a total of $6300, GST inclusive per calendar month. The only financial concession from the respondents was half rent from January 2016.
This contention was consistent with the allegation made in para 43 of the Points of Claim filed in the original proceedings (Exhibit R1 in the appeal).
However, then at para 642 page 89 of The Applicant's Final Submissions, the appellants said: 642. The [appellants'] evidence in 2015 is that Mr Singh was paying $8050 per calendar month, inclusive of GST, as a result of his mistake that he had to pay extra for residential. He contends that amount remained until November 2017. Without extra home rent, he pays $6750. Then, he says it was to reduce to $6300.
On appeal, when asked by the Appeal Panel, Mr Singh said on behalf of the appellants that the lease prior to November 2017 was with him at a rent of $6500 plus GST and from November 2017 the rent was to be $5000 inclusive of GST. In making this oral submission Mr Singh referred to his evidence in his statement at para 144 found in Exhibit A1 page 30. However, he also said that from December 2012 until 8 October 2017 the rent was $6750 plus GST.
Section 3 of the RL act defines a retail lease as follows: retail shop lease or lease means any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop: (a) whether or not the right is a right of exclusive occupation, and (b) whether the agreement is express or implied, and (c) whether the agreement is oral or in writing, or partly oral and partly in writing. Note: Sections 6, 6A and 84B limit the retail shop leases to which this Act applies.
The agreement can be wholly oral: see eg Centroquanta Pty Ltd v Demasi [2016] NSWSC 1689 at [25] and [44].
The RL Act operates despite any provisions of the lease to the contrary and a "provision of any agreement or arrangement between the parties to a lease is void to the extent that the provision would be void if it were in the lease": s 7 RL Act.
Section 8 provides for when a lease is entered into in the following terms: 8 When the lease is entered into (1) For the purposes of this Act, a retail shop lease is considered to have been entered into when a person enters into possession of the retail shop as lessee under the lease or begins to pay rent as lessee under the lease (whichever happens first). (2) However, if both parties execute the lease before the lessee enters into possession under the lease or begins to pay rent under the lease, the lease is considered to have been entered into as soon as both parties have executed the lease.
At the time of the negotiations concerning the renovations, namely in 2015, s 16 of the RL Act provided: 16 Minimum 5 year term (1) The term for which a retail shop lease is entered into, together with any further term or terms provided for by any agreement or option for the acquisition by the lessee of a further term as an extension or renewal of the lease, must not be less than 5 years. An agreement or option is not taken into account if it was entered into or conferred after the lease was entered into. (2) If a lease is entered into in contravention of this section, the validity of the lease is not thereby affected but the term of the lease is extended by such period as may be necessary to prevent the lease contravening this section. Note. For example, if a lease is entered into for a term of 3 years, its term is extended by 2 years to 5 years. If a lease is entered into for a term of 2 years with an option for a further 1 year after that initial 2 years, the term of the lease is extended to 4 years (with the option for a further 1 year after that initial 4 years). (3) This section does not apply to a lease if a lawyer, or a licensed conveyancer, not acting for the lessor certifies (before, or within 6 months after, the lease was entered into) in writing that: (a) the lessee or prospective lessee requested the lawyer or conveyancer to give the certificate, and (b) the lawyer or conveyancer has explained to the lessee or prospective lessee the effect of subsections (1) and (2) and that the giving of the certificate will result in this section not applying to the lease. If the certificate is given within 6 months after the lease was entered into, then, without affecting the validity of the lease, subsection (2) ceases to apply to the lease and the extension of the term of the lease effected by that subsection accordingly ceases to be operative. (3A) The regulations may prescribe matters that must be included in a certificate under subsection (3) and procedures that must be complied with in connection with the giving or handling of such a certificate. (4) This section does not apply to a lease that results from the renewal of an earlier lease pursuant to an option conferred on the lessee, so long as there was no break in the entitlement of the lessee to possession of the retail shop and the option was granted by that earlier lease or by an agreement entered into before or at the same time as that earlier lease was entered into.
