Supreme Court New South Wales Medium Neutral Citation: Rayner v Rayner [2020] NSWSC 1536 Hearing dates: 6 November 2019 Decision date: 02 November 2020 Jurisdiction: Common Law Before: Ierace J Decision: (1) Leave to appeal is granted to the plaintiff in respect of grounds 1, 2, 3, 4 and 6. (2) Leave to appeal is refused in respect of ground 5. (3) The summons filed on 7 June 2019 is dismissed. (4) The plaintiff to pay the costs of the defendant on this application. (5) The order for possession made by the New South Wales Civil and Administrative Tribunal on 30 July 2018 is suspended until 23 November 2020. Catchwords: APPEALS — Appeal from the Appeal Panel of the Civil and Administrative Tribunal – leave to appeal – questions of law LAND LAW — leases and tenancies – where a tenancy agreement was validly terminated – where an order for possession was granted to the defendant - where the plaintiff alleges he had an equitable claim to the property – whether the plaintiff established a claim in equity in defence to the defendant's claim for possession Legislation Cited: Agricultural Tenancies Act 1990 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), ss 82, 83 Law Reform (Law and Equity) Act 1972 (NSW), ss 6, 7 Residential Tenancies Act 2010 (NSW), ss 83, 85, 114, 115 Federal Circuit Court of Australia Act 1999 (Cth), s 18 Cases Cited: Fencott v Muller [1983] 152 CLR 570; [1983] HCA 12 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 Category: Principal judgment Parties: Gary John Rayner (Plaintiff) Ashlee Evelyn Rayner (Defendant) Representation: Counsel: T Lynch (Sol) (Plaintiff) S McAuley (Sol) (Defendant) Solicitors: Beswick Lynch Lawyers (Plaintiff) McAuley Hawach Lawyers (Defendant) File Number(s): 2019/177998 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: Rayner v Rayner [2019] NSWCATAP 121 Date of Decision: 9 May 2019 Before: S Higgins, Senior Member G Sarginson, Senior Member File Number(s): AP 18/35151 Judgment 1. HIS HONOUR: By a summons filed on 7 June 2019, the plaintiff, Gary Rayner, sought leave pursuant to ss 82 and 83 of the Civil and Administrative Tribunal Act 2013 (NSW) to appeal part of a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal ("the Appeal Panel"). The Appeal Panel had heard an appeal from part of a determination that had been made by the New South Wales Civil and Administrative Tribunal ("the Tribunal") pursuant to the Residential Tenancies Act 2010 (NSW) ("RT Act"), concerning a residential tenancy agreement ("the tenancy agreement"), in which the plaintiff was the tenant and the defendant, who is the daughter of the plaintiff and his former wife, was the landlord. The Tribunal determined that the tenancy agreement was terminated and made an order for possession in favour of the defendant. The appeal to the Appeal Panel was only in respect of the order granting possession, not the termination of the tenancy agreement ("the Appeal Panel decision"). Background 1. The background to the dispute was summarised in the Appeal Panel decision, as follows: "6 On 27 December 2013, [the plaintiff] signed a pro-forma residential tenancy agreement (the Agreement) with [the defendant] in regard to the premises. The term of the Agreement was stated to be for the 'indefinite time of lease' and the agreed rent was $200.00 per week. 7 The premises the subject of the Agreement between [the plaintiff and the defendant] was purchased by [the defendant] and her mother (the former wife of [the plaintiff]) on 24 July 2013. The premises were purchased from a portion of the proceeds of the sale of property jointly owned by [the plaintiff] and his former wife. 8 Prior to the sale of the jointly owned property, in June 2012, [the plaintiff] agreed to transfer his 50% interest in the property to his daughter, [the defendant]. At the time of the agreed transfer [the plaintiff] was in prison and the transfer formed part of an agreed property settlement between [the plaintiff] and his former wife. 9 By consent, on 16 July 2012, the Federal Circuit Court made final property orders giving effect to [the plaintiff's] agreed transfer to [the defendant] of his 50% share in the jointly owned property. 10 Two months after purchasing the premises the subject of the Agreement, [the defendant] and her mother purchased another property with the remaining proceeds from the sale of the jointly owned property. 11 On 12 April 2018, [the defendant] sent a 90 day termination notice to [the plaintiff]. That notice specified a termination date of 11 July 2018. 12 On 9 May 2018, [the plaintiff] lodged a tenancy application in the Consumer and Commercial Division … In his application [the plaintiff] said he sought an order under s 115 of the Residential Tenancies Act 2010 (NSW) (RT Act) and the reason he gave for seeking the order was: Termination notice given in relation to separate by-law issue. As well noise complaints. Lease stipulates that the term of the agreement is indefinite. 13 On 27 July 2018, [the defendant] also lodged a tenancy application with the Tribunal in which she sought a number of orders, including a termination order under ss 85 (termination order after 90 days) and 87 (termination order where tenant has breached the residential tenancy agreement) of the RT Act ... 14 [The plaintiff's] application … which is the subject of this appeal, was listed for hearing before the Tribunal, on 30 July 2018. [The plaintiff] was not represented in those proceedings." 