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

1. 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.

2. 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.

3. 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 that no motion is to be filed by the plaintiff, other than a motion seeking leave to file a Further Amended Statement of Claim and, if desired, joinder of Mrs Khanna as a plaintiff, and no notices to produce are to be served or called upon, until such time as the plaintiff has been given leave to file a Further Amended Statement of Claim.

(3)   Grant leave to the defendants to relist and renew their applications for dismissal of the proceedings in the event that leave is not granted for the filing of the Further Amended Statement of Claim by 31 October 2017.

(4)   Plaintiff to pay the defendants’ costs of today.”

4. The summons for leave to appeal was filed on 26 September 2018. It was well out of time.

5. I would not grant an extension of time to appeal from the orders made by Taylor SC DCJ of 1 September 2017. There has been no explanation for that delay. The orders were interlocutory and not dispositive. The applicant was given the right to seek leave to replead and the respondents’ application for summary dismissal was not acceded to, although the respondents were given leave to renew the application if the applicant did not obtain leave to file a further amended statement of claim by 31 October 2017.

6. The dispositive orders were those of Cowdroy ADCJ on 2 February 2018. The applicant adduced evidence as to his ill health to explain the delay between 2 February and 26 September 2018 in the filing of the summons for leave to appeal.

7. A notice of intention to appeal from the orders of Cowdroy ADCJ had been filed on 1 March 2018. The respondents do not point to any prejudice if an extension of time were given.

8. The respondents submit that the Court should not accept that the applicant was unable to prepare his appeal documents in the period between February and May 2018. They asserted that during that time the applicant appeared in person in other unrelated proceedings in which he cross-examined witnesses. The respondent sought to rely on a reported decision of the District Court (Khanna v Gunesekara & Ors [2018] NSWDC 133).

9. Assuming,[1] without deciding, that the judgment can be used as evidence of the existence of a fact that was not in issue in the proceeding in which the judgment was given (Evidence Act 1995 (NSW), s 91(1)) it suffices to note that the judgment records that the applicant did not appear on 23 February, but did appear on 13 April and 18 and 21 May 2018 in the District Court. The judge noted that the applicant suffered from coronary heart disease and other health conditions and was awaiting heart surgery. The judge said that the applicant ultimately made focused and cogent submissions on matters at issue and also represented his wife in the proceedings.

   1. It is at least arguable that the judgment is a business record within the meaning of s 69 of the Evidence Act 1995 (NSW), being or forming part of a record belonging to or kept by an entity in the course of, or for the purposes of, a business that contains a previous representation recorded in the document in the course of or for the purposes of the business (s 69(1)). “Business” includes an activity carried on by a person holding office or exercising power under an Australian law, that is engaged in or carried on in the performance of the functions of the office, or in exercise of the power, and not in a private capacity (Dictionary, Pt 2 cl 1(1)(d)). The exclusion in s 91 is not presently relevant. The maker of the previous representation (the judge) had personal knowledge of the days on which the applicant attended court.

10. In the absence of any relevant prejudice, and having regard to the evidence of the applicant’s ill health, as well as the evidence relied upon by the respondent showing the applicant’s need to attend to other legal business, and given the significance of the summary dismissal of his proceeding, time for the filing of the summons for leave to appeal from the orders of Cowdroy ADCJ of 2 February 2018 should be extended.

11. The applicant and his wife occupied premises in Dairy Court, Glenwood from 2010. In 2013 the first respondent bought the property. On 8 March 2015 the relevant residential tenancy agreement for the property was signed between the applicant’s wife as tenant and the first respondent as landlord. On 10 March 2016 the first respondent gave notice of a rent increase. On 13 April 2016 the applicant and his wife commenced proceedings in the New South Wales Civil and Administrative Tribunal (“the Tribunal”) challenging the rent increase and seeking an order under s 187(1)(h) of the Residential Tenancies Act 2010 (NSW) requiring the first respondent to comply with the Act or regulations. The application asserted that the landlord had not kept the property in repair and foreshadowed a claim for compensation for injury alleged to have been sustained by the applicant and his wife in January and March 2015. The primary judge recorded that the applicant’s essential claims were that the dwelling had never been approved for occupation or final occupation by the council, and that the property was not fit for occupation because of defects in the building, such as mould, moisture, leaks and an uneven driveway.

