Podolsky v New South Wales Land and Housing Corporation

[2020] NSWSC 460

Supreme Court

New South Wales

Medium Neutral Citation:

Podolsky v New South Wales Land and Housing Corporation [2020] NSWSC 460

Hearing dates:

27 April 2020; on the papers

Decision date:

28 April 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Refuse leave to the plaintiff to appeal against the decision of McIntyre LCM of 30 January 2020.

 

(2)   Order the plaintiff to pay the defendants’ costs of the proceedings in this Court.

 (3)   Remit the matter to the Local Court for determination.

Catchwords:

APPEALS — Application for leave to appeal from Local Court to Supreme Court — interlocutory order — whether leave to appeal ought be granted — leave to appeal refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98, Pt 6
Local Court Act 2007 (NSW), s 40
Residential Tenancies Act 2010 (NSW), ss 50, 52
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 14.28, 15.1

Cases Cited:

Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
R v Baker [2000] NSWCCA 85

Category:

Principal judgment

Parties:

Ivan Podolsky (Plaintiff)
New South Wales Land and Housing Corporation (First Defendant)
St George Community Housing Ltd (Second Defendant)

Representation:

Counsel:
Self-represented (Plaintiff)
N Simpson (First Defendant)
A Langshaw (Second Defendant)

  Solicitors:
Not applicable (Plaintiff)
Department of Communities and Justice (First Defendant)
Colin Biggers & Paisley (Second Defendant)

File Number(s):

2020/64006

 Decision under appeal 

Court or tribunal:

Local Court

Date of Decision:

30 January 2020

Before:

McIntyre LCM

File Number(s):

2019/339062

Judgment

Introduction

1. By summons filed on 27 February 2020, the plaintiff, Ivan Podolsky, seeks leave to appeal against the decision made by McIntyre LCM on 30 January 2020 to dismiss his application to have the defences of the New South Wales Land and Housing Corporation, the first defendant (the Corporation), and St George Community Housing Limited, the second defendant (St George) struck out.

2. This Court’s jurisdiction derives from s 40(2)(a) of the Local Court Act 2007 (NSW), which relevantly provides that a party to proceedings in the Local Court’s General Division may appeal by leave against an interlocutory judgment or order.

3. The matter was listed for hearing on 27 April 2020. Mr Podolsky sought an adjournment on the basis that he was sleep-deprived by reason of the conduct of a tenant in the same housing block as he resides. There does not appear to be any basis for considering that the conduct of the other tenant will alter in the immediate future. For this reason, I proposed that I determine the matter on the papers. All parties agreed with this course. The court book and the tender bundle prepared by St George have been provided to the court and are an exhibit in these proceedings. In addition, I have, with the consent of all parties, had regard to further submissions filed by the plaintiff on 27 April 2020.

The background to the application for leave

4. Mr Podolsky lives in residential accommodation owned by the Corporation and managed by St George. His residence is a unit in an apartment building in Wollstonecraft. Mr Podolsky commenced proceedings in the Local Court on 29 October 2019 by filing a statement of claim against the Corporation and St George.

5. It appears to be common ground that the Corporation was the landlord under a residential tenancy agreement with Mr Podolsky which was entered into on 11 January 2016. On 1 April 2019, St George took over management of the property and obtained a right to receive the rent. St George accepted that it was, on and from 1 April 2019, subject to the obligations imposed on landlords pursuant to the Residential Tenancies Act 2010 (NSW). The plaintiff alleged that the Corporation was his landlord from 11 January 2016 until 1 April 2019 and that St George was his landlord thereafter.

6. The plaintiff relied on s 50(3) and s 52(3) of the Residential Tenancies Act. Section 50 provides:

“50   Tenant’s right to quiet enjoyment

(1)     A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord.

(2)     A landlord or landlord’s agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises.

Maximum penalty—10 penalty units.

(3)     A landlord or landlord’s agent must take all reasonable steps to ensure that the landlord’s other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.