1. The sections of the RT Act, as they were at the time of the Tribunal's hearing, that are necessary to understand the Appeal Panel decision, or have been raised by the plaintiff for the purposes of this application, are relevantly as follows: "83 Termination orders (1) If the Tribunal makes an order terminating a residential tenancy agreement under this Act, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect. (2) … … 85 Termination of periodic agreement (1) A landlord may, at any time, give a termination notice for a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given. … (3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (4) … … 114 Suspension of possession orders (1) The Tribunal may suspend the operation of an order for possession of residential premises for a specified period if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension. (2) The Tribunal may impose an obligation on a tenant to pay a specified occupation fee for the period for which the order for possession is suspended. 115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice: (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons — (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant." 1. The orders made on 30 July 2018 by the Tribunal, which was in the Consumer and Commercial Division, were as follows: "1. The Residential Tenancy Agreement is terminated in accordance with s 85 of the Residential Tenancies Act 2010 as the landlord has served a 90-day notice for termination of a periodic agreement. 2. The Residential Tenancy Agreement is terminated immediately and possession is given to the landlord on the date of termination. 3. The order for possession is suspended until 27 August 2018. 4. The tenant shall pay the landlord a daily occupation fee at the rate of $28.57 per day from the day after the date of termination, namely 31 July 2018 until vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing …" 1. The defendant's tenancy application that was lodged on 27 July 2018 was heard by the Tribunal, differently constituted, on 14 August 2018. It determined that as the tenancy had already been terminated, it had no jurisdiction and dismissed the application. 2. On 20 August 2018, the plaintiff filed an application in the Federal Circuit Court, seeking to set aside the orders that had been made by that court by consent on 16 July 2012, in respect of the matrimonial property of the plaintiff and his former wife ("the 2012 consent orders"). In those proceedings, the plaintiff contended that he had been misled into transferring his 50 per cent interest in the jointly-owned property and assets and that he had understood that the defendant purchased the property that was the subject of the tenancy agreement in his name, for him to reside in upon his release from prison. He only learned the property was registered in the defendant's name after he received the notice of termination. 3. On 13 August 2018, that is, the day before the hearing date for the defendant's application to the Tribunal, the plaintiff lodged his appeal to the Appeal Panel, but only against the Tribunal's order for possession against him, seeking that it be "discharged", and an order for costs. 4. The plaintiff's solicitor filed two sets of written submissions with the Appeal Panel. In the first, which was filed on the same date as the application to the Federal Circuit Court, he contended that the plaintiff had an equitable interest in the property which was the subject of the rental agreement, and that although the Tribunal terminated the tenancy agreement, it did not have jurisdiction to determine his claim in equity to a right of possession independently from the tenancy agreement. The Appeal Panel recounted these submissions, stating, at [32]: "It was contended that the Tribunal should have stayed any orders for possession until such time the Federal Circuit Court had determined [the plaintiff's] application for an order setting aside the 2012 consent orders under the Family Law Act." 1. Those written submissions formed part of the court book which was tendered in the hearing before me. On my reading, with respect, the plaintiff's solicitor had not made such a submission, but rather, had made the submission that the order for possession should be stayed pending the Appeal Panel hearing (presumably, he meant the Appeal Panel decision) or the final orders of the Federal Circuit Court. The written submissions relevantly stated: "18 [The plaintiff] has now filed an Initiating Application in the Federal Circuit Court to request orders to set aside the Consent Orders and to recover title to the properties (including the property the subject of the Tribunal's possession order under appeal). … 21 The order for possession should be stayed pending the hearing of [the plaintiff's] Notice of Appeal or pending final orders of the Federal Circuit Court." 1. The Appeal Panel noted, at [34], that in his second set of written submissions, the plaintiff's solicitor argued that his claim could be regarded as "an equitable defence of 'unclean hands' or an estoppel against [the defendant's] claim for an order for possession", and that, if so categorised, ss 6 and 7 of the Law Reform (Law and Equity) Act 1972 (NSW) applied, so as to have empowered the Tribunal to postpone the grant of relief under the RT Act, including an order for possession, or to making an order granting relief subject to terms and conditions. 