Singh v Lekhwar

NCAT Appeal Panel|2022-01-28

Summary

On 9 November 2021, the Consumer and Commercial Division dealt with three applications between these parties. Two were brought by the landlords, the respondents in these proceedings, seeking orders for termination of the residential tenancy agreement between the parties. The third was an application by the appellant tenants, seeking a declaration under s 11 of the Residential Tenancies Act 2010 (NSW) (RTA) that there was no residential tenancy agreement between the parties.
Relevantly, the Tribunal made the following orders, which it recorded were made by consent: 2. By consent, the Residential Tenancy Agreement is terminated in accordance with: - s 84 of the Residential Tenancies Act 2010, as the landlord has served a termination notice for termination at the end of the fixed term. 3. By consent, the Residential Tenancy Agreement is terminated immediately, and possession is to be given to the landlord on the date of termination. 4. By consent, the order for possession is suspended until 30-Nov-2021 5. By consent, the tenant shall pay the landlord a daily occupation fee at the rate of $57.14 per day from the day after the date of termination, namely 10-Nov-2021 until the date vacant possession is given to the landlord. 6. By consent, within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.
The tenants have appealed from the decision. In short, they say that they gave no such consent to the orders or that if they did, the consent was given conditionally on terms not incorporated into the Tribunal's decision and orders.
The tenants asserted that they identified several errors on a question of law in the decision and may therefore proceed without leave. Leave to appeal was not sought in respect of the decision. The appeal was opposed.

Background

The matter has a lengthy history, recorded in respect of an earlier hearing on 24 August 2021 before Member Pirina of the landlords' first application to terminate the tenancy between the parties, which was subsequently adjourned: 4. The landlords had purchased the subject property around the beginning of 2021. They were aware that a fixed term tenancy was on foot at the time of purchase, however their intention was to obtain vacant possession and use the property as their primary residence. The landlords did not have the benefit of a managing agent, following settlement. The landlords were renting in the interim, which was beginning to cause hardship. Numerous formal and informal requests were made for the tenants to vacate, without success. In June 2021, the landlords served the tenants with an end of fixed term termination notice, pursuant to s 84 of the Residential Tenancies Act 2010 (NSW) ('the Act'). The tenants failed to vacate by the termination date and were refusing to provide vacant possession. 5. The landlords did not have the benefit of a managing agent for the management of the lease, issuing of notices or the NCAT Application process. They initially filed a misconceived application for termination and vacant possession, based on tenant breach, pursuant to s 87 of the Act. Upon review of the evidence, however, it was clear that they were, in fact, seeking a termination and possession order pursuant to s 84 of the Act - as they had served the tenants with an end of lease termination notice, and the tenants had failed to vacate. That is, they appear to have considered the tenants' failure to vacate as a 'breach', which accounted for the way they had initially framed their application. 6. Accordingly, leave was granted for the landlords to amend their application to seek an order pursuant to s 84 of the Act. The tenants objected to leave being granted, on the basis that the tenants had not specifically requested leave and that they had not had notice or the chance to respond. Leave was nonetheless granted, given the landlords had an arguable case on the evidence provided and that injustice may result if they were not allowed the opportunity to amend their claim. Furthermore, the tenants could be afforded procedural fairness by way of adjournment and the opportunity to provide further evidence and submissions prior to final hearing and determination of the substantive issues in dispute. 7. The landlord's representative also noted that the tenants had entered arrears (sic), however they were informed that they would require a fresh application for any arrears related issues.
The landlords then issued another Notice of Termination and brought their subsequent proceedings for termination and possession whilst the first proceedings were awaiting determination.
In the intervening period, the landlords had given the tenants a notice of rental increase. It appears that they then declined to accept payments of the original rental amount when the tenants objected to the increase. The tenants, apparently on an understanding that the landlords' refusal to accept the lesser rent meant that they intended to deny the existence of a residential tenancy agreement between the parties, brought their application for a declaration under s 11 RTA.
These were the applications which eventually led the parties to the hearing on 9 November 2021.

