Thunderbird Nominees P/L v Affra P/L No. SCGRG 95/1003 Judgment No. 5191 Number of Pages 5 Courts and Tribunals Jurisdiction of Commercial Tribunal

[1995] SASC 5191

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Courts and tribunals - jurisdiction of commercial tribunal - Commercial Tribunal adjudicating upon dispute.between former landlord and tenant under the Landlord and Tenant Act 1936, without any application to that end and without affording to counsel an opportunity to be heard on the matter ordered the suspension of payment for a period of twelve months of a sum in excess of $12,000 which it found to be due - observations as to the power of the Tribunal to give time to pay.

Landlord and Tenant Act 1936 Division 4; Commercial Tribunal Act 1982 , referred to.

HRNG ADELAIDE, 20 July 1995 #DATE 20:7:1995 #ADD 11:9:1995

Counsel for appellants:     Mr S Milazzo

Solicitors for appellants:    Theo Kadis and Associates

Counsel for respondent:     Mr K Jolly

Solicitors for respondent:    Winters

ORDER
Order quashed.

JUDGE1 PERRY J This is an appeal from part of the order of the Commercial Tribunal made at the conclusion of defended proceedings before it.

2. The proceedings arose out of the tenancy by the respondent of premises leased by the appellants. It was asserted by the appellants that at the expiration of the lease the respondent repudiated an agreement to take a further lease of the premises. The appellant brought a claim for damages and interest in the Commercial Tribunal, relying on that Tribunal's jurisdiction conferred under the Landlord and Tenant Act 1936 and in particular Division 4 of that Act.

3. The Tribunal found for the appellant. It gave reasons in writing, which conclude with the following:
    "Accordingly, there will be an order that the respondent pay
    to the applicant the sum of $12,212.97 plus interest in the
    sum of $699.58. We allow the respondent twelve months to
    pay. Further order that the respondent pay to the applicants
    their costs to be agreed between the parties, or, in default,
    to be fixed by the chairman."

4. It is the allowance or purported allowance in that order of twelve months to pay which is the subject of the appeal.

5. Apparently, there had been no submission by either party during the hearing of the application before the Commercial Tribunal, bearing on any question of time to pay. Furthermore, before making the order by publishing its reasons containing the passage to which I have referred, the Commercial Tribunal did not afford an opportunity for either party to make submissions on that topic. The reasons were posted to the parties. The order for suspension of payment for a period of twelve months came, as it were, out of the blue.

6. In their notice of appeal the appellant complain either that the Commercial Tribunal had no jurisdiction "to suspend the operation of the order", or, alternatively, that the Commercial Tribunal "erred in law in failing to give the appellants an opportunity to be heard in relation to its order allowing the respondents time to pay".

7. At the outset of the hearing before me Mr Jolly, who appeared for the respondents, very properly conceded that the order could not stand and did not attempt to defend the order. I will, therefore, discharge the order.

8. Before doing so, it is appropriate to make some observations as to the power of the Commercial Tribunal to make an order of the kind in question.

9. There is nothing in the Commercial Tribunal Act which expressly confers any jurisdiction to stay or postpone payment of an amount which it might find to be due as between the parties. Indeed, when one has regard to Division III, being sections 14-18 of the Act, headed "Procedures and Powers of the Tribunal", one finds that that Division says nothing as to the kind of judgment or order which the Tribunal can make, except that under s16 the Tribunal may make "such orders for costs as the Tribunal considers just and reasonable". Furthermore, under s18 of the Act there is an express power to suspend the operation of an order pending an appeal to the Supreme Court.

10. S25 in Part III provides for the enforcement of orders. The procedure is for the registrar to give or issue a certified copy of the judgment, or order of the tribunal. That certified copy may then be lodged with a clerk of a Local Court, which I suppose should now be read as the Magistrates Court or District Court. At all events, the clerk is obliged to register the judgment or order "and proceedings may then be taken upon it as if it were a judgment or order of the court in which it is registered".

11. No doubt, a court in which the judgment or order was registered could entertain an application to stay execution, or order payment by instalments, or make other orders as between the parties conditioning the rights of a party to enjoy the fruits of the judgment or order.