2. Sections 6 and 7 of the Law Reform (Law and Equity) Act are as follows: "6 Defence in inferior court Every inferior court shall in every proceeding before it give such and the like effect to every ground of defence, equitable or legal, in as full and ample a manner as might and ought to be done in the like case by the Supreme Court under the Supreme Court Act 1970. 7 Jurisdiction as to relief not enlarged This Act does not enlarge the jurisdiction of any court as regards the nature or extent of the relief available in that court, but any court may, for the purpose of giving effect to sections 5 and 6, postpone the grant of any relief, or grant relief subject to such terms and conditions as the nature of the case requires." 1. The Appeal Panel's decision was handed down on 9 May 2019. It noted the manner in which the plaintiff had raised this issue before the Tribunal. The plaintiff had put on no supporting evidence and had relied exclusively on his oral submissions on the day of the Tribunal hearing, which had not been transcribed, thus leaving the Appeal Panel with only the Tribunal's reasons. In its decision, the Appeal Panel, at [30], quoted the following passage from the Tribunal's reasons: "… [At] the hearing [the plaintiff] gave evidence that [the defendant] had purchased the property in issue using proceeds of sale from a property that [the plaintiff] owned, and that she had done so without [the plaintiff's] knowledge while [the plaintiff] was incarcerated. [The plaintiff] also gave evidence that he had hired legal assistance, lodged a caveat over the property and had demanded the property to be put in his name. The tribunal explained the limitations of its jurisdiction, and the 'no grounds' termination order. Limited arguments were submitted under s 115 RTA, but they were insufficient for the tribunal to declare the termination notice, issued 12 April 2018, invalid. After discussion termination was set at 27 August 2018. This does not prevent [the plaintiff] from pursuing other issues through legal channels." 1. In the hearing in this Court, the solicitor for the plaintiff conceded that the Tribunal had correctly summarised his client's submissions to the Tribunal. The reference to a "'no grounds' termination order" is to an order made following a termination notice given by a landlord to a tenant that does not allege a breach by the tenant of the tenancy agreement, but rather, that the period of the tenancy has expired and the landlord wishes to take possession: see s 82(1)(c) of the RT Act. 2. The Appeal Panel concluded that it was not satisfied that the plaintiff had articulated a claim in equity at the hearing before the Tribunal, or that he had sought a stay of the order for possession. Accordingly, it found no error in the Tribunal's decision or reasons for its decision. The Appeal Panel stated: "50 As we have noted, [the plaintiff] did not place any material before the Tribunal and only relied on the evidence he gave on the day of hearing. A transcript of what he said during that hearing is not before us. Accordingly, we do not know what [the plaintiff] said, other than what is contained in the Tribunal's reasons for decision, which indicate that [the plaintiff] sought (i.e. demanded) that the premises be put in his name. The Tribunal explained that [the plaintiff] had made this demand, because [the defendant] had purchased the premises, without his knowledge, using the proceeds from the sale of property he owned. The Tribunal did not describe the demand as being an asserted equitable interest in the premises that gave [the plaintiff] a right to possession independently of the residential tenancy agreement between himself and [the defendant]. 51 Nor, in our view, can the Tribunal's remark about the limitations of its jurisdiction be construed to be a reference to the Tribunal having explained to [the plaintiff] that it did not have jurisdiction to determine an equitable claim as asserted by [the plaintiff] in these proceedings. In our view, the Tribunal's remark, when read in context, related to an explanation of the jurisdiction it did have under the RT Act by reason of [the plaintiff's] application for an order under s 115. 52 Hence, we are not persuaded, on the material before us, that [the plaintiff] had articulated a claim in equity at the hearing before the Tribunal below, or that he sought a stay of the orders for possession. That claim appears to have been articulated subsequently in this appeal. We understand there had been some communication between the legal representatives of [the plaintiff and the defendant] prior to the hearing of 30 July 2018. However, this correspondence was not before the Tribunal." 1. The Appeal Panel also determined that, if it was wrong and the plaintiff had articulated a claim in equity, his submission as to the application of ss 6 and 7 of the Law Reform (Law and Equity) Act was misconceived. 2. The Appeal Panel accepted that the Tribunal is an "inferior court" for the purposes of s 6: Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 at [67] and [74]. However, referring to the judgment of White J (as his Honour then was) in that case, the Appeal Panel noted: "60 … ss 6 and 7 of the Law Reform (Law and Equity) Act has a limited application in that it only applies where a party to proceedings in an inferior court raises an equitable defence to proceedings brought against him or her in that inferior court. However, these sections are not enlivened by mere assertion. As noted by White J, before the inferior court can make an order … under s 7 staying the proceedings before it, an entitlement to relief under the asserted equitable defence must first be established. It is s 6 which enables the inferior court to decide whether or not there might be an entitlement as asserted has been established. 