In connection with the renovation agreement, the following findings of fact are relevant to determining the question of what agreement, if any was entered into in about 2015 and who were the parties to that agreement: 1. Mr Singh via his associated companies had been conducting the Indian restaurant business in the restaurant since 2006, that is, for a period in excess of 11 years: May Reasons at [42]. 2. In relation to the Anmol lease, Mr Singh was a guarantor. That is he was personally liable under the guarantee to make good any losses or pay any rent in the event of default by Anmol; 3. Mr Singh would from time to time negotiate with Dr Khan "to solve whatever problem was confronting him at the time", including in circumstances where one of his companies who were conducting the restaurant business became insolvent or deregistered: May Reasons at [38]. 4. "so long as Mr Singh was paying the rent, Dr Khan was content to let the lease relationship, or Mr Singh's possession of the premises continue": at May Reasons at [40]; 5. in 2015, Dr Khan became aware that Mr Singh was renovating the restaurant, but became ill around that time: May Reasons at [115] 6. in 2015 "Dr Khan tired of Mr Singh and his erratic behaviour and sought to introduce some formality into the lease relationship": Reasons at [40]; 7. there was a conversation or conversations between Mr Singh and Dr Khan in October 2015 concerning renovations which had already been carried out and what should happen in the future to the following effect (May Reasons at [121]: 1. Dr Khan agreed that Mr Singh could undertake renovations to the restaurant; 2. the parties agreed that Mr Singh would pay $7500 plus GST each month as rent; 3. Dr Khan was to have prepared a written agreement but "did not at that time [get] the lease ready and ask [Mr Singh] to sign"; 4. during the period of the renovation, Mr Singh would have access to shop 2 and would pay an amount of $750 by cheque each month. 1. there was storm damage on 30 January 2016, which was repaired by Fobupu at about that time, except for minor gyprock repairs: May Reasons at [161]-[162]. 2. the renovations were completed in about October 2017: May Reasons at [118];
Fobupu's lawyers did not write to Mr Singh in respect of preparing a written lease until 23 November 2017. At that time the lawyers for Fobupu noted in the heading of the email that the proposed lessee was JSKD Pty Limited. In this regard we note JSDK Pty Ltd apparently first paid rent on 1 November 2017: see Points of Claim, Exhibit R1 at para 40.
It appears common ground that shop 2 was to be returned to Fobupu following completion of the renovations and was not part of any proposed lease: see Dr Khan affidavit sworn 4 June 2018 (Exhibit A3 commencing page 77) at para 13, Dr Khan's affidavit sworn 21 June 2018 (Exhibit A3 commencing p 237) at para 82 and following and Mr Singh's statement dated 24 May 2018 (Exhibit A1 commencing at p 4) at para 149 (page 30).
Against this background, the Tribunal did not accept Mr Singh was the lessee of the restaurant. In reaching this conclusion, the Tribunal did not identify who was the lessee, simply determining that Mr Singh never responded to the correspondence in November 2017 and following. Implicitly, the Tribunal seems to have concluded there was no lease at all.
In our view, the Tribunal was in error in reaching this conclusion.
As we have stated above, a lease under the RL Act may be written or oral, or partly oral or partly in writing. It may be express or implied.
Having regard to the facts found by the Tribunal that we have set out above, it seems to us that there was a concluded oral agreement between Dr Khan (on behalf Fobupu) and Mr Singh in October 2015. The agreement was to the effect that Mr Singh would be permitted to continue with renovations to shop 1 that he had commenced (without permission) in June 2015 on the following terms: 1. Mr Singh would be granted a lease of the restaurant (including shop 1). 2. The rent payable following completion of the renovations would be $7500 plus GST each month. 3. During the renovations, Mr Singh could occupy shop 2 and continue to trade the restaurant business and otherwise use the restaurant, on the basis he pay an amount of $750 per month for shop 2; 4. Mr Singh would be entitled to a rent free period for the restaurant while the renovations were completed. This period was initially 6 months but was extended due to the delay in completing the renovations. In this regard, we were not referred to any evidence of Fobupu making any demand for payment during the renovation period.
