Australian Executor Trustees Ltd v Steak Plains Olive Farm Pty Ltd

[2014] NSWCATCD 248

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Australian Executor Trustees Ltd v Steak Plains Olive Farm Pty Ltd [2014] NSWCATCD 248

Hearing dates:

27 November 2014

Decision date:

24 December 2014

Jurisdiction:

Consumer and Commercial Division

Before:

M Harrowell, Principal Member

Decision:

(a)The application by the respondent to transfer the proceedings to the Supreme Court of New South Wales is dismissed;

(b)Any application for costs in relation to this matter is to be made on or before 9 January 2014. The application is to be supported by any evidence and submissions, including any submissions in relation to rule 38 of the Civil and Administrative Tribunal Rules, 2014 and in relation to whether or not an order should be made for the hearing to be dispensed with and the matter dealt with on the papers in accordance with section 50 (2) of the Civil and Administrative Tribunal Act 2015.

(c)Any submissions and evidence from the respondent in reply are to be filed on or before 16 January 2015;
(d)any submissions by the applicant in reply to the respondent's submissions are to be filed and served on or before 20 January 2015.

Catchwords:

Application to transfer proceedings

Legislation Cited:

Agricultural Tenancies Act,1990,
Retail Leases Act, 1994,
Civil and Administrative Tribunal Act, 2013, Law Reform (Law and Equity) Act 1972

Category:

Procedural and other rulings

Parties:

Applicant: Australian Executor Trustees Ltd
Respondent: Steak Plains Olive Farm Pty Ltd

Representation:

Counsel: IG Archibald (applicant)
Solicitors: Sparke Helmore (applicant)
B Hoffman Bradbury Legal (respondent)

File Number(s):

COM 14/09217

Publication restriction:

Unrestricted

reasons for decision

1. This is an application by the respondent to transfer these proceedings to the Supreme Court of New South Wales. It is the second application, the first having been refused by the Tribunal on 13 August 2014 (first transfer application).

2. The appeal against the decision in the first application was dismissed by the Appeal Panel on 17 November 2014. (the Appeal Panel decision)

3. The basis of the second application is that it would avoid duplication of proceedings in circumstances where the Tribunal does not have jurisdiction to hear the respondent's claims for either equitable relief against forfeiture or damages in excess of $500,000. The application is recorded in the respondent's submissions for the hearing on 27 November 2014 which the Tribunal has initialled and dated.

4. The only evidence tendered in support of the application was a copy of a statement of claim which has been filed in the Supreme Court of New South Wales, proceedings 2014/176409. The plaintiff in those proceedings is the respondent in the Tribunal proceedings and the defendant is the applicant in the Tribunal proceedings. The statement of claim was apparently filed pursuant to orders of the Supreme Court and is dated 21 November 2014. It particularises various breaches and make claims for damages in consequence of those breaches. The statement of claim is marked Exhibit A in the application. It should be noted that the summons originally filed to commence these proceedings in the Supreme Court also sought damages.

History

5. In making the application, the respondent conceded that some of the facts now relied upon could have been put to the Tribunal in June when the first application to transfer was heard by the Tribunal. Further, it is evident from Exhibit A that some of the alleged breaches said to give rise to the claims for damages are matters which occurred in 2012 and 2013, well prior to the commencement of these proceedings in the Tribunal: see for example Exhibit A paragraphs 14, 15 and the breaches alleged in paragraph 27.

6. No submissions were made by the respondent about the Tribunal being an inconvenient forum because the quantum of the claim for damages was beyond the jurisdiction of the Tribunal when the first transfer application was made.

7. When the respondent (as appellant) sought to prosecute its appeal against the decision of 13 August 2014, the Appeal Panel constituted by the President, Wright J made the following notation when making orders on 23 September 2014 vacating directions made by the Tribunal for the preparation for hearing following dismissal of the first transfer application:

"The Appeal Panel NOTES that:

1. The procedural orders have been vacated on the basis that, if possible, the Appeal Panel will announce its decision on 7 November 2014 and make directions at that time for the further preparation of the matter with a view to it being heard before Christmas 2014 and the parties agree to cooperate in achieving such an outcome.

