Singh v Tidball

Background

1. The proceedings arise out of a dispute and subsequent hearings in NCAT between the third and fourth defendants as owners of the property ('the owners') and the second and third plaintiffs as tenants ('the tenants').
2. The owners entered into a residential tenancy agreement with the tenants on 21 December 2021. Unfortunately, by March 2022, the tenants had ceased paying rent. Although they stopped paying rent, they did not vacate the premises. The owners then pursued proceedings in NCAT seeking orders that the premises be vacated and the outstanding rent be paid.
3. The first plaintiff, Mr Singh, is the father of the third plaintiff and husband of the second plaintiff. Mr Singh was originally joined to the NCAT proceedings but NCAT made an order removing him from the proceedings on the basis that he was not a tenant. Certainly, he is not a party to the residential tenancy agreement.
4. The owners were successful and NCAT made orders on the basis that the residential tenancy agreement was terminated in accordance with s 87 of the Residential Tenancies Act 2010 (NSW), as the tenants had breached the agreement by failing to pay rent. The tribunal also made orders that possession be given as at the date of the termination, although it suspended the order for possession until 8 July 2022. NCAT also ordered that the tenants pay the owners a daily occupation fee until vacant possession was given, and that within 60 days of the date of possession, the owners may ask for the matter to be re-listed to determine the amount of the occupation fee owing.
5. During that original hearing in NCAT, Mr Singh sought to remain as a party to the proceedings. Further, the tenants sought to rely on a report they had obtained which (they said) suggested there may be mould in the property and that the property needed some form of remediation. NCAT declined to allow the tenants to rely on that material as it had not been served. Mr Singh made an application for an adjournment, which was refused. The tenants then lodged an appeal. That appeal was heard on 19 September 2022 and the decision was handed down on 27 October 2022. The appeal was dismissed. The appeal panel determined that there was no error of law and leave was refused to appeal on other grounds. As the NCAT appeal panel pointed out, it was unusual for persons who were pursuing an appeal to make a submission that the appeal panel had no jurisdiction to hear the appeal.
6. When that application was refused, Mr Singh then sought a stay pending an appeal to the Supreme Court. That application was refused. As the appeal panel noted, there was no utility in staying the appeal. It would have been inconsistent with the obligation set out in s 36(1) of the NCAT Act. Further, it was the tenants' appeal. The tenants could have withdrawn the appeal or sought a stay. They did not do so. Further, the appeal panel rejected Mr Singh's application to rely on fresh evidence, being the Mycotec report.
7. On 7 June 2022, Mr Singh lodged an application for a summons to be issued to the Proper Officer of the Penrith City Council. NCAT dismissed that application. In its decision, the appeal panel set out the background to the hearing, noting that three applications were filed on 11 April, 13 May and 3 June 2022. The final hearing of the three applications was listed on 8 June 2022.
8. It is apparent from the original decision and the decision of the NCAT appeal panel that the tenants played little part in those proceedings. Those proceedings were driven by Mr Singh, just as these proceedings are being driven by Mr Singh. Mr Singh purported to represent the tenants in NCAT and he purports to represent them in these proceedings.
9. At the outset of this hearing, I queried why there was no appearance by the tenants. Mr Singh said he was representing them. He said that this had been raised with the Registrar and the Registrar allowed him to represent them. I am uncertain as to the basis on which that permission was granted, but in circumstances in which the Registrar has already determined that matter, I have made no contrary order. I can only say that it remains unusual that the real parties to the litigation continue not to appear, whereas Mr Singh turns up on every occasion purporting to speak on their behalf.
10. Prior to the hearing of the appeal, the orders originally made by NCAT had been stayed. Subsequent to the decision, the order for possession was suspended subject to payment of arrears of rent, including the occupation fee as at 11 July 2022. As it turns out, the tenants paid no rent and have paid no rent since March. Nor have they complied with the orders in respect of the occupation fee.
11. An issue before the appeal panel was whether Mr Singh should be a party, in the sense that he maintained that he was a tenant. A similar issue arises in this hearing because the orders sought by the owners include that, even if the proceedings are not dismissed, Mr Singh should be removed as a party.
12. I asked Mr Singh about the basis on which he maintained that he should be a party. After some suggestion by him that he should not be required to answer such a question or to adduce evidence from the bar table, he indicated that he had entered into an oral agreement with the managing agent to become a tenant. The legal basis of that proposition is uncertain. No evidence has been adduced to support that assertion by Mr Singh.
13. Arising out of the tenants' failure to pay rent and the involvement of Mr Singh in the NCAT proceedings (both at first instance and before the appeal panel), there are now five sets of proceedings in the Supreme Court being pursued by Mr Singh as a plaintiff. As is apparent from the terms of the summons, the proceedings I am dealing with relate specifically to the decision of the appeal panel to extend the time for the issuing of a warrant of possession in respect of the property.
14. Although orders were originally made for possession, the owners did not apply for a warrant of possession at that time because the tenants lodged an appeal. After the appeal was dismissed, the appeal panel extended the time to apply for a warrant of possession.
15. Mr Singh says that the appeal panel had no jurisdiction or power to make such orders hence, the orders he seeks in the summons that the tribunal be restrained from making such orders and that the tribunal be restrained from issuing a warrant for possession. In other proceedings, Mr Singh is seeking orders from this Court in respect of the other findings of the appeal panel dismissing the tenants' appeal.