61 Other than an assertion, [the plaintiff] failed to place any material before the Tribunal that might have established an entitlement to relief under an equitable defence. While [the plaintiff] has placed additional material before us, in our view this also fails to establish an entitlement to a relevant equitable defence to [the defendant's] claim. [The plaintiff] has at no time denied that he executed the residential tenancy Agreement that gave him a right to possession of the premises. In signing that Agreement, [the plaintiff] also agreed to be bound by its terms. Nor has [the plaintiff] challenged the termination order of the Tribunal in regard to that Agreement. It was this order that triggered the orders for possession. As noted by [the defendant], once a termination order is made, s 83 of the RT Act requires the Tribunal to make an order for possession. The Tribunal has no discretion in this regard, but does have the power, under s 114 of the RT Act, to suspend the orders for possession for a specified period if satisfied it is desirable to do so. In this case, the Tribunal suspended the possession orders for 28 days 62 If, as contended by [the [plaintiff], he had an entitlement, in equity, to possession of the premises independently of the tenancy Agreement, it is difficult to understand why he did not press that entitlement at the time he was issued with [the defendant's] Notice of Termination. In our view, an entitlement, as articulated by [the plaintiff] would not amount to a defence, in equity, to [the defendant's] claim under the RT Act. If it amounts to a substantive counter claim, in equity, is a matter for [the plaintiff] to pursue in another forum. 63 [The plaintiff] has not brought such a claim in the Supreme Court. Instead he lodged a claim in the Federal Circuit Court following the decision of the Tribunal. That claim is not a claim in which [the plaintiff] seeks orders for possession of the premises. It is a claim where he seeks to have the 2012 consent orders of that Court set aside. Those orders, as we have noted, relate to the jointly owned property by [the plaintiff] and his former wife and not the premises the subject of the tenancy Agreement. We note that the consent orders were based on the agreement of [the plaintiff] to transfer 50% of his interest in the property he jointly owned with his former wife. That agreement was signed by [the plaintiff], who signed against the notation that he did not require legal advice in regard to the terms of that agreement. 64 For the reasons set out above, we find that [the plaintiff's] grounds of appeal do not raise a question of law. Hence the appropriate order is to dismiss the appeal in so far as it relied on these grounds." 1. The Appeal Panel concluded that the plaintiff's grounds of appeal did not raise a question of law, and thus the appropriate order was to dismiss that aspect of the appeal. 2. In its decision, the Appeal Panel noted that in written submissions, the plaintiff had also alleged a procedural irregularity in the proceedings before the Tribunal, although neither party had raised that matter as a ground of appeal. The essence of this complaint was that the Tribunal had effectively dealt with the defendant's application on the same date as the plaintiff's application, because orders for possession could only have been made in response to the defendant's application. The Appeal Panel dismissed this complaint, noting that neither party had complained at the time of the first hearing and that it was inappropriate for both proceedings to be dealt with together. 3. The orders made by the Appeal Panel were as follows: "(1) The orders of the Tribunal made on 30 July 2018 are varied as follows: (a) The applicant's application in RT 18/21167 is dismissed. (b) The following orders are made in the respondent's application RT 18/32964: (i) The residential tenancy agreement is terminated immediately and possession is given to the landlord on the date of termination. (ii) The order for possession is suspended until 31 May 2019. (iii) The tenant shall pay the landlord a daily occupation fee at the rate of $28.57 per day from the day after the date of termination, namely 31 July 2018 until the date vacant possession is given to the landlord. (iv) Within 60 days of the date of possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. (2) Appeal is otherwise dismissed. (3) The stay granted by the Appeal Panel on 23 August 2018 in regard to orders 2 and 3 of the Tribunal made on 30 July 2018 is lifted forthwith. (4) In the event the respondent seeks costs of the appeal the following order is made: (a) within seven (7) days from the publication of these orders, the respondent is to file and serve her application for costs together with any evidence and written submissions: (b) within fourteen (14) days from the publication of these orders the appellant is to file and serve any evidence and written submissions in reply; and (c) submissions of each party must indicate whether they oppose an order that the application be dealt with on the papers under s 50 of the Civil and Administrative Tribunal Act 2013." 