(4)     This section is a term of every residential tenancy agreement.”

7. Section 52(3) of the Residential Tenacies Act provides that a landlord must comply with the landlord’s statutory obligations relating to the health or safety of the residential premises.

8. The basis of the plaintiff’s claim is the allegation that a tenant whose unit is underneath his (and who also is a public housing tenant) is causing disturbance to his quiet enjoyment of his premises and that the Corporation and St George are liable for this breach. The relief which he claims is, in substance, full or partial refund of rent paid for his unit, damages for non-economic loss, the provision of alternative accommodation or damages for the costs of such alternative accommodation.

9. The plaintiff alleges, as against the Corporation, that he was party to a residential tenancy agreement with the Corporation and that the Corporation was in breach of the agreement and had also engaged in misleading and deceptive conduct. Similar allegations have been made against St George.

10. The plaintiff alleges that the tenant of unit 12, who was accepted to be subject to a similar rental agreement as the plaintiff “has been exhibiting the signs common with psychotic behaviours and effects of methamphetamine use”. The plaintiff alleges that the other tenant damaged the front door to the plaintiff’s unit.

11. On 28 November 2019, St George filed its defence to the statement of claim. It answered each of the paragraphs in the statement of claim, either by an admission, a non-admission, a denial or a statement that the allegation was not pleaded to as it did not make any allegation against it. In respect of some of the non-admissions, St George alleged that it did not know and could not admit the paragraph.

12. On 29 November 2019, the Corporation filed its defence to the statement of claim. It pleaded to each of the paragraphs of the statement of claim which contained an allegation against it. It alleged that the relevant door had been replaced although it was not damaged and did not require repair. The Corporation also denied that it was in breach of s 50(3) or 52(3) of the Residential Tenancies Act and denied that it was guilty of misleading or deceptive conduct.

13. On 6 January 2020, the plaintiff filed a notice of motion in the Local Court, seeking that the Corporation’s defence be struck out. On 17 January 2020, the plaintiff filed a notice of motion in the Local Court, seeking that St George’s defence be struck out.

14. The motions came on for hearing before Magistrate McIntyre on 30 January 2020. After hearing from the parties, her Honour gave ex tempore reasons as follows:

“Thank you Mr Podolsky I have probably heard enough, I have read through your submissions and I think that I can probably deal with your written submissions and your position on strike out fairly briefly because we need to move on. This matter is dragging and I need to indicate to you in no uncertain terms that I do not see that there is strength in your argument to strike out. Very, very rare that a Court would strike out a defence at this very early stage anyway; evidence has not even been exchanged. The Court very rarely, if ever, excludes parties from defending themselves if there is sufficient material placed before the Court in relation to defences that may be made out on the balance.

I am concerned as to the nature of your statement of claim, it is difficult to follow, it enumerates many, many, many, sometimes difficult to understand claims. I query whether indeed this Court has jurisdiction to exercise powers that you suggest it has in relation to relief that you are claiming. I am concerned that your statement of claim has, or is difficult to decipher and understand, and quite frankly the parties, the first and second defendants have done their utmost to delineate what your issues are and to reduce their defences to something that is meaningful for the Court.

I am certainly not convinced that their defences should be struck out. I am absolutely of the view that they have done their best to meet the various and varied contentions that you have put before the Court, as an unrepresented litigant, and I intend most certainly to have this matter moved forward, and to make orders in relation to further directions.

I decline to find that any of the heads of your objection have been made out. As I said I have no power to make any kind of declaration, nor would I, in relation to the defendants or their legal representatives; they have acted completely appropriately thus far in relation to filing a defence which is their right in the face of a very difficult, some quite difficult issues in deciphering what your position is.

