Sharma v Kaur

[2023] NSWCATCD 27

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Sharma v Kaur [2023] NSWCATCD 27

Hearing dates:

3 March 2023

Date of orders:

15 March 2023

Decision date:

15 March 2023

Jurisdiction:

Consumer and Commercial Division

Before:

G Blake AM SC, Senior Member

Decision:

(1)   The application for miscellaneous matters of Gurgit Singh and the first named respondent filed on 21 February 2023 is dismissed.

(2)   The time for the applicants to make an application for a warrant for possession of the premises is extended to 3 February 2023.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power –the Tribunal has jurisdiction to determine application for extension of time to issue warrant for possession

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Recovery of possession of premises – application for extension of time to issue warrant for possession – application granted

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 51, Sch 4 cl 3

Criminal Law Consolidation Act 1935 (SA), ss 85, 131, 196

Residential Tenancies Act 2010 (NSW), ss 43, 87, 88, 119, 121

Cases Cited:

Attorney-General of NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Kaur v Sharma [2022] NSWCATAP 336

Kaur v Sharma (No 2) [2022] NSWCATAP 360

McLean v Power [2013] NSWSC 193

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Singh v Tidball [2023] NSWSC 96

Smits v Loel [2014] FCA 1341

Smits v Loel (No 3) [2015] FCA 77

Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213

Texts Cited:

None cited

Category:

Consequential orders

Parties:

Umesh Sharma and Krishna Sharma (Applicants)
Kiranjit Kaur and Reva Kaur Mehroke (Respondents)

Representation:

Solicitors:
Neil Lawyers (Applicants)

G Singh (representaive) (Respondents)

File Number(s):

RT 22/15982

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. In these proceedings the applicants, Umesh Sharma (Mr Sharma) and Krishna Sharma (Mrs Sharma), who were the landlords (collectively referred to as Mr and Mrs Sharma or the landlords), seek an extension of time for their application for a warrant for possession under the Residential Tenancies Act 2010 (NSW) (RT Act) against the respondents, Kiranjit Kaur (Ms Kaur) and Reva Kaur Mehroke (Ms Mehroke), who were the tenants, of premises at Kingswood (the premises) under a residential tenancy agreement between them (the residential tenancy agreement).

2. I have decided to dismiss the application of Gurgit Singh (Mr Singh) and Ms Kaur that the proceedings be stayed and to extend the time for the landlords making an application for a warrant for possession of the premises.

The factual background

3. Mr Singh is the husband of Ms Kaur and the father of Ms Mehroke.

4. At all relevant times RCMO Pty Ltd trading as United Property Sales & Management (RCMO) was the landlords’ agent, and Sarvjot Singh and Narinder Sharma were their representatives responsible for the letting of the premises.

5. Since approximately September 2022, Monoj Babu (Mr Babu) of Neil Lawyers has been representing the landlords.

6. On 21 December 2021, the applicants as the landlords and the respondents as the tenants entered into the residential tenancy agreement in respect of the premises which was for a period of 12 months commencing on 23 December 2021 at a rent of $525.00 per week and with a rental bond of $2,100.00 (the residential tenancy agreement). On page 2 the “Landlord’s agent details” were specified as being “United Property Sales & Management”. On page 16 Sarvjot Singh signed as the landlords’ agent.

7. On 21 March 2022, the landlords served a termination notice on the tenants stated to be pursuant to s 87 of the RT Act on the grounds of non-payment of rent and the failure to provide access to the premises for repairs, requiring them to give vacant possession of the premises on 4 April 2022 (the 21 March 2022 termination notice).

8. On 26 April 2022, the landlords served a termination notice on the tenants stated to be pursuant to s 88 of the RT Act on the grounds of non-payment of rent, requiring them to give vacant possession of the premises on 10 May 2022 (the 26 April 2022 termination notice).

9. Disputes between the landlords and the tenants have resulted in following proceedings in Civil and Administrative Tribunal of New South Wales (the Tribunal) and in the Supreme Court of New South Wales (the Supreme Court):

1. the following proceedings in the Consumer and Commercial Division of the Tribunal which were heard together (the CCD proceedings);

1. proceedings RT 22/15982;

2. proceedings RT 22/21195;

3. proceedings RT 22/24837;

2. proceedings 2022/00198395 in the Appeal Panel of the Tribunal (the Appeal Panel proceedings);

3. the following proceedings in the Supreme Court (the Supreme Court proceedings):

1. proceedings 2022/00133947 (the 2022/00133947 proceedings);

2. proceedings 2022/00184500 (the 2022/00184500 proceedings);

3. proceedings 2022/00196452 (the 2022/00196452 proceedings);

4. proceedings 2022/00325836 (the 2022/00325836 proceedings);

5. proceedings 2022/00346122 (the 2022/00346122 proceedings);

6. proceedings 2023/00044063 (the 2023/00044063 proceedings);

7. proceedings 2023/00069493 (the 2023/00069493 proceedings).