12. On 21 July 2016 the applicant and his wife made a further application to the Tribunal including an application for compensation of $15,000 on unspecified grounds. On 7 October 2016 the first respondent made an application in the Tribunal seeking an order terminating the residential tenancy agreement and giving the first respondent possession of the premises.

13. On 1 February 2017 other ancillary applications were made in the Tribunal.

14. The Tribunal rejected the applicant’s contention that the raising of rent was excessive. It rejected the applicant’s contention that the landlord was required to pay compensation and it upheld the landlord’s claim for possession (Khanna v Baweja; Baweja v Khanna [2017] NSWCATCD 8).

15. The Tribunal also refused a belated application by the applicant and his wife to amend their claims to recover all of the rent paid under the residential tenancy agreement. The claim was described (at [79]) as:

“…a claim for compensation equivalent to the whole of the rent they have paid under the RTA on the basis either that the residential premises have been uninhabitable since the commencement of the tenancy and/or because the landlord is not the registered proprietor of the residential premises and is therefore not entitled to collect rent in respect of them.”

16. The Tribunal considered, but substantially dismissed, the applicant’s complaints concerning the fitness of a premises for residential habitation (paras [111]-[146]).

17. On 17 May 2017 an Appeal Panel confirmed the orders of the Tribunal (Khanna v Baweja [2017] NSWCATAP 107). The Appeal Panel said (at [39]-[40]):

“A further argument in support of the appellants’ claim that the premises could not be the subject of a residential tenancy agreement, and in relation to the claim that the rent was excessive (considered below), is the submission that the premises were not approved. The Tribunal Member had evidence before him relating to building permissions, approvals and certifications of the premises, which he summarised at [28] and [142.4], and found that there was no evidence that any building non-compliance notice or similar had ever been issued by any building approval or certification authority (paragraph [142.4]). The Member found (at [149]) that there was no evidence capable of supporting a finding that there was a legal impediment to the occupation of the residential premises at the time the tenant entered into the residential tenancy agreement or that the premises were not provided to the tenant in a state fit for habitation. That finding was open to the Member on the evidence, and no error of law has been established in the Member making that finding.

The appellants claim that they are entitled to an order that all the monies collected as rent from 26 August 2013 should be refunded. That was not a claim in terms made in the first instance proceedings, and as noted above at paragraph [7], leave was refused by the Tribunal Member to further amend the applications to add that claim. To the extent that the claim is raised in the appeal, it appears to be based on the appellants’ contention that there was no valid residential tenancy agreement. Even if it were appropriate to permit the appellants to raise this claim on the appeal, the Appeal Panel finds that there is no basis for it, being satisfied, for the reasons given above, that there is no error in law demonstrated in the Member’s determination that there was a valid residential tenancy agreement between the tenant and the landlord in respect of the residential premises.”

The Appeal Panel refused leave to appeal, but nonetheless dismissed the appeal. These orders were self-contradictory in that if leave to appeal were refused then there would be no appeal to dismiss. The contradiction may be important for determining whether it is arguable that any issue estoppel could arise from the Appeal Panel’s orders.

18. The amended statement of claim struck out by Taylor SC DCJ and the proposed further amended statement of claim considered by Cowdroy ADCJ on 2 February 2018 included allegations that the registered proprietor had concealed his middle name and the address of the residential premises in the residential tenancy agreement. This was alleged to give rise to “identification fraud”. This complaint was rejected by Taylor SC DCJ (at [7], [13], but was repeated in the proposed further amended statement of claim for which leave was sought before Cowdroy ADCJ. That claim was manifestly untenable.

19. A claim to the same effect had been advanced in the Tribunal in support of an argument that it was not established that the first respondent was the registered proprietor, hence was not the landlord under the residential tenancy agreement entered into by the applicant’s wife, and therefore neither he nor his managing agent could terminate the agreement (at [57]). The Tribunal pointed to the inherent contradiction in the applicant’s position because he sought compensation from the first respondent because he was the landlord. The Tribunal also rightly observed that if the first respondent were not the registered proprietor it would not follow that he could not be the landlord (at [58]). But the Tribunal found the evidence clearly established that the first respondent was the registered proprietor (at [59]-[60]).

20. The proposed amended statement of claim also alleged that the property was rented by the respondent when there was no “certificate of approval” for the property. The statement of claim pleaded that the building permit clearly stated that “the building shall not be used or occupied until approved by council by obtaining certificate of approval”. The building had been erected in 1995.