The Motion

1. The matter comes before the Court today pursuant to a motion filed by the owners, who seek orders that: 1. Mr Singh has no standing to commence or maintain the proceedings; 2. He be removed as a party to the proceedings; and 3. The proceedings be dismissed pursuant to r 13.4 UCPR.
2. Mr Babu (solicitor) appears on behalf of the owners. Mr Singh appears representing himself, and (as he says) the tenants. In support of the application, the owners rely on an affidavit of Krishna Sharma (the fourth defendant) dated 27 November 2022.
3. In addition, I received a court book which, subject to hearing Mr Singh's objections, was admitted into evidence. Mr Singh provided his own volume of material which I again admitted into evidence. Both those volumes of material were admitted subject to me treating submissions as submissions, statements of opinion as statements of opinion, and allowing some objections made by Mr Singh.
4. I am required to determine two matters at this stage, being: 1. Whether the whole proceedings should be dismissed pursuant to r 13.4 UCPR; and 2. In the alternative, if the whole proceedings should not be dismissed, whether Mr Singh should be removed as a plaintiff in the proceedings, bearing in mind that the owners assert that he is not a tenant, not a party to the residential tenancy agreement, and has no standing as a party.

Conduct of the hearing

1. At the commencement of the hearing, Mr Singh made an application for an adjournment on the basis that Mr Babu had not complied with earlier court orders that he serve written submissions by a certain date. Mr Babu admitted that he had not complied with those earlier court orders but said that he was generally confused; he believed that he had not received anything in response from the plaintiffs. Mr Singh submitted that he would not be in a position to deal with the arguments raised by Mr Babu because he was unaware of them and had not been provided with them in writing.
2. After hearing Mr Singh's argument, I rejected the application for an adjournment. Mr Singh then proceeded to make submissions for a period of approximately 2.5 hours, reading from prepared notes and referring to at least 15 cases during his submissions. His submissions were extensive and wide-ranging. Whilst they were, to some extent, unintelligible, he sought to demonstrate a knowledge of the law with reference to cases and the use of many legal terms.
3. During exchanges with Mr Singh, I asked him some questions about the nature of the case and the evidence upon which he was relying. On a number of occasions, he declined to answer, suggesting that he should not be required to adduce evidence from the bar table. He made various assertions as to the point of my questions.
4. After the morning tea adjournment, Mr Singh made an application that I disqualify myself on grounds of apprehended bias. After hearing his submissions, I rejected his application. I said I would give reasons during this judgment. The basis of his application is that: 1. I was hearing the matter without establishing the jurisdictional fact in relation to the controversy between the parties and, thus, I was not bringing an impartial mind; 2. I was continuing to hear the matter without the defendants having filed written submissions and, therefore, I was not bringing an impartial mind to the matter because to hear the matter in those circumstances was a failure to balance the scales of justice. As such, Mr Singh was prejudiced; 3. A fair-minded lay observer would conclude that, by asking for evidence from the bar table and asking how the other party might respond, I was in some way demonstrating bias; 4. I was demonstrating (through the way in which the matter was being conducted) that I did not have a proper understanding of the matter and was showing bias; and 5. My continued interruptions tended to indicate that I had a predisposition to a certain result.
5. I do not accept any of those submissions.
6. As set out in Charisteas v Charisteas (2021) 393 ALR 389; [2021] HCA 29 at [11], a judge should disqualify himself or herself if a fair-minded lay observer might reasonably apprehend the judge is not bringing an impartial mind to the resolution of the question the judge is required to decide. Obviously, justice should be done and seen to be done, and any hearing should be conducted by an impartial tribunal. In my view, none of the matters raised by Mr Singh have any foundation and, under the circumstances, I declined to disqualify myself.

