Assi v Keung

[1999] NSWSC 206

CITATION:	ASSI V. KEUNG & ANOR. [1999] NSWSC 206 revised - 31/08/99
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	No. 1619 of 1999
HEARING DATE(S):	12th March 1999
JUDGMENT DATE:	12 March 1999
PARTIES :	Joe Assi - Plaintiff Tae Choy Keung - First Defendant Mes Au Po Chun - Second Defendant
JUDGMENT OF:	Hodgson CJinEq

COUNSEL :	Mr. Assi appeared for himself Mr. M. Ashhurst appeared for both defendants
SOLICITORS:	Janus Lawyers, Sydney Frank Low Yeung & Co., Sydney
CATCHWORDS:	LANDLORD AND TENANT - Residential Tenancies Tribunal - Appeal on a matter of law - PAYMENT AND TENDER - Refusal to accept cheque. Order for possession is made by Residential Tenancies Tribunal when tenant fails to attend hearing. Tenant applies for rehearing, on ground that landlord refused to accept a cheque for rent. Chairperson refuses application, and tenant appeals and seeks interlocutory relief. HELD that an appeal as to error of law under s.62 of the Residential Tribunal Act is available from the decision of the Chairperson under s.63 of the Act; that an error of law was not shown; and that, even accepting that a serious question was shown, balance of convenience did not favour tenant.
ACTS CITED:	Residential Tribunal Act 1998 ss.60 62 63.
DECISION:	See pars.22, 23 & 24 of judgment

10

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON,CJ IN EQ.

Friday 12th March 1999

NO. 1619 OF 1999
ASSI V. KEUNG & ORS.