21. The statement of claim did not clearly plead what certificate of approval was required that was not given. But it alleged that the building was uninhabitable. The latter contention was rejected by the Tribunal and was contrary to the fact that the applicant and his wife had inhabited the building for years before there was an attempted rent increase.

22. The applicant alleged that the first respondent was required to return the rent that had been paid during his and his wife’s occupation of the property, apparently because it was unlawful for the first respondent to have let the property in the absence of the relevant “approval certificate” and the effect of that illegality was that the tenant and the applicant could recover the rent that they had paid even though they had had the benefit of occupying the property at a reasonable rent.

23. This contention was not determined by Taylor SC DCJ. It was rejected by Cowdroy ADCJ on the ground that an identical claim had been made in the Tribunal. The Tribunal at first instance had found:

“149   In this case, there is no evidence whatsoever that is capable of supporting a finding by the Tribunal that there was a legal impediment to the occupation of the residential premises at the time the tenant entered into the RTA, nor is there evidence capable of supporting a finding that the residential premises were not provided to the tenant in a state fit for habitation.”

24. However, this was said in relation to a specific issue as to whether or not the landlord had breached a provision of the residential tenancy agreement in relation to the dimensions of the garage door and the gradient of the driveway (Tribunal’s reasons [146]). The conclusion was not essential to the determination of the applicant’s claim in the Tribunal for compensation for breach of the residential tenancy agreement. It does not appear to me that the Tribunal at first instance determined the wider claim made in the proposed statement of claim filed in the District Court. Indeed it appears from the reasons of the Appeal Panel that it had not. Although the same claim, or at least a claim to similar effect, was sought to be raised before the Appeal Panel, the Appeal Panel refused leave to appeal. It is arguable that the orders of the Tribunal created no issue estoppel precluding the raising of the claim in the District Court. Any claim of an Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 54) would raise a question of fact as to why the claim was not propounded in due time in the Tribunal which was not explained on the application for summary dismissal. It is arguable that the ground upon which this part of the claim was summarily dismissed by Cowdroy ADCJ was erroneous.

25. Nonetheless, the claim that the applicant and his wife were entitled to return of the rent paid for occupation of the premises because an “approval certificate” was not obtained, is plainly untenable.

26. In oral submission the applicant contended that the certificate required that was never given was a certificate of approval by the Council required under a condition of a building permit issued in May 1995 that “the building shall not be used or occupied until approved by Council.”

27. As noted above, the first respondent purchased the property in 2013 and the applicant and his wife commenced occupation in 2010.

28. During the period of their occupation of the premises s 109M of the Environmental Planning and Assessment Act 1979 (NSW) provided:

“109M   Occupation and use of new building requires occupation certificate

(1) A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H) unless an occupation certificate has been issued in relation to the building or part.

(2)     This section does not apply to:

(a)     the occupation or use of a new building for any purpose if the erection of the building is or forms part of exempt development or development that does not otherwise require development consent, or

(b)     the occupation or use of a new building at any time after the expiration of 12 months after the date on which the building was first occupied or used, or

(c)     the occupation or use of a new building by such persons or in such circumstances as may be prescribed by the regulations, or

(d)     the occupation or use of a new building that has been erected by or on behalf of the Crown or by or on behalf of a prescribed person.”

29. The applicant did not plead that the building in question was a “new building” within the meaning of s 109H. The evidence before the Tribunal was that it was built in 1995. This was three years before s 109M commenced operation. Even if the building were a “new building” as defined, the restriction against occupancy of the building did not apply to occupation or use after 12 months from the date on which the building was first occupied or used (s 109M(2)(c)). The applicant’s occupation of the building was plainly after that expiration of 12 months.

30. Even if s 109M (or some other section that has not been identified) precluded the letting of the building to the applicant and his wife, the applicant did not identify any arguable basis for saying that that would entitle the applicant to the return of the rent paid without allowance for a reasonable occupation fee for the occupation of the premises. The applicant did not plead or attempt to show that there was any statutory provision which rendered an agreement for occupation illegal. There was no failure of consideration for the rent paid because the applicant and his wife had the benefit of years of accommodation in the building. At most, the applicant could complain of a breach of cl 13.2 of the tenancy agreement, which was a warranty that there was no legal impediment to the applicant’s occupation of the premises. Even if he had mounted such a complaint, and even if he could establish that some legal impediment existed, it would still not justify a refund of rent paid.