1. On 30 April 2019, the Federal Circuit Court acceded to an application by the respondents in that action, being the plaintiff's former wife and the defendant to this action, to summarily dismiss the plaintiff's application. The appeal to this Court 1. Sections 82 and 83 of the Civil and Administrative Tribunal Act relevantly provide as follows: "82 Interpretation (1) Each of the following kinds of decisions of the Tribunal is an appealable decision of the Tribunal for the purposes of this Division: (a) any decision made by an Appeal Panel in an internal appeal, (b) any decision made by the Tribunal in an external appeal, (c) any decision made by the Tribunal in proceedings in which a civil penalty has been imposed by the Tribunal in exercise of its enforcement or general jurisdiction. Note— An appealable decision includes any ancillary or interlocutory decisions of the Tribunal in such proceedings. (2) … (3) For the purpose of this Division, the appropriate appeal court for an appeal against a decision in proceedings in which a civil penalty has been imposed is: (a) if the Tribunal was constituted by one or more senior judicial officers—the Supreme Court, or (b) if the Tribunal was not constituted by or with any senior judicial officers—the District Court. (4) A reference to the Tribunal in another provision of this Division is to be read as a reference to an Appeal Panel if the appealable decision of the Tribunal concerned is a decision of an Appeal Panel. (5) … 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. (2) … (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following: (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court. (4) … (5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision." 1. Pursuant to s 82(1)(a), the Appeal Panel's decision was an internal appeal decision. An appeal to this Court requires leave and is confined to questions of law: s 83(1). 2. The plaintiff's summons seeks the following orders: "1 Leave to appeal from the part of the decision below in relation to the order that the plaintiff give possession of the premises to the defendant and the lifting of the stay of the order for possession of the premises. 2 Appeal allowed. 3 Orders numbered 1(b), 2 and 3 of the court below be set aside. 4 In lieu thereof, an order that the orders for possession against the plaintiff be set aside and the defendant's application for possession against the plaintiff be stayed pending determination of the plaintiff's claim in equity is determined in the Federal Circuit Court of Australia or such other Court of competent jurisdiction." 1. The plaintiff relies on an affidavit sworn by him on 23 October 2019 and read in the proceedings, and the court book, which comprised: copies of the tenancy agreement; the "no grounds" termination order; the plaintiff's tenancy application; the Tribunal's orders and reasons; the plaintiff's notice of appeal and written submissions; the defendant's written submissions; and the transcript of the Appeal Panel hearing and its decision. In addition, the plaintiff handed up a brief chronology. The court file included further affidavits by the plaintiff, sworn on 12 June 2019 and 20 June 2019, which had been prepared for an earlier hearing in this matter. The plaintiff did not seek that those affidavits be read. 2. The plaintiff advanced six grounds of appeal, which are now considered. Ground 1 1. Ground 1 is as follows: "The NCAT Appeal Panel erred at [51] in finding that the decision of the single member at first instance was other than an erroneous finding that the Tribunal did not have jurisdiction to consider a claim in equity in defence to a claim for possession against the Plaintiff." 1. In my view, this ground, which challenges the Appeal Panel's interpretation of the Tribunal's reasons, raises a question of law, and I would grant leave to appeal. 2. The plaintiff submitted that it was not reasonably open to the Appeal Panel to find, at [51], that the Tribunal's statement, "The tribunal explained the limitations of its jurisdiction, and the 'no grounds' termination order" referred only to the plaintiff's application made pursuant to s 115 of the RT Act. Rather, the plaintiff submitted, the Tribunal was implying that its jurisdiction in relation to an application for a "no grounds" termination order was limited, so that an equitable defence was precluded from consideration. The plaintiff further submitted that the final sentence of the quote of the Tribunal's reasons, being "This does not prevent the applicant from pursuing other issues through legal channels", was to be understood as an acknowledgement by the Tribunal that the plaintiff could pursue his equitable claim in another court. 3. In response, the defendant submitted that the Tribunal at first instance properly exercised its jurisdiction pursuant to s 83(1) of the RT Act and that the plaintiff had failed to provide evidence of his claim of an equitable interest and to seek declaratory or other relief from any court in relation to it. Consideration 1. The underlying proposition in this ground is that the Tribunal's reasons are to be interpreted to mean that it concluded that it did not have jurisdiction to consider a claim in equity in defence to a claim for possession against the plaintiff. The Tribunal's reasons are to be understood in the context of the plaintiff's tenancy application. The plaintiff had only sought an order pursuant to s 115 of the RT Act, identifying two alleged breaches by the landlord of the tenancy agreement, being "noise complaints" and that the period of the tenancy was expressed in the tenancy agreement to be "indefinite". 