Singh v Khan

[2019] NSWCA 196

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Singh v Khan [2019] NSWCA 196
Hearing dates:	22 July 2019
Date of orders:	22 July 2019
Decision date:	22 July 2019
Before:	White JA at [1], [30]; McCallum JA at [31]
Decision:	Summons seeking leave to appeal filed on 11 June 2019 is dismissed with costs.
Catchwords:	LANDLORD AND TENANT— whether landlord’s refusal to produce trust deed justifies tenant’s non-payment of rent — whether tax invoices issued by landlord invalid where no trust deed given to tenant — whether Tribunal at first instance lacked jurisdiction due to pending Supreme Court proceedings — no issue of general importance — application for leave to appeal dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 83 Conveyancing Act 1919 (NSW), 23C Residential Tenancies Act 2010 (NSW), s 85 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Singh v Fobubu [sic] Pty Ltd; Singh v Khan [2018] NSWSC 1817 Singh v Fobupo Pty Ltd [2019] NSWCATAP 34 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289
Category:	Principal judgment
Parties:	Gurjit Singh (Applicant) Ghulam Akbar Khan (First Respondent) Samina Khan (Second Respondent) Fobupo Pty Ltd (Third Respondent)
Representation:	Counsel: R Brown (Respondents)   Solicitors: McGrath Dicembre & Co (Respondents)
File Number(s):	2019/142353
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: n/a Date of Decision: 27 February 2019 Before: Button J File Number(s): 2018/278850

Judgment

1. WHITE JA:   This is an application for leave to appeal from orders of Button J made on 27 February 2019 dismissing the applicants' proceedings that were commenced that day before his Honour with costs.

2. The summons seeking leave to appeal names only the first applicant, Mr Gurjit Singh, as an applicant, but the Court was informed that the summons seeking leave to appeal as served named a second entity as applicant; namely, ACN 605 054 242 Pty Ltd.

3. On 17 July 2019 at 7:38pm Mr Singh and ACN 605 054 242 Pty Ltd (whom I will hereafter call "the applicants") filed a notice of motion seeking the adjournment of the hearing that had been listed for today of the summons for leave to appeal.

4. On 18 July 2019, the parties were advised by the Registrar that the Court was not prepared to list that notice of motion for hearing before today but an application for adjournment could be made at the beginning of the leave hearing today. The parties were advised that they should not assume that an adjournment would be granted and should be prepared to deal with the substantive hearing of the leave application if the adjournment were refused.

5. This morning, on the matter being called, there was no appearance for the applicants. The Court was informed that the respondent's solicitor is not aware of any reason for their non-appearance. The Court has also been informed that an attempt has been made to contact Mr Singh on a telephone number that the respondent's solicitor has, but his call went straight through to message bank.

6. There is no reason for the Court not to deal with the application.

7. In that respect, it is significant that the affidavit of Mr Singh made in support of the notice of motion dated 17 July 2019 did not seek an adjournment on the ground that either he or the director of the intended second applicant would be unable to appear this morning; rather, the affidavit in support of the application for adjournment asserted a need for additional affidavit evidence to be obtained and for the parties to agree on matters which would not be contentious.

8. It appears from the transcript of the hearing before the primary judge that he was asked to quash or set aside an order made earlier on the day of 27 February 2019 by the NSW Civil and Administrative Tribunal. The Tribunal, constituted by D Goldstein Tribunal Member, had that day made orders including an order that Mr Gurjit Singh surrender to the third respondent to the summons seeking leave to appeal, Fobupo Pty Ltd (“Fobupo”), possession of two shops in Kingswood. Possession was required to be delivered by 10:00am on 28 February 2019. The application came before the primary judge as duty judge at about 6:00pm on the evening of 27 February 2019.

9. The background to the application was that on 31 October 2018, the Tribunal member had ordered that the respondents to the proceedings in the Tribunal be restrained from repossessing the premises the subject of proceedings in the Tribunal until the Tribunal had made a decision in related proceeding No. CON17/53297. This order was subject to a condition that the applicant pay $6,500 plus GST on account of rent each calendar month to Fobupo on receipt of a rent invoice from "Fobupo Pty Ltd as the Trustee of the Khan Family Trust (No 2) ABN 70 260 409 593."