The owners' position

1. The owners' position is that these proceedings should be dismissed because they do not disclose any reasonable cause of action, have no real prospects of success, or are otherwise an abuse of process in that they have no utility.

Mr Singh's position

1. During his summary of his submissions, Mr Singh said that he accepted that, in the circumstances that have arisen following the exchanges with me, there is no utility to Order 3, being the order he seeks restraining NCAT from issuing a warrant of possession. However, he submitted that the case should proceed on the basis that it would be useful for other plaintiffs to have a complete understanding of the jurisdiction of NCAT and, in particular, the orders that NCAT can make.
2. Mr Singh said that once the appeal had been dismissed, the appeal panel could not make any other orders in relation to the matter. Specifically, he said that the appeal panel had no power to make the order extending the time for the filing of an application for a warrant of possession.
3. Based on Mr Singh's submissions, the effect of success in these proceedings would be that the order made by the appeal panel extending time for the warrant of possession would be quashed. However, in terms of the practical outcome of this dispute, being a dispute between owners and tenants, such a finding would be of no utility.
4. If Mr Singh is correct and the appeal panel had no power or jurisdiction (using his words) to make orders extending the time for the issue of a warrant of possession, then the owners need only reapply to NCAT, or apply for the first time, to seek such orders.
5. Mr Singh does not advance any basis on which the warrant of possession would not be issued. He wants to have a new hearing on whether the premises are in such a state that they are uninhabitable. Indeed, as I understand it, that is the issue in one of the other Supreme Court proceedings that Mr Singh is pursuing.
6. As Mr Singh points out, the filing of the appeal in NCAT had the effect of staying the original orders. NCAT will not do anything because he has commenced proceedings in the Supreme Court. Therefore, the owners are in a position where they can do nothing to regain possession of their property, despite the fact that rent has not been paid for 11 months and the tenants have not paid the occupation fee. Further, as Mr Singh said during this hearing, if I dismiss these proceedings, he will go to the Court of Appeal.

