Medium Neutral Citation: Lekhwar v Singh [2022] NSWCATCD 108
Hearing dates: 9 June 2022
Date of orders: 24 June 2022
Decision date: 24 June 2022
Jurisdiction: Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:
The Notice of Order issued 24 June 2022 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:
(1)   Time for the commencement of proceedings RT 22/23153 is extended until 25 May 2022.
(2)   The residential tenancy agreement in respect of the premises is terminated.
(3)   The tenants Gurgit Singh and Kiranjit Kaur (the tenants) are to give possession of the premises to the landlords Keshavanand Lekhwar and Vinita Lekhwar (the landlords) immediately.
(4)   The operation of order (3) above is suspended until 22 July 2022.
(5)   The tenants are to pay to the landlords a daily occupation fee at the rate of $57.14 per day from 25 June 2021 until the date they give vacant possession of the premises to the landlords.
(6)   The landlords are at liberty to relist the proceedings within 60 days after they obtain vacant possession of the premises to claim the amount owing by the tenants as occupation fees.
(7)   Proceedings RT 22/23153 are dismissed.

Catchwords:
CIVIL PROCEDURE — Hearings — Adjournment — Relevant factors
CIVIL PROCEDURE — Hearings — Procedural fairness – Bias — Actual bias
CIVIL PROCEDURE — Hearings — Procedural fairness - Apprehended bias
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Termination — By landlord – expiry of fixed term
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Termination — Notices – defect in the manner of service

Legislation Cited:
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
Bankruptcy Act 1966 (Cth)
Civil and Administrative Tribunal Act 2013 (NSW)
Constitution (Cth)
Migration Act 1958 (Cth)
National Security (Women's Employment) Regulations 1942 (Cth)
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Act 1995 (SA)
Residential Tenancies Regulation 2019 (NSW)

Cases Cited:
Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Attorney-General of NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254
Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Collier v Country Women’s Association of New South Wales [2018] NSWCA 36
Cominos v Di Rico [2016] NSWCATAP 5
Henderson v Housing Choices South Australia Ltd [2019] SASC 121
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281
Kostov v Amelie Housing (NCAT Appeal) [2019] NSWSC 16
Kostov (Bankrupt) v Australian Financial Security Authority, in the matter of Kostov [2020] FCA 1105
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209…

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 Lekhwar v Singh

Details

AGLC: Lekhwar v Singh [2022] NSWCATCD 108
Case: [2022] NSWCATCD 108
Decision Date: 24 June 2022

CaseChat Overview and Summary

Lekhwar v Singh was a matter heard and determined by the NSW Civil and Administrative Tribunal. The landlords, Keshavanand Lekhwar and Vinita Lekhwar, sought the termination of a residential tenancy agreement with the tenants, Gurgit Singh and Kiranjit Kaur, on the basis that the fixed term of the agreement had expired. The landlords also sought the tenants' removal from the premises and the payment of occupation fees. The tenants argued that the notice of termination was defective in its service and that the tribunal did not have jurisdiction to hear the matter.

The tribunal considered several issues, including whether the tribunal had jurisdiction to hear the case, whether the service of the notice of termination was defective, and whether the tribunal should adjourn the hearing. The tribunal also examined the landlords' application for an adjournment and their conduct in relation to the proceedings. The tribunal found that the service of the notice of termination was defective, but that the tribunal still had jurisdiction to hear the case. The tribunal found that the landlords had not demonstrated any grounds for an adjournment and that their conduct had been unreasonable.

The tribunal terminated the residential tenancy agreement and ordered the tenants to vacate the premises and pay occupation fees. The tribunal also suspended the operation of the order to give the tenants time to vacate the premises. The tribunal dismissed the landlords' proceedings for the recovery of occupation fees, but allowed them to relist the proceedings within 60 days of obtaining vacant possession of the premises. The tribunal noted that the landlords' conduct had been unreasonable and that the adjournment application had been an abuse of process.

Orders

Orders of the court

The Notice of Order issued 24 June 2022 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:

(1) Time for the commencement of proceedings RT 22/23153 is extended until 25 May 2022.

(2) The residential tenancy agreement in respect of the premises is terminated.

(3) The tenants Gurgit Singh and Kiranjit Kaur (the tenants) are to give possession of the premises to the landlords Keshavanand Lekhwar and Vinita Lekhwar (the landlords) immediately.

(4) The operation of order (3) above is suspended until 22 July 2022.

(5) The tenants are to pay to the landlords a daily occupation fee at the rate of $57.14 per day from 25 June 2021 until the date they give vacant possession of the premises to the landlords.

(6) The landlords are at liberty to relist the proceedings within 60 days after they obtain vacant possession of the premises to claim the amount owing by the tenants as occupation fees.