JUDGMENT

1 HIS HONOUR: On 18th February this year, the Residential Tenancies Tribunal made an order that the tenancy agreement between the defendants as lessors and the plaintiff as lessee was terminated, and that possession was to be given to the lessor on 25th February 1999. On 5th March 1999, the plaintiff applied for a re-hearing under s.63 of the Residential Tribunal Act. That application was rejected for reasons set out in a document signed by the Chairperson of the Tribunal.
2 The plaintiff lessee has appealed from both decisions, and I am dealing with an application for a interlocutory injunction to restrain the defendant lessors from taking possession of the subject premises.
3 Prior to the hearing on 18th February 1999, orders had been made by the Residential Tenancies Tribunal on 25th January 1999. The orders recorded that the Tribunal was satisfied that a breach of the agreement had occurred, namely rent arrears; and by consent of the parties, the following further orders were made:
1. The tenant, JOE ASSI, is to pay the landlord, TAE CHOY KEUNG & MES AU PO CHUN, C/- Ray White City South, 758 George Street, SYDNEY NSW 2000, the sum of $4780.00 for rent owed under the terms of the residential tenancy agreement for the period from 01/12/98 to 31/01/98 (sic) by the following payments: $1000 on or before 25/01/99 and $3780.00 on or before 27/01/99.
NOTE: If the other party does not comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local court.
2. Additionally, the tenant, JOE ASSI, is to pay rent, presently $2390.00 per calendar month, on the first day of each month, next payment due 01/02/99, and once the arrears are paid in full, to pay rent in accordance with the residential tenancy agreement, being one month in advance.
3. If these orders are not complied with then at any time before 25/04/99 the landlord may request the relisting of the application to determine whether the tenancy agreement should be terminated.
4 There is evidence before me that on and between 1st February and 17th February 1999, the plaintiff spoke with an employee of the defendants' agent on at least three occasions, and said to him that he had a cheque for the February rent, to which he was told "We only accept cash". The plaintiff replied that it was inconvenient for him to go to the office every time and pay cash.
5 Pursuant to Order 3 made on 25th January 1999, the matter was re-listed on 18th February 1999. As I understand it, it is common ground that the plaintiff was given notice of that listing. However, he has given evidence that on that day, he received an urgent telephone call from the director of a client company who instructed him to appear for that company at the Supreme Court on that day. It appears that some communication was made by the plaintiff to the Tribunal, and a letter was sent to the Tribunal by the plaintiff in the following terms:
I refer to our discussion of today and confirm my request for an adjournment until tomorrow or Monday as I am representing a client in the Supreme Court today and am unable to attend the hearing before the Tribunal.
6 Notwithstanding that request, the Tribunal proceeded to deal with the matter and made the order for termination and possession to which I have referred. The plaintiff then put on the application for a re-hearing. Such an application is to be made in writing, and is dealt with by the Chairperson of the Tribunal without an appearance.
7 Question 12 in the application form is as follows: "Describe the substantial injustice you have suffered and how a re-hearing would ensure a different outcome". To that question, the plaintiff replied: "I could not attend the hearing because I had another matter in the NSW Supreme Court on that day". The application also contained a statutory declaration stating that the plaintiff "had to attend a hearing in the New South Wales Supreme Court on behalf of a client".
8 The form goes on to state "You must also describe how your presence would have changed the outcome of the hearing". Under that statement, the plaintiff wrote "The evidence presented will show that I complied with all of the previous orders excepts for one due to the agent not permitting me to do so by not accepting the payment by cheque". The form went on to request that the applicant set out any other reasons why the decision was not fair or equitable; and on that point, the plaintiff has written out "I have subsequently on two occasions tendered payment by cash and the agent has refused to accept it".
9 In the part of the form dealing with the question of what evidence would now be available that was not reasonably available at the time of the hearing, the plaintiff has written: "1. Payment receipt. 2. Letter to agent offering payment to end of March 1999". The form then requires an indication of why these documents were not available at the time of the hearing, and there the plaintiff has written "I could not attend".
10 The application was rejected by the Chairperson, and the reasons given were as follows:
Your Application for a rehearing under Section 63 of the Residential Tribunal Act 1998 has been considered in terms of the legislation and I have made the following decision:
The application for a rehearing of matter number 99/0931 is not granted as I am not satisfied that the applicant may have suffered a substantial injustice.
Reasons for decision:
In particular, I am not satisfied the decision of the Tribunal on the 18/2/99 was not fair and equitable, or against the weight of evidence or that evidence that is now available was not reasonably available at the time of the hearing.
Under Section 63(2) on the face of the application, it does not appear to me that the applicant may have suffered a substantial injustice.
The applicant' request for an adjournment was received and considered by the Tribunal, together with the submissions made on the landlord's behalf at the hearing.
Based on the applicant's rental history presented to the Tribunal at the hearing, I do not consider evidence the landlord's agent did not accept payment by personal cheque would have changed the outcome of the hearing, as 3 cheques for rent have been dishonoured since October, 1998.
There is no evidence the payment receipt referred to in 12(iii) is for a payment in addition to those listed in the rent record of the landlord's agent.
The submission of a letter to the 'agent offering payment to end of March 1999' would also, in my opinion, not have altered the outcome, as it is entirely a matter for the landlord and the landlord's agent as to whether an arrangement for payment outside the terms of the earlier Tribunal order of 25 January, 1999 is accepted.
Finally, there is no evidence that the subsequent attempts to pay the landlord's agent by cash were made before the order of the 18 February, 1999.
11 The application before me raises questions as to the effect of ss.60, 62 and 63 of the Residential Tribunal Act 1998, which are in the following terms:
60(1) Except as provided by this section, a court of record has no jurisdiction to grant relief or a remedy by way of:
(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or
(b) a declaratory judgment or order, or
(c) an injunction,
in respect of a matter heard and determined or to be heard or determined by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.
(2) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the jurisdiction of the Tribunal to determine the matter was disputed, where the ground on which the relief is sought is that
(a) the Tribunal gave a ruling as to its jurisdiction that was erroneous, or
(b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed.
(3) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the Tribunal has made an order, where the ground on which the relief or remedy is sought is that:
(a) the Tribunal had no jurisdiction to make the order, or
(b) in relation to the hearing or determination of the matter, a party to the claim had been denied natural justice.
...
62(1) An appeal under this section is to be made in accordance with rules of the Supreme Court.
(2) If, in proceedings before it, the Tribunal decides a question with respect to a matter of law, a party to the proceedings who is dissatisfied with the decision may appeal to the Supreme Court against the decision.
(3) After deciding the question the subject of an appeal by a party under this section, the Supreme Court may, unless it affirms the decision of the Tribunal on the question:
(a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or
(b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal.
(4) If a rehearing is held, the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the Supreme Court remitted to the Tribunal.
(5) If a party to proceedings before the Tribunal has appealed to the Supreme Court against a decision of the Tribunal on a question with respect to a matter of law, either the Tribunal or the Supreme Court may suspend, until the appeal is determined, the operation of any order or decision made in the proceedings.
(6) If the Tribunal suspends the operation of an order or a decision, the Tribunal or the Supreme Court may terminate the suspension or, where the Supreme Court has suspended the operation of an order or a decision, the Supreme Court may terminate the suspension.
(7) If a rehearing is held, fresh evidence, or evidence in addition to or in substitution for the evidence on which the original decision was made, may be given on the rehearing.
(8) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal.