2. It is unclear from the Tribunal's reasons whether it had understood the plaintiff's oral claim, that the property had been purchased with his assets and without his knowledge, to be a claim in equity; the plaintiff did not characterise it as such and he had given no notice of it in his tenancy application or provided evidence to support it. The Tribunal was, in effect, noting that, whatever the nature of the plaintiff's claim, it was not the place for him to pursue it, given the limited range of orders that it had power to make, pursuant to the RT Act, in response to a "no grounds" termination order. This view accords with the Appeal Panel's interpretation of what the Tribunal intended by its remarks at [51]. 3. The next proposition is whether, if the Tribunal's reasons were to the effect that it did not have the jurisdiction to consider an equitable claim as a defence to an order for possession, that view was erroneous. 4. As noted above, the issue of the application of ss 6 and 7 of the Law Reform (Law and Equity) Act by NCAT, was considered by White J in Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited. That case involved an agricultural tenancy pursuant to the Agricultural Tenancies Act 1990 (NSW), in which an equitable claim as a defence was raised to a notice of termination of a lease. White J concluded, at [78]: "Accordingly, the Tribunal would have jurisdiction to determine the availability of a defence to the landlord's claim for possession that the tenant was entitled to relief against forfeiture even if its power to grant statutory remedies did not extend to granting appropriate relief to give effect to that determination. If an entitlement to relief against forfeiture were established, it should stay the proceeding to allow the tenant to pursue appropriate relief in the Supreme Court." (emphasis added) 1. White J found that the Tribunal could only apply ss 6 and 7 of the Law Reform (Law and Equity) Act if the claim was established. The plaintiff's oral claim to the Tribunal, made without any notice or supporting evidence, could not constitute a proper evidentiary basis for a finding by it that the plaintiff had 'established' an equitable claim, and therefore the ultimate issue did not arise. 2. I would dismiss ground 1. Ground 2 1. Ground 2 is as follows: "In circumstances where the Defendant's application for termination of a tenancy and possession against the Plaintiff had been lodged just 3 days before the hearing at first instance and reasons of the Tribunal Member at first instance included a finding (inter alia) that at the hearing the Plaintiff gave evidence that the Defendant had purchased the property using the proceeds of sale from a property that the Plaintiff owned, the NCAT Appeal Panel erred at [52] and [61] in finding that the Plaintiff had not articulated a claim in equity or had failed to place any material before the Tribunal that might have established an entitlement to relief under an equitable defence." 1. I would grant leave to appeal on this ground, which concerns an issue of Tribunal procedure and procedural fairness, and therefore raises questions of law. 2. The plaintiff's written submissions referred to the summary of the plaintiff's submission in the Tribunal's reasons quoted at [12] above and continued: "… Presumably relying on the procedural discretion afforded to it, the Tribunal heard and determined the Defendant's application on 30 July 2018, 3 days after it had been initiated, without having made any procedural directions such as for the preparation of a response or the exchanging of evidence, and perhaps even before the application had been notified to the Plaintiff … … It is submitted that this account of the Plaintiff's position and evidence by the Tribunal member (uncontested on appeal) precludes the finding of the Appeal Panel at [52] that the plaintiff had not articulated a claim in equity. The necessary degree of specificity (and corroboration) in the articulation of a claim in equity must be measured against the inherent informality of proceedings before the Tribunal, the fact that the plaintiff was unrepresented and that he was responding to an application initiated only 3 days earlier, the hearing of which he had no prior notice. … In any event, it is submitted that the evidence he gave as recorded in the reasons of the Member clearly indicates an assertion of a beneficial entitlement to the property, which may prima facie found a right to be in possession as against the defendant, independently of the right to possession arising under the tenancy agreement." 1. The defendant's "no grounds" termination order bears a "service endorsement" to the effect that it had been left in the plaintiff's letter box on 12 April 2018. The plaintiff filed his tenancy application in May 2018. In response to the question: "Reasons for asking for orders?", the plaintiff hand-wrote (as conceded by his solicitor): "Termination notice given in relation to separate by-law issue … As well noise complaints. Lease stipulates that the term of the agreement is indefinite." 