10. The Tribunal is constituted under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Proceedings under RT Act are assigned to the Consumer and Commercial Division of the Tribunal: cl 3 of Sch 4 of the NCAT Act. At all relevant times:

1. The Honourable Justice Lea Armstrong has been the President;

2. Mark Harrowell has been the Deputy President of the Consumer and Commercial Division;

3. Michelle Brazel has been the Principal Registrar and the Executive Director.

11. At all relevant times:

1. Michael Tidball has been the Secretary, Department of Communities and Justice of New South Wales;

2. Tracey Hall has been the Sheriff of New South Wales;

3. Jerry Riznyczok has been the Registrar of the Court of Appeal of the Supreme Court of New South Wales (the Supreme Court);

4. The Honourable Justice Richard Austin Cavanagh has been a judge of the Supreme Court of New South Wales (the Supreme Court);

5. The Honourable Justice Stephen Rothman AM has been a judge of the Supreme Court;

6. The Honourable Justice Andrew Scott Bell has been the Chief Justice of the Supreme Court;

7. The Honourable Dominic Francis Perrottet MP has been the Premier of New South Wales;

8. The Honourable Anthony Albanese MP has been the Prime Minister of Australia.

The CCD proceedings

12. On 11 April 2022, RCMO as the applicant commenced proceedings RT 22/15982 against the tenants and Mr Singh as the respondents by filing an application form in which it sought a termination order on the basis of the 21 March 2022 termination notice.

13. On 13 May 2022, RCMO as the applicant commenced proceedings RT 22/21195 against the tenants and Mr Singh as the respondents by filing an application form in which it sought a termination order on the basis of the 26 April 2022 termination notice and the payment of the rental bond.

14. On 3 June 2022, Ms Kaur and Mr Singh as the applicants commenced proceedings RT 22/24837 against Mr Sharma, Sarvjot Singh, Narinder Sharma and Mrs Sharma as the respondents by filing an application form in which they sought the following orders:

“Section 11 - An order that an agreement is or is not a residential tenancy agreement under the Act

Section 45 - An order reducing the rent payable where the premises are unusable or uninhabitable or destroyed”

15. On 8 June 2022, the Tribunal relevantly made orders amending the name of the applicant to Mr and Mrs Sharma, removing Mr Singh as a respondent and granting leave to the tenants to be represented by Mr Singh, and commenced the hearing.

16. On 16 June 2022, a Deputy Registrar sent a notice to the parties of the further hearing on 27 June 2022 (the 16 June 2022 notice).

17. On 20 June 2022, Deputy Divisional Registrar Suzanne Gainsford-Holland sent a notice to the parties of the further hearing on 28 June 2022 in replacement of the 16 June 2022 notice.

18. On 1 July 2022, the Tribunal (which was constituted by General Member Patrick Gardner):

1. made orders which were stated to have been made on 28 June 2022 (the 28 June 2022 CCD orders) including the following orders:

“7. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.

8. The order for possession is suspended until 08-Jul-2022”

2. published reasons for its decision (the 28 June 2022 CCD decision) which relevantly included the following findings:

1. in relation to proceedings RT 22/15982:

1. the tenancy was comprised by the residential tenancy agreement (at [42]-[43]):

2. the Tribunal had jurisdiction to determine the proceedings (at [44]);

3. the landlords had established the conditions pursuant to s 87 of the RT Act for the making of a termination order which was based on the 26 April 2022 termination notice (at [45]-[47]):

4. the tenants had not established a defence based on a rent abatement pursuant to s 43(2) of the RT Act for reasons including that any uninhabitability arose as a result of the breach of the landlords and so s 43(2)(a) of the RT Act was not applicable (at [48]-[60]);

5. it was appropriate to make a termination order and possession order (at [61]-[64]);

2. in relation to proceedings RT 22/21195:

1. the Tribunal had jurisdiction to determine the proceedings (at [65]-[66]);

2. the proceedings were dismissed so far as the landlords sought a termination order (at [67]-[68]);

3. the entire rental bond should be paid to the landlords (at [69]-[70]);

4. leave should be granted to the landlords to make a claim for arrears of rent at the time they sought to recover any occupation fees (at [71]-[72]);

5. the landlords were entitled to have access to the premises in order to perform maintenance and other works (at [73]-[74]);

3. in relation to proceedings RT 22/24873:

1. the Tribunal had jurisdiction to determine the proceedings (at [75]-[76]);

2. the Tribunal had no power to make the order under s 11 of the RT Act sought by the applicants and was not satisfied that there was an alternative residential tenancy agreement (at [77]-[81]);

3. the applicants’ claim for a rent reduction was dismissed (at [82]);

4. the proceedings so far as the applicants made a claim against RCMO were dismissed (at [83]-[85]).

19. On 8 July 2022, the Tribunal varied order 8 of the 28 June 2022 CCD orders by substituting 15 July 2022 for 8 July 2022 (the 8 July 2022 CCD order).

20. On 10 October 2022, the landlords made an application for the issue of a warrant for possession of the premises.

21. On 17 November 2022, the Registrar issued a warrant for possession of the premises and sent it to the Office of the Sheriff of NSW.

22. On 17 November 2022, a Deputy Divisional Registrar sent a notice to the landlords’ lawyers (the 17 November 2022 notice) which relevantly provided:

“What does the person entitled to possession need to do?

To organise for the enforcement of the warrant the person entitled to possession should, within 7 days:

Go to the Office of the Sheriff website and complete the eviction booking request form.

Email the request form to [email protected]

Pay the fee to the Office of the Sheriff by contacting 8688 4080”

23. On 3 February 2023, the landlords filed a request for the issue of a warrant for possession of the premises (the 3 February 2023 Sharma CCD application).