63(1) In circumstances prescribed by the regulations, a party to proceedings before the Tribunal may, in the manner and within a time so prescribed, apply to the Chairperson for an order directing that the matter be reheard by the Tribunal, on the ground that the applicant may have suffered a substantial injustice because:
(a) the decision of the Tribunal was not fair and equitable, or
(b) the decision of the Tribunal was against the weight of evidence, or
(c) evidence that is now available was not reasonably available at the time of the hearing.
(2) The Chairperson is not to grant the application unless, on the face of the application, it appears to the Chairperson that the applicant may have suffered a substantial injustice.
(3) If the application is granted, the Chairperson is to determine the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing, having regard to the circumstances of the case and the requirements of natural justice.
(4) The matter is to be dealt with as a hearing de novo by the Tribunal as constituted under subsection (3).
12 Mr. Assi, who is the plaintiff, has submitted that the reasons disclosed an error of law in that the Chairperson should have found that, in terms of s.63, the applicant may have suffered a substantial injustice because evidence that was now available was not reasonably available at the time of the hearing. The evidence showed refusal by the landlords' agent to accept a cheque, in circumstances where cheques had been accepted in the past. It was not open to refuse to accept the payment on that basis, and the Chairperson erroneously held that the evidence of the refusal of payment by cheque would have made no difference to the result. He submitted that, although the tenancy agreement itself provided that rent payment must be made by debt system payment card No.000131483, that had been waived, and the evidence indicated payments by cheque had been accepted in the past. Alternatively, it was submitted that the order of 25th January 1999 required payment in accordance with the agreement, so that to require payment by cash was to require something that the agreement, and thus the order, did not require. He submitted that the reasons disclosed the error in basing the decision on "the applicant's rental history". He submitted that the case of Schierholter v. CIM Resources Ltd. , Hampel, J., Supreme Court of Victoria, 18/2/97, showed that payment by cheque was good payment and proper tender where the agreement between the parties provided for it.
13 Mr. Ashhurst for the defendants submitted that the case of Re Parker (1985) 79 FLR 338, especially at p.342, showed that the general law still was that, while payment by cheque will be accepted unless the payee, at or before the time of receipt of the cheque, objects that the cheque does not constitute legal tender, nevertheless in the absence of agreement to the contrary, it is still open to a payee to take objection that the cheque would not be legal tender. A requirement of cash is, in substance, such an objection. Mr. Ashhurst also referred me George v. Cluning (1979) 28 ALR 57.
14 I have noted Mr. Assi's submissions concerning the matter of refusal of a cheque. At one stage, Mr. Assi also attacked the original decision of the Tribunal as having been made in denial of natural justice. In my opinion, in circumstances where Mr. Assi had notice of the hearing and failed to attend, or to send a representative, in the circumstances I have described, it was plainly not a denial of natural justice for the Tribunal to proceed with the case.
15 Turning to the attack on the later decision of the Chairperson, I will proceed on the assumption that a decision of the Chairperson under s.63 is a decision of the Tribunal under s.62, which can be an attacked on appeal. It seems to me that that is the correct view of the matter, and no submission to the contrary was made by either party.
16 The refusal of the application was based squarely on the view of the Chairperson that the Chairperson did not consider that evidence that the landlords' agent did not accept payment by personal cheque would have changed the outcome of the hearing. There was no discussion of the question of whether that was evidence "not reasonably available at the time of the hearing" within s.63(1)(c). It may have been open to find, in the circumstances of Mr. Assi's absence from the hearing, that the evidence was reasonably available, because the circumstances of his absence gave him no reasonable excuse for not attending. There is no evidence before me, and there was no evidence before the Tribunal, as to why the client's case in the Supreme Court had to be dealt with in the way that it was, in preference to Mr. Assi's attending at this hearing. However, as I have said, the decision was not based on that ground; so it is necessary to consider whether there was an error of law in the decision that the evidence would not have changed the outcome.
17 In my opinion, it does seem clear that the requirement for payment specified in the lease itself had been waived. The question is whether the lessor in those circumstances could refuse to accept a cheque. Had there been material before the Chairperson that cheques had been tendered and accepted over a period of time without dishonour, and that no proper notice had been given altering that situation, then I think the evidence of refusal to accept the personal cheque could certainly have changed the outcome. However, all that was before the Chairperson was material indicating that, in the past, cheques had been tendered, and three of them had been dishonoured. The additional material put before the Chairperson by the applicant went no further than asserting that payment by cheque had been refused. There is nothing in the application to suggest that there was any practice or agreement or other basis on which the landlords were bound to accept a cheque.
18 Mr. Assi submits that, if the appeal were to fail on that basis, that would be taking an overstrict and technical view of the matter. However, the problem has arisen because of what appears to have been a rather cavalier attitude towards the procedures of the Tribunal, and the legislation makes it plain that appeals from the decision of the Tribunal are strictly limited. In order for an appeal to succeed, an error of law has to be shown. In my opinion, for the reasons I have given, an error of law has not been shown.
19 This is an application for an interlocutory injunction, so strictly the question is whether there is a serious question to be tried. I have reached a fairly firm view on whether an error of law is shown; and perhaps it could be said that I should not come to such a firm view, but merely accept that the degree of argument in this case suggests a serious question. However, if I took that view, I would come to the balance of convenience; and when one has regard to the history of this matter, I do not see that the balance of convenience favours the plaintiff. His lease has only about six months to run in any event.
20 For those reasons, I do not extend the interlocutory injunction, except perhaps for a short period to ensure that there can be an orderly transfer of possession.
21 Although it would be theoretically possible for the plaintiff to continue with these proceedings, because I have been dealing with the case essentially on an interlocutory basis, the plaintiff accepts that there would be little point in doing so, and does not seek to do so; so the appropriate order will be that the proceedings should be dismissed.
22 Upon the plaintiff continuing the existing undertaking as to damages, and undertaking to vacate the premises with his property within seven days, I extend the existing injunction until and including 19th March 1999.
23 Otherwise I dismiss the proceedings.
24 I order the plaintiff to pay the defendants' costs of the proceedings.
***************

I certify this and the preceding nine
pages to be a true copy of the reasons
for judgment of Justice D.H. Hodgson

Date 15th March 1999
Associate

Last Modified: 06/30/2000