In our view, the agreement was an agreement within category 1 of Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353. At p 30 the court described the first category of contract in the following terms: It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect
In this regard, it is clear from what was said in the conversations in October 2015 that a formal lease was to be prepared and signed by the parties to record their agreement, in consequence of the oral agreement which had been reached. However, it also seems clear to us that while Dr Khan wanted an agreement to be signed immediately, he did not prepare that agreement or cause Fobupu's solicitors to prepare that agreement at that time.
Fobupu and Dr Khan took no steps to prevent Mr Singh from continuing with the renovations until a formal written agreement was signed. Rather, Fobupu accepted the rent of $750 agreed for shop 2 that was paid by Mr Singh (see Dr Khan's affidavit sworn 21 June 2018 at para 82) and permitted Mr Singh to take possession or retain possession of shop 2 while he carried out his renovations. Fobupu also carried out work to repair the premises following rain damage so as to permit Mr Singh to continue with his renovations.
It follows that in so far as any oral agreement was conditional upon signing a formal instrument of agreement, that condition was waived and the oral agreement was otherwise being performed, including permitting Mr Singh to renovate the premises and carry on the restaurant business.
Further, by reason of s 8(1) of the RL Act, the lease commenced when rent was paid or Mr Singh entered possession of shop 2 in about October 2015.
While the 2017 correspondence from the solicitors for Fobupu might suggest that any agreement was with JSDK Pty Ltd and not Mr Singh, it seems to us that such a contention is not sustainable. This is because JSDK Pty Ltd did not pay any rent to Fobupu until 1 November 2017, well after the agreement of October 2015. That company was not mentioned in any discussions between Mr Singh and Dr Khan in October 2015.
That is not to say the parties, if they had agreed, could not have substituted JSDK Pty Ltd as a lessee when a formal instrument of agreement was signed. However, this did not occur.
While it might be thought that another of Mr Singh's companies was in fact the contracting party in October 2015, in our view the findings of the Tribunal do not support such a conclusion. The findings at [121] and following indicate the dealings the parties were having at that time were personal to Mr Singh. The parties had conducted their affairs for a considerable period of time, certainly after Anmol was deregistered in February 2012, on the basis that Dr Khan required Mr Singh to ensure the rent was paid, regardless of the person or company paying it and Dr Khan was content for Mr Singh's possession of the property to continue on this basis. In this regard, the Tribunal described the lease relationship as "informal and fluid in nature": May Reasons at 40. The subsequent solicitors' correspondence referring to JSDK Pty Ltd as the lessee, a company that had not been involved with Fobupu in any way until 2017, is itself an indicator that Fobupu had not dealt with a particular company but rather with Mr Singh personally. This fact shows that while Dr Khan was dealing with Mr Singh, he was otherwise agreeable to substitute companies of Mr Singh's choosing to be the relevant lessor. No doubt this was because Dr Khan and Fobupu would require Mr Singh to guarantee any obligations of one of Mr Singh's companies, as had occurred in the case of Anmol.
In our view, objectively, the only conclusion is that the oral agreement formed in about October 2015 was between Mr Singh personally and Fobupu.
In relation to the term of the lease, it is unnecessary to finally resolve its duration.
In this regard we note the solicitors' correspondence sent at the end of 2017 suggests the lease was to be a one year lease with a one year option. However, if a lease had been entered into in 2015, the then provisions of s 16 of the RL Act, which we have set out above, would have provided for a five-year lease unless a relevant certificate had been given to the lessee as prescribed in s 16(3). Because there was no certificate given within 6 months, the operation of s 16(1) could not have been excluded.
While s 16 in the form we have set out above was repealed and substituted with a different (presently irrelevant) section 16 by the RLAR Act, this amendment did not operate retrospectively: see Sch 3 cl 40 of the RL Act.
It follows that the oral lease was for a term of 5 years although, as vacant possession of the restaurant has now been delivered up, this matter has no significance to a resolution of this appeal.

