Romanos v Punjabi Fusion Group Pty Ltd

[2023] NSWSC 1516

Supreme Court

New South Wales

Medium Neutral Citation:

Romanos v Punjabi Fusion Group Pty Ltd [2023] NSWSC 1516

Hearing dates:

05 December 2023

Date of orders:

05 December 2023

Decision date:

05 December 2023

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) The issues referred for determination pursuant to order 4 made by Davies J on 27 October 2023 are specially fixed for hearing before Schmidt AJ on 5 and 6 February 2024. 

(2) Liberty to apply to Lonergan J (or alternatively the duty judge) on 2 days’ notice.

Catchwords:

CIVIL PROCEDURE – division of issues for determination – need to avoid conflicting factual findings between judges asked to address the same questions in different context

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Romanos v Punjabi Fusion Group Pty Ltd [2023] NSWSC 1119

Category:

Procedural rulings

Parties:

Joseph John Romanos (Plaintiff)
Punjabi Fusion Group Pty Ltd (First Defendant)
Maninder Kaur Luthra (Second Defendant)
Kamaldeep Singh (Third Defendant)

Representation:

Counsel:
M.J. Jones (Plaintiff)
M Auld / F Di Lizia (Defendants)

Solicitors:
JDK Legal (Plaintiff)
Joseph Trimarchi & Associates (Defendants)

File Number(s):

2023/00210278

Publication restriction:

Nil

JUDGMENT

1. On 30 June 2023 Mr Romanos commenced proceedings in the Possession List of this Court regarding premises he owns at units 5 and 6 of [REDACTED] Street, Harris Park. The defendants operate a restaurant in the premises. In 2021 NCAT proceedings were commenced by the defendants about a 2019 lease. Those proceedings were resolved by consent orders filed in NCAT in October 2022 behind which was an executed Heads of Agreement. The details of the Heads of Agreement are set out in full by Schmidt AJ in Romanos v Punjabi Fusion Group Pty Ltd [2023] NSWSC 1119 at [5].

2. The defendants have refused to comply with the requirements of the Heads of Agreement which included a requirement that they vacate by 1 April 2023. They still remain in occupation of the premises.

3. The defendants dispute that Mr Romanos is entitled to possession. They pleaded in their defence filed on 28 July 2023, amongst other things, that these proceedings should be transferred to NCAT. The defendants also commenced new proceedings in NCAT in June 2023 which were recently dismissed.

4. The defendants filed a cross-claim in this Court on 25 October 2023 seeking various declarations, including that the Heads of Agreement document is of no legal effect and that the defendants have a right to occupy the premises on the terms set out in the 2019 lease. The defendants also claimed in the alternative restitution for a sum previously paid under the heads of agreement, relief against forfeiture to allow Punjabi Fusion Group Pty Ltd (“Punjabi”) to sell the business without the necessity of a new lease, damages at common law, damages in lieu of relief against forfeiture and equitable compensation.

5. At a directions hearing on 27 October 2023 Davies J ordered that under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) the relief contained in pars 1 to 5 of the further amended statement of claim and pars 2, 4 and 5 of the cross-claim be heard separately and before the other issues in the proceedings.

6. The hearing came before me on 5 December 2023. In preparing for that hearing I became aware of the contents of the judgment of Schmidt AJ in which her Honour dealt with the notice of motion by the defendants seeking an order that the proceedings be transferred to NCAT. Amongst other things, the defendants argued that the Heads of Agreement comprised a lease and so NCAT had jurisdiction to deal with the proceedings as a dispute regarding a “retail lease”.

7. In refusing to transfer the proceedings to NCAT her Honour made some preliminary findings as to the nature and effect of the Heads of Agreement, whether it could amount to a lease agreement, and whether the events gave Punjabi and the other defendants a right to occupy the premises after 1 April 2023 or not.

8. Counsel for the defendants made it clear in submissions made to the Court on 5 December 2023 when these findings were drawn to his attention, that he would be seeking to have me reach a view on these questions different to the views articulated by Schmidt AJ in her judgment on the notice of motion.

9. In the circumstances I considered that the questions referred by Davies J should be heard by Schmidt AJ to avoid the risk of conflicting findings being made in the same proceedings by different judicial officers because of the way in which the areas for dispute had been divided for determination.

10. Although keen for their dispute to be determined, the parties did not raise any matter to dissuade me from this view.

11. The first available suitable date was identified and the hearing specially fixed for Monday 5 February 2024 before Schmidt AJ with a two day estimate.

12. Given the background to the proceedings, I emphasised to the parties, who were present in Court, and to their legal representatives, that although I would not force the parties to mediation by Court order, they should not lose sight of the benefit of a negotiated resolution of the longstanding issues between them.

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