Khanna v Baweja - [2019] NSWCA 193

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Khanna v Baweja & Anor [2019] NSWCA 193
Hearing dates: 22 July 2019
Decision date: 08 August 2019
Before: White JA at [1];
McCallum JA at [37]
Decision:
(1) Extend the time for filing the application for leave to appeal from the orders of the District Court made on 2 February 2018 up to the date of filing of the summons for leave to appeal.
(2) Order that the summons for leave to appeal from orders of the District Court made on 1 September 2017 and 2 February 2018 be dismissed with costs.

Catchwords: LANDLORD AND TENANT— application for leave to appeal against summary dismissal of statement of claim — where merits of various complaints as to habitability of premises and identity of landlord addressed by New South Wales Civil and Administrative Tribunal — where statement of claim reformulates many of these claims — whether landlord’s failure to provide approval or occupation certificate entitles tenant to refund of rent — whether allegations precluded by issue estoppel — no issue of principle or general importance — application for leave to appeal dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 109H, 109M
Evidence Act 1995 (NSW), ss 69, 91
Residential Tenancies Act 2010 (NSW), ss 77, 187
Cases Cited: Khanna v Baweja [2017] NSWCATAP 107
Khanna v Baweja; Baweja v Khanna [2017] NSWCATCD 8
Khanna v Gunesekara & Ors [2018] NSWDC 133
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 54
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Category: Principal judgment
Parties: Sanjeev Khanna (Applicant)
Jaskeerat Singh Baweja (First Respondent)
Powerlist Pty Ltd t/as Response Real Estate (Baulkham Hills) (Second Respondent)
Representation:
Counsel:
T Berberian (Respondents)
Solicitors:
Colin Biggers & Paisley (First Respondent)
Moray & Agnew (Second Respondent)

File Number(s): 2018/67966
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

n/a

Date of Decision:

1 September 2017;
2 February 2018

Before:

Taylor SC DCJ;Cowdroy ADCJ

File Number(s):

2017/80538

Judgment

WHITE JA: This is an application for leave to appeal from orders of the District Court made on 1 September 2017 (Taylor SC DCJ) and 2 February 2018 (Cowdroy ADCJ). The dispositive orders were those of Cowdroy ADCJ of 2 February 2018 refusing the applicant leave to file a notice of motion and draft Amended Statement of Claim, and summarily dismissing the applicant’s proceeding.
The first respondent to the application entered into a residential tenancy agreement with the applicant’s wife for her to occupy a residential property in Dairy Road, Glenwood. The second respondent was the first respondent’s managing agent and named as such on the residential tenancy agreement.
The summons for leave to appeal also challenges earlier orders made by Taylor SC DCJ on 1 September 2017 by which his Honour struck out the applicant’s existing pleadings including his amended statement of claim filed on 15 June 2017 and further ordered:

“(2) Direct…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khanna v Baweja

Details

AGLC: Khanna v Baweja [2019] NSWCA 193
Case: [2019] NSWCA 193
Decision Date: 08 August 2019

CaseChat Overview and Summary

This matter concerned an application for leave to appeal against the summary dismissal of a statement of claim. The applicant, the tenant, had raised various complaints regarding the habitability of the premises and the identity of the landlord, which had previously been addressed by the New South Wales Civil and Administrative Tribunal. The tenant's statement of claim sought to reformulate many of these same claims. The appeal was heard by White and McCallum JJA in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the landlord's alleged failure to provide an approval or occupation certificate entitled the tenant to a refund of rent, and whether the tenant's allegations were precluded by the doctrine of issue estoppel. The Court was also required to consider whether the application raised any issue of principle or general importance justifying leave to appeal.

The Court of Appeal determined that the application did not raise any issue of principle or general importance. Consequently, the Court dismissed the summons for leave to appeal. The Court extended the time for filing the application for leave to appeal to the date of filing the summons. The summons for leave to appeal from the orders of the District Court made on 1 September 2017 and 2 February 2018 was dismissed with costs.

Orders

Orders of the court

(1) Extend the time for filing the application for leave to appeal from the orders of the District Court made on 2 February 2018 up to the date of filing of the summons for leave to appeal.

(2) Order that the summons for leave to appeal from orders of the District Court made on 1 September 2017 and 2 February 2018 be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Khanna v Baweja & Anor [2019] NSWCA 193
Hearing dates:	22 July 2019
Decision date:	08 August 2019
Before:	White JA at [1]; McCallum JA at [37]
Decision:	(1) Extend the time for filing the application for leave to appeal from the orders of the District Court made on 2 February 2018 up to the date of filing of the summons for leave to appeal. (2) Order that the summons for leave to appeal from orders of the District Court made on 1 September 2017 and 2 February 2018 be dismissed with costs.
Catchwords:	LANDLORD AND TENANT— application for leave to appeal against summary dismissal of statement of claim — where merits of various complaints as to habitability of premises and identity of landlord addressed by New South Wales Civil and Administrative Tribunal — where statement of claim reformulates many of these claims — whether landlord’s failure to provide approval or occupation certificate entitles tenant to refund of rent — whether allegations precluded by issue estoppel — no issue of principle or general importance — application for leave to appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 109H, 109M Evidence Act 1995 (NSW), ss 69, 91 Residential Tenancies Act 2010 (NSW), ss 77, 187
Cases Cited:	Khanna v Baweja [2017] NSWCATAP 107 Khanna v Baweja; Baweja v Khanna [2017] NSWCATCD 8 Khanna v Gunesekara & Ors [2018] NSWDC 133 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 54 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Category:	Principal judgment
Parties:	Sanjeev Khanna (Applicant) Jaskeerat Singh Baweja (First Respondent) Powerlist Pty Ltd t/as Response Real Estate (Baulkham Hills) (Second Respondent)
Representation:	Counsel: T Berberian (Respondents) Solicitors: Colin Biggers & Paisley (First Respondent) Moray & Agnew (Second Respondent)
File Number(s):	2018/67966
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: n/a Date of Decision: 1 September 2017; 2 February 2018 Before: Taylor SC DCJ;Cowdroy ADCJ File Number(s): 2017/80538