29. The further amended statement of claim which the applicant sought leave to file did not plead any cause of action which made any sense, nor did it plead facts that might give a claim for relief. It named Powerlist Pty Ltd trading as Response Real Estate (Baulkham Hills) as the second defendant. So far as the allegations can be understood they were that:

•   the second defendant (second respondent) entered into a residential tenancy agreement on behalf of the first respondent with the applicant’s wife, but its business name, “Response Real Estate”, was cancelled on the ASIC register in 2000 and a new company (the second respondent) was created in 2002 which had no authority to collect the rent. (This was alleged despite the fact that the agency agreement (entered into in 2015) clearly and correctly names Powerlist Pty Ltd as the agent);

•   the second respondent had no authority to collect rent or had otherwise misled the plaintiff as it named itself as “Powerlist Pty Ltd” on the tenancy agreement rather than “Powerlist Pty Limited”. (Section 149 of the Corporations Act 2001 (Cth), provides that “Ltd” is an acceptable abbreviation of “Limited”);

•   the first respondent “concealed” his middle name on the residential tenancy agreement with the applicant’s wife which was a fraudulent misrepresentation, as the name “Jasheerat Singh Baweja”, rather than “Jaskeerat Baweja”, was identified on the LIP register as the registered proprietor. (This allegation concedes that the first respondent is the registered proprietor);

•   the first respondent agreed to sell the property and $5,000 was accepted by his agent. (With respect to this allegation, the applicant did not plead the terms of the alleged contract of sale, nor provide particulars as to when and how it was made, nor claim damages for breach, nor claim return of the deposit);

•   the property was uninhabitable and unsafe as a result of which the plaintiffs suffered injuries “(not pleaded in this matter)”;

•   the property was unfit for habitation and the first respondent had failed to repair it;

•   the condition of the building permit requiring Council’s approval before the property was used or occupied was pleaded to have been unfulfilled;

•   the first respondent had breached various provisions of the Residential Tenancies Act 2010 (NSW);

•   the first respondent had falsely deceived the plaintiffs by representing that the residential premises had final certificates, and construction was according to drawings. (The material facts as to the alleged representations were not pleaded. Nor did the applicant plead reliance on any such representation, nor any basis for claiming damages);

•   the second respondent acted fraudulently because “Response Real Estate” was cancelled in 2000;

•   Response Real Estate and Powerlist Pty Ltd fraudulently took rent when the property was not approved by council;

•   the applicant was entitled to amounts of loss, damages and a refund of rent for letting without certificates of approval, “service address and residential premises”;

• “Because Response Real Estate has no authority was so ever to rent the common property and claim rent – from the first plaintiff must be return with interest Pursuant to UCPR Rule 3 definition I repeat paragraph 11.4 and 11.4.1” (There was no para 11.4 and 11.4.1.)

•   the applicant was wrongly evicted;

•   an earlier property agent who acted for the owner prior to the sale of the property, acted fraudulently, apparently because the property manager did not use her true name; and

•   the first respondent owed the applicant a duty of care that was breached (as noted above, no claim for damages was alleged for alleged breach of the duty of care allegedly resulting in injury).

32. Other allegations were made as variations on the above themes.

33. Most of the allegations in the proposed pleading had been determined against the applicant and his wife in the Tribunal, giving rise to an issue estoppel. The Tribunal’s decision was final (subject to appeal), and bound the parties in respect of findings of fact and law that were legally indispensable to that decision. To the extent new claims were raised in the District Court or findings in the Tribunal were not essential to its decision, the proposed statement of claim was incoherent. It did not plead material facts that suggested any viable cause of action.

34. It is not reasonably arguable that the applicant’s claim in the District Court was not properly summarily dismissed.

35. To obtain leave to appeal the applicant would need to show that there was an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that was merely arguable (PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 (at [6]). The present application raises no issue of principle, nor a question of public importance. The applicant’s contention that there was reasonably clear injustice does not even rise to the level of arguability. The merits of his claims, such as they were, were addressed in the Tribunal and on internal appeal by the Appeal Panel. New formulations of his claims, so far as they can be understood, are unmeritorious as well as futile.

36. For these reasons I propose the following orders:

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.

37. McCallum JA: I agree with the orders proposed by White JA, for the reasons his Honour has stated.

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Endnote

Decision last updated: 08 August 2019