I CERTAINLY DECLINE TO STRIKE OUT ANY OF THE DEFENCE. I CERTAINLY DECLINE TO STRIKE OUT PARTS OF IT AND WILL NOT BE MAKING ANY COSTS ORDER IN YOUR FAVOUR IN RELATION TO TODAY'S PROCEEDINGS; THE MATTER WILL CONTINUE. THOSE ARE THE ORDERS OF THE COURT, THE APPLICATION IN RELATION TO THE STRIKE OUT, AS AGAINST THE FIRST AND SECOND DEFENDANTS' DEFENCES, IS DISMISSED.”

15. Her Honour also ordered the plaintiff to pay St George’s costs of the notice of motion but declined to make an order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that they be paid in a gross sum. The Corporation did not seek its costs of the notice of motion.

The grounds of appeal

16. The plaintiff sought leave to appeal on the following grounds:

“1   Her Honour erred in law by giving the decisive weight to the stage of the proceedings at which the applications were made to strike out pleadings on the grounds that their form does not comply with the court rules, while applying statutory legal principles to determine those applications, when:

(a)    that stage was found by the court as being very early in the proceedings, and particularly when no evidence has even been exchanged by the parties,

(b)    the stage of the proceedings at which an application is made that may require a pleading to be amended is not relevant under statute and case law,

(c)    the form of pleadings is fixed at the time of their filing with the court and does not change with the passage of time,

(d)    the case evidence has no function to cure the form of pleadings that does not comply with the court rules,

(e)    the correct legal principles and their applications in the matter as submitted by the Plaintiff were given by the court little if any weight, and

(f) the determination outcome is contrary to the overriding purpose pursuant to s 56 of the Civil Procedure Act 2005.

2    Her Honour erred in law by denying procedural fairness to the Plaintiff when:

(a)    making prejudicial adverse comments about the form and substance of the Statement of Claim, and especially in the absence of substantive contention for that from either of the Defendants at any time,

(b)    making prejudicial comments commending the Defendants and their legal representatives for their effort in drafting the filed Defences,

(c)    making prejudicial inquiries and comments about the nature of the Plaintiff’s claim implying that the cause of action, being the alleged breaches of Plaintiff’s statutory rights, has little if any merit,

(d)    giving rise to apprehended bias by leaving without queries the oral submissions of both legal representatives for the Defendants in which they made general assertions to the effect that the filed Defences comply with the court rules while avoiding to contend specifically that the legal principles or their applications in the matter as submitted by the Plaintiff are not correct,

(e)    not giving adequate reasons for the decision, specifically by not stating expressly whether the court found that the legal principles and/or their applications in the matter as submitted by the Plaintiff in writing and orally are not correct.”

Consideration

17. It is necessary to consider the merits of the appeal as part of the consideration of whether leave ought be granted.

18. The function of a defence is to indicate to the plaintiff the matters that are in issue: see the discussion as to the purpose of pleadings in Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 (Mason CJ and Gaudron J); [1990] HCA 11. One of the purposes of a defence is to inform the plaintiff what must be proved and what is admitted. A defendant is expected, consistently with the requirements of Part 6 of the Civil Procedure Act to make appropriate admissions and not to contest that which is not bona fide in dispute. However, there is no obligation on a defendant to make an admission where it does not know a particular matter. A defendant is entitled to have the plaintiff prove the case to the requisite standard.

19. Mr Podolsky argued that the defences included “evasive denials” which were impermissible under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 14.14(2), which requires a defendant to plead specifically any matter that, if not pleaded specifically, may take the opposite party by surprise, or that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or that raises matters of fact not arising out of the preceding pleading. He also relied on UCPR, r 15.1, which requires all necessary particulars to be given. Mr Podolsky has also reproduced the rules of other courts which specify procedural rules relating to the pleading of defences. In addressing the matters raised on this application for leave to appeal, I have confined my consideration to the applicable rules in the UCPR, which are to be read in accordance with Part 6 of the Civil Procedure Act.