Alternatively, was the Tribunal in error in failing to find that Mr Singh was subrogated to the rights of Anmol in the Anmol lease?

In the appellants' August submissions, the appellants contended that Mr Singh, as guarantor, was subrogated to the rights of Anmol and thereby acquired Anmol's interest in the Anmol lease. Reliance is placed on s 3(1) of the Law Reform (Miscellaneous Provisions) Act, 1965 (NSW) (Law Reform Act). Reliance is also placed on the decision of Robb J in Barber v De Prima [2018] NSWSC 601.
These submissions are misconceived.
Any payment made by Mr Singh as a guarantor under cl 13 of the Anmol lease does not thereby create any right in Mr Singh as a lessee nor is Mr Singh thereby entitled to possession of the property the subject of the Anmol lease.
The guarantee does not provide otherwise.
Further, insofar as the Law Reform Act has any application, it is only to grant to Mr Singh rights which Fobupu (as the creditor of Anmol who has called upon Mr Singh as the surety) might have in respect of other security held by Fobupu, including rights against any other co-surety.

Were the tax invoices issued to Mr Singh invalid and/or was the landlord incorrectly described, thereby relieving Mr Singh or his companies of an obligation to pay rent?

Was the Tribunal in error in failing to find Mr Singh was entitled to recover from the landlord GST and an amount equivalent to withholding tax which Mr Singh says he has a legal obligation to remit to the Australian Taxation Office by reason of allegedly noncomplying tax invoices?

It is convenient to deal with these issues together.
In our view, the challenges on each of these bases should fail.
There are a number of reasons for this conclusion.
In the February Decision, the Tribunal made an order for possession against Mr Singh.
Mr Singh sought to appeal that decision and/or seek prerogative relief by filing a summons in the Supreme Court in order to challenge the Tribunal's determinations of the issues raised in connection with his right to occupy the premises. The issues raised in the Supreme Court proceedings included his obligation to pay rent in circumstances where he contended that tax invoices had not been properly issued.
The Button J Decision determined these matters adversely to Mr Singh. Subsequently, an application for leave to appeal to the Court of Appeal was unsuccessful. Again, the Court of Appeal determined the issues raised by Mr Singh adversely to him.
The parties to the Court of Appeal proceedings were the same parties as in the First Appeal and Second Appeal.
The respondents submitted there is an issue estoppel that binds the parties (and Tribunal) because a superior court has determined the issues raised in these appeals. The respondents rely on the decision of the High Court in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, particularly the judgment of Dixon J (as he then was) at 531. There, His Honour said: A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgement, decree or order necessarily established as the legal foundation or justification for its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgement, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgement, decree or order. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts from which the ingredients in the cause of action, that is, the title to the right established.
While the appellants accept the statement of principle, they assert in their reply submissions filed in the First Appeal that no issue estoppel could arise because issues of "tax compliance …were not discussed at all": see appellants' submissions filed 8 May 2019 at para 61-76.
We do not accept this submission.
It seems clear that the Supreme Court and the Court of Appeal were asked to determine that the order for possession made by the Tribunal in the February Decision was unlawful or inappropriate because there was an obligation on Fobupu to provide tax invoices and the tax invoices were not in the proper form and did not properly name the trust of which Fobupu, as legal owner of the property, was said to be the trustee. Further, by reason of these tax issues, the appellants were asserting there was no failure to pay rent.
These arguments were rejected by both Button J and the Court of Appeal.
Button J said: Nor do I think that whether the invoices that Mr Singh has been supplied with by the respondent demonstrate that the respondent's or is not a trustee is here or there. Nor do I think tax law has anything to do with this question.
In the Appeal Decision the Court of Appeal dealt with the issue at [22]-[26] of its reasons as follows: 22 The applicants provided the primary judge with a document head "Plaintiffs' points for hearing". They are identified as the grounds of challenge that the orders made on 27 February 2019 disregarded Australian tax law and the law of trusts. They asserted that the orders of the Tribunal required payment of rent to the Khan Family Trust (No 2), but no evidence had been provided that the trust existed. Reliance was placed on s 23C(1)(b) of the Conveyancing Act that a declaration of trust of land must be evidenced in writing, signed by the person declaring the trust, or be made by Will. The applicants contended that: "As a matter of law, no tax invoice from the trust can be valid and enforceable in favour of the trust until compliance with the Conveyancing Act s 23C(1)(b)". 23 For these reasons, they contended that there was no default in their not paying rent as required by the orders of the Tribunal as a condition of the orders restraining Fobupo from repossessing the land. 24 The same arguments were, in substance, advanced in the applicant's written submissions on the application for leave to appeal. The primary judge rejected the argument shortly but sufficiently. He said that s 23C of the Conveyancing Act had nothing to do with the question and the question of whether or not the respondent was a trustee was neither here nor there. Nor did tax law have anything to do with the question. 25 The primary judge was plainly correct. The applicants' submission seems to assume that a trust is a separate legal entity and they were excused from complying with the conditions of the order by which the respondent was restrained from interfering with their possession of the premises because they could not satisfy themselves that the trust referred to in the invoices existed. Neither contention is arguable. The misconception that a trust is a separate legal entity is common, but wrong. The rent was payable to Fobupo. Section 23C provides for requirements of writing when a person is dealing with or declaring a trust over interest in land. It in no way detracts from Fobupo's entitlements as legal owner of the land to recover rent in respect of it. 26. It is true that for the purposes of taxation laws, trusts can be separately taxed, and it is true that a trust may be treated as a supplier for the purposes of the GST Act. But whether Fobupo is assessable to income tax payable on rent received in its own right or as a trustee, or whether it and not the trust is a supplier for the purposes of GST is irrelevant to the applicants' obligation to pay the rent if it sought to retain the benefit of the injunction restraining Fobupo from taking possession. Nor is a tax invoice invalidated by a supplier's refusal to proffer a trust deed.
As can be seen from the above, the issue that Fobupu had breached its lease with Mr Singh by not providing appropriate tax invoices in proper form so as to relieve him from any obligation to pay rent has been resolved adversely to him by the Supreme Court. The Appeal Panel is bound by this determination.
Further, even if we are wrong on this point, it seems to us that the appellants would be estopped by reason of the principle set out by the High Court in Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589. There the plurality of the High Court said at 603: It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in judgment which conflicts with an earlier judgment.
It seems to us that a decision by us which says rent was not payable because there was a failure to provide tax invoices in a proper form would conflict with the earlier decision that the rent had not been paid and that an order for possession should be made. In these circumstances, having sought to challenge the February Decision in the Supreme Court and in the Court of Appeal, the appellant should not be permitted to do so in the present appeals.
Lastly, even if we are wrong concerning there being an issue estoppel or what might be described as an Anshun estoppel, in our view the grounds of appeal and the submissions made have no merit.
The obligation under the Anmol lease and under the lease between Fobupu and Mr Singh which we found came into existence in October 2015 is to pay the rent. That obligation is not conditional upon the provision of a tax invoice for each month's rent when it becomes due and payable. There is no provision in the Anmol lease nor in the oral lease with Mr Singh that makes payment of rent conditional upon provision of a tax invoice.
It follows that the failure to pay rent as and when due constitutes a breach of each of the leases.
The fact that a party to a commercial transaction may have an obligation to provide a tax invoice in accordance with relevant tax law does not affect this position. In so far as there has been any non-compliance with the relevant tax law, this is not a matter relevant to the present proceedings.
It follows that these grounds of appeal fail.