1. The plaintiff also wrote, but crossed out, the words: "Separate agreement that tenant pays off mortgage p", which is evidence that he had turned his mind at that stage to alleging an equitable or other interest before the Tribunal but decided against it. 2. In response, the defendant submitted that the Appeal Panel was correct to find that the plaintiff did not articulate a claim in equity until the hearing before the Appeal Panel. The consequence of what the plaintiff now seeks would be that the defendant would not be granted possession until the plaintiff decides to prosecute his equitable claim by way of relief in a court, at some indefinite and indeterminable time. Consideration 1. Essentially the plaintiff's submission in support of this ground is that he was not afforded an opportunity, or a sufficient opportunity, to submit evidence of his equitable claim to the Tribunal, but in any event, having regard to the Tribunal's informal procedure, he had sufficiently articulated his equitable claim, so that he had established an "equitable defence" before the Tribunal. 2. In the passage from the plaintiff's written submissions quoted above, the plaintiff does not dispute that he did not oppose the Tribunal proceeding to hear his application pursuant to s 115 of the RT Act and his claim for possession at the same time. 3. The plaintiff's written submissions do not explain why he did not identify to the Tribunal the issue of his equitable claim in advance of the Tribunal's hearing. The plaintiff had over three months after service upon him of the defendant's "no grounds" termination order to marshal evidence of his claim, if he required it, to put his case to the Tribunal seeking equitable relief, if indeed he considered that it was an appropriate forum for such relief, or elsewhere, if he did not. 4. In relation to the plaintiff's submission that his "assertion of a beneficial entitlement to property, which may prima facie found a right to be in possession against the defendant", I note my earlier observations to the effect that the claim must be 'established' in order for the broader jurisdiction pursuant to ss 6 and 7 of the Law Reform (Law and Equity) Act to be activated. 5. I would dismiss ground 2. Ground 3 1. Ground 3 is as follows: "The NCAT Appeal Panel erred in finding at [61] that the Plaintiff's claim in equity as articulated at first instance and/or in the NCAT appeal was not sufficient to warrant consideration at first instance or otherwise establish an entitlement to an equitable defence sufficient for the purposes of refusing or staying an order for possession against the Plaintiff, pending determination of the claim in equity in a Court of competent jurisdiction." 1. I would grant leave to appeal on this ground, since it raises a question of law. 2. To the extent that this ground repeats one of the issues indirectly raised in ground 1, namely, whether the plaintiff's articulation of his claim was sufficient to activate the Tribunal's claimed jurisdiction pursuant to ss 6 and 7 of the Law Reform (Law and Equity) Act, I note my finding that the plaintiff's assertion was an insufficient basis by itself to 'establish' the equitable interest. Ground 3 expands this submission to the Appeal Panel hearing; that is, as I understand that part of this ground, that there was sufficient material before the Appeal Panel to require it to entertain the equitable claim. 3. At [61], the Appeal Panel acknowledged that the plaintiff had placed "additional material" before it which also failed to establish the entitlement sought by the plaintiff. It did not identify that material. At the hearing before me, I raised with the plaintiff's solicitor, who also appeared for the plaintiff before the Appeal Panel, where I might find that additional material, as follows: "HIS HONOUR: That begs the question, the words in that paragraph, 'While the appellant has placed additional material before us' where do I find the material that was before the appeal panel? LYNCH: It was served, but not read at the hearing is the position regrettably. The material was the affidavits filed and served in the Federal Circuit Court proceedings." 1. It appears from the transcript of the Appeal Panel hearing that the plaintiff had handed up two affidavits by the plaintiff that were filed in the Federal Circuit Court proceedings, but ultimately were not read in the Appeal Panel hearing. I note that they were also not read in the hearing before me. In those circumstances, the second part of ground 3 is not made out. 2. Accordingly, I would dismiss ground 3. Ground 4 1. Ground 4 is as follows: "The NCAT Appeal Panel erred at [61] in finding that the effect of s83 of the Residential Tenancies Act 2010 (NSW) is to require the Tribunal to make an order for possession without a stay or other condition such as is warranted to allow for the plaintiff's equity to be determined in a Court of competent jurisdiction." 1. Ground 4 raises an issue of statutory interpretation, which is a question of law, and I would grant leave to appeal. 2. In written submissions, the plaintiff disputed that the Tribunal was bound by s 83 of the RT Act to make an order for possession once it had terminated the tenancy agreement, arguing that a proper application of ss 6 and 7 the Law Reform (Law and Equity) Act would have obliged the Tribunal to consider and determine his equitable claim as a defence to a possession order and "if so, stayed the defendant's application pending determination of the equity in a court of competent jurisdiction". 