Singh v Khan; Singh v Fobupu Pty Ltd

[2019] NSWSC 485

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Singh v Khan; Singh v Fobupu Pty Ltd [2019] NSWSC 485

Hearing dates:

26 April 2019

Date of orders:

26 April 2019

Decision date:

26 April 2019

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) In proceedings No 2018/278850 the notices of motion filed 15 October 2018, 21 November 2018 and 20 December 2018 are dismissed.

 

(2) In proceedings No 2018/348479 the notice of motion filed 21 November 2018 is dismissed.

 

(3) The summonses filed 27 August 2019 and 13 November 2018 are stood over to 31 October 2019 at 9.00 am for directions before the registrar. Liberty to apply on seven (7) day notice for a matter that is finalised in NCAT. This seven (7) day notice includes if the plaintiff is seeking a stay of proceedings, in the event a stay has been refused by NCAT

 

(4) The plaintiff is to pay the balance of the costs of both notices of motion filed 21 November 2019.

 (5) The plaintiff is to pay the costs of the notices of motion filed 15 October 2018 and 20 December 2018.

Catchwords:

CIVIL PROCEDURE – Whether stay should be granted when proceedings are still being heard in the NSW Civil and Administrative Tribunal – notices of motion filed in Supreme Court seeking stay of proceedings – consolidation of proceedings in NCAT – join party to proceedings

Category:

Procedural and other rulings

Parties:

2018/278850
Gurjit Singh (Plaintiff)
Ghulam Akbar Khan (First Defendant)
Samina Khan (Second Defendant)
Fobupu Pty Ltd (Third Defendant)

  2018/348479
Gurjit Singh (Plaintiff)
Fobupu Pty Ltd (Defendant)

Representation:

Counsel:
R Brown (Defendants)

  Solicitors:
Self Represented (Plaintiff)
McGrath Dicembre & Co (Defendants)

File Number(s):

2018/278850; 2018/348479

Publication restriction:

Nil

Judgment – EX TEMPORE

1. HER HONOUR: There are four notices of motion before the Court. Three in proceedings 2018/278850 (the retail proceedings) filed 15 October 2018, 21 November 2018 and 20 December 2018; and one in proceedings 2018/348479 (the residential proceedings) dated 21 November 2018.

2. In each notice of motion the plaintiff, Mr Singh, seeks both an interim stay of proceedings in the matters which are currently before the New South Wales Civil and Administrative Tribunal (the Tribunal), and also seeks a stay pending the determination of the Supreme Court proceedings.

3. When the matter came before the Registrar on the 27 November 2019, orders were made that the matter be stood over for further directions on 12 February 2019. Mr Singh’s application for an immediate stay was referred to Adamson J for hearing.

4. There have been some affidavits filed subsequent to the Registrar’s directions, but they do not directly address the application for a stay pending the determination of the Supreme Court proceedings. The only defendant in the residential proceedings is Fobupu Pty Ltd, the landlord. The defendants in the retail proceedings are Ghulam Akbar Khan and Semina Khan, the landlord. Mr and Mrs Khan are directors of the landlord.

Notices of motion filed 21 November 2018 – the retail and residential proceedings

5. Adamson J summarised the background facts to which I rely on and adopt, but I will add some more of my own.

6. Mr Singh is currently occupying the premises in Bringelly Road, Kingswood, which comprise a ground floor and a first floor. The ground floor is used for retail and the first floor for residential purposes.

7. The premises were formerly occupied pursuant to a lease that the whole of the premises created by the landlord to Anmol Holdings Pty Ltd, for a term of three years commencing on 1 November 2006. Anmol Holdings Pty Ltd, a company associated with the plaintiff, has been deregistered.

8. By reason of different statutes which apply, depending on whether the premises are used for retail purpose or a residential purpose, the Tribunal has dealt with the retail portion of the premises separately from the residential portion of the premises. Mr Singh, who appears in person, continues to take exception to the demarcation.

9. Before Adamson J, he referred to s 7(h) of the Residential Tribunal Act 2010 (NSW) which provides that the Residential Tenancy Act does not apply to premises used for residential purposes if the predominant use of the premises is relevantly for the purpose of a business.

10. Mr Singh wants this issue addressed now. There has been a decision that Mr Singh has to pay what is called a stay-and-pay order, and has to pay $300 per week until the matter is finalised. The defendants filed another application for termination and have given 90 days’ notice.

11. This matter, as I understand it, comes on for hearing on 15 May 2019 in the Tribunal. The plaintiff has to pay $300 per week, or $42.86 per day, for continued occupation of the premises, until he gives vacant possession to the landlord. But, as I said, there is now another proceeding on foot in NCAT in relation to termination notice, which is to be heard on 15 May 2019.

12. Mr Singh appealed to the Appeal Panel of the Tribunal against the pay-and-stay orders made by General Member Levingston. On 26 July 2018, the Appeal Panel, constituted by Deputy President Westgarth and Senior Member Charles, granted leave to the plaintiff to appeal but dismissed the appeal.

13. On 13 November 2018, Mr Singh filed a summons in this Court in the residential proceedings seeking leave to appeal on a question of law against the decision of the Appeal Panel on 26 July 2018, pursuant to s 83 of the Civil and Administrative Tribunal Act. Adamson J refused an interim stay in relation to the residential proceedings and her Honour also refused an interim stay in relation to the retail proceedings.

