Solicitors:
SK Law Group Pty Ltd (Plaintiff)
Tsintilas & Associates (Defendant)
File Number(s): 2022/304325
Decision under appeal Court or tribunal:
NSW Civil & Administrative Tribunal
Jurisdiction: Appeal Panel
Citation: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd [2022] NSWCATAP 318
Date of Decision: 7 October 2022
Before: S Westgarth, Deputy President
G Sarginson, Senior Member
File Number(s): 2022/219954
[2]
EX TEMPORE JUDGMENT (REVISED)
On Wednesday, 12 October 2022, the plaintiff filed a summons seeking leave to appeal against an order of an appeal panel of the New South Wales Civil and Administrative Tribunal ("the Tribunal" or "NCAT"). The summons sought urgent relief including a stay of a decision made by an appeal panel on 7 October 2022, which concerned jurisdiction, and the vacation of a hearing before a single member of the NCAT, which is the substantive hearing listed for two days commencing next week on Tuesday, 18 October 2022.
In view of the urgency of the matter I granted leave for the plaintiff to file the summons in Court, along with the supporting affidavit. That occurred late on Wednesday afternoon. I abridged the time for service of the summons and the affidavit. I also made certain orders concerning the manner by which the summons might be served. The summons was otherwise adjourned until 10am this morning.
The plaintiff now seeks the balance of the interlocutory relief set out in the summons, namely the stay of the judgment of the appeal panel and the vacation of next week's hearing date before the single member. Both parties agreed that judgment had to be delivered today in view of the proximity of the hearing. It is impossible in the time available, given the urgency of the application, to go into great detail of the background of the matter. However, it is necessary to provide the following overview, summary, and chronology.
At the heart of the matter is a dispute between the landlord of certain premises in Rockdale ("the plaintiff") and its tenant ("the defendant"). The defendant has been in possession of the premises since it entered a lease agreement with the previous owner of the premises in April 2014. That lease was for a period of five years with potentially three five-year options to follow. The first option was taken up in 2019. Accordingly, the lease will continue until April 2024. That is of course, subject to the present dispute and proceedings. There remain two five-year options thereafter.
Some of the material before me and before the NCAT suggests the defendant foreshadows its intention, or hope, to remain in possession of the premises in order to conduct its business until 2034.
The plaintiff purchased the premises earlier this year. Since that time there have been various disputes between the parties concerning the tenancy. These disputes include controversies around the payment of rent and issues concerning the state of repair of the premises, who is responsible for any damage, and who is responsible for rectifying or repairing any damage to the premises.
On 15 March 2022, in circumstances set out in the material, the plaintiff purported to take possession of the premises. A formal notice of termination was provided to the defendant. Lawyers then became involved. The substantive proceedings before the NCAT concern the defendant's application to remain in possession of the premises and to have the plaintiff, the landlord, comply with its obligations under the lease. Looked at from the opposite point of view, the issue is whether the notice terminating the lease is valid and enforceable.
No submissions of any substance were directed to the merits of the case or the substantive issues between the parties. That was appropriate, because they are not relevant to the current issue. Those are the issues which are scheduled to be litigated before a single member of the NCAT, commencing next Tuesday, 18 October 2022. The matter is listed for two days. That date was fixed in April of this year, and there have been unsuccessful applications to vacate that hearing date.
However, when the matter was first before a single senior member of the NCAT, sitting in the Consumer and Commercial Division of the Tribunal, the plaintiff raised the question of jurisdiction. In short, the plaintiff argued that the NCAT does not have jurisdiction and that the substantive issues should be litigated in this Court at first instance.
A good deal of evidence, relevant to that issue of jurisdiction, was tendered on both sides. At the risk of oversimplifying the issue, whether the NCAT has jurisdiction turns on whether the premises are properly described as a "retail shop" within the meaning of the Retail Leases Act 1994 (NSW). That expression is defined in s 3 of the Act, as is the expression "retail shop lease".
On 29 June 2022, the Senior Member decided that the premises did fall within that description and the lease was concerned with a retail shop lease. Accordingly, the Member found that the dispute between the parties was one over which the NCAT had jurisdiction.
The plaintiff appealed that decision to the NCAT Appeal Panel, who heard the matter on 13 September 2022. On 7 October 2022, the Appeal Panel published its reasons and delivered its judgement, making orders dismissing the appeal on jurisdiction. It is against that decision on jurisdiction that the plaintiff now seeks leave to appeal to this Court.
Meanwhile, the substantive case is listed for hearing next week. As I have said, it is the imminence of the hearing date that gives rise to the urgency of the matter and the reason it has come into the duty list on such short notice requiring an urgent decision. The parties agree that it is imperative, or at least highly desirable, that a decision be made this afternoon on whether to grant the plaintiff's application for a stay of the decision made by the Appeal Panel and to order the single member to vacate the hearing date.
There is, and can be, no dispute that subject to questions of leave, this Court has jurisdiction to hear an appeal against the decision, provided it is based on a question of law: Civil and Administrative Tribunal Act 2013 (NSW), s 83.