Was the Tribunal in error in rejecting the claim for loss of profits arising from storm damage and any failure by the landlord to rectify damage to the premises?

The appellants said that the Addendum 1 to the Notice of Appeal at para 87 p 36: The [appellants seek] to rely on the evidence, improperly excluded, currently contended to be excluded by error of law, and if so determined, thereby admissible. The evidence is a formal builders report. The evidence eliminates any prospect of upholding the finding of fact at paragraphs 160 to 165 of the judgement. The [appellants] specifically rely on the issue of the lack of credibility and veracity of the evidence of [Dr Khan] on this issue.
The report which the appellants wish to rely is a report dated 1 March 2018 entitled Safe2Rent Inspection Report found at the end of Exhibit A3 filed in the appeal at p 396. That report records various defects in the premises which included broken electrical fittings, an internal water leak around a plumbing connection and water damage said to have been caused by moisture entering into the building during a storm.
Little was said in submissions by the appellants on this aspect of their appeal.
The Tribunal dealt with the storm damage claimed in the May Decision at [161]-[166]. At [166] the Tribunal said: I have no hesitation in rejecting Mr Singh's storm damage claim. His evidence does not satisfy me there is any substantial damage to the ceiling of the function or party room or that he has acted reasonably in connection with the work Dr Khan contends needs to be carried out. Nor am I persuaded, by reason of the complete lack of evidence in support, that Mr Singh has sustained any financial loss because of the unrepaired storm damage to the ceiling of the function or party room.
In our view, this ground of appeal has no merit.
We have reached this view for the following reasons: 1. Even if the report was wrongly rejected, it does not demonstrate physical damage of a type which might reasonably have caused the restaurant, or part of the restaurant, to be closed or rendered unusable. 2. The report itself demonstrates that any damage requires minor gyprock repairs, consistent with the evidence provided by Dr Khan as recorded by the Tribunal at [164] of the May Reasons ; 3. Having regard to the date of the alleged storm and its extent, no error is shown in the Tribunal's conclusion at [163] of the May Reasons that the storm event could not have "delayed the renovation of the restaurant premises by one year". 4. In any event, the appellants provided no evidence of any loss and damage actually suffered. The report which the appellants say was wrongly excluded does not include such evidence. We were not referred to any other evidence of loss. 5. It follows, whether or not the report was wrongly rejected, that matter would have had no relevance to the outcome of the proceedings as the appellants have not proved relevant loss or damage in consequence of any breach.
This ground of appeal is rejected.