24. On 6 February 2023, the Tribunal made procedural directions which relevantly included the following orders (the 6 February 2023 CCD orders):

“1. The applicant shall provide to the respondent and the Tribunal all submissions and evidence in support of the application to extend time for the issue of a new warrant for possession and in particular addressing why time was allowed to lapse for a second time, by Friday 8 February 2023.

2. The respondent tenant shall provide the applicant and the Tribunal all submissions and evidence in response to the application by 10 February 2023.”

25. On 21 February 2023, Mr Singh and Ms Kaur filed application for miscellaneous matters seeking orders for the stay of the 3 February 2023 Sharma CCD application pending the determination of Supreme Court proceedings or the summary dismissal of the 3 February 2023 Sharma CCD application (the 21 February 2023 Singh/Kaur CCD application).

26. On 23 February 2023, the Tribunal made procedural directions for the filing and service by the parties of submissions in opposition to and in reply to the 21 February 2023 Singh/Kaur CCD application.

The Appeal Panel proceedings

27. On 7 July 2022, the tenants and Mr Singh commenced the Appeal Panel proceedings against the landlords, RCMO, Sarvjot Singh and Narinder Sharma by filing a notice of appeal in which they relevantly appealed against orders 7 and 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order.

28. On 11 July 2022, the Appeal Panel stayed order 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order.

29. On 13 July 2022, the Appeal Panel (which was constituted by Principal Member Sabine Thode) removed Mr Singh as an appellant and RCMO, Sarvjot Singh and Narinder Sharma as respondents.

30. On 27 October 2022, the Appeal Panel (which was constituted by Principal Member Kim Rosser and Senior Member Robert Titterton) dismissed the appeal, refused leave to appeal and lifted the stay of order 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order: Kaur v Sharma [2022] NSWCATAP 336. The Appeal Panel at [107]-[108] and [113] made the following findings as the challenge of the tenants to the jurisdiction of the Tribunal:

“[107] In our view, the Tribunal patently did not err in determining that it had jurisdiction to hear and determine the landlord’s first application, for the reason the Tribunal stated; that is, the landlord’s application for termination and possession pre-dated the Supreme Court proceedings said to have been commenced on 2 May 2022.

[171] We also conclude that the Tribunal did in not accepting the other argument on jurisdiction Mr Singh put to the Tribunal on 8 June; that is, that the dispute involved persons who were not parties to the residential tenancy agreement. Both the applications lodged by the landlord’s agent on behalf of the landlord and the tenants’ application involved a dispute between parties to a residential tenancy agreement.”

“[113] We are not satisfied that the tenants have established that the Tribunal lacked jurisdiction to hear and determine the applications because of the Supreme Court proceedings. Nor are we satisfied that the tenant has demonstrated that there was any basis for the Tribunal to adjourn or stay the proceedings because of the Supreme Court proceedings.”

31. On 15 November 2022, the Appeal Panel (which was constituted by Principal Member Kim Rosser and Senior Member Robert Titterton) extended the time for the landlords to apply for a warrant for possession to 10 October 2022: Kaur v Sharma (No 2) [2022] NSWCATAP 360. The Appeal Panel at [27] expressed the following summary of its reasons for making this order pursuant to s 121(2) of the RT Act:

“[27] We conclude that the delay in applying for a warrant for possession is explained by the appeal being lodged and the order for possession being stayed. The delay is not excessive. Now that the appeal has been finalised and the stay order has been lifted, it is appropriate to permit a further period of time in which to apply for a warrant for possession. We have extended the time for that application to 10 October 2022, the date on which the application is taken to have been lodged in the Tribunal’s Penrith Registry.”

The 2022/00133947 proceedings

32. On 2 May 2022, Mr Singh and Ms Kaur as the first and second plaintiffs commenced the 2022/00133947 proceedings against Sarvjot Singh, Narinda Sharma, RCMO, the landlords and the NSW Fair Trading Commissioner as the first to sixth defendants by filing a summons in the Common Law Division of the Supreme Court in which they relevantly seek the following orders:

“1   Set aside the notice of termination issued by Sarvjot Singh dated 21 March 2022.

2 Set aside conditions report issued pursuant to Residential Tenancies Act 2010 - Sect 29 of the property pursuant to Residential Tenancies Act 2010 - Sect 29

3   Declaration that lease start date 23 Dec 2021 is contrary to law.

4   Declaration that Narinder Sharma is not a fit and proper person to be a real estate agent responsible to carry out the activities of a real estate agent to perform leasing functions or on-site residential property manager functions.

5   Declaration that Sarvjot Singh is not a fit and proper person to be a real estate agent responsible to carry out the activities of a real estate agent to perform leasing functions or on-site residential property manager functions.

6   Declaration that Market Rent of 30 Elizabeth Cr Kingswood 2747 is $130 per week from the start of the lease or any amount determined by the court in accordance with the law.

7 NSW Fair Trading Commissioner review the eligibility of Narinder Sharma and Sarvjot Singh pursuant to Property And Stock Agents Act 2002 - Sect 14.

