Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh v Fobupo Pty Ltd [2019] NSWCATAP 34 Hearing dates: 22 and 23 January 2018 Date of orders: 01 February 2019 Decision date: 01 February 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member Decision: Orders (1) The stay of orders 1 and 2 made by the Appeal Panel on 14 December 2018 it is lifted; (2) The order made by the appeal panel on 14 December 2018, restraining Fobupu Pty Ltd from repossessing the premises, the subject of proceedings see COM 18/39312 or otherwise disturbing the appellant's quite enjoyment of those premises, is dissolved. Costs (1) Costs of the application are reserved. Catchwords: PRACTICE AND PROCEDURE – Stay – conditions of stay not complied with – application to lift stay and dissolve restraining order – set off – ability to set off debt against money payable as condition of stay – dispute concerning lawfulness of tax invoice required to be issued as condition of stay. Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil Procedure Act, 2005 (NSW) Commonwealth Constitution Cases Cited: The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 Singh v Fobubu Pty Ltd; Singh v Khan [2018] NSWSC 1817 Smith v Acquire Asia Pacific Philippines Inc [2016] NSWSC 1084 Texts Cited: Nil Category: Procedural and other rulings Parties: Gurjit Singh (Appellant) Fobupo Pty Ltd (Respondent) Representation: Counsel: N Jordan (Lay Representative)( Appellant) R Brown( Respondent) Solicitors: McGrath, Dicembre & Company (Respondent) File Number(s): AP 18/52044 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 31 October, 27 November 2018 Before: D Goldstein, Senior Member File Number(s): COM 18/39279 reasons for decision Introduction 1. This appeal relates to Consumer and Commercial Division proceedings number COM 18/39312 (original proceedings). In those proceedings the appellant was the applicant. That application sought the following orders: That the respondent be restrained from re-entry until further order. 1. These proceedings related to an application for interim relief in a dispute concerning an