10. The applicant appealed against the orders made on 31 October 2018 and obtained a stay from the Appeal Panel. It appears from the reasons of the Appeal Panel (M Harrowell, Principal Member) (Singh v Fobupo Pty Ltd [2019] NSWCATAP 34) that on 14 December 2018 the Appeal Panel had stayed the operation of the Tribunal's orders of 31 October 2018 and had granted a fresh injunction restraining Fobupo from repossessing the premises on condition that rent be paid to the trust account of Fobupo's solicitors on receipt of a rent invoice from "Fobupo Pty Ltd as Trustee of the Khan Family Trust (No 2) ABN 70 260 409 593." It also appears from the Appeal Panel's reasons that no rent was paid.

11. On 1 February 2019, the Appeal Panel ordered that the stay of the orders of the Tribunal of 31 October 2018 made by the Appeal Panel on 14 December 2018 be lifted and that the order made by the Appeal Panel restraining Fobupo from repossessing the premises or otherwise disturbing Mr Singh's quiet enjoyment of the premises be dissolved. The Principal Member recorded that counsel for Fobupo accepted that the effect of lifting the stay and dissolving the restraining order made on 14 December 2018 would result in the revival of the restraining order made by the Tribunal on 31 October 2018 (at [15]).

12. Following the Appeal Panel's orders of 1 February 2019, Fobupo sought the orders for possession and other orders that were made by the Tribunal on 27 February 2019. Mr Singh was represented before the Tribunal by Mr Jordan, who, the Court is told, is a director of the proposed second applicant, ACN 605 054 242 Pty Ltd. That company claims to have some interest in the premises. The Tribunal Member recorded that the applicant's opposition to the respondent's application for possession rested on four bases:

“1. section 23C(1)(b) of the Conveyancing Act referred to at [11]-[25] of his written submissions;

2. Schedule 4, Part 5 paragraph 7 of the Civil and Administrative Tribunal Act referred to at paragraphs [26]-[36] of his written submissions;

3.   A pending appeal from my 31 October 2018 decision in the Appeal Panel [37]-[40] of his written submissions; and

4.   My acceptance of the respondent’s undertaking on 31 October 2018 [41]-[52] of his written submissions”

13. The Tribunal Member also recorded that the applicant also asserted that the tax invoices issued to Mr Singh did not comply with relevant tax legislation.

14. Principal Member Harrowell had considered and rejected an argument advanced before him by the applicant that the Tribunal had no jurisdiction for dealing with the claim for repossession because of proceedings pending in the Supreme Court. Reference was made to a judgment of Adamson J on 27 November 2018 (Singh v Fobubu [sic] Pty Ltd; Singh v Khan [2018] NSWSC 1817). It appears from the reasons of Adamson J that proceedings had been commenced in the Tribunal by Fobupo for back rent and for a termination order in respect of premises on 28 February 2018 and an order had been made for payment of back rent and termination of a tenancy agreement. There was an appeal to the Appeal Panel, and fresh proceedings were commenced in the Tribunal by the landlord on 7 November 2018 for an order for possession of residential premises on the basis of a 90 day notice given pursuant to s 85 of the Residential Tenancies Act 2010 (NSW). Proceedings were commenced in the Supreme Court on 13 November 2018.

15. In his decision of 1 February 2019 Principal Member Harrowell observed (at [65]) that the proceedings in the Supreme Court, upon which the applicant relied for his contention that the Tribunal lacked jurisdiction, concern challenges to decisions made by the Tribunal sitting in the Consumer and Commercial Division at first instance or by the Appeal Panel dealing with internal appeals or applications for leave to appeal from decisions made by the Tribunal at first instance. He observed that, "The Supreme Court proceedings must have been commenced after any proceedings [at the Tribunal] had been commenced" (at [66]) and that the Supreme Court proceedings were not pending when an application was made to the Tribunal for the exercise of a Division function within the meaning of cl 5(7) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW).

16. In his reasons of 27 February 2019, Tribunal Member Goldstein adopted Principal Member Harrowell's reasons on this contention at [18].

17. The Tribunal Member rejected the applicant's submissions based upon s 23C(1)(b) of the Conveyancing Act, observing that the section had no application to the question of whether the respondent (the owner of the premises) should be given possession due to the applicants' failure to comply with the orders of 31 October 2018.

18. It appears from Principal Member Harrowell's reasons that there was no dispute that Fobupo provided tax invoices for rent. The applicants argued that it had not been shown that the trust was the supplier of the premises for rent and capable of rendering a tax invoice ([28]-[29]). Principal Member Harrowell said, in substance, that these questions were irrelevant, partly because the rent was to be paid into a solicitor's trust account and not to the supplier, and partly because the orders did not permit such an inquiry as the applicants sought to raise (at [31]-[35]). The same argument was raised before Tribunal Member Goldstein and rejected for the reasons given by Principal Member Harrowell.