8   Costs, Restitution and Damages

9   Extension of Time”

The 2022/00184500 proceedings

33. On 24 June 2022, Mr Singh and the tenants as the first to third plaintiffs commenced the 2022/00184500 proceedings against RCMO, Sarvjot Singh, Narinda Sharma, RCMO, the landlords, Mark Harrowell, Patrick Gardner, the Tribunal and the Principal Registrar of the Tribunal as the first to ninth defendants by filing a summons in the Common Law Division of the Supreme Court in which they seek the following orders:

“1   Appeal allowed and all orders and decisions made be set aside.

2   Declaration that NSW Civil and Administrative Tribunal has no jurisdiction to hear RT 22/21195.

3   Declaration that NSW Civil and Administrative Tribunal has no `jurisdiction to hear RT 22/24873.

4   Declaration that NSW Civil and Administrative Tribunal has no jurisdiction to hear RT 22/15982.

5 Declaration that Civil and Administrative Tribunal Act 2013 is inconsistent with the law of the commonwealth

6   Mark Harrowell be restrained from any further involvement in the matter

7   Member Patrick Gardener be restrained from having any further involvement in the matter.

8   Principal Registrar of NSW Civil and Administrative Tribunal be restrained from listing the matter on the dates parties have duplicate listing in other Higher Courts.

9   Costs”

The 2022/00196452 proceedings

34. On 5 July 2022, Mr Singh and Ms Kaur as the first and second plaintiffs commenced the 2022/00196452 proceedings against Narinda Sharma, Sarvjot Singh, RCMO, the landlords, Patrick Gardiner, and Suzanne Gainsford-Holland as the first to seventh defendants by filing a statement of claim in the Common Law Division of the Supreme Court in which they seek the following orders:

“1   Plaintiff contends that defendants 1 to 5 Jointly and Severally Liable, committed the tort of intentional Infliction of emotional distress which is medically diagnosable and required treatment and seek damages, exemplary damages for suffering economic and non-economic loss and seek damages and exemplary damages.

2   Plaintiffs seek damages and exemplary damages for misrepresentations by act and omissions. unconscionable conduct of defendant 1 to 5, jointly and severally liable in the course of negotiations of the agreement, signing the agreement and property management.

3   Plaintiffs seek compensation for breach of contract.

4   Plaintiffs seek rent abatement for the period beginning from 23 Dec 2021 until the premises is made inhabitable, clean, structurally sound and safe for plaintiffs

5   Plaintiffs seek an order to amend the lease start date to the date premises is clean, safe and inhabitable to live in and termination date be one year from the date of amended start date (Specific Performance)

6   Defendants 1 to 5 jointly and severally liable refund the rent paid for the premises while premises were uninhabitable unsafe and riot clean to live in.

7   Plaintiff seek damages and exemplary damages from the sixth defendant for economic and non-economic harm caused for the cause of action of Misfeasance in Public Office and intentionally inflicted emotional distress.

8   Plaintiff seek damages and exemplary damages from the Seventh defendant for economic and non-economic harm caused,

9   Set aside orders made by defendant .6 in relation to premises [address omitted] Kingswood 2747 NSW

10   Declaration that defendant 6 failed to provide reasonable time to plaintiffs to defend the rights to possession of the premises [address omitted] Kingswood 2747 NSW”

The 2022/00325836 proceedings

35. On 17 November 2022, Mr Singh as the plaintiff commenced the 2022/00325836 proceedings against [Lea] Armstrong, [Sabine] Thode, Kim Rosser, Robert Titterton, Michelle Brazel, Jerry Riznyczok, the landlords, Sarvjot Singh, Monoj Babu, Neil Lawyers and the State of New South Wales as the first to twelfth defendants by filing a statement of claim in the Common Law Division of the Supreme Court in which he seeks the following orders:

“1   Plaintiff claim intangible damages from [Sabine] Thode to the tune of $250000 or any other amount assessed by the court or agreed by the parties for the cause of action of [Misfeasance] in Public office

2   Plaintiff claim intangible damages from Kim Rosser and Robert Titterton to the tune of $375000 or any other amount assessed by the court or agreed by the parties for the cause of action of [Misfeasance] in Public office.

3   Plaintiff claim intangible damages from Michelle Brazel to the tune of $150000 or any other amount assessed by the court or agreed by the parties for the cause of action of [Misfeasance] in Public office.

4   Plaintiff claim intangible damages from Lee Armstrong to the tune of $1800,000 or any other amount assessed by the court or agreed by the parties for acting negligently.

5   Plaintiff claim intangible damages from Umesh Sharma? Krishna Sharma, Sarvjot Singh, Manoj Babu to the tune of $800000 or any other amount assessed by the court or agreed by the parties for Collateral Abuse of Process

6   Plaintiff claim intangible damages from jerry Riznyczok to the tune of $400000 or any other amount assessed by the court or agreed by the parties for the cause of action of [Misfeasance] in Public office.

7   Plaintiff claim any other compensation or damages that he is lawfully entitled.”

The 2022/00346122 proceedings

36. On 17 November 2022, Mr Singh and the tenants as the first to third plaintiffs commenced the 2022/00346122 proceedings against Michael Tidball, Tracey Hall, the landlords and the Tribunal as the first to fifth defendants by filing a summons in the Common Law Division of the Supreme Court in which they sought the following orders:

“(1) The hearing is dispensed with under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’);

(2)   The order made by NCAT extending the time to apply for a warrant of possession be quashed;

(3)   NCAT be restrained from issuing a warrant of possession or, alternatively, if there is a warrant for possession, for it to be set aside;

(4)   The sheriff be restrained from enforcing any warrants of possession; and

(5)   An interim stay of enforcement of any warrant of possession.”