12. In this particular matter, the jurisdiction of the Commercial Tribunal was derived, in substance, from the Landlord and Tenant Act, and in particular s68(2) which enumerates various powers which may be exercised by the Tribunal in an action for relief under the section. The subsection provides:
    "68(2) Upon an application under subsection (1), the Tribunal
    may, as the case requires-
    (a) conciliate between the parties and attempt to achieve
    settlement of any matter by agreement; or
    (b) by order-
     (i) restrain any action in breach of the agreement or a
     related guarantee, or in breach of any law; or
     (ii) require any action in performance of the agreement or
     a related guarantee, or to ensure compliance with any law;
    or
    (c) order the payment of any amount payable under the
    agreement or a related guarantee; or
    (d) order the payment of compensation for loss or damage
    caused by any brach of the agreement or a related guarantee;
    or
    (da) grant relief from the operation of any provision of the
    agreement or a related guarantee; or
    (db) where rights of occupation conferred by a commercial
    tenancy agreement have been forfeited or have otherwise
    terminated for a reason other than the expiration of the term
    of the agreement-order reinstatement of those rights on such
    terms as may be just; or
    (e) authorise payment of the rent under the agreement into
    the Tribunal until the agreement has been performed or an
    application for compensation has been determined; or
    (f) where appropriate, order that the rent paid into the
    Tribunal be paid out towards the cost of remedying the breach
    or towards the amount of the compensation; or
    (g) upon a termination of the agreement, order the tenant to
    surrender possession of the premises to the landlord; or
    (h) make such other order as the Tribunal thinks fit."

13. One does not find in that specification of powers any express reference to an ability to suspend payment of any order for payment of compensation for loss or damage, being an order made under subs(d) which presumably was the head of power drawn upon by the Commercial Tribunal in exercising its jurisdiction in this matter.

14. I think, however, that the words "make such order as the tribunal thinks fit" in subs(h) could in an appropriate case permit the tribunal to order some suspension, or give some time before an order took effect. It is easy to imagine circumstances in which it would be just to do so.

15. For example, if there was an order for possession of demised premises, one can imagine that it might be appropriate to allow time for a tenant to pack his or her belongings, and to clear up the premises.

16. Furthermore, although there is no express jurisdiction conferred by the section, it very likely confers power on the tribunal to make orders in the nature of relief against forfeiture in equity, which orders operate to suspend the rights of the parties.

17. However, I doubt that it would ever be right for the tribunal, in giving a judgment, to make a lengthy suspension of payment of it. It seems to me to be better that any application for substantial mitigation of the effects of an order for payment be made to a court in which it may be registered. Otherwise, suspension of payment for a year, as was ordered in this case, gives rise to some quite unreasonable consequences from the point of view of the appellant. The operation of the order would be such that the respondent would be entitled to wait out the whole year, and then pay in full, but without interest. There is no provision under which any interest would be earned on the monies due.

18. It is not clear what would happen on default of payment, or if circumstances arose which might reasonably give rise to an expectation that the order ought to be varied. As the tribunal is functus officio once it has made its order disposing of the matter, I doubt that it would have the ability to return to the matter and vary the order.

19. All of these considerations illustrate that an order such as the order now in question has the potential of operating unfairly and arbitrarily. There would seem to be no basis for it.

20. In this case, there is the added fact that the parties were not given the opportunity to make submissions as to any question of time to pay. Indeed, it is not clear at all just why the tribunal thought it proper to give time, as I do not understand that there was any indication of financial impecuniosity on the part of the respondent at any stage of the proceedings.

21. Furthermore, the effect of such an order might be to suspend rights which the judgment creditor, if I can use that expression, might otherwise exercise, to proceed to bankruptcy or liquidation.

22. However the matter is approached, it is clear that the order cannot properly be allowed to stand.

23. The appeal, therefore, will be allowed, and that part of the order of the Commercial Tribunal allowing the respondent 12 months to pay is quashed, but without affecting the remainder of the order obliging the respondent to pay the amount to which I have referred, plus interest, together with costs.

24. Mr Milazzo for the appellants applies for the costs of the appeal. Mr Jolly quite understandably points out the situation which gave rise to the appeal was not of the respondent's making, there being no application at the time to the tribunal. This is a classic case for payment from a suitor's fund, if there was one, but there is no suitor's fund from which payment can, in this case, be ordered.

25. It is true, as Mr Milazzo points out, that if the attitude expressed by Mr Jolly had been expressed earlier and before the hearing, it may not have been necessary for the appellant to brief counsel to attend ready to argue the merits of the appeal. In that sense, I think that the respondent might have saved some costs if it had chosen to go about it in that way.

26. However, I see no alternative but to make the usual order for costs.

27. The respondent is to pay the appellant's costs of and incidental to the appeal.