2.The appellant will use the time between today and the hearing on 7 November 2014 to advance the preparation of its evidence and submissions."

8. The Appeal Panel did not vacate the order allowing the respondent to file amended points of defence and since the first transfer application was originally dealt with by the Tribunal, the respondent has sought to withdraw its defence that it is entitled to relief against forfeiture. An amended defence was filed, dated w 15 October 2014 in the following terms:

"74.   SPOF denies that AETL is entitled to the relief sought in paragraph 74 of the AETL's Amended Points of Claim or any relief at all against SPOF for the following reasons:

a. paragraphs 1 to 73 above are repeated, including SPOF's denials that it has breached or is currently in breach of the lease or any other agreement it may have with AETL:

b. the Property has been significantly improved by SPOF since it began occupying the Property, so AETL has suffered no loss in relation to that occupation;

c. to the extent that SPOF owes any amount to AETL in respect of the claims made by AETL in these proceedings (which are denied), SPOF is entitled to a set-off in respect of the claims it has against AETL, which will be claimed in a forum with the necessary jurisdiction to hear those claims; and

d. further and in the alternative, were the Tribunal to find in these proceedings that AETL was entitled to terminate the Lease (which is denied), SPOF is entitled to relief against forfeiture, which will be claimed in a forum with the necessary jurisdiction to grant such relief."

9. What is clear from the amended Points of Defence is that there remains an issue between the parties about whether the applicant is entitled to take possession of the property if its actions in terminating the agricultural tenancy will otherwise valid.

10. In this regard, at paragraph 21- 22 of the respondent's submissions, the respondent says:

"For the avoidance of any doubt, the respondent does not propose to raise any defence in the nature of … relief against forfeiture in the Tribunal, as notwithstanding the decisions of this Tribunal and the Appeal Panel it does not believe the Tribunal can grant it the relief it needs. Further, the equitable relief that the respondent can obtain is different from that proposed by the Tribunal and the respondent is entitled to pursue that equitable relief if that is the relief it wants.

Regardless of any uncertainty about these legal issues, the respondent is entitled to raise in its defence in the Tribunal the legal issues it chooses to do so. It cannot be compelled to defend its case on a basis other than of its own choosing. If the Tribunal proceedings go to a final hearing the respondent will not be raising a defence in the nature of relief against forfeiture, as the respondent is entitled to seek equitable relief in the Supreme Court."

11. The respondent has said it will seek to appeal the decision of the Appeal Panel upholding the original decision of the Tribunal and, because it believes that appeal will be successful, it says that the Tribunal should exercise its discretion and transfer these proceedings to the Supreme Court of New South Wales. At the time of hearing the second transfer application an appeal to the Supreme Court of New South Wales from the decision of the Appeal Panel had not been lodged. However the Tribunal was subsequently informed a summons seeking leave to appeal the Appeal Panel decision has been filed in the Supreme Court.

12. Against this submission, the applicant indicated that it wishes to have the issue of its entitlement to terminate the agricultural tenancy and take possession determined by the Tribunal. In this regard the applicant, consistent with its submissions in the first transfer application, maintains that the Tribunal has jurisdiction to determine this issue.

13. During the course of submissions, the respondent appropriately drew the Tribunal's attention to Schedule 4 clause 5 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). Subclause 5(3) provides:

"(3)   If, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear and determine such an issue".

14. Subclause 5 (6) provides for the purpose of subclause (3) that "an issue arises under an application made to the Tribunal for the exercise of a Division function only if the existence of the issue is shown in the applicant's claim or is recorded in the record made by the Tribunal in accordance with this Act".

15. Having regard to the applicant's claim, the respondent's amended Points of Defence and the Reply filed by the applicant in response to the original Points of Defence, it is clear that an issue in the proceedings is whether or not the applicant is entitled to possession. Also in issue in the proceedings is whether or not the respondent is entitled to set-off against any claim for damages which the applicant might have any loss or damage it says it has suffered by reason of the applicant's breach of the agricultural tenancy agreement.

