Tong v Tong
[2021] ACAT 8
•28 October 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
TONG v TONG (Appeal) [2021] ACAT 8
AA 4/2020 (RT 4/2020)
Catchwords: APPEAL – residential tenancies – application for removal to Supreme Court – section 83 of the ACT Civil and Administrative Tribunal 2008 – whether there is a serious issue to be tried – balance of convenience – obligation to observe procedural fairness – where removal to the Supreme Court avoids the fragmentation of legal issues and ensures consistency on findings of fact – removal to the Supreme Court granted – interim application – stay of termination and possession orders
Legislation cited: ACT Civil and Administrative Tribunal Act2008 ss 7, 53, 83, 87
Family Provision Act 1969
Residential Tenancies Act 1997 s 6A
Cases cited:ABC v Lenah Game Meats Pty Ltd [2001] HCA 63
American Cyanamid Co v Ethicon [1975] AC 396
Coutts v Walls [2019] ACAT 66
In the Matter of Toby [2020] ACAT 90
Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207Negri v Secretary, Department of SocialServices [2016] FCA 879
Nicholas John Holdings Pty Ltd v ANZ Banking Group [1992] VR 715
Singh v Registrar of Firearms [2015] ACTSC 186
Tribunal: Acting Presidential Member Prof. P Spender
Member E Trickett
Date of Orders: 28 October 2020
Date of Reasons for Decision: 4 February 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 4/2020 (RT 4/2020)
BETWEEN:
SU QIN ZHU TONG
Appellant
AND:
LE NGOC TONG
Respondent
APPEAL TRIBUNAL: Acting Presidential Member Prof. P Spender
Member E Trickett
DATE:28 October 2020
ORDER
The Tribunal orders that:
Pursuant to section 53 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), paragraphs 1, 2 and 3 of the orders made on 11 March 2020 are stayed until 1 March 2021.
The matter is removed to the Supreme Court pursuant to section 83(2) of the ACAT Act.
The application made by the respondent on 19 October 2020 to adduce fresh evidence on the appeal is adjourned for consideration by the Supreme Court.
…………Signed……………..
Presidential Member Prof. P Spender
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
By way of application in this appeal, the applicant sought orders pursuant to sections 53 and 83 of the ACT Civil and Administrative Tribunal Act2008 (the ACAT Act). The Appeal Tribunal made orders on 28 October 2020 and the Tribunal delivered brief oral reasons on that date. Further to a request for written reasons made by the applicant’s solicitors, the Appeal Tribunal prepared more comprehensive reasons that are set out below.
When preparing these written reasons for decision, the Tribunal has kept in mind that it is “permitted to elaborate on its oral reasons and improve their expression, so long as the substance of the reasons [is] not altered, and the reasoning remained consistent.”[1]
Reasons for Decision
[1] In the Matter of Toby [2020] ACAT 90 at [5], citing Negri v Secretary, Department of SocialServices [2016] FCA 879 at [12]-[29]
The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ or ‘Appeal Tribunal’ refers to the current panel.
In summary, the Tribunal has concluded that the termination and possession orders made on 11 March 2020 should be stayed until 1 March 2021 under section 53 of the ACAT Act. The matter should also be removed to the Supreme Court pursuant to section 83 of the ACAT Act. The respondent made an application for interim orders regarding the adducing of fresh evidence in the appeal. The Tribunal has adjourned that application because the Supreme Court will be able to consider that application as part of the proceedings that are removed to the Supreme Court. Similarly, the Tribunal makes no orders in relation to the orders made on 4 June 2020 regarding the payment of rent, because this issue can be dealt with between the parties and, if necessary, the Supreme Court, as part of the removed jurisdiction.
Background
The termination and possession order pertains to a property situated in Fullerton Crescent, Richardson (the Richardson property). The property was purchased by the late Mr Tong in December 2005,[2] but was transferred to the respondent in January 2008.[3]
[2] Draft Supreme Court Statement of Claim (2 September 2020) paragraph 12
[3] Draft Supreme Court Statement of Claim (2 September 2020) paragraph 47
The appellant, Su Qin, and her children have occupied the property since 2006.[4] The appellant lives in the property with her four children aged 15 years and under, and her elderly mother. The registered proprietor of the Richardson property is the respondent, Le Ngoc Tong (Le Tong), who is the sister-in-law of Su Qin. For many years, Mr Tong, who was the husband of the appellant and the brother of the respondent, also resided in the Richardson property. Sadly, Mr Tong was diagnosed with cancer in 2018 and died on 19 June 2019.