The grounds raised in the summons are in the following terms:
1. The Appeal Panel erred in law in concluding that it was open to the Senior Member to make the following findings of facts which were made in the absence of evidence:
1. The defendant sold customised computers at the property, which was the subject of the first instance proceedings;
2. Retail sales occurred at the property; and
3. The property was a retail shop within the meaning of the Act.
1. The Appeal Panel erred in law in concluding that the area of the property which the defendant had subleased appeared to be less than 50% of the total leased area, as the finding was made in the absence of supporting evidence.
2. The Appeal Panel erred in law in failing to find the defendant had not established the NCAT had jurisdiction to determine the first instance proceedings.
3. The Appeal Panel erred in law in failing to uphold the appeal from the decision of Senior Member Burton SC.
It might be thought that many of the arguments made or expected to be made concern questions around findings of facts. However, the way in which the appeal grounds are framed is such that the issue sought to be ventilated on the proposed appeal are truly questions of law. Therefore, there is no doubt the Court has jurisdiction.
There was some little dispute as to whether the plaintiff has an arguable case on an appeal. I accept that it does. Based on the submission made this morning and the evidence to which I was taken, even though the evidence is going both ways, there is at least a triable case that, taken at its highest, it was not open to find the controversy involved the lease over a retail shop.
The question then becomes, on the plaintiff's submission which I accept, a question of the balance of convenience and where the interest of justice lies. The plaintiff argues that the balance lies in favour of having the question of jurisdiction determined first and in advance of the substantive issues. The defendant contends otherwise.
The plaintiff's argument is that the hearing next week will involve a waste of resources, costs and effort if, ultimately, this Court were to determine that the NCAT lacks jurisdiction. It also contends that if the matter is heard twice there is a real risk of inconsistent findings as to the credibility of some of the witnesses.
The defendant submits, on the other hand, that a great deal of time and effort has been put into preparing the matter for hearing next week and that time has been set aside for the hearing. Those efforts and costs will essentially be thrown away if the hearing date is vacated by virtue of a stay granted by this Court. The more efficient course according to the defendant, in view of the fact that the Tribunal is ready to hear the matter in the next few days, is to have the matter litigated to conclusion in the Tribunal, so that any appeal from the decision of the single member and in turn an appeal panel can then encompass all of the issues, including the issue of jurisdiction.
I accept that there is some force in the plaintiff's argument. However, there is also considerable force in the submission or consideration that proceedings such as this ought not to be fragmented and that the plaintiff's right of appeal against the decisions concerning jurisdiction will be preserved so there is, in the end, no prejudice to the plaintiff because its right to appeal on the issue of jurisdiction will remain.
Determining the balance of convenience in a case such as the present is a difficult one, and I consider the matter on the arguments made to me this morning to be finely balanced.
In terms of the practical reality, and ignoring on the ground what might be seen to be the lawyers' picnic that is developing and has developed, the defendant remains in the premises and continues to trade. Based on the evidence I have had time to review quickly, it seems that the parties have reached a rather unhappy compromise to preserve what might be called the status quo.
One possibility is that the plaintiff is successful in the substantive issues before the Tribunal and then will be able to enforce its right to terminate the lease. Assuming that decision was accepted by the defendant, without further legal expenses and appeals, the jurisdictional issue would no doubt fall away. The successful landlord would be able to take possession of the premises, which is ultimately what they are attempting to achieve. On the other hand, if the substantive issues were determined favourably to the defendant, the plaintiff would maintain its right to appeal, including on the question of jurisdiction.
Assuming there were other errors of law contended for, the appeal that came to this Court would resolve all outstanding legal issues, including the issue of jurisdiction. It is impossible to determine with any degree of certainty which is the most efficient course, what the outcome of the proceedings will be or what approach the parties will take to any adverse decision made against them. As I have said, determining the balance of convenience and where the interests of justice lie in this case is difficult, and there are solid arguments capably put going both ways. I might add that while the plaintiff's case on jurisdiction is triable and arguable, it is not, on my limited assessment, an overwhelming one.
Having considered the submissions of both sides in the limited time I have had, I have concluded that the balance of convenience favours refusal to grant the stay sought by the plaintiff.
This will allow the true issues between the parties to be litigated next week, while not in any way prejudicing the plaintiff's right to appeal against the Appeal Panel's finding that the NCAT has jurisdiction in the matter. I can see no substantial prejudice to the plaintiff in allowing that course. If the plaintiff is correct about the jurisdictional issue, that will no doubt sound in costs.
For those reasons I refuse to make orders six and seven in the summons. Accordingly, the orders that I make are:
1. The application for a stay of the decision of the Appeal Panel dated 7 October 2022 is refused.
2. The application to vacate the hearing date of 17-18 October 2022 is refused.
3. I adjourn the summons to the Registrar's call over on Monday 24 October.
4. I order that the plaintiff pay the defendant's costs of today's hearing, that is 14 October 2022.
[3]
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Decision last updated: 26 October 2022