The Appeal

In preparation for the hearing of the appeal, the tenants were granted a conditional stay of execution of the warrant for possession until the appeal was determined.
The appeal proceeded to a hearing in a relatively orthodox fashion on 28 January 2022, and the decision was reserved.
Whilst the appeal was reserved, several other applications were made. Firstly, the respondents brought but withdrew an application to set aside the stay based on non-compliance by the appellants with payment of an occupation fee in lieu of rent, which was a condition of the stay. Secondly, the appellants brought applications that the members of the currently constituted Tribunal recuse themselves for bias or apprehended bias. Thirdly, the appellants brought an application to reopen the appeal proceedings based upon fresh information from which it emerged that the male appellant, who has conducted the proceedings for the appellants throughout, was a bankrupt since 6 May 2021, at which time the tenancy was already in existence. The last two of those issues were considered at a hearing on 11 April 2022. On the same date, we gave our decision in respect of the applications for recusal for bias and refused those applications. We will provide our reasons in due course.
We also made directions for the parties to make further submissions as to the reopening of the appeal and the effect of the male appellant's bankruptcy, an issue not previously ventilated in the appeal, by way of written submissions which we have now received and considered.
The direction (Direction) we gave the parties to consider and make submissions on, in respect of the male appellant's bankruptcy, was in the following terms: Near the close of the hearing on 11 April 2022, Mr Singh, for the appellants, in the context of discussion about their application to re-open the hearing of the appeal lodged shortly before the hearing on that day, drew the Appeal Panel's attention to his bankruptcy. In this regard, he referred the Appeal Panel to a decision of Senior Member Ellis SC made on 4 April 2022 which had dealt with the impact of his bankruptcy on other proceedings brought by him in the Tribunal. In that decision Senior Member Ellis had referred to the decision of the Supreme Court of New South Wales in Singh v Khan [2021] NSWSC 1093 made on 30 August 2021 based upon a sequestration order made on 6 May 2021 (referred to at [19] of that decision) against Mr Singh and to the undisputed fact that Mr Singh was an undischarged bankrupt. It is most regrettable that Mr Singh's status as a bankrupt was not drawn to the attention of the Appeal Panel until well after the hearing of the appeal on 28 January 2022 or to the attention of Senior Member Charles in connection with the hearing on 9 November 2021 at which the orders were made which other subject of the appeal. Mr Singh's status as a bankrupt is highly relevant to the outcome of the appeal. It appears to be well-established that upon becoming a bankrupt a tenant's interest in the property the subject of the tenancy vests in the trustee in bankruptcy and that, as a consequence, the tenant has no interest in proceedings brought against him for termination of the tenancy and possession of the property and has no standing to be heard in defence of such proceedings or to bring an appeal from orders about these matters; s 58 (1) (a) of the Bankruptcy Act 1966 (Cth); Nathan Elali (a bankrupt) v Mahrs and Anor [2013] NSWSC 1883 at [27]; National Australia Bank Ltd v Strik [2009] NSWSC 184 at [9]; Kostov v Amelie Housing (NCAT Appeal) [2019] NSWSC 16 at [7]-[14]; Integrated Securities No 3 Pty Ltd v Oceans 5 Ultimate Getaways Pty Ltd [2021] NSWSC 278 at [7]; see also Tadrosse v Ndaira [2015] NSWCATAP 84 at [10]-[13] and the reference to the decision of the High Court in Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 135-138 and Singh v Secretary, Department of Communities and Justice [2022] NSWSC 78 concerning the ability of a bankrupt to bring an appeal. Accordingly, the appellants' consent to the orders the subject of this appeal, at least to the extent that Mr Singh consented on his own behalf, was of no effect. It was only the trustee in bankruptcy who was in a position to consent to the orders the subject of this appeal that were made on 9 November 2021 on behalf of Mr Singh. Ms Singh, however, is not a bankrupt as far as we have been made aware. She appears to have standing to bring the appeal, at least insofar as protecting her own interests in maintaining the residential tenancy. In these circumstances, we are minded to make the following orders: 1. A further hearing of the appellant's application to re-open the hearing of the appeal and any further hearing of the appeal itself be dispensed with. 2. The appeal is allowed. 3. The orders made by the Tribunal on 9 November 2021 the subject of this appeal, namely orders 1,2,3,4,5,6 and 7 are set aside. 4. Proceedings RT 21/32134 be remitted to the Tribunal for re-determination insofar as those proceedings seek orders in relation to possession of the residential premises the subject of these proceedings, including any order for termination of a residential tenancy agreement between the parties. 5. Mr Singh's trustee(s) in bankruptcy is made a party to proceedings RT 21/32134. 6. Mr Singh is to provide the name and address of his trustee(s) in bankruptcy to the Appeal Registry and the respondents to the appeal, by email, within 10 working days. The parties are directed to provide any written submissions concerning these issues within 14 days. We will receive and consider any such submissions from Mr Singh despite the issue raised about his standing in this appeal.
Both parties responded and made submissions. The respondents, who are self-represented and have English as a second language have, with respect, been unable to grapple with the complexity of the issues raised. Their submissions were focussed on the perceived inequity in the delayed resolution of these proceedings.
The appellants, in four separate sets of written submissions, submit that we have misunderstood the law as set out in our Direction, that we are precluded from determining the matter, or should not do so, whilst there are concurrent proceedings in the Supreme Court; that we may not make orders because we are not a court; and because the Tribunal serves only an inquisitorial function incompatible with application of the legal issues, such as standing, raised in the Direction to the parties.