(7) Proceedings RT 22/23153 are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Lekhwar v Singh [2022] NSWCATCD 108

Most Recent Citation

Cull v Singh [2024] FCA 258

Cases Citing This Decision

Attorney General for NSW v Singh [2024] NSWSC 449
Citation 1 (Para 96)

…fferent proceedings were subsequently commenced in the Tribunal. The history of the various proceedings in the Tribunal is set out in Lekhwar v Singh [2022] NSWCATCD 108 at [3]-[52]. Mr Singh commenced various proceedings in this Court seeking to appeal from or review decisions of the Tribunal.…
Cull v Singh [2024] FCA 258
Citation 2 (Para 13)

…which Mr Singh has engaged dates back to a dispute about a residential tenancy agreement into which Mr Singh entered in July 2020. In Lekhwar v Singh [2022] NSWCATCD 108 (hereafter “ Lekhwar v Singh ”), the Consumer and Commercial Division of NCAT made the following observations about that dispute (at [3]‑[45]): On 27…
Herbert v Lee; Lee v Hemphill [2023] NSWCATCD 177
Citation 3 (Para 24)

…ings in the Tribunal at first instance to discern the relief under RL Act available to the parties in accordance with the approach in Lekhwar v Singh [2022] NSWCATCD 108 at [68].…

See all citing cases →

Cases Cited

MJZP v Director-General of Security [2025] HCA 26
Citation 1 (Para 1)

…the following passage in Rola Co (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185 ( Rola ) at 189 (argument of Menzies KC); [1944] HCA 17:…
Singh v Charles [2022] NSWSC 743
Citation 2 (Para 42)

…On 10 June 2022, Garling J delivered a judgment: Singh v Charles [2022] NSWSC 743 (the 10 June 2022 Supreme Court judgment). In the 10 June 2022 Supreme Court judgment Garling J made the following orders (the 10 June 2022 Supreme Court orders):…
Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587
Citation 3 (Para 70)

…ing that I have determined an issue adversely to a party, in case I am later found to be wrong: Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587 at [110] per Leeming JA.…
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Citation 4 (Para 108)

…and determination of a particular claim or complaint would be within the legislated limits of its State jurisdiction: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [25] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), at [63] (Edelman J); see also Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 1…
Charisteas v Charisteas [2021] HCA 29
Citation 5 (Para 75)

…The principles applicable to allegations of apprehended bias were recently summarised by the High Court in Charisteas v Charisteas [2021] HCA 29 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ); (2021) 95 ALJR 824, and are as follows:…
Singh v Khan [2021] NSWSC 1093
Citation 6 (Para 138)

…ermined that the property of Mr Singh on his bankruptcy on 6 May 2021 vested in the trustees pursuant to s 58(1) of the Bankruptcy Act : Singh v Khan [2021] NSWSC 1093 at [38].…
Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213
Citation 7 (Para 108)

…el CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), at [63] (Edelman J); see also Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 at [13]-[17] (Leeming JA) (Macfarlan JA at [1] agreeing), at [72]-[74] (White JA).…
Henderson v Housing Choices South Australia Ltd [2019] SASC 121
Citation 8 (Para 141)

…followed in respect of a residential tenancy agreement under the Residential Tenancies Act 1995 (SA): Henderson v Housing Choices South Australia Ltd [2019] SASC 121 at [61]-[120] (Peek J). Further, Kostov has also been referred to with approval in the Federal Court: Kostov (Bankrupt) v Australian Financial Securi…
Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Citation 9 (Para 110)

…t have jurisdiction to determine matters between residents of different States, and relied on Attorney-General of NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 ( Gatsby ).…
Burns v Corbett [2018] HCA 15
Citation 10

…and does not have any jurisdiction to hear and determine any matter under s 75 or s 76 of the Constitution: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15.”…
Collier v Country Women's Association of New South Wales [2018] NSWCA 36
Citation 11 (Para 76)

…e to allegations of apprehended and actual bias were recently summarised in some detail in Collier v Country Women’s Association of New South Wales [2018] NSWCA 36 at [23]-[27] by Gleeson JA:…
Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308
Citation 12 (Para 155)

…In Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [56] Sackville AJA observed that it is a matter for the Tribunal to decide whether the termination notice, despite the defect, satisfies the broad criteria stated in s 113 of the RT Act (with Leeming JA at [1] and Adamson J at [126] agreei…
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7
Citation 13 (Para 118)

…ination in the 2021/00291230 proceedings, and referred to the following passage in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [183] (Gageler J):…
Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53
Citation 14 (Para 58)

…Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].”…
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48
Citation 15

…n the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: B…
Nanschild v Pratt [2011] NSWCA 85
Citation 16 (Para 2)

…t strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; … (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay…
Kirk v Industrial Court of New South Wales [2010] HCA 1
Citation 17

…cepted as correct by Gibbs ACJ (with whom Stephen, Jacobs, Murphy and Aickin JJ agreed) in In re Anderson; Ex parte Bateman (1978) 53 ALJR 165at 166; 21 ALR 56 at 58.”…
Tomko v Palasty (No 2) [2007] NSWCA 369
Citation 18