Was the Tribunal in error in failing to find Mr Singh was entitled to recover $85,000 which was said to have been illegally demanded by the landlord to prevent the landlord from locking out Mr Singh in the restaurant?

In para 23-37 of the Points of Claim filed in the 2017 proceedings (Exhibit R1) Mr Singh asserted that he was entitled to recover an amount of $85,000 which he says was wrongly demanded by Fobupu "as a condition of declining to lock out Mr Singh in 2010 and allowing the lease to continue": see Points of Claim para 130.
In Addendum 1 para 79, the appellants assert Mr Singh was a tenant under the Anmol lease.
We have found Mr Singh was not the lessee in consequence of the renewal of the Anmol lease in 2009. Consequently, any entitlement to recover any monies illegally demanded by Fobupu was with Anmol, not Mr Singh.
Further, the Tribunal determined that Anmol was obliged to pay the sum of $120,000 for "all plant, equipment, fixtures and fittings in the property" as provided in cl 17.1 of the Anmol lease.
There was a factual dispute concerning if and when this amount was paid.
The Tribunal recorded the competing evidence of the parties and dealt with this matter in the May Reasons at [130]-[150]. At [149] the Tribunal said: During cross-examination Mr Singh denied that the agreement to pay $85,000.00 to the less or was for the unpaid balance of the amount owing for fixtures and fittings. I do not accept his evidence. I find that the only credible explanation for the agreement to pay the sum of $85,000.00 was because that amount was agreed between Mr Singh and Dr Khan as the amount to be paid in satisfaction of the amount still owing by Anmol Holdings Pty [sic] to the lessor in connection with the balance owing by Anmol Holdings for the purchase of the fixtures and fittings under clause 17 of the lease.
Consequently, the Tribunal rejected the evidence of Mr Singh as being "not credible": May Reasons at [148].
In reaching this conclusion, the Tribunal analysed areas of agreement and disagreement in connection with the various conversations which the parties asserted, and accepted that an amount of $90,000 remained unpaid in connection with the fixtures and fittings, $30,000 only having been paid by Anmol on 7 December 2006.
The appellants challenge these factual findings. Leave to appeal is required.
The submissions of the appellants, including what was said in Addendum 1 (para 59 p10 and following) and the August 2019 submissions (eg para 181 p 23) provided no assistance in demonstrating any relevant error.
Reference is made by the appellants to the respondents' Points of Defence (Exhibit R1) and admissions allegedly made therein as to amounts which had been paid. In this regard the appellants assert the respondents admitted an amount of $102,500.00 had been paid by Anmol. This they said was inconsistent with the finding by the Tribunal that $30,000 was paid in December 2006 and a further $85,000 later, that is a total of $115,000 that had been paid.
However, this assertion as to the alleged admission by the respondents is not correct. In the Points of Defence (Exhibit R1), the respondents said at para 31: The Respondents admits [sic] the allegations contained in 31 of the Points of Claim save for the sum of $102,500.00 has been paid and $17,500.00 remained unpaid. The Respondents say the sum of $120,000.00 remained unpaid.
That is, the respondents were contending in their Points of Defence that no amount had been paid pursuant to cl 17 of the Anmol lease.
As is evident from the Tribunal's reasons which we have identified above, the Tribunal did not accept the respondents' assertion that no monies had been paid for the fixtures and fittings. Rather, the Tribunal found $30,000 had previously been paid and also concluded that the $85,000 was paid for the fixtures and fittings.
It seems to us that the findings of the Tribunal were open to it on the evidence. We have not been pointed to any material that would demonstrate these conclusions were wrong or that the appellants may have suffered a substantial miscarriage of justice. This is yet another example of the Tribunal having to determine complex questions of fact in circumstances where neither Mr Singh's nor Dr Khan's evidence was wholly accepted.
Consequently, to the extent relevant, leave to appeal is refused and this ground of appeal is dismissed.