16. While there is a limit to the Tribunal's order making power, in that the Tribunal cannot make an order for payment of an amount in excess of $500,000 or such other amount as may be prescribed by the regulations (see section 20 (3) (a) of the Agricultural Tenancies Act, 1990), the Tribunal is not deprived of jurisdiction to deal with any defence by way of set-off as the success of such a defence does no more than reduce any entitlement the applicant might have to an award of money in its favour. In the present case, the amount sought by the applicant is less than $500,000.

Submissions.

17. The respondent says that it "does not agree that the Tribunal has power to determine a dispute about whether a party to an agricultural tenancy should be relieved against forfeiture and make orders in consequence of such a determination".

18. The respondent says that it is entitled to pursue the form of relief which it chooses and is not obliged to seek relief from forfeiture in the Tribunal. This submission appears to be made even in circumstances where the Tribunal is able to grant a remedy in the nature of relief against forfeiture in the manner found by the Tribunal in its decision of 13 August 2014 (original decision), as confirmed by the Appeal Panel in the Appeal Panel decision.

19. The respondent also submits that it has now pleaded a claim for damages exceeding $500,000 being the jurisdictional limit of the Tribunal and that the damages it suffered "could only be quantified after the most recent harvest on June/July 2014 was completed". The respondent submits that damages are continuing to accrue.

20. Having regard to the relief sought, the respondent submits that the Supreme Court is the only forum that can hear all of the issues which the parties wish to raise. The respondent also says that the Tribunal should not continue to hear these proceedings while any Supreme Court appeal remains pending as such action would "effectively render the appeal meaningless".

21. The respondent raised an issue about the applicant's foreshadowed application in the Supreme Court proceedings however at the time of the hearing on 27 November 2014 such an application had not been made, although at the date of these reasons that application has also been made.

22. In response, the applicant submitted that the amount of the claim for damages was the only new feature of the second transfer application.

23. In considering the second transfer application the applicant submitted Tribunal was obliged to balance the interests of the parties and have regard to the directions of the Appeal Panel listing the matter for the finalisation of evidence. The applicant submitted that if the respondent's proposed appeal against the Appeal Panel's decision was dismissed then further time will be wasted.

24. Lastly, the applicant submitted that whether or not to transfer proceedings was a matter of discretion which could not easily be upset on appeal.

Decision.

25. The power of the Tribunal to transfer these proceedings is found in Schedule 4 clause 6(1) of the NCAT Act which provides:

Transfer of proceedings to courts or to other tribunals

(1) If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are:

(a) to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and

(b) to continue before that court as if the proceedings had been instituted there.

26. There is a discretion to be exercised by the Tribunal in making such an order.

27. Matters to be considered include:

1. The fact here are claims made in other proceedings that cannot be determined in the Tribunal,

2. The history of the Tribunal proceedings and the conduct of the parties,

3. Whether the Tribunal is a convenient forum and has power to make orders to resolve particular controversies,

4. Whether or not a different form of relief is available in another forum

5. Whether resolution of particular issues within the jurisdiction of the Tribunal will be delayed;

6. The objects of the NCAT Act including those found in section 3(b)(i) and 3(d).

28. A party to proceedings cannot be compelled to raise a particular defence. However, a party is obliged to act in accordance with its obligations under section 36 (3) of the Civil and Administrative Tribunal Act 2013 and assist the Tribunal in a manner to ensure that the real issues in dispute are resolved in a just, quick and cheap manner as provided in the guiding principle.

29. It has not been suggested that the Tribunal does not have power to deal with the applicant's claims, including its claim seeking an order for possession under section 21 (1) (i) of the Agricultural Tenancies Act.

30. Obviously, an issue in dispute between the parties is whether or not the applicant is in fact entitled to possession in all the circumstances.

31. Absent a successful appeal or an order from the Court restraining the Tribunal from hearing this dispute and resolving the issue, in my opinion the Tribunal is entitled to proceed to hear and determine this dispute in accordance with the law as determined by the Appeal Panel.

