Singh v Tidball

Supreme Court of NSW|2023-02-08|Before: Cavanagh J

REVISED EX TEMPORE Judgment

By way of a summons filed on 17 November 2022, three plaintiffs (being Gurjit Singh, Kirantjit Kaur and Reva Kaur Mehroke) seek orders against five defendants. The five defendants are: 1. Michael Tidball, the Secretary, Department of Communities and Justice; 2. Tracey Hall, the Sheriff of New South Wales; 3. Umesh Sharma, an owner of property situated at 30 Elizabeth Crescent, Kingsford; 4. Krishna Sharma, a co-owner of the property (Mr and Mrs Sharma are husband and wife); and 5. The NSW Civil and Administrative Tribunal ('NCAT').
The plaintiffs seek a number of orders, including that: 1. The hearing is dispensed with under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act'); 2. The order made by NCAT extending the time to apply for a warrant of possession be quashed; 3. NCAT be restrained from issuing a warrant of possession or, alternatively, if there is a warrant for possession, for it to be set aside; 4. The sheriff be restrained from enforcing any warrants of possession; and 5. An interim stay of enforcement of any warrant of possession.

The Motion

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.
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.
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.
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

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.
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.
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.
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.
I do not accept any of those submissions.
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

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

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.
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.
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.
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.
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.
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

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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
There are three further applications listed for 24 March 2023.
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.
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.
In the circumstances, the proceedings should be dismissed pursuant to r 13.4 UCPR.
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.
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.
If I had not dismissed the proceedings, I would have made an order removing Mr Singh from the proceedings.
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.
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.
The third and fourth defendants seek costs. The other parties have filed submitting appearances.
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.
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.
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

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