37. On 8 February 2023, the Supreme Court dismissed the proceedings and ordered the plaintiffs to pay the landlords’ costs of the proceedings: Singh v Tidball [2023] NSWSC 96. Cavanagh J said at [50]:

“[50] In my view, these proceedings (that is, the proceedings I am dealing with today) are an abuse of process. They serve no utility. An order quashing the extension of time granted by the appeal panel does not prevent the owner from seeking another order for an extension of time.”

38. On 2 March 2023, Mr Singh and the tenants filed an amended summons in which they seek the following orders:

“1 Pursuant to section 69 (3) of the Supreme Court Act 1970 Plaintiff seek [unlawful] order on the face of record and unlawful decision on face of record made in Kaur v Sharma (No 2) [2022] NSWCATAP 360 dated 27 Oct 2022 be quashed.

2 NSW Civil and Administrative Tribunal Act 2013 ultravires Commonwealth Constitution and International Covenant on Civil and Political Rights in circumstances where the act establishes tribunal which is not independent and impartial to exercise Judicial Power over citizens of NSW.

3   Declaration that Manoj Babu is not fit and Proper person to be a lawyer

4   Declaration that Manoj Babu advised Sarvjot Singh to give false evidence in NSW Civil and Administrative Tribunal.

5   Declaration that Manoj Babu advised Sarvjot Singh to not access the Property for repairs and maintenance and blame tenant for repeatedly refusing access to the Property.

6   Restrain Ms Michelle Brazel or NSW Civil and Administrative Tribunal from issuing warrant for possession for [address omitted] Kingswood NSW 2747 until final orders are made in following proceedings in Supreme Court original and Appellate Jurisdiction:

a.   2022/00133947 Gurjit Singh v Sarvjot Singh

b.   2022/00184500 Gurjit Singh v RCMO PTY LTD

c.   2022/00196452 Gurjit Singh v Narinder Sharma

d.   2022/00325836 Gurjit Singh v Lee Armstrong

e.   2023/00044063 Gurjit Singh v Richard Cavanagh

7   Restrain Tracy Hall Sheriff of Court from enforcing any warrants of [Possession] of [address omitted] Kingswood NSW 2747 until final orders are made resolving questions of fact and law of following proceedings:

a.   2022/00133947 Gurjit Singh v Sarvjot Singh

b.   2022/00184500 Gurjit Singh v RCMO PTY LTD

c.   2022/00196452 Gurjit Singh V Narinder Sharma

d.   2022/00325836 Gurjit Singh v Lee Armstrong

e.   2023/00044063 Gurjit Singh v Richard Cavanagh

8 RESIDENTIAL TENANCIES ACT 2010- SECT 119 vested Jurisdiction in Supreme Court of NSW to obtain recovery of possession of residential premises not subject to a residential tenancy agreement and ongoing process of recovery of possession of [address omitted] Kingswood by Former Landlord in NSW Civil and Administrative Tribunal Ultra vires

9   Leave to seek any other Order as the law permits

10   Fixed Cost of Filing fee of Summons and any other court fees.

11   Restitution and Reinstatement”

The 2023/00044063 proceedings

39. On 9 February 2022, Mr Singh as the plaintiff commenced the 2023/00044063 proceedings against Richard Cavanagh, Stephen Rothman, Andrew Bell, Dominic Perrottet and Anthony Albanese as the first to fifth defendants by filing a statement of claim in the Common Law Division of the Supreme Court in which he seeks the following orders:

“1   Plaintiff claim $900000 unliquidated claim and liquidated claim of $816205 from first defendant for his dishonest acts and [dishonest] omissions in the course of misfeasance in public office.

2   Declaration that first defendant treated first plaintiff with racial discrimination due to skin color and faith of the plaintiff which is not white in color.

3   Plaintiff claim $600000 unliquidated claim for his dishonest acts and [dishonest] omissions from second defendant in the course of misfeasance in public office

4   Plaintiff claim 500000 unliquidated claim for third defendant for negligence.

5   Plaintiff seek declaration that third defendant is negligent towards self represented litigants.

6   Plaintiff seek declaration that first and second defendant violated their Judicial Oath as a result of their conduct.

7   Declaration that Supreme Court has become merely tool of the state without any independence from the State and that is breach of Australian Constitution by State of NSW.

8   Declaration that Australia is signatory to International Covenant on Civil and Political Rights and breached its obligation under the covenant towards plaintiff.”

The 2023/00069493 proceedings

40. On 2 March 2023, Mr Singh and Ms Kaur as the first and second applicants commenced the 2023/00069493 proceedings against Michael Tidball, Tracey Hall, the landlords, Michelle Brazel, the Tribunal, Sarvjot Singh, RCMO, Narinda Sharma, [Sabine] Thode, Patrick Gardiner, Kim Rosser and Robert Titterton as the first to thirteenth respondents by filing a summons in the Court of Appeal of the Supreme Court in which they seek the following orders:

“1   NSW Civil and Administrative Tribunal Act 2010 ultravire

2   Declaration that NSW Civil and Administrative Tribunal exercised Supreme Court Jurisdiction over RT 22/24873, RT 22/15982, RT 22/21195.

