Herbert v Artese [2014] NSWSC 314

Supreme Court New South Wales

Medium Neutral Citation: Herbert v Artese [2014] NSWSC 314 Hearing dates: 06/02/2014 Decision date: 06 February 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Summons dismissed. (2) Each party should pay his, her and its own costs of the proceedings as a whole, except that the plaintiffs should pay the legal costs of the defendants for the hearing today, Thursday 6 February 2014. Catchwords: ADMINISTRATIVE LAW - judicial review; application for - NSW Civil and Administrative Tribunal decision - whether court should exercise its discretion under Supreme Court Act; s 69

COSTS - whether each party pay own costs Legislation Cited: Supreme Court Act 1970 Category: Principal judgment Parties: Stephen Herbert (P1) Denise Herbert (P2) Adelchi Remo Artese (D1) M Q Baronie Real Estate Pty Ltd t/as Raine & Horne Ashfield (D2) Representation: Counsel: In person (P1) In person (P2) J Bates (D1) T Andreacchio (D2) Solicitors: Sachs Gerace Lawyers (D1) File Number(s): 2014/1274

Judgment 1On 2 January 2014, Mr and Mrs Herbert approached the duty judge seeking leave to file in court a Summons and also a Notice of Motion, which sought, as a substantial order, the stay of an order of the Consumer Trader and Tenancy Tribunal ("CTTT") which was made on 26 November 2013. The Summons also sought to reserve costs until further order. 2No substantive relief under s 69 of the Supreme Court Act 1970 was sought, although clearly the substance of the complaint of Mr and Mrs Herbert, who have appeared for themselves, was that the order of the CTTT was made in circumstances which gave rise to an error of law, or else in circumstances where the Court would intervene in its supervisory jurisdiction because there had been a denial of procedural fairness. 3At the time that Mr and Mrs Herbert approached the Court on 2 January 2014, they did not have either a transcript or an oral record of the proceedings before the CTTT. 4According to a Notice of Order of the CTTT on 26 November 2013, a number of orders were made on that day by consent of all parties. Relevantly, the Notice of Order recorded that: "By consent order for termination and possession: The tenancy agreement is hereby terminated and possession is to be given to the landlord on 29 December 2013". 5Mr Herbert disputed before the Court on 2 January 2014, that the orders had been made by consent. Amongst other things he told the Court that Mrs Herbert had not been present, and for good reason, and accordingly did not, and could not, consent. 6A further order which the CTTT noted has having been made on 26 November 2013, was in the following terms: "3. By consent the tenant shall pay the landlord a daily occupation fee at the rate of $68.57 per day from 27 November 2013 to the date possession is given. 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." 7On 2 January 2014, the Duty Judge, having drawn attention to some of the defects in the proposed Summons and Motion, stayed the execution of the Writ of Possession and listed the matter for further proceedings before the vacation judge on 16 January 2014. He directed the plaintiffs to obtain a transcript of the proceedings before the CTTT for the purposes of the Court on that day. 8On 16 January 2014, the proceedings came before Lindsay J who was then sitting as the Duty Judge. By that time, the landlord, Mr Artese, had secured representation and was represented by Ms Bates. The other defendant, Raine & Horne Ashfield, was represented by a director of the proprietor of that business name, Mr Andreacchio. 9His Honour made further orders with respect to the staying of the proceedings and noted that the plaintiffs were to make an application to the Civil and Administrative Tribunal of New South Wales, to which I will refer conveniently as NCAT, which had commenced operation on 1 January 2014, and replaced the CTTT. Lindsay J adjourned the proceedings until today. 10With the exception of the short further stay of the execution of the Writ of Possession, his Honour made no other order which affected the orders made by the CTTT on 26 November 2013. 11When the proceedings were called on today, I was informed of the following matters. First, that on 29 January 2014, Mr and Mrs Herbert had vacated the premises which were the subject of the proceedings before the CTTT. They now live elsewhere. 12Secondly, that they had commenced proceedings in the NCAT claiming damages from Raine & Horne Ashfield for the conduct of that agency in failing to provide them, in accordance with the promise by the relevant officer at the agency, with a lease which covered a period of 12 months, rather than the six months which was written on the face of the document. 13Mr and Mrs Herbert contend in those proceedings that that conduct had caused them loss and damage and such loss and damage ought be offset against the landlord's claim for rent which may be outstanding. 14Those proceedings, I am informed, have been listed at 9.15am on 13 February 2014 before NCAT for what seems to me at least to be an initial hearing, but not necessarily the final hearing. 