Singh v Khan; Singh v Fobupu Pty Ltd [2019] NSWSC 485 | Case summary

Supreme Court of NSW|2019-04-26|Before: Adamson J, Before Adamson J

Judgment - EX TEMPORE

HER HONOUR: There are four notices of motion before the Court. Three in proceedings 2018/278850 (the retail proceedings) filed 15 October 2018, 21 November 2018 and 20 December 2018; and one in proceedings 2018/348479 (the residential proceedings) dated 21 November 2018.
In each notice of motion the plaintiff, Mr Singh, seeks both an interim stay of proceedings in the matters which are currently before the New South Wales Civil and Administrative Tribunal (the Tribunal), and also seeks a stay pending the determination of the Supreme Court proceedings.
When the matter came before the Registrar on the 27 November 2019, orders were made that the matter be stood over for further directions on 12 February 2019. Mr Singh's application for an immediate stay was referred to Adamson J for hearing.
There have been some affidavits filed subsequent to the Registrar's directions, but they do not directly address the application for a stay pending the determination of the Supreme Court proceedings. The only defendant in the residential proceedings is Fobupu Pty Ltd, the landlord. The defendants in the retail proceedings are Ghulam Akbar Khan and Semina Khan, the landlord. Mr and Mrs Khan are directors of the landlord.

Notices of motion filed 21 November 2018 - the retail and residential proceedings

The notice of motion filed 15 October 2018 - consolidation proceedings

On 15 October 2018, Mr Singh filed a notice of motion seeking that this action be consolidated or joined to another appeal; that is, the residential and the retail appeals filed in this Court be consolidated. The plaintiff asked for it to be consolidated as one proceeding, because he alleges that the Tribunal proceeded in error and dealt with them separately and disregarded applications, affidavit evidence, critical facts and critical law.
The two decisions appealed against relate to two separate and distinct matters. Mr Singh said that the Tribunal constantly overlooked, blocked, ignored and disregarded his evidence and pleading arguments, that there was one subject matter, and, as a matter of conclusive law, there was properly only one action in the RLA Division.
The defendants disagree and say that the two decisions appealed are distinct. On 6 March 2018, Senior Member Simon directed the plaintiff to file material in support of his application within 14 days. Mr Singh appealed against that direction. On 18 April Principal Member Harrowell refused leave to appeal against the decision of Senior Member Simon. However, due to the time taken to have the matter brought before the Appeal Panel, Mr Singh obtained an extension to file material. In April 2018, Deputy President Westgarth granted a further extension for material to be filed. On 17 August 2018, Mr Singh filed a summons in this Court seeking leave to appeal against the decision of Principal Member Harrowell refusing leave to appeal against the direction made by Senior Member Simon. The appeal of the decisions of Deputy President Westgarth and Senior Member Charles relate to a completely different subject matter.
In the retail lease appeal proceedings, leave to appeal was refused, whereas, in the Residential Tenancy Appeal proceeding, leave was granted and the appeal was dismissed. Even if leave to appeal was granted in the retail lease appeal proceedings, the two decisions appealed against relate to separate and distinct matters. It also involves different statutory regimes. However, I note that the defendants do not oppose the proceedings being heard in this Court back-to-back by the same judge, but it is inappropriate to consolidate them. I agree. I think they may be heard together with some of the evidence in one be evidence in the other, but it is not the one cause of action, and the matters should not be consolidated.
I dismiss the plaintiff's notice of motion filed on 15 October 2018.

The notice of motion filed 20 December 2018 - Joinder

By notice of motion filed 20 December 2018, the plaintiff seeks that ACN 605054242 be added to a party to this appeal. He says that Mr Jordan is a director of this company and was involved in renovations to the property. However, I have no evidence to substantiate that.
The reason the plaintiff wants the company to be added as a defendant is so that Mr Jordan (a struck off solicitor) can conduct the hearing, here, in the Supreme Court, because he says that he appeared in the Tribunal, and that he needs assistance with the legal terminology.
The defendants oppose it on the basis that it is unclear whether they will recover any costs incurred by Mr Jordan. From my observations, I think the plaintiff is articulate and can well present his case. However, I am not going to make that order, and I strike out the motion at this stage. It is possible that the plaintiff could get someone to appear for him in this Court. Perhaps, have a friend sit next to him to assist ewhere he does not understand. There is no evidence before me that he in any way, or the company, conducted renovations.
I am going to make an order dismissing paragraph 1 of the plaintiff's notice of motion filed 20 December 2018; that means, I have dismissed the whole motion.

The Court orders that: (1) In proceedings No 2018/278850 the notices of motion filed 15 October 2018, 21 November 2018 and 20 December 2018 are dismissed. (2) In proceedings No 2018/348479 the notice of motion filed 21 November 2018 is dismissed. (3) The summonses filed 27 August 2019 and 13 November 2018 are stood over to 31 October 2019 at 9.00 am for directions before the registrar. Liberty to apply on seven (7) day notice for a matter that is finalised in NCAT. This seven (7) day notice includes if the plaintiff is seeking a stay of proceedings, in the event a stay has been refused by NCAT (4) The plaintiff is to pay the balance of the costs of both notices of motion filed 21 November 2019. (5) The plaintiff is to pay the costs of the notices of motion filed 15 October 2018 and 20 December 2018.

Amendments 13 May 2019 - Names of coversheet amended 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: 13 May 2019

Residential Tribunal Act 2010(NSW)

Singh v Khan; Singh v Fobupu Pty Ltd

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