Other matters

For completeness, it is appropriate we deal with some more general challenges concerning the hearing process and the jurisdiction of the Tribunal.
The appellants suggested that there had been some curtailment of their rights in cross-examination and/or that the Tribunal in some way misconducted the hearing. Examples of such submissions are found at paras 136 and 137 page 33 of the appellants' August 2018 submissions.
The hearing of the 2017 proceedings occurred over a period of 4 days, namely 19, 20 and 23 July 2018 and 26 October 2018. On two of those days the appellants were cross-examining the respondents' witnesses, particularly Dr Khan.
There is no evidence to which we have been referred that would indicate the Tribunal conducted the hearing in a manner that denied the appellants a reasonable opportunity to be heard or that they were in any way denied procedural fairness. To the contrary, the manner in which the appellants presented their case in the original proceedings made extremely difficult the task of the Tribunal in understanding the claims made, completing cross-examination of witnesses and in dealing with relevant submissions concerning the evidence provided in writing and orally.
The appellants also submitted that the Tribunal disregarded or failed to consider relevant aspects of the appellants' case. For example, at para 119 p 16 and following of the appellants' August submissions, the appellants referred to their extensive submissions in the proceedings at first instance and submit that "[t]here is a pattern in the rulings of [the Tribunal] … [that] ignores or excludes anything that helps the [appellants] and makes decisions that are favourable to the respondents and particularly [Dr Khan]: see para 130 page 18.
In making these submissions, the appellants use emotive terms both in describing their own position and the Tribunal's conclusions concerning the evidence and conduct of Dr Khan.
Having regard to the comments of the Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, particularly Bell P at [65] and following and the cases referred to therein concerning the adequacy of reasons and the approach to be taken by any appellate body in reviewing decisions of the Tribunal at first instance, in our view no error is demonstrated.
The Tribunal was not required to examine each and every submission and provide reasons for accepting or rejecting those submissions nor was it required to set out all factual material to which the parties wished to refer. In the present case, the Tribunal was confronted with competing evidence on critical issues which it recorded in its reasons. Where necessary, the Tribunal was required to identify relevant competing facts and make a decision about which version of events should be accepted. It did so and recorded its reasons.
In our view, the approach taken could not be said to be inadequate, particularly when one has regard to the written submissions provided by the appellants to the Tribunal at first instance.
We reject this ground of challenge.
Lastly, the appellants initially asserted in connection with the Second Appeal that the Tribunal did not have jurisdiction to determine their claims because the amount in dispute exceeded $750,000 (see eg Addendum 1 to notice of Appeal, para 47 p7). This was not a matter about which any substantial submissions were made at the hearing of the appeal.
This is a curious challenge to be raised on appeal because it was the appellants who sought to invoke the jurisdiction of the Tribunal under the RL Act by lodging the original applications.
Ultimately, the jurisdictional challenge must fail for the following reasons: 1. There is no evidence to establish that the claims originally dealt with by the Tribunal at first instance would, if successful, have resulted in an order for money to be paid which would exceed $750,000: cf s73(1) of the RL Act; 2. As indicated at para 132 of MFI 1, the appellants made clear to the Tribunal at first instance that any claims made were limited to the jurisdiction of the Tribunal, said to be $750,000. 3. In any event, the monetary limit of any order that could be made in the present proceedings is $400,000. This is because the lease we have found existed commenced in October 2015 and the increase of the limit to $750,000 does not apply for the reasons set out above. 4. The appellants have not established any entitlement to any order for the payment of any money, let alone $400,000. 5. The monetary limit imposed by s 73(1) only relates to the "jurisdiction to make an order or orders in respect of a particular retail tenancy claim or an unconscionable conduct claim": see s 73(1). 6. Section 73(1) does not operate to deprive the Tribunal of jurisdiction to determine a retail lease claim where the amount in dispute is more than the amount prescribed. Rather, where the Tribunal determines an entitlement exists to be awarded an amount of money which exceeds the jurisdictional limit, the amount of any order made by the Tribunal is limited and must be reduced to an amount not more than the jurisdictional limit: see eg PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446 at [185]-[190] per Sackville AJA.
In these circumstances, it could not be said that the Tribunal proceeded to determine applications for which it had no jurisdiction. It made no order for compensation in favour of the appellants, let alone an order beyond the jurisdictional limit imposed by s 73(1) as it applied to the present proceedings.