15Thirdly, the Court was informed by an open letter written on 4 February 2014, that the landlord, Mr Artese, had offered to restore the proceedings involving outstanding rent to the NCAT in accordance with either Order 3 of the orders made by the CTTT on 26 November 2013, or alternatively, as permitted by the legislation. The landlord proposed to send a letter to the relevant officer of NCAT saying: "I am agreed with Mr and Mrs Herbert that the Supreme Court proceedings should be dismissed on the basis that by sending this letter to NCAT, I relist the NCAT proceedings pursuant to order 3 of the November orders and/or Schedule 4, Part 5 clause 8 of the Civil and Administrative Tribunal Act 2013 to determine the final amount owing by Mr and Mrs Herbert by way of unpaid rent for the premises. I have agreed with Mr and Mrs Herbert that although Orders 3 and 4 of the November orders (in relation to the amount specified in those orders for a daily occupation fee and rental arrears) were made by consent. I will consent to Mr and Mrs Herbert having an opportunity to submit documents or give evidence to NCAT in support of the amounts they say are owing to me by way of unpaid rent for the premises provided I have a right of reply." 16The terms of that letter, of course, reflect the fact that the offer was made in the hope and expectation that there would be consent orders in this Court. 17Fourthly, it is appropriate to note that Ms Bates has informed the Court that her client will give an undertaking to the effect of that which is stated in Exhibit 1 (a written undertaking), namely that her client will ask NCAT to restore the matter to the list on the basis set out in the letter which I have just quoted, and that he will not object to any further and additional evidence being given with respect to the total sum of monies owing for rent and occupation fee with respect to the premises. 18Ms Bates also accepts on behalf of her client that the issues which are to be restored before NCAT dealing with rent and occupation fee, should be heard together with, and at the same time as, the proceedings brought by Mr and Mrs Herbert against Raine & Horne Ashfield on the issue of whether or not the lease ought to have been for 12 months or 6months. 19Mr Andreacchio has indicated that he will consent to, and not oppose any direction or order made by NCAT which has the effect that the dispute in which Raine & Horne Ashfield is a defendant about the length of the lease, will be heard together with and at the same time as, the landlord's dispute about the rent. 20Any such further hearing in NCAT would, if it resulted in a decision being made so far as presently appears from the submissions of the parties dealing with the provisions of the Civil and Administrative Tribunal Act 2013, be an internally appellable decision and such rights of internal appeal as are contained in that Act would apply to any such future decision. 21Accordingly, the Court comes to this position. There is a dispute about rent which is in the order of some thousands of dollars, but probably not in excess of $10,000. There is a dispute about whether the landlord's agent did what it is said was promised, which may or may not have led to loss on the part of the tenants, Mr and Mrs Herbert. Although these sums are no doubt of significance to the parties to the dispute, they are in the overall picture of proceedings in this Court, relatively small. 22This Court is being asked, so it would appear, by means of a proposed Amended Summons to exercise its direction under s 69 of the Supreme Court Act to judicially review the proceedings which were conducted on 26 November 2013 in the CTTT. Of course, engagement of the jurisdiction of this Court by way of judicial review under s 69 is the engagement of an important supervisory jurisdiction of this Court. 23However, in the particular circumstances of this case where the tribunal below has changed from being the CTTT to being the NCAT, a new tribunal, which has extensive powers under the Act which came into effect from 1 January 2014, and where there is now in respect of any future decision, if not the decision of 26 November 2013, rights of internal appeal that may be able to be exercised, and where the principal relief which was originally sought, namely, a stay on the execution of a Writ of possession, has now become otiose because Mr and Mrs Herbert have vacated the premises and no longer maintain any claim to possession of the premises, it seems to me that it would be inappropriate for this Court at this time, in the present circumstances to exercise any discretion that it has under s 69 of the Supreme Court Act. 24Clearly, the best jurisdiction for these disputes to be determined, having regard to their nature, their size, the issues of fact concerned with them and the broad reach of powers which NCAT has, is in the NCAT. I am abundantly satisfied that the NCAT has the jurisdiction to hear this dispute, and the procedural provisions which there exist, would enable it to hear the dispute between all three parties in a just, quick, cheap and efficient manner with appropriate attention to the disposition of that dispute in a proportionate way. 25In those circumstances it is not appropriate for this court to exercise its discretion under s 69 of the Supreme Court Act, as the plaintiffs contend, and it is appropriate, as the defendants submit, for this court to dismiss the Summons. 26An issue arises as to costs. Ordinarily costs follow the event, but it was not until 4 February 2014, that the landlord made the requisite offer which has enabled this court to be confident that NCAT has the jurisdiction to hear the remaining dispute. In those circumstances it seems to me that the proper order for costs is that each party should pay his, her and its own costs of the proceedings as a whole, except that the plaintiffs should pay the legal costs of the defendants for the hearing today, Thursday 6 February 2014. 27Accordingly, the court makes the following orders: (1)Summons dismissed. (2)Each party should pay his, her and its own costs of the proceedings as a whole, except that the plaintiffs should pay the legal costs of the defendants for the hearing today, Thursday 6 February 2014.