19. The Tribunal Member said that because the applicant had failed to make any payment of rent since the 31 October 2018 orders were made, the orders for possession sought by the respondent should be made.

20. As I have said, the matter came before Button J sitting as duty judge at about 6:00pm on 27 February 2019. It appears from the primary judge's reasons (which are not available on Caselaw) that both the applicant, Mr Singh, and Mr Jordan may have been treated as plaintiffs. No form of summons is available to us, and the Court was informed that the application was made to the duty judge orally. Mr Jordan advanced the arguments that had been unsuccessfully advanced in the Tribunal. It appears that, in argument, the applicants sought relief in the nature of prerogative relief, presumably an order in the nature of certiorari for error of law on the face of the record, and what the primary judge described as "a most urgent appeal pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ('the Act') requiring identification of a question of law combined with leave."

21. It may be doubted that an appeal lay to the Supreme Court from the orders of Tribunal Member Goldstein under s 83(1) of the Act. Under that section a party to an internal or external appeal in the Tribunal can appeal (if leave is given) to the Supreme Court on a question of law. Although at least the first applicant had been a party to an internal appeal, the orders sought to be appealed from were not made in the internal appeal. It is unnecessary to pursue this question. If an appeal did not lie from the orders of the Tribunal of 27 February 2019 even with leave, that would be a further ground for dismissing the proceeding insofar as the plaintiffs had sought to rely upon s 83(1).

22. The applicants provided the primary judge with a document head "Plaintiffs’ points for hearing". They are identified as the grounds of challenge that the orders made on 27 February 2019 disregarded Australian tax law and the law of trusts. They asserted that the orders of the Tribunal required payment of rent to the Khan Family Trust (No 2), but no evidence had been provided that the trust existed. Reliance was placed on s 23C(1)(b) of the Conveyancing Act that a declaration of trust of land must be evidenced in writing, signed by the person declaring the trust, or be made by Will. The applicants contended that:

"As a matter of law, no tax invoice from the trust can be valid and enforceable in favour of the trust until compliance with the Conveyancing Act s 23C(1)(b)".

23. For these reasons, they contended that there was no default in their not paying rent as required by the orders of the Tribunal as a condition of the orders restraining Fobupo from repossessing the land.

24. The same arguments were, in substance, advanced in the applicant's written submissions on the application for leave to appeal. The primary judge rejected the argument shortly but sufficiently. He said that s 23C of the Conveyancing Act had nothing to do with the question and the question of whether or not the respondent was a trustee was neither here nor there. Nor did tax law have anything to do with the question.

25. The primary judge was plainly correct. The applicants’ submission seems to assume that a trust is a separate legal entity and they were excused from complying with the conditions of the order by which the respondent was restrained from interfering with their possession of the premises because they could not satisfy themselves that the trust referred to in the invoices existed. Neither contention is arguable. The misconception that a trust is a separate legal entity is common, but wrong. The rent was payable to Fobupo. Section 23C provides for requirements of writing when a person is dealing with or declaring a trust over interest in land. It in no way detracts from Fobupo's entitlements as legal owner of the land to recover rent in respect of it.

26. It is true that for the purposes of taxation laws, trusts can be separately taxed, and it is true that a trust may be treated as a supplier for the purposes of the GST Act. But whether Fobupo is assessable to income tax payable on rent received in its own right or as a trustee, or whether it and not the trust is a supplier for the purposes of GST is irrelevant to the applicants’ obligation to pay the rent if it sought to retain the benefit of the injunction restraining Fobupo from taking possession. Nor is a tax invoice invalidated by a supplier's refusal to proffer a trust deed.

27. The applicants ventilated before the primary judge the same argument as had been rejected by Principal Member Harrowell, namely, that the Tribunal lacked jurisdiction because of the pendency of proceedings in the Supreme Court. That submission was also plainly untenable for the reasons given by Principal Member Harrowell. (See also Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 at [91]-[106].)

28. The application raises no question of general importance. It is not even arguable that the primary judge's order dismissing the proceedings was wrong. There is no merit in the applicants' position. They were in possession of the premises without paying rent for a considerable period and made no offer to pay rent.

29. In my view, the application for leave to appeal should be dismissed with costs.

30. MCCALLUM JA: I agree with the order proposed by White JA for the reasons his Honour has stated.

31. WHITE JA: Accordingly, the order of the Court is that the summons seeking leave to appeal filed on 11 June 2019 is dismissed with costs.

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Decision last updated: 12 August 2019