3 Pursuant to section 69 (3) of the Supreme Court Act 1970 Plaintiff seek [unlawful] order on the face of record and unlawful decision on face of record made by Principal Member Simon Thode given below to be set aside:

a.   Decision dated 13 July 2022 that Gurjit Singh is removed from appeal 2022/00198395 because he is not party at first instance.

b.   Decision dated 13 July 2022 that Sarvjot Singh and Narinder Sharma are removed from appeal 2022/00198395 because they are not party at first instance.

c.   Decision dated 6 Feb 2023 Listing the application for hearing for possession of warrant of possession in circumstances when power to do such an act is expended.

4 Pursuant to section 69 (3) of the Supreme Court Act 1970 Plaintiff seek [unlawful order] on the face of record and unlawful decision on face of record made in Kaur v Sharma [2022] NSWCATAP 336 dated 27 Oct 2022 be quashed

5 Pursuant to section 69 (3) of the Supreme Court Act 1970 Plaintiff seek [unlawful] order on the face of record and unlawful decision on face of record made in File No: RT 22/24873, RT 22/15982, RT 22/21195 be quashed:

a.   Denial of Procedural Fairness

b.   Failure to provide reasonable opportunity to present the case. (One day was provided to file evidence in relation to habitability of the premises and defending two termination notices on various grounds)

c.   Inadequate Reasons

6   Restrain Ms Michelle Brazel or NSW Civil and Administrative Tribunal from issuing warrant for possession for [address omitted] Kingswood NSW 2747 until final orders are made in following proceedings in Supreme Court original and Appellate Jurisdiction:

a.   2022/00133947 Gurjit Singh v Sarvjot Singh

b.   2022/00184500 Gurjit Singh v RCMO PTY LTD

c.   2022/00196452 Gurjit Singh v Narinder Sharma

d.   2022/00325836 Gurjit Singh v Lee Armstrong

e.   2023/00044063 Gurjit Singh v Richard Cavanagh

7   Restrain Tracy Hall Sheriff of Court from enforcing any warrants of [Possession] of [address omitted] Kingswood NSW 2747 until final orders are made resolving questions of fact and law of following proceedings:

a.   2022/00133947 Gurjit Singh v Sarvjot Singh

b.   2022/00184500 Gurjit Singh v RCMO PTY LTD

c.   2022/00196452 Gurjit Singh v Narinder Sharma

d.   2022/00325836 Gudit Singh v Lee Armstrong

e.   2023/00044063 Gurjit Singh v Richard Cavanagh

8   NSW Civil and Administrative Tribunal exercising Jurisdiction over [address omitted] Kingswood 2747 NSW after the issue of [possession] warrant in favor of landlord ultravires.

9   Leave to seek any other Order as the law permits

10   Fixed Cost of Filing fee of Summons and any other court fees.

11   Restitution and Reinstatement”

The hearing

41. On 3 March 2023, the hearing took place. Mr Babu, who appeared via AVL, represented the landlords. Mr Singh, who appeared in person, represented the tenants.

42. At the commencement of the hearing, Mr Singh made an application for an adjournment of the proceedings (the adjournment application), and gave oral evidence and made submissions in support of the application. I dismissed the adjournment application and indicated that I would provide reasons in my decision.

43. The landlords relied on the following documents in relation to the 3 February 2023 Sharma CCD application which were admitted into evidence:

1. the documents accompanying the 3 February 2023 Sharma CCD application which were marked as exhibit R1;

2. Singh v Tidball [2023] NSWSC 96 which was marked as exhibit R2.

44. The tenants relied on the following documents in relation to the adjournment application, the 3 February 2023 Sharma CCD application and the Singh/Kaur 21 February 2023 CCD application which were admitted into evidence:

1. a bundle of documents with the exhibit number GS-1 which were marked as exhibit A1;

2. a bundle of documents with the exhibit number GS-2 which were marked as exhibit A2.

45. The landlords relied on their written submissions filed on 28 February 2023. In addition, Mr Babu made oral submissions.

46. Mr Singh made oral submissions.

47. At the conclusion of the hearing, I reserved my decision.

The issues

48. The following issues arise for determination in the proceedings:

1. whether the 3 February 2023 Sharma CCD application should be stayed pending the determination of the Supreme Court proceedings;

2. whether the time for making an application for a warrant for possession of the premises should be extended.

49. I decided not to determine the Singh/Kaur 21 February 2023 CCD application so far as Mr Singh and Ms Kaur seek the summary dismissal of the 3 February 2023 Sharma CCD application as I have determined the 3 February 2023 Sharma CCD application in this decision.

50. Before dealing with these issues, it is appropriate to give my reasons for dismissing the adjournment application and convenient to set out the applicable provisions of RT Act.

The adjournment application

51. Mr Singh gave oral evidence that he and Ms Kaur had arrived at the Tribunal for the hearing and she had been taken to hospital by the NSW Ambulance Service.

52. There was no cross-examination of Mr Singh.

53. In his oral address, Mr Singh said that Ms Kaur did not speak English and he wished to be with her.

54. Section 51 of the NCAT Act provides:

51 Adjournment of proceedings

The Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement).