14. Adamson J said, at paragraph 23 of her judgment:

“In my view, it would be inappropriate for this Court to grant an interim stay and thereby disrupt the orderly conduct of the proceedings before the Tribunal. It is, in my view, appropriate that the Tribunal be permitted to conclude the hearing, in respect of which all the evidence has been given.”

15. Her Honour accepted the landlord’s submission that there is no identifiable prejudice to Mr Singh and substantial prejudice to the landlord if a stay were granted.

16. Adamson J paragraph 24 stated:

“It is difficult, in any event, to see how this Court would grant leave to appeal against a decision made by principal Member Harrowell to refuse leave to appeal in a procedural direction. The original direction would appear to have been entirely overtaken by events in circumstances where Senior Member Goldstein has spent four days hearing the evidence. However, that is a question for another day.”

17. Adamson J refused the plaintiff’s application for an interim stay sought in prayer 1 in each notice motion filed on 21 November 2018. That left order 2, which is that both residential and retail matters filed in the Tribunal be stayed until further order.

18. There is, in my view, no change in circumstances. The matters are still continuing and are on foot in the Tribunal. There is no utility in granting such a stay, and I refuse it in both matters. That means both notices of motion filed by the plaintiff on 21 November 2018 are dismissed.

The notice of motion filed 15 October 2018 – consolidation proceedings

19. On 15 October 2018, Mr Singh filed a notice of motion seeking that this action be consolidated or joined to another appeal; that is, the residential and the retail appeals filed in this Court be consolidated. The plaintiff asked for it to be consolidated as one proceeding, because he alleges that the Tribunal proceeded in error and dealt with them separately and disregarded applications, affidavit evidence, critical facts and critical law.

20. The two decisions appealed against relate to two separate and distinct matters. Mr Singh said that the Tribunal constantly overlooked, blocked, ignored and disregarded his evidence and pleading arguments, that there was one subject matter, and, as a matter of conclusive law, there was properly only one action in the RLA Division.

21. The defendants disagree and say that the two decisions appealed are distinct. On 6 March 2018, Senior Member Simon directed the plaintiff to file material in support of his application within 14 days. Mr Singh appealed against that direction. On 18 April Principal Member Harrowell refused leave to appeal against the decision of Senior Member Simon. However, due to the time taken to have the matter brought before the Appeal Panel, Mr Singh obtained an extension to file material. In April 2018, Deputy President Westgarth granted a further extension for material to be filed. On 17 August 2018, Mr Singh filed a summons in this Court seeking leave to appeal against the decision of Principal Member Harrowell refusing leave to appeal against the direction made by Senior Member Simon. The appeal of the decisions of Deputy President Westgarth and Senior Member Charles relate to a completely different subject matter.

22. In the retail lease appeal proceedings, leave to appeal was refused, whereas, in the Residential Tenancy Appeal proceeding, leave was granted and the appeal was dismissed. Even if leave to appeal was granted in the retail lease appeal proceedings, the two decisions appealed against relate to separate and distinct matters. It also involves different statutory regimes. However, I note that the defendants do not oppose the proceedings being heard in this Court back-to-back by the same judge, but it is inappropriate to consolidate them. I agree. I think they may be heard together with some of the evidence in one be evidence in the other, but it is not the one cause of action, and the matters should not be consolidated.

23. I dismiss the plaintiff's notice of motion filed on 15 October 2018.

The notice of motion filed 20 December 2018 – Joinder

24. By notice of motion filed 20 December 2018, the plaintiff seeks that ACN 605054242 be added to a party to this appeal. He says that Mr Jordan is a director of this company and was involved in renovations to the property. However, I have no evidence to substantiate that.

25. The reason the plaintiff wants the company to be added as a defendant is so that Mr Jordan (a struck off solicitor) can conduct the hearing, here, in the Supreme Court, because he says that he appeared in the Tribunal, and that he needs assistance with the legal terminology.

26. The defendants oppose it on the basis that it is unclear whether they will recover any costs incurred by Mr Jordan. From my observations, I think the plaintiff is articulate and can well present his case. However, I am not going to make that order, and I strike out the motion at this stage. It is possible that the plaintiff could get someone to appear for him in this Court. Perhaps, have a friend sit next to him to assist ewhere he does not understand. There is no evidence before me that he in any way, or the company, conducted renovations.

27. I am going to make an order dismissing paragraph 1 of the plaintiff’s notice of motion filed 20 December 2018; that means, I have dismissed the whole motion.

The Court orders that:

(1)   In proceedings No 2018/278850 the notices of motion filed 15 October 2018, 21 November 2018 and 20 December 2018 are dismissed.

(2)   In proceedings No 2018/348479 the notice of motion filed 21 November 2018 is dismissed.

(3)   The summonses filed 27 August 2019 and 13 November 2018 are stood over to 31 October 2019 at 9.00 am for directions before the registrar. Liberty to apply on seven (7) day notice for a matter that is finalised in NCAT. This seven (7) day notice includes if the plaintiff is seeking a stay of proceedings, in the event a stay has been refused by NCAT

(4)   The plaintiff is to pay the balance of the costs of both notices of motion filed 21 November 2019.

(5)   The plaintiff is to pay the costs of the notices of motion filed 15 October 2018 and 20 December 2018.

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Amendments

13 May 2019 - Names of coversheet amended

Decision last updated: 13 May 2019