[4] Draft Supreme Court Statement of Claim (2 September 2020) paragraph 12
Importantly, the Richardson property forms part of a wider dispute between the parties regarding what might broadly be described as the estate of Mr Tong (the Estate). Based on the material filed in the appeal, the executor of the estate is Duc Tong.[5] He is the brother of the deceased.
[5] Draft Supreme Court Statement of Claim (2 September 2020) paragraph 5
There is also a family discretionary trust (the Family Trust) which was set up in May 2019, and the beneficiaries under the trust deed are the children, but not the mother, Su Qin.[6] The trustee of the family trust is a company called Fortitude Investments Group Pty Ltd. (Fortitude).[7] The two directors of Fortitude are the respondent and her brother, Duc Tong, and it appears that the only shareholders in Fortitude are Le Tong and her brother, Duc Tong.
[6] Draft Supreme Court Statement of Claim (2 September 2020) paragraph 72
[7] Draft Supreme Court Statement of Claim (2 September 2020) paragraph 127
The appellant, Su Qin, filed proceedings under the Family Provision Act 1969 (the FPA) in the ACT Supreme Court on 21 January 2020 (the Supreme Court proceedings) seeking orders on her own behalf and on behalf of her children as their litigation guardian.[8]
[8] Orders of ASJ McWilliam 4 August 2020
Several issues are alleged in the Supreme Court proceedings and the Tribunal only mentions some of them that are relevant to the present proceedings in ACAT. First, Su Qin alleges that she has an equitable interest in the Richardson property. It might be in the nature of a constructive trust or a remedial trust of some description. Secondly, the family trust that was set up in favour of the children (and they are described in the appeal papers as “residual beneficiaries in the Estate”), appears to divert some of the potential assets of the Estate into the Family Trust. The Tribunal only mentions this because the children obviously have a separate interest to Su Qin under the broader controversy. This issue is not before the Tribunal.
Application for Interim Orders - Section 53 of the ACAT Act
First, the Tribunal will consider the application for interim orders under section 53 of the ACAT Act. Section 53 states:
53 Interim orders
(1) This section applies if, before the hearing of an application—
(a) a party to the application applies to the tribunal for an order under this section; and
(b) the tribunal is satisfied that, if an order under this section were not made before the hearing of the application, the party applying for the order would be disadvantaged or suffer harm.
(2) The tribunal may make any order (an interim order) it considers appropriate to protect the position of the party that applied for the order.
Note The tribunal must observe natural justice and procedural fairness (see s 7).
(3) An interim order remains in force until the tribunal—
(a) orders otherwise; or
(b) makes an order at the end of the hearing to which the interim order relates.
(4) The tribunal may, on application by a party while an interim order is in force—
(a) vary the order; or
(b) revoke the order.
(5)If the person against whom an interim order is made is not present when the order is made, a registrar must arrange for a copy of the order to be served on the person as soon as practicable after the order is made.
Should a stay be granted under this provision? This provision allows the Tribunal, including an Appeal Tribunal, to make an order before the hearing of an application if the party applying would suffer disadvantage or harm. General President Crebbin held in Morgan and Construction Occupations Registrar[9] that this disadvantage or harm is not a high threshold, but it must be more than inconvenience.[10]
[9] [2011] ACAT 18
[10] [2011] ACAT 18 at [10]
The Tribunal can make any order it considers appropriate to protect the position of the party that applied for the order. This provision has been interpreted to take into account the standards that apply for interim injunctions under the general law, and it is quite important that it does, because the Tribunal should also take into account the interests of Le Tong as respondent and, as drafted, section 53 tends to focus on the person applying for the stay.
The Tribunal applies three tests when it is deciding whether to invoke the power under section 53. The first one is whether there is a serious issue to be tried, the second test is balance of convenience, and the third is the obligation to observe procedural fairness.