55. I decided not to grant an adjournment of the proceedings pursuant to s 51 of the NCAT Act for the following reasons:

1. Ms Kaur had not adduced any evidence and so her presence at the hearing was not necessary;

2. Mr Singh was Ms Kaur’s representative and so she would not be unrepresented;

3. an adjournment of the hearing to accommodate Mr Singh’s wish to be Ms Kaur was inconsistent with the guiding principle pursuant to s 36(1) and (2) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

56. For these reasons, I dismissed the adjournment application.

The applicable provisions of RT Act

57. Part 6 Division 1 (ss 119-124) contains provisions dealing with the recovery of possession of premises. Section 119 contains a prohibition on certain recovery proceedings in courts, and provides:

119 Prohibition on certain recovery proceedings in courts

A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement.

58. Section 121 deals with the enforcement of orders for possession, and relevantly provides:

121 Enforcement of orders for possession

(1) The principal registrar of the Tribunal may, on the application of a person in whose favour an order for possession was made, issue a warrant for possession of the residential premises concerned if the principal registrar is satisfied that the order or a condition of suspension of the order has not been complied with.

(2) An application for a warrant for possession may be made immediately, if the order for possession so provides, or not more than 30 days after the date by which vacant possession was required or within such further period as the Tribunal may permit.

(3) Without limiting subsection (2), the Tribunal may permit an application to be made within a further period if the delay in making the application is attributable to genuine attempts by the applicant to reach agreement with the tenant for reinstatement of the tenancy.

…

Whether the 3 February 2023 Sharma CCD application should be stayed pending the determination of the Supreme Court proceedings

The arguments of the tenants

59. Mr Singh advanced a series of arguments in support of the Singh/Kaur 21 February 2023 CCD application which give rise to the following questions:

1. whether the Tribunal has jurisdiction to determine the 3 February 2023 Sharma CCD application;

2. whether the tenants can impeach orders 7 and 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order;

3. whether there should be a stay pending the determination of the Supreme Court proceedings.

60. I have dealt with each of these questions in turn.

Whether the Tribunal has jurisdiction to determine the 3 February 2023 Sharma CCD application

Introduction

61. Mr Singh advanced the submission that the Tribunal does not have jurisdiction to determine the 3 February 2023 Sharma CCD application on the following different bases:

1. the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order are a nullity;

2. the Tribunal is prohibited from issuing a warrant for possession pursuant to s 119 of the RT Act;

3. the power to issue a warrant for possession pursuant to s 121 of the RT Act has been expended.

62. The Tribunal must be taken to have incidental jurisdiction to determine whether the hearing 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; (2022) 96 ALJR 476 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) 103 NSWLR 140; [2020] NSWCA 213 at [13]-[17] (Leeming JA) (Macfarlan JA at [1] agreeing), at [72]-[74] (White JA).

The submissions of the tenants

63. Mr Singh relied on Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 (Bhardwaj) and Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58 (Craig). He contended that the Tribunal does not have jurisdiction for a variety of reasons which he asserted constituted jurisdictional error including that the Tribunal is prohibited from issuing a warrant for possession pursuant to s 119 of the RT Act. Only the Supreme Court has jurisdiction to enforce the order for possession of the premises.

Consideration

64. In Bhardwaj the High Court considered an administrative tribunal’s capacity to correct its own error when, in consequence of that error, it has failed to discharge its statutory function. The Immigration Review Tribunal dismissed the application of the respondent, whose student visa was cancelled by a delegate of the Minister for Immigration and Multicultural Affairs, for a review of the decision under Pt 5 of the Migration Act 1958 (Cth). This decision was made in ignorance of a letter stating that the respondent was ill and would be unable to attend the hearing, and requesting an adjournment, which by an administrative oversight, did not come to the Tribunal’s attention. A new hearing date was arranged. The Tribunal heard the respondent’s explanation of the conduct which had resulted in the cancellation of his visa, accepted the explanation, and revoked the cancellation. The Minister brought proceedings in the Federal Court seeking the setting aside of the decision on the ground that the Tribunal ‘‘had previously made a decision in respect of the same application and was functus officio’’. The application failed. An appeal to the Full Court was dismissed. The High Court by majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that the Tribunal had power to make the second decision and dismissed the appeal by the Minister.

64. Gaudron and Gummow JJ at [51] said (with McHugh J at [63] agreeing):

“[51] There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all …” (footnote omitted)

66. In Bhardwaj at [151] Hayne J said:

“[151] In general, judicial orders of superior courts of record are valid until they are set aside on appeal, even if they are made in excess of jurisdiction. …” (footnote omitted)

67. In Craig the High Court considered the question of jurisdictional error and error on the face of the record arising out of an order staying an information in the District Court of South Australia upon counts of the larceny, receiving and arson of a motor car contrary to ss 131, 196 and 85(1) of the Criminal Law Consolidation Act 1935 (SA). The High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) said at 177-180:

“An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.

…

In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.”

68. It is an established principle that the Tribunal exercises judicial power of the State of New South Wales when making orders under the RT Act: Attorney-General of NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 (Gatsby) at [125]-[137] (Bathurst CJ) (with Beazley P at [197], McColl JA at [198] and Leeming JA at [279] agreeing).

69. In Gatsby at [247] Basten JA said:

“[247] … Finally, the power to recover possession of premises otherwise than pursuant to the procedures established by the Act is precluded by s 119 which is in the following terms: …”

70. The judgment in Bhardwaj has no bearing on the jurisdiction of the Tribunal as it is exercising judicial power and not making an administrative decision.

