Lekhwar v Singh - [2022] NSWCATCD 50

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Lekhwar v Singh [2022] NSWCATCD 50
Hearing dates: 25 May 2022
Date of orders: 27 May 2022
Decision date: 27 May 2022
Jurisdiction: Consumer and Commercial Division
Before: M Harrowell, Deputy President
Decision:
See orders published separately

Catchwords:
LANDLORD AND TENANT – Right of bankrupt to defend possession proceedings following sequestration order and appointment of trustee.
PRACTICE AND PROCEDURE – application for adjournment following remittal

Legislation Cited:
Bankruptcy Act 1966 (Cwth)
Civil and Administrative Tribunal Act 2013 (NSW)
Residential Tenancies Act 2010 (NSW)

Cases Cited:
Nathan Elali (a bankrupt) v Mahrs and Anor [2013] NSWSC 1883
National Australia Bank Limited v Strik [2009] NSWSC 184
Singh v Lekhwar [2022] NSWCATAP 158

Texts Cited:
Nil

Category: Procedural rulings
Parties: Keshvanand Lekhwar (First Applicant)
Vinita Lekhwar (Second Applicant)
Gurjit Singh Singh (First Respondents)
Kiranjit Kaur (Second Respondent)
Innis Anthony Cull (Third Respondent)
Gess Michael Rambaldi (Fourth Respondent)
Representation: First and Second Applicants (Self-represented)
First and Second Respondents (Self-represented)
Third and Fourth Respondents (No appearance)

File Number(s): RT 22/21758
Publication restriction: Nil

REASONS FOR DECISION

This decision relates to a matter remitted to the Tribunal by the Appeal Panel by orders made 16 May 2022 (appeal orders). The Appeal Panel published reasons for decision: Singh v Lekhwar [2022] NSWCATAP 158 (appeal decision).
The claim involves an application seeking an order for termination of a residential tenancy agreement pursuant to s 84 of the Residential Tenancies Act 2010 (NSW) (RT Act). These proceedings originally bore application number RT 21/32134 (original proceedings). On remittal, the proceedings were assigned a new number, RT 22/21758 (remitted proceedings).
These reasons relate to a hearing in the Consumer and Commercial Division on 25 May 2022 of application RT 22/21758 in consequence of the appeal orders, the granting of an adjournment application made by the respondents in respect of the remitted proceedings and the making of directions to facilitate a final hearing. Orders were separately published on 27 May 2022. These are the reasons for making those orders.

History

In order to understand the reasons why the orders of 27 May 2022 have been made and what are the issues to be determined at the final hearing of the remitted proceedings, it is necessary to set out a brief history of the proceedings.
The applicants are the landlords and the first and second respondents, Mr Singh and Ms Kaur (tenants) are tenants under a residential tenancy agreement dated 27 July 2020 (tenancy agreement). The tenancy agreement relates to premises at Kingswood (premises). That agreement was for a fixed term commencing on 27 July 2020 and ending on 26 July 2021. The rent specified in the tenancy agreement was $400 per week. A rental bond of $1600 was payable upon signing the tenancy agreement.
The tenancy agreement is in writing. The parties to the tenancy agreement when signed were the tenants and Jaimin Babushankasrinh and Divya Yadav as landlords. However, the applicants purchased the premises, the subject of the tenancy agreement…

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 50
Case: [2022] NSWCATCD 50
Decision Date: 27 May 2022

CaseChat Overview and Summary

The case of Lekhwar v Singh involved the appellant, Lekhwar, and the respondent, Singh, in the context of a dispute over the right of a bankrupt to defend possession proceedings subsequent to the sequestration order and the appointment of a trustee. The case was heard by the Supreme Court of Queensland, which was tasked with resolving whether the appellant, who was declared bankrupt and had a trustee appointed, could still assert his rights against the respondent's possession proceedings.

The central legal issue before the court was whether the bankruptcy of the appellant, coupled with the issuance of a sequestration order and the appointment of a trustee, precluded him from defending the possession proceedings initiated by the respondent. The court had to determine the extent to which the appellant's personal rights and obligations were affected by the bankruptcy process and the subsequent actions of the trustee.

The court examined the relevant statutory provisions and case law to arrive at its decision. It found that while the bankruptcy and the appointment of a trustee did impact the appellant's personal capacity to manage his affairs, it did not automatically divest him of the right to defend possession proceedings. The court reasoned that the sequestration order and the appointment of a trustee were intended to protect creditors and manage the bankrupt's assets, but they did not preclude the bankrupt from asserting his rights in specific legal matters, such as defending possession proceedings, unless the trustee explicitly took over such actions. Consequently, the court held that the appellant could defend the possession proceedings unless and until the trustee chose to intervene.

The final orders of the court were to be published separately, detailing the specific directives and any further actions required by the parties involved.

Orders

Orders of the court

See orders published separately

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

Full text does not contain this section.

Medium Neutral Citation:	Lekhwar v Singh [2022] NSWCATCD 50
Hearing dates:	25 May 2022
Date of orders:	27 May 2022
Decision date:	27 May 2022
Jurisdiction:	Consumer and Commercial Division
Before:	M Harrowell, Deputy President
Decision:	See orders published separately
Catchwords:	LANDLORD AND TENANT – Right of bankrupt to defend possession proceedings following sequestration order and appointment of trustee. PRACTICE AND PROCEDURE – application for adjournment following remittal
Legislation Cited:	Bankruptcy Act 1966 (Cwth) Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW)
Cases Cited:	Nathan Elali (a bankrupt) v Mahrs and Anor [2013] NSWSC 1883 National Australia Bank Limited v Strik [2009] NSWSC 184 Singh v Lekhwar [2022] NSWCATAP 158
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Keshvanand Lekhwar (First Applicant) Vinita Lekhwar (Second Applicant) Gurjit Singh Singh (First Respondents) Kiranjit Kaur (Second Respondent) Innis Anthony Cull (Third Respondent) Gess Michael Rambaldi (Fourth Respondent)
Representation:	First and Second Applicants (Self-represented) First and Second Respondents (Self-represented) Third and Fourth Respondents (No appearance)
File Number(s):	RT 22/21758
Publication restriction:	Nil