On the question of whether there is a serious issue to be tried, the Tribunal, applying American Cyanamid Co v Ethicon[11] (American Cyanamid), and ABC v Lenah Game Meats Pty Ltd,[12] must be satisfied that the claim is not vexatious, frivolous, unsustainable or an abuse of process.[13] Snook and Civil Aviation Safety Authority[14] elaborates the American Cyanamid standard by considering the prospects of success, that is, the merits of the applicant’s case.[15]
[11] [1975] AC 396
[12] [2001] HCA 63; see also Nicholas John Holdings Pty Ltd v ANZ Banking Group [1992] VR 715
[13] [1975] AC 396 at 407
[14] [2008] AATA 861; (2008) 109 ALD 122
[15] [2008] AATA 861; (2008) 109 ALD 122 at [19]
The balance of convenience test takes into account certain factors such as, whether there is an imperilment of the public interest and whether the substantive application will be rendered nugatory. Section 53 explicitly states that the Tribunal must to take into account disadvantage or harm that would be suffered by the applicant if an order is not made before the hearing of the application, but as mentioned previously, it also the considers the situation of the respondent by operation of the general law principles.
The third point is the need to observe procedural fairness. In observing procedural fairness, Lord Diplock stated in American Cyanamid that the tribunal should not attempt to resolve conflicts of evidence that require mature consideration.[16] This point is critical in the present case where there are some clear conflicts of evidence that require testing of propositions and the Appeal Tribunal is not presently in a position to do that.
[16] [1975] AC 396 at 407
Applying the three legal tests in this case, the Tribunal has concluded first that there is a serious issue to be decided on the appeal. There is some uncertainty about the relationship between the parties, and in particular, whether it is regulated by the Residential Tenancies Act 1997 (the Residential Tenancies Act).
The respondent made some cogent arguments about the transactions that occurred in 2008 and has provided some valuable material on appeal, particularly evidencing that she is the registered proprietor, she receives water notices and so on. That material seems to point to the fact that the respondent is a lessor under the Residential Tenancies Act, but there is an important question about whether the appellant satisfies the definition of ‘tenant’ under the Residential Tenancies Act because the nature of her interest in the Richardson property might differ from the interest of a tenant under section 6 of that Act.
Section 6A of the Residential Tenancies Act states that a residential tenancy agreement gives someone the right to occupy the premises, the premises are for use as a home and the right is given for value. There is some question about how value is attributed here, but there is no doubt it has been in use as a home and that the right is given for value.
However, the serious question to be tried is whether the right to occupy the premises is derived from a residential tenancy agreement or from an equitable interest in the property. The latter potentially means that the residential tenancy agreement does not regulate the occupation of the property. Therefore, we consider that the first limb of section 53 tests is satisfied: there is a serious issue to be tried.
As stated above, the second test under section 53 of the ACAT Act is whether the balance of convenience favours the making of interim orders. In this case, the balance of convenience only favours the making of interim orders for a short duration. The appellant admitted that she had engaged in a ‘rent strike’ for at least part of the relevant period. The Tribunal notes that the appellant has been making some payments of $150 a week from June 2020, but the rent strike causes considerable prejudice to the respondent who does not appear to be deriving income from the property during these periods.
Various arrangements were made about the rent and the Tribunal notes that one of the orders sought by the appellant in the appeal is a reimbursement of sums paid as rent during the relevant period. That issue will need to be considered when the matter is removed to the Supreme Court. Nevertheless, the Tribunal has concluded that the respondent has suffered some prejudice as a result of not receiving regular income from the property, and therefore the balance of convenience favours a stay, but only for a short duration.
Regarding the third test, the note to section 53(2) of the ACAT Act emphasises the need for the Tribunal to observe natural justice and procedural fairness pursuant to section 7 of the ACAT Act. The Tribunal has noted above that it should not attempt to resolve conflicts of evidence at this point. It is clear from the material that has been provided that the nature of the interests held in the Richardson property are potentially quite complex as a consequence of the factual matrix that underpins the broader dispute. Therefore, it would be rash for the Tribunal to proceed with, for example, termination and possession orders when there is considerable uncertainty about those factual issues and therefore the tribunal’s jurisdiction.
As a consequence of the preceding reasoning, the Tribunal considers that the termination and possession order and some of the ancillary orders that form the grounds of the appeal should be stayed until 1 March 2021. The Tribunal’s reasoning on section 53 of the ACAT Act is linked to the second part of our reasoning about why the matter should be removed to the Supreme Court. This is discussed below.
Removal to the Supreme Court – Section 83 ACAT Act
In the alternative, the appellant requested the Tribunal to exercise its discretion under section 83 of the ACAT Act to remove the matter to the Supreme Court. The relevant part of section 83 of the ACAT Act states as follows:
83 Removal of applications from tribunal to Supreme Court
(1) If the parties to an application or an appeal (a matter) jointly apply to have the matter removed to the Supreme Court, the tribunal must order that the matter be removed to the Supreme Court.