Determination

1. I have considerable concern and disquiet about what is happening in these proceedings and what has happened in NCAT. The owners entered into a residential tenancy with the tenants in December 2021. The tenants have been living in their property, a house which is subject to an extensive mortgage, without paying any rent since March 2022.
2. When they applied for the rental property, the second plaintiff disclosed an income of over $100,000. The third plaintiff disclosed an income of over $50,000. I do not know whether that was an accurate disclosure but on the face of the disclosure, they were earning $150,000 combined.
3. The owners say that they have limited revenue. They bought the investment property having regard to their savings and were able to balance payment of the mortgage with the rent.
4. They are now paying $2,230 a month and that is well before the current interest rates. They have had to borrow money from family and friends to make the mortgage payments. As they say, if they do not receive rent or if something else does not happen, they will be forced to sell the property (no doubt in this current market, at a loss).
5. In response, Mr Singh claims the premises are uninhabitable. However, it seems that he does not live there, although the tenants continue to live in this said to be uninhabitable premises.
6. As specified, in r 13.4 UCPR, if in any proceedings it appears to the Court that the proceedings are frivolous or vexatious or no reasonable cause of action is disclosed, or the proceedings are an abuse of process, the Court may order that the proceedings be dismissed.
7. Mr Singh purported to advance quite sophisticated and complex arguments on the jurisdiction of NCAT and particularly the appeal panel. The owners did not engage on the same basis. At this point, it is not possible for me to determine whether the arguments Mr Singh advances have any prospects of success, although it is not apparent at this time that the panel has in any way exceeded its jurisdiction.
8. Having said that, proceedings may be dismissed as an abuse of process. The categories in which the Court may consider that there is an abuse of process are not closed.
9. Abuse of process is a general concept which may apply to a range of circumstances (see Batistatos v Roads and Traffic Authority of New South Wales (2006) 227 ALR 425; [2006] HCA 27). Proceedings might be an abuse of process if the proceedings are being pursued for a collateral purpose. Another basis on which the Court may consider the proceedings to be an abuse of process is if they serve no utility.
10. As Mr Singh says, by pursuing these proceedings in the Supreme Court, the owners cannot obtain orders from NCAT for possession of their property. In the meantime, the tenants remain living in their property rent free and are, of course, seemingly doing nothing to remedy the alleged defects.
11. I am not suggesting that the tenants have any obligation to do so but it seems that, despite the premises being uninhabitable, the tenants are content to remain living there.
12. Importantly, Mr Singh conceded that Order 3 would have no utility. This is the principal order that he sought; that NCAT be restrained from issuing a warrant of possession.
13. Order 3 would have no utility because, even if the tenants were to succeed in these proceedings, when the proceedings are concluded, the owners will simply apply to NCAT for a warrant of possession. Mr Singh might say they are out of time but, if they are, they are out of time for an obvious reason, being the NCAT appeal and these proceedings.
14. Mr Singh submitted that, in any event, I am only here today to deal with the motion, and that the other issues arising from these other proceedings must await determination in the related proceedings. In particular, the summons filed by Mr Singh in respect of the outstanding rent, that is, an appeal essentially in respect of the outstanding rent, is listed for hearing of the defendants' application to dismiss the proceedings on 24 March 2023.
15. There are three further applications listed for 24 March 2023.
16. In my view, these proceedings (that is, the proceedings I am dealing with today) are an abuse of process. They serve no utility. An order quashing the extension of time granted by the appeal panel does not prevent the owner from seeking another order for an extension of time.
17. I reject Mr Singh's submission that, even though an order restraining NCAT is of no utility, it would be of benefit to other persons; that is, he is apparently seeking to assist other persons by establishing the proper jurisdiction of NCAT.
18. In the circumstances, the proceedings should be dismissed pursuant to r 13.4 UCPR.
19. I am concerned that Mr Singh is pursuing five sets of proceedings in this Court arising out of the dispute over payment of rent and the relevant NCAT decisions. In one set of proceedings, he is suing Mr Babu, the solicitor for the tenants.
20. I should also say that, in my view, Mr Singh has no standing to be here. He has adduced no evidence that he is a tenant. He is not a party to the lease. Despite his resistance to answering questions and adducing evidence, his only explanation is that he claims to have an oral agreement with the managing agent that he become a tenant.
21. If I had not dismissed the proceedings, I would have made an order removing Mr Singh from the proceedings.
22. It is plain from the NCAT proceedings, these proceedings and the other proceedings that Mr Singh has taken it upon himself to pursue all of the cases without any involvement from the tenants. However, they are plaintiffs to the proceedings, and based on what I am told today, Mr Singh informed the Registrar as such and was granted leave to appear in this application on their behalf.
23. The proceedings should be dismissed against all of the defendants. It is not apparent on the face of the statement of claim why the other defendants have been joined to the proceedings. There is no basis on which they could be joined in the proceedings.
24. The third and fourth defendants seek costs. The other parties have filed submitting appearances.
25. Mr Singh opposes an order for costs on the basis that the third and fourth defendants have only partially succeeded and, further, that they took an extended amount of time to pursue their arguments.
26. I do not understand those submissions. Firstly, they did not partially succeed, they succeeded entirely because the proceedings have been dismissed. Secondly, Mr Singh took three times as long to deliver his arguments as Mr Babu did. I do not understand how Mr Singh could complain about the length of time taken by the applicants on the motion to present their case.
27. The orders I make are: 1. The proceedings are dismissed pursuant to r 13.4 UCPR. 2. The plaintiffs to pay: 1. The third and fourth defendants' costs of the summons; and 2. The third and fourth defendants' costs of the motion. 1. I list all of the other matters pursued by Mr Singh in the NSW Supreme Court in relation to the dispute with the third and fourth defendants (I understand that there are five) before me at 9.30am on 16 February 2023 for case management.

Amendments 16 February 2023 - Amendment to paras [48] and [49] 22 February 2023 - Amendment to coversheet, paras [58], [59] and [61] 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: 22 February 2023