3. In oral submissions, counsel for the plaintiff acknowledged that s 83(1) of the RT Act obliged the Tribunal to make an order for possession once it had made an order terminating the tenancy, but submitted that the terms of s 83(1) did not prevent it from delaying the making of the order, so that after the Tribunal made the order terminating the tenancy, it should have then adjourned the matter, permitting the plaintiff to resolve the equitable claim in a court of competent jurisdiction for that purpose. Consideration 1. Since the plaintiff did not 'establish' an equitable claim before the Tribunal, it is unnecessary to determine whether the RT Act permits a Tribunal to delay making an order for possession in such circumstances; that is, having regard to ss 6 and 7 the Law Reform (Law and Equity) Act. 2. Accordingly, I would dismiss ground 4. Ground 5 1. Ground 5 is as follows: "The NCAT Appeal Panel erred in finding at [62] that the Plaintiff's claim in equity would not amount to a defence in equity against the Defendant's claim for possession under the Residential Tenancies Act 2010 (NSW)." 1. The single-paragraph written submission by the plaintiff in support of this ground is as follows: "If the plaintiff's claim was entitled him to a declaration that the defendant held the property upon trust for him, whether it be a bare trust or a trust with trustee obligations, then it could be that the defendant was obliged to transfer her title to the plaintiff upon demand, or otherwise precluded by her obligations from evicting the plaintiff". 1. Having regard to the terms of this ground and the manner in which the plaintiff has developed it in the single paragraph, it is repetitive of the earlier grounds. 2. Accordingly, although it raises a question of law, I decline leave to the plaintiff to argue this ground. Ground 6 1. Ground 6 is as follows: "The NCAT Appeal Panel erred at [63] in finding that the Plaintiff had not commenced proceedings in a Court of competent jurisdiction to pursue his equity against the Defendant and/or that in doing so he needed to seek orders for possession against the Defendant." 1. Ground 6 involves a question of law. I would grant leave to appeal. 2. The plaintiff submitted that the Federal Circuit Court proceedings were essential to the determination of the claim in equity, since it may be that no equity could subsist after the determination of his claim. Further, he submitted that the Federal Circuit Court is a court of competent jurisdiction to determine the plaintiff's equitable claim due to s 18 of the Federal Circuit Court of Australia Act 1999 (Cth). He relied upon Fencott v Muller [1983] 152 CLR 570; [1983] HCA 12 at 591 where Gibbs CJ stated, at 591: "It is now established by Philip Morris v. Brown that once a federal court is invested with jurisdiction with respect to a matter, it may determine all the questions which form part of that matter, even though they are questions which it would have no jurisdiction to entertain if they arose in separate proceedings." 1. The defendant responded that no error had been identified in this ground by the plaintiff, noting that he had failed to seek equitable relief in this Court and that on 30 April 2019, the Federal Circuit Court summarily dismissed his application. At the time of the hearing, the plaintiff was awaiting a hearing date for an appeal to the Full Court of the Family Court of the summary dismissal. Consideration 1. For reasons that I have already explained, the plaintiff failed to establish an equitable claim before the Tribunal. It was appropriate, in those circumstances, for the Tribunal to make an order for possession of the property consequent to its termination of the lease. The plaintiff also failed to establish an equitable interest before the Appeal Panel. The plaintiff has not established that the Appeal Panel erred in upholding the Tribunal's order for possession. There was no basis for the Tribunal or the Appeal Panel to delay the order for possession pending the plaintiff's Federal Circuit Court action, if it had not established an equitable claim justifying that delay. 2. Accordingly, I would also dismiss this ground. Order for possession 1. At the hearing of this matter, I stayed the order for possession, conditional upon the plaintiff paying an occupation fee of $28.57 per day, until this judgment is handed down. The effect of the judgment is that the order for possession in favour of the landlord now operates. 2. The Tribunal suspended the order for possession, pursuant to s 114(1) of the RT Act, for a period of four weeks from the date of its decision. The Appeal Panel also suspended the order, for a period of three weeks. I consider it appropriate to allow the plaintiff three weeks from the date of this judgment before the order for possession takes effect. Orders 1. I make the following orders: 1. Leave to appeal is granted to the plaintiff in respect of grounds 1, 2, 3, 4 and 6. 2. Leave to appeal is refused in respect of ground 5. 3. The summons filed on 7 June 2019 is dismissed. 4. The plaintiff to pay the costs of the defendant on this application. 5. The order for possession made by the New South Wales Civil and Administrative Tribunal on 30 July 2018 is suspended until 23 November 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2020