The concurrent proceedings in the court.

It appears that the tenants make several contentions under this ground.
First, that Senior Member Charles lacked jurisdiction to make orders in consequence of Member Pirina's amendment order because there is an appeal from that decision to the Supreme Court. However, any such appeal does not invalidate the Tribunal's decision or automatically stay it pending determination of the appeal.
Secondly, the tenants alleged that "Justice Rothman Judgement effect is that [T]ribunal and [A]ppeal [P]anel has no jurisdiction on the matter or at least on the decision of [Member] Pirina." However, the tenants' submissions indicate that Justice Rothman rejected the tenants' application for judicial review of Member Pirina's amendment order on the basis that there were rights of appeal, which should be exercised in preference to judicial review. This said nothing about the jurisdiction or power of either Member Pirina or Senior Member Charles to make the orders which they did.
We are aware that appeal proceedings subsequently lodged by the tenants from the decision of Member Pirina are extant in the Supreme Court. Again, that does not automatically prevent the issue being determined here. Nor does it oust the jurisdiction of this Appeal Panel, which is founded in s 32 of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA). This is particularly relevant as, thirdly, it appears that the tenants contended in this appeal that Member Pirina's amendment order was beyond jurisdiction or power. We were also informed by the appellants that they have, recently, applied to the Supreme Court to have the proceedings in which the consent orders were made, which are the subject of this appeal, dismissed.
Ordinarily, it may be appropriate for a subordinate tribunal to consider staying or adjourning determination of an issue concurrently before a superior court. The question whether this should occur involves a discretion, where the considerations include questions of fairness and professional courtesy. Ultimately, it requires an assessment of what the interests of justice require.
With the greatest respect to the Court, however, it does not appear to us to be appropriate to do so in this case. Again, with respect, it does not appear to us that the Court has jurisdiction to hear an appeal from the decision of Member Pirina: CATA s 82. Furthermore, we know of no recognisable basis upon which the Supreme Court could dismiss the proceedings in which the consent orders have been made. On that basis, we are satisfied that we should go on to determine the challenge to the decision in this appeal, all the more so in circumstances where we consider the new issue about bankruptcy leads to a clear consequence for the outcome of the appeal.
As an interlocutory order made in the course of these proceedings which affected the final result, the decision of Member Pirina may be challenged in this appeal from the final decision: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at [6]. However, as it is an interlocutory decision, leave is required even if an error on a question of law is established: CATA, 80(2)(a).
The tenants say the Tribunal acted beyond power in allowing the landlords to amend the section which they relied upon in support of their application for termination. Various reasons for this were given, including, firstly that the decision reflects a "female assassin mindset" on the part of the Member. That bare assertion is scandalous and is to be condemned. It is also alleged that due process was not followed.
The challenge to the orders reflecting Member Pirina's decision, properly considered, concerns the Tribunal's power and not its jurisdiction.
The tenants correctly identified the Tribunal's power to amend documents, including a party's application, in the interests of justice. Section 53 CATA, provides, relevantly: 53 Amendments and irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made - (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.
The tenants allege that the Tribunal lacked power to amend the application because the reliance by the landlords on s 87 RTA was not an "irregularity" but, rather, was simply an error on the part of the landlords.
That argument does not reflect a proper understanding of s 53 CATA. There is, clearly, no fetter on the Tribunal to amend only for "irregularity". The Tribunal may amend wherever it is satisfied that it is "necessary in the interests of justice". That precondition to exercise of the power must also be read with the obligation on the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 36(1) CATA) and to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 38(4) CATA.
The Tribunal provided notice to the tenants of the amendment at the hearing before Member Pirina and then adjourned to ensure procedural fairness to the tenants: reasons for decision 24 August 2021 at [6] and [8].
The Tribunal had jurisdiction and power to make the order it did. In the absence of a challenge to the merits of the Tribunal's decision, that is dispositive of the challenge to Member Pirina's decision in this appeal.
There are also proceedings in the Court naming Senior Member Charles directly as a respondent. However, we do not understand those proceedings to be in the nature of an appeal or application for judicial review of Senior Member Charles' decision, but rather a new claim for remedies directly against the named defendants, including Senior Member Charles. Those proceedings could not preclude jurisdiction for this Appeal Panel to determine the appeal.