Money held by Tribunal pending determination of the Appeal

The appellants applied for and were granted interim relief to prevent Fobupu from re-entering the premises and obtaining possession prior to the determination of these appeals. This was conditional upon the appellants paying $6500 per month as rent/occupation fee.
Consequently, the respondents were prevented from re-taking possession while these orders remained in force and were prevented from using the premises and obtaining the benefit of the order for possession made in February 2019.
Ultimately, the interim orders were discharged.
For a period of time, the appellants paid into the Tribunal an amount of $6500 per month in accordance with conditions attached to the orders granting interim relief. The total received and held by the Tribunal is $58,500.
In submissions on the topic of what orders should be made in connection with the funds held by the Registrar, the appellants did not challenge the proposition that monies held by the Tribunal should be paid to Fobupu if their appeal was unsuccessful. All Mr Singh submitted on behalf of the appellants on this aspect was that tax invoices should be provided by Fobupu, a matter which Counsel for the respondent agreed would happen if the money was ordered to be paid out.
In light of the conclusions we have reached on the substantive appeal, we will make an order that the monies held by the Registrar be paid to Fobupu.

Costs

In oral submissions, the respondent sought costs of the appeals to be paid as agreed or assessed on an ordinary basis.
In the 2017 proceedings the amount claimed or in dispute in the proceedings at first instance was greater than $30,000. Consequently, by reason of s 38 of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules) there was a general discretion to award costs and the requirements of s 60 of the NCAT Act in respect of special circumstances do not apply.
By reason of r 38A of the Rules, r 38 applies to the Second Appeal. In this appeal, the amount claimed or in dispute was greater than $30,000 so there is a general discretion to award costs.
In respect of the First Appeal, even if there was no amount claimed or in dispute in the proceedings at first instance, so that r 38 did not apply in the First Appeal, Mr Singh accepted in oral submissions that special circumstances exist in respect of this appeal.
We are satisfied special circumstances do exist.
This is because: various issues were sought to be re-litigated despite there being decisions of the Supreme Court resolving those issues; various claims had little or no prospect of success; and the manner in which the appellants prepared and presented their case unnecessarily prolonged the proceedings and/or did not assist in determining the real issues in dispute: see s 60(3)(b), (c), (d) and (f). The content of Notice of Appeal, the submissions made and the failure to prepare material on a timely basis illustrate these matters.
The appellants abandoned some grounds, including the challenge to the order for possession and have otherwise been wholly unsuccessful in obtaining any orders in their favour. There is no reason why an order for costs should not be made in favour of the respondents in both appeals.
Accordingly, we will make the following orders: 1. In appeal AP 19/09967 the appellant is to pay the respondent's costs of the appeal, such costs to be as agreed or assessed on an ordinary basis. 2. In appeal AP 19/28114 the appellants are to pay the respondents' costs of the appeal, such costs to be as agreed or assessed on an ordinary basis.

Orders

The Appeal Panel makes the following orders: 1. In each of the appeals AP 19/09967 and AP 19/28114 leave to appeal is refused and the appeals are dismissed. 2. In appeal AP 19/09967 the appellant is to pay the respondent's costs of the appeal, such costs to be as agreed or assessed on an ordinary basis. 3. In appeal AP 19/28114 the appellants are to pay the respondents' costs of the appeal, such costs to be as agreed or assessed on an ordinary basis. 4. The monies paid into the Tribunal by the appellants and held by the Registrar are to be paid to Fobupu Pty Ltd within 7 days after Fobupu Pty Ltd provides to the Registrar bank account details so as to facilitate an electronic funds transfer of those monies.

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: 21 January 2020

Retail Leases Amendment (Review) Act 2017(NSW)

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