(2) If a party to a matter applies to have the matter removed to the Supreme Court, the tribunal may, if it considers it appropriate, order that the matter be removed to the Supreme Court.
The Tribunal queried whether the parties consented to proceeding under section 83(1) of the ACAT Act so they would jointly apply to have the matter removed. However, the respondent, Le Tong, stated that she would not agree to a joint application. Therefore, the Tribunal has applied section 83(2) of the ACAT Act.
Why does the Tribunal consider it appropriate to remove the matter to the Supreme Court? The solicitor acting for the appellant, Mr Chin, raised various factors such as the case being amenable to the Supreme Court’s case management strategies and the involvement of counsel in Supreme Court proceedings. However, as commented by Senior Member Orr QC in Coutts v Walls:[17]
It is true that the resolution of the dispute may usefully involve pleadings and case management processes which are more typically adopted by the Supreme Court. But … the tribunal has a range of powers which can be used to manage the proceedings.[18]
[17] [2019] ACAT 66. This was a civil dispute where the application to remove was filed during the original proceedings, rather than on appeal.
[18] [2019] ACAT 66 at [4]
The present Tribunal considers the most cogent reason for removing the matter to the Supreme Court is because it forms part of a wider controversy between the parties.
What are the logistics of removal of a matter from the Appellate Division of ACAT to the Supreme Court? As Refshauge J observed in 2011 in Legal Practitioner v Council of the Law Society of the ACT.
[W]hat is removed is the appeal ... It [is] simply the replacement of one body (the appeal tribunal in the ACAT) with another (this Court) to decide the appeal.[19]
[19] [2011] ACTSC 207 at [41]
Justice Refshauge’s observation was cited by Murrell CJ in Singh v Registrar of Firearms, who added:
Consequently, the Court sits as if it was an appeal tribunal constituted under the ACAT Act. It has the powers of such an appeal tribunal.[20]
[20] [2015] ACTSC 186 at [6]
The judicial comments quoted above were cited by Burns J in Legal Practitioner v Council of the Law Society of the ACT.[21] Following this case law, it is clear that the Supreme Court has the power to make any orders that the tribunal, including the Appeal Tribunal currently constituted, can make and we consider that it is important to remove the matter to avoid the fragmentation of the legal issues and potentially inconsistent factual findings.
[21] [2015] ACTSC 316 at [64]-[66]
During the hearing there was some discussion about the payment of the consideration for the Richardson property. This issue may be the subject of findings in the Supreme Court. We do not want different findings of fact to operate in the two jurisdictions, even though the ACAT controversy is a small part of the broader controversy.
The Tribunal notes the respondent’s comments that delay might occur in the Supreme Court. We are sympathetic to that concern because, as previously stated, there is a problem about the payment of rent. However, we also mentioned that interim orders may be sought in the matter in the Supreme Court almost as soon as it is removed. The parties will also have an opportunity to attempt to settle the broader dispute in informal and formal events because the whole of the dispute will be before the Supreme Court.
We considered the respondent’s application to adduce further evidence, but because the Tribunal is removing the whole of the matter to the Supreme Court, we are adjourning that application so it is removed with the general appeal. We understand that material has been filed and served, but that can be dealt with by the Supreme Court as part of its power to exercise ACAT’s appellate jurisdiction.
Conclusion
The Tribunal has concluded that there will be a stay under section 53 of the ACAT Act on orders 1, 2 and 3 of the orders made on 11 March 2020. There will be no stay on orders 4, 5, 6 and 7 because they are now superseded by the effluxion of time. The Tribunal makes no orders in relation to the orders made by Member Morris on 4 June 2020. Therefore, there is no stay that operates to override the arrangement for the payment of rent.
Further, the appeal is removed pursuant to section 83(2) of the ACAT Act to the Supreme Court. The Tribunal adjourns the application by the respondent for the adducing of further evidence in the appeal for consideration by the Supreme Court and the Tribunal will make further orders as are necessary to facilitate the sending of documents and things to the Supreme Court, pursuant to section 87 of the ACAT Act.
………………………………..
Acting Presidential Member Prof. P Spender
For and on behalf of the Tribunal
| Date(s) of hearing | 28 October 2020 |
| Solicitors for the Applicant: | Mr M Chin, Maxwell & Co Barristers & Solicitors |
| Respondent: | In person |
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