71. Having regard to principles in Craig at 177-180 and Gatsby at [125]-[137], I am not satisfied that there was any jurisdictional error made by the Tribunal. Most of the arguments of Mr Singh have been rejected by the Appeal Panel: Kaur v Sharma [2022] NSWCATAP 336 at [107]-[108], [113].

72. On its proper construction s 119 of the RT Act does not deprive the Tribunal of its jurisdiction of the enforcement of orders for possession under s 121 of that Act. On the contrary, as stated Gatsby at [247], the power to recover possession of premises otherwise than pursuant to the procedures established by the RT Act is precluded by s 119. It follows that the Tribunal has not been deprived of its jurisdiction because the residential tenancy agreement has been terminated.

73. If, contrary to my finding, the Tribunal fell into jurisdictional error in making orders 7 and 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order, then they are valid because they have not been set aside on appeal by the Appeal Panel or by the Supreme Court in the exercise its supervisory jurisdiction over the Tribunal.

74. I am not satisfied that its proper construction the power to issue a warrant for possession under s 121 of the RT Act is spent once the power has been exercised. The power is a discretionary and may be exercised provided the principal registrar is satisfied that the order for possession or a condition of suspension of the order has not been complied with.

75. For these reasons, I reject the submissions of the tenants that does not have jurisdiction to determine the 3 February 2023 Sharma CCD application.

Whether the tenants can impeach orders 7 and 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order

Introduction

76. Mr Singh advanced the submission that the Tribunal should not have made orders 7 and 8 of the 28 June 2022 CCD orders as varied because the premises were uninhabitable. He referred to the 85 page report of Mycotec Pty Ltd dated 15 September 2022 prepared by its Director and Principal Mycologist Dr Heike Neumeister-Kemp (the Mycotec report).

Consideration

77. The Appeal Panel refused to accept the Mycotec report in the appeal: Kaur v Sharma [2022] NSWCATAP 336 at [17]-[21].

78. It is an abuse of process to bring a proceeding in order to make a collateral attack upon an unappealed decision of a court, or upon a decision which, having been appealed, has been affirmed: Smits v Loel [2014] FCA 1341 at [67]; Smits v Loel (No 3) [2015] FCA 77 at [23(b)]; McLean v Power [2013] NSWSC 193 at [14]-[15].

79. The Singh/Kaur 21 February 2023 CCD application to the extent that Mr Singh and Ms Kaur rely on the Mycotec report to relitigate matters that have already been determined against the tenants constitutes an abuse of process, and should be dismissed.

Whether there should be a stay pending the determination of the Supreme Court proceedings

80. I am not satisfied that Mr Singh and Ms Kaur have established any ground to stay the 3 February 2023 Sharma CCD application pending the determination of the Supreme Court proceedings for the following reasons:

1. the 2022/00346122 proceedings, in which the relief sought by Mr Singh and the tenants if granted would restrained the Tribunal from exercising the power under s 121 of the RT Act to issue a warrant for possession of the premises in favour of the landlords, have been dismissed: Singh v Tidball [2023] NSWSC 96;

2. the landlords are entitled by virtue of orders 7 and 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order to possession of the premises subject to the granting of an extension of time for tier application for a warrant for possession under s 121(2) of the RT Act;

3. the Supreme Court has not stayed orders 7 and 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order or restrained the hearing of the 3 February 2023 Sharma CCD application.

Conclusion

81. For these reasons the 21 February 2023 Singh/Kaur CCD application should be dismissed.

Whether the time for making an application for a warrant for possession of the premises should be extended

82. As indicated by order 1 of the 6 February 2023 CCD orders, the 3 February 2023 Sharma CCD application has been treated as an application for an extension of time to apply for a warrant for possession of the premises.

83. The landlords submit that the time for making an application for a warrant for possession of the premises should be extended should be extended for the following reasons:

1. on 17 November 2022, when the Registrar issued a warrant for possession of the premises and sent it to the sent to the Office of the Sheriff of NSW, Mr Singh and the tenants commenced the 2022/00346122 proceedings;

2. on 8 February 2023, the Supreme Court dismissed the 2022/00346122 proceedings: Singh v Tidball [2023] NSWSC 96.

84. The tenants relied on the same submissions as they made in support of the Singh/Kaur 21 February 2023 CCD application.

85. I am satisfied that the time for making an application for a warrant for possession of the premises should be extended to 3 February 2023 pursuant to s 121(2) of the RT Act for the following reasons:

1. the tenants remain in possession of the premises;

2. on 17 November 2022, which was within the period of 30 days of the lifting of the stay of order 8 of the 28 June 2022 CCD orders as varied by the 8 July 2022 CCD order on 27 October 2022 by the Appeal Panel, Mr Singh and the tenants commenced the 2022/00346122 proceedings;

3. in view of the relief sought by Mr Singh and the tenants in the 2022/00346122 proceedings it was reasonable for the landlords not to comply with the requirements set out in the 17 November 2022 notice and not to apply for an extension of time for a warrant of possession until their determination.

Orders

86. I make the following orders:

1. the application for miscellaneous matters of Gurgit Singh and the first named respondent filed on 21 February 2023 is dismissed;

2. the time for the applicants to make an application for a warrant for possession of the premises is extended to 3 February 2023.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

18 August 2023 - Formatting amendments.

Decision last updated: 18 August 2023