32. It is a matter for the respondent to determine whether or not it wishes to invoke any available jurisdiction of the Tribunal to relieve it against the consequences of any order for possession being made. While failure to pursue an available remedy in the Tribunal may have consequences for the respondent, it is not necessary for the Tribunal to determine what those consequences may be.

33. It is sufficient to conclude that the applicant has applied to the Tribunal for an order for possession, a remedy available to it under the Agricultural Tenancies Act. It made that application on 12 February 2014 in relation to alleged breaches which it says occurred in 2013. Absent good reason not to do so, the Tribunal is obliged to ensure that this claim is resolved as soon as possible.

34. The reasons offered by the respondent to transfer the proceedings are that:

1. the respondent does not accept the Tribunal has power to grant orders in the nature of relief against forfeiture;

2. the proceedings will be duplicated because there will be a need to have the respondents claim for damages and the issue of relief against forfeiture result by the Supreme Court of New South Wales; and

3. the proceedings should therefore be transferred to the Supreme Court of New South Wales.

35. In the opinion of the Tribunal, the second application to transfer the proceedings to the Supreme Court of New South Wales should be dismissed for the following reasons:

1. the mere fact that a party seeks to invoke an alternative remedy to one which is available within the jurisdiction of the Tribunal and which would adequately resolve the issues between the parties is not a basis to transfer the proceedings nor does it make the Tribunal an inconvenient forum;

2. these proceedings were originally commenced on an urgent basis because an order for possession was sought. The proceedings were originally listed for final hearing on 18 June 2014 and by reason of the respondent's first transfer application being made, the issue of the applicant's entitlement to possession has not been resolved;

3. it is clear from the statement of claim, for the reasons set out above, that the claim for damages by the respondent includes damages which it says it suffered in 2012 or 2013, well before the commencement of these proceedings and well before the original date fixed for hearing on 18 June 2014;

4. these are matters which could have been raised on the first transfer application and to allow them to be made at this time will further delay resolution of the proceedings, particularly the entitlement to possession;

5. in any event, no evidence has been provided to support the assertion that the claim for damages is in excess of the order making power of the Tribunal (other than perhaps the fact that the statement of claim has been verified by a director of the respondent).

6. Finally, even if the respondent successfully appeals the Appeal Panel decision in relation to the order making power of the Tribunal concerning claims in the nature of relief against forfeiture, the issue of whether or not the applicant is entitled to an order for possession is a matter within the jurisdiction of the Tribunal and is a matter which should be resolved at the earliest possible time. To transfer the proceedings will have the consequence that the applicant will be deprived of an early resolution of this issue in circumstances where the respondent has not otherwise shown that detriment will not be suffered by the applicant in being kept out of possession of the farm if the circumstances alleged to establish a breach and warrant the making an order for possession are made out. In this regard the Tribunal notes the proceedings are fixed for final hearing commencing 16 February 2014 and directions have been made in connection with filing and service of any further evidence, evidence having been previously filed in anticipation of the final hearing originally being fixed on 18 June 2014.

36. Accordingly, the second application to transfer should be dismissed.

37. The Tribunal makes the following orders:

1. the application by the respondent to transfer the proceedings to the Supreme Court of New South Wales is dismissed;

2. Any application for costs in relation to this matter is to be made on or before 9 January 2014. The application is to be supported by any evidence and submissions, including any submissions in relation to rule 38 of the Civil and Administrative Tribunal Rules, 2014 and in relation to whether or not an order should be made for the hearing to be dispensed with and the matter dealt with on the papers in accordance with section 50 (2) of the Civil and Administrative Tribunal Act 2015.

3. Any submissions by the respondent in reply are to be filed on or before 16 January 2015;

4. any submissions by the applicant in reply to the respondent's submissions are to be filed and served on or before 20 January 2015.

M Harrowell

Principal Member

Civil and Administrative Tribunal of New South Wales

24 December 2014

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

Decision last updated: 12 February 2015