…“[22] … (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; … (3) Generally, in an application for a…
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Citation 19 (Para 97)

…oved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. [69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary ju…
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Citation 20 (Para 3)

…the entire judgment in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 ( Bhardwaj ).…
Minister for Immigration And Multicultural Affairs v Jia Legeng [2001] HCA 17
Citation 21 (Para 72)

…incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. [70] As Gleeson CJ and Gummow J observed in that case…
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1999] FCA 119
Citation 22

…ciples was stated: [68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) ( Sun v Minister ) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be m…
Bilgin v Minister for Immigration and Multicultural Affairs [1997] FCA 1022
Citation 23

…ional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs ( Bilgin v Minister ) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290: “The wrong…
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18
Citation 24 (Para 2)

…the following passage in Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1 ( Wilson ) at 22 (Gaudron J); [1996] HCA 18:…
Gallo v Dawson [1990] HCA 30
Citation 25 (Para 2)

…e exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; … (3) Generally, in an application for an extension of time to appeal the Appeal Panel wil…
Rochford v Dayes [1989] HCA 17
Citation 26 (Para 112)

…In Rochford v Dayes (1989) 63 ALJR 315 at 315; [1989] HCA 17 ( Rochford ) Gaudron J considered the meaning of s 75(iv) of the Constitution :…
Re JRL; Ex parte CJL [1986] HCA 39
Citation 27 (Para 80)

…to withdraw unless there are reasons which require me to do so. The following comments of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39 in relation to judicial officers are equally applicable to members of the Tribunal:…
Rola Co (Australia) Pty Ltd v The Commonwealth [1944] HCA 17
Citation 28 (Para 1)

…the following passage in Rola Co (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185 ( Rola ) at 189 (argument of Menzies KC); [1944] HCA 17:…
Watson v Cameron [1928] HCA 4
Citation 29

…ther, is, I think, fairly open as a matter of ordinary language. The first meaning was unanimously rejected in Watson and Godfrey v Cameron (1928) 40 CLR 446. It is sufficient to refer to the words of Higgins J in that case (at 448-449): “The argument for the plaintiffs is that we should read the constitutional prov…
Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281
Citation 30 (Para 149)

…In Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 at [23]-[24] the Appeal Panel found that the following three factors identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] were applicable to the consideration of an extension of time under s 41 of the NCAT Act for the comm…

Legislation Cited

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
1 mention (from Para 123)
Bankruptcy Act 1966 (Cth)
1 mention
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 83)
Constitution (Cth) Migration Act 1958 (Cth)
1 mention
Migration Act 1958 (Cth)
1 mention (from Para 125)
Residential Tenancies Act 1995 (SA)
1 mention (from Para 141)
Residential Tenancies Act 2010 (NSW)
1 mention (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention

Medium Neutral Citation:	Lekhwar v Singh [2022] NSWCATCD 108
Hearing dates:	9 June 2022
Date of orders:	24 June 2022
Decision date:	24 June 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member
Decision:	The Notice of Order issued 24 June 2022 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows: (1) Time for the commencement of proceedings RT 22/23153 is extended until 25 May 2022. (2) The residential tenancy agreement in respect of the premises is terminated. (3) The tenants Gurgit Singh and Kiranjit Kaur (the tenants) are to give possession of the premises to the landlords Keshavanand Lekhwar and Vinita Lekhwar (the landlords) immediately. (4) The operation of order (3) above is suspended until 22 July 2022. (5) The tenants are to pay to the landlords a daily occupation fee at the rate of $57.14 per day from 25 June 2021 until the date they give vacant possession of the premises to the landlords. (6) The landlords are at liberty to relist the proceedings within 60 days after they obtain vacant possession of the premises to claim the amount owing by the tenants as occupation fees. (7) Proceedings RT 22/23153 are dismissed.
Catchwords:	CIVIL PROCEDURE — Hearings — Adjournment — Relevant factors CIVIL PROCEDURE — Hearings — Procedural fairness – Bias — Actual bias CIVIL PROCEDURE — Hearings — Procedural fairness - Apprehended bias LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Termination — By landlord – expiry of fixed term LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Termination — Notices – defect in the manner of service
Legislation Cited:	Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) Bankruptcy Act 1966 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Constitution (Cth) Migration Act 1958 (Cth) National Security (Women's Employment) Regulations 1942 (Cth) Residential Tenancies Act 2010 (NSW) Residential Tenancies Act 1995 (SA) Residential Tenancies Regulation 2019 (NSW)
Cases Cited:	Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 Attorney-General of NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 Collier v Country Women’s Association of New South Wales [2018] NSWCA 36 Cominos v Di Rico [2016] NSWCATAP 5 Henderson v Housing Choices South Australia Ltd [2019] SASC 121 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 Kostov v Amelie Housing (NCAT Appeal) [2019] NSWSC 16 Kostov (Bankrupt) v Australian Financial Security Authority, in the matter of Kostov [2020] FCA 1105 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209…