Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh v Khan [2019] NSWCATAP 2 Hearing dates: 2 August 2018 Date of orders: 02 January 2019 Decision date: 02 January 2019 Jurisdiction: Appeal Panel Before: LP Robberds QC, Senior Member DAC Robertson, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. (3) If the respondents seek an order for costs in respect of the costs of the appeal they should file written submissions within 7 days after publication of these reasons. (4) If the respondents file and serve written submissions in accordance with Order 3 the appellant may within a further 7 days file and serve written submissions in response. (5) Any application for costs will be determined on the papers and without a hearing. Catchwords: APPEAL – interlocutory decision – no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Clarke v Tapp [2015] NSWCATAP 81 Texts Cited: Nil Category: Principal judgment Parties: Gurjit Singh (Appellant) Ghulam Akbar Khan (First Respondent) Samina Khan (Second Respondent) Fobupu Pty Ltd (Third Respondent) Representation: Solicitors: G Singh (Self Represented) (Appellant) A. Dicembre (Respondents) File Number(s): AP 18/25082 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 27 April 2018 Before: S Westgarth, Deputy President File Number(s): COM17/53297 and COM17/53291 REASONS FOR DECISION 1. On 18 December 2017 Gurjit Khan (the tenant) filed in the Tribunal a retail leases application numbered COM/17/53297 against Ghulam Akbar Khan, Samina Khan and Fobupu Pty Ltd (the landlords). On the same day the tenant also filed a retail leases application for interim orders numbered COM 17/53291 against the landlords. 2. On 23 January 2018 an interim order was made by Senior Member Charles in the following terms: Order for interlocutory relief: Provided the applicant pays an amount of $6,500.00 (inclusive of GST) on account of rent by monthly instalments commencing 1 February 2016, the respondent is restrained from attempting to terminate the retail lease the subject of this application, from repossessing the premises or otherwise disturbing the applicant's quiet enjoyment of the premises until this dispute is resolved at mediation (or otherwise) or until the Tribunal has made a decision pursuant to the application in File No COM 17/53297. 1. On 27 April 2018 Deputy President Westgarth made a number of orders including order 3: "The interim order made on 23 January 2018 is lifted." 2. On 30 April 2018 a notice of orders was emailed to the tenant by the Tribunal. The email stated: The Tribunal makes the following orders:…. 3. The interim order made on 23 January 2018 is lifted; …. Reasons Extensive reasons were given orally for the above orders. 1. On 28 May 2018 the tenant filed a notice of appeal and attached to it grounds of appeal. The grounds of appeal stated that the following order was challenged: "Order 3 The interim order made on 23 January 2018 is uplifted." 2. The Tribunal gave notice dated 21 June 2018 to the tenant of a number of orders and directions including an order that the tenant lodge with the Tribunal and provide to the landlords any written submissions by 1 August 2018. The tenant did not comply with that direction and no written submissions were provided to the landlords. The notice also informed the tenant that the appeal was listed for hearing on 2 August 2018 and that the issue whether the appeal panel should give leave to appeal an interlocutory decision was to be determined at the hearing of the appeal. 3. The appeal hearing commenced on 2 August 2018. The tenant sought an adjournment which was refused by the appeal panel. The submissions were completed. The appeal panel then made orders refusing leave to appeal and dismissing the appeal. It stated that it would publish its reasons at a later date. These are those reasons. 4. This appeal is brought against an interlocutory decision of the Tribunal and as such, by virtue of s 80(2)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the tenant requires the leave of the Appeal Panel to bring the appeal. 5. In Clarke v Tapp [2015] NSWCATAP 81 an Appeal Panel considered the principles governing whether an Appeal Panel should grant leave to appeal against an interlocutory decision and stated: 16. The legislation does not provide any guidance as to the considerations that are relevant when determining whether to grant leave to appeal against an interlocutory decision. Those principles must be derived from the objects of the Act and the nature of the appeal. 17 The 'guiding principle' of the NCAT Act is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36. In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act, s 36(2). 18 The purpose of requiring leave to appeal from interlocutory decisions is to minimise costs and to make sure that the real issues in dispute are determined justly and quickly. The importance and complexity of the subject matter is also relevant. … … 20 An applicant for leave must demonstrate something more than that the decision maker was "arguably wrong". Ordinarily, what is required is that there is an issue of principle, questions of general public importance or an injustice which is reasonably clear": Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 at [4]. 1. The tenant's Notice of Appeal did not identify with any clarity the grounds upon which the tenant sought leave to appeal. As the tenant did not file written submissions there is no other source of elucidation of the tenant's argument. As far as we could ascertain from the tenant's oral submissions his case appeared to be that the amount he had been required to pay under the interim order was excessive as it included an amount attributable to residential premises attached to the retail premises. 2. The tenant's secondary submission appeared to be that he was not obliged to pay anything unless he received a tax invoice, which the landlords had not provided. 3. Neither of those submissions have any relevance to the issue before us which is whether the tenant should be given leave to appeal from the decision of Deputy President Westgarth lifting the interim order. 4. As the orders published by the Deputy President on 30 April 2018 record, extensive oral reasons were given for the orders made on that occasion. The tenant did not, as he would have been entitled to do pursuant to s 62 of the Civil and Administrative Tribunal Act 2013 (NSW), seek written reasons for the decision, nor did he provide a transcript of the oral reasons. In these circumstances it is impossible for the Appeal Panel to be persuaded that the decision to lift the interim orders was even arguably wrong, let alone that there is, in the Deputy President's decision, an issue of principle or question of general public importance or an injustice which is reasonably clear. 5. On the contrary, it is clear that the tenant failed to comply with the condition on which the interim order restraining the landlords from repossessing the premises had been made. The tenant failed to pay the amount of $6,500 on account of rent for the month of April. As the tenant had failed to comply with the condition on which the interim order was made, it was, in our view, almost inevitable that the interim order would be lifted. 6. For the foregoing reasons we refused leave to appeal and dismissed the appeal at the hearing on 2 August 2018. 7. On that occasion we indicated that any application for costs may be made within 7 days after the publication of these reasons. Accordingly we will make orders providing for the provision of written submissions. We note that the parties agreed at the hearing that any application for costs may be dealt with on the papers and without a further hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act. Orders 1. Our orders will be: 1. Leave to appeal refused. 2. Appeal dismissed. 3. If the respondents seek an order for costs in respect of the costs of the appeal they should file written submissions within 7 days after publication of these reasons. 4. If the respondents file and serve written submissions in accordance with Order 3 the appellant may within a further 7 days file and serve written submissions in response. 5. Any application for costs will be determined on the papers and without a hearing. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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 January 2019