20. In the present case, as referred to above, Mr Podolsky principally relies on the conduct of a third party (another tenant in the complex) as constituting a breach of the residential tenancy agreement between him and the respective defendants. The Corporation and St George are entitled to put the plaintiff to proof of such matters. In other words, they are entitled to have the plaintiff put on evidence to support the allegation in the pleading and are not bound to admit the allegations of which they have no or insufficient knowledge. Such denials or non-admissions are not “evasive”. They are not capable, in these circumstances, of taking the plaintiff by surprise in the relevant sense in which that concept is used in UCPR, r 14.14(2). Their effect is to indicate to the plaintiff that he is obliged to prove such matters by evidence in due course. Where matters have been denied, as opposed to not being admitted, this informs the plaintiff that the defendants propose to adduce evidence to the contrary or to challenge the allegation in some other way. I am not persuaded that either defendant was in breach of the UCPR in filing its defence in the form in which each was filed.

21. In substance, Mr Podolsky alleges in the first ground that the magistrate gave too much weight to the stage of the proceedings and, by implication, too little weight to the rules of court which govern the form of a defence. In the second ground, Mr Podolsky alleges that the magistrate denied him procedural fairness by criticising the statement of claim, although there was no application by either of the defendants to strike it out and no objection taken by either defendant to its form. He also alleged that the magistrate was guilty of apprehended bias because her Honour did not require detailed submissions from the defendants’ representatives at the hearing of the notice of motion. Mr Podolsky also alleged that the magistrate’s reasons were insufficient to address his submissions.

22. I am not persuaded that it is appropriate to grant leave to appeal against the magistrate’s decision. The decision made by her Honour was purely procedural. The defences filed by the Corporation and St George complied with the UCPR. The defendants were not obliged to admit allegations when they cannot be taken to have been aware of the underlying facts, particularly when directions for evidence had not yet been made. The magistrate was not obliged to require lengthier submissions from the defendants than had been made. That her Honour only briefly called on the legal representatives for the defendants was an indication that she did not feel the need to hear from them because she was not persuaded that the relief sought by Mr Podolsky was warranted. The decision whether to strike out the defences pursuant to UCPR 14.28 was a discretionary one. The weight to be given to relevant factors was a matter for her Honour. The allegation that she gave too much, or too little, weight to a particular factor carries with it an acceptance that it was taken into account: R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing).

23. Nor do I consider that any of the magistrate’s conduct indicated an apprehension of bias. Although the form and content of the statement of claim was not the subject of any application by the defendants, her Honour was entitled to consider it in the course of assessing the defences and make allowance, as her Honour did, for the circumstance that Mr Podolsky is not a legal practitioner.

24. Although the magistrate’s reasons were not lengthy, they were sufficient to indicate the basis on which her Honour dismissed the notice of motion.

25. Mr Podolsky has also identified, in support of his application for leave, important legal principles such as equality before the law, the function and purpose of pleadings and the importance of procedural fairness and sufficiency of reasons. While these matters are undoubtedly fundamental, the principles are not in doubt. I am not persuaded that the magistrate has erred in their application. The authorities concerning the restraint to be exercised in determining whether a grant of leave is warranted (such as were outlined in Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 and followed consistently since) apply with even greater force to applications for leave to appeal from interlocutory orders of the Local Court.

26. Mr Podolsky also sought leave to appeal against the costs order made in favour of St George. This costs order was an unexceptional example of the general rule that costs follow the event. No grant of leave is warranted.

Costs

27. The parties agreed that there was no reason why the costs of these proceedings ought not follow the event. Accordingly, I will order the plaintiff to pay the defendants’ costs of the proceedings in this Court.

Conclusion

28. For the reasons given above, I make the following orders:

1. Refuse leave to the plaintiff to appeal against the decision of McIntyre LCM of 30 January 2020.

2. Order the plaintiff to pay the defendants’ costs of the proceedings in this Court.

3. Remit the matter to the Local Court for determination.

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Decision last updated: 28 April 2020