The balance of considerations

As for the appellants' other challenges as outlined in [15] above, to the extent we comprehend them they are rejected. That the Tribunal has the authority to make decisions between parties to a residential tenancy agreement in NSW of a binding and judicial nature, even though the Tribunal is not a "court of a State" is now trite law. Similarly, issues of standing are determined by the enabling acts which apply in the relevant circumstances and the Civil and Administrative Tribunal Act itself. The fact that the Tribunal is not, in relevant circumstances, bound by the rules of evidence does not affect that position. The effect of his bankruptcy is that the consent provided by the male appellant to the orders in issue was ineffective.
As for the applicability and relevance of the decisions relating to the male appellant's bankruptcy, which were referred to in our Direction, the appellants' attempts to distinguish those decisions based on the different factual history underpinning them or, at worst, by making unsupported claims of dishonesty against the decision makers who made them, fail to persuade us that our preliminary view was incorrect. The remarks in the Nathan Elali decision concerning a bankrupt's ability to transact in respect of property acquired after bankruptcy, whatever their scope, are inapplicable in the current circumstances because the lease was not after acquired property.
In reviewing the material lodged by the parties in the appeal, it has become apparent that the names of the landlords have been incorrectly recorded in various locations both in the appeal and the proceedings at first instance. We are satisfied that the correct names are reflected in their contract to purchase the property, other consistent official documents, and the landlords' own correspondence to the Tribunal. We will make an order correcting their names in each of the proceedings, below.

The appeal is allowed

As a result of the Tribunal's inadvertent error based on Mr Singh's undisclosed bankruptcy, the appeal should be allowed.
We remain satisfied that the other directions we intimated we may make in our Direction to the parties to make submissions, remain appropriate to try to move the dispute between these parties to a conclusion as soon as possible. Of course, the respondent may also decide to undertake their own bankruptcy search if they take the view that it may more efficiently assist to dispose of the matter.

Orders

Our Orders are as follows: 1. The names of the respondents to the appeal are corrected in the appeal and in each of the proceedings at first instance to "Vinita Lekhwar and Keshavanand Lekhwar." 2. A further hearing of the appellants' application to re-open the hearing of the appeal and any further hearing of the appeal itself be dispensed with. 3. The appeal is allowed. 4. The orders made by the Tribunal on 9 November 2021 the subject of this appeal, namely orders 1,2,3,4,5,6 and 7 are set aside. 5. Proceedings RT 21/32134 be remitted to the Tribunal for re-determination insofar as those proceedings seek orders in relation to possession of the residential premises the subject of these proceedings, including any order for termination of a residential tenancy agreement between the parties. 6. Mr Singh's trustee(s) in bankruptcy is/are made a party to proceedings RT 21/32134. 7. Mr Singh is to provide the name and address of his trustee(s) in bankruptcy to the Appeal Registry and the respondents to the appeal, by email, within 10 working days.

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

Amendments 14 June 2022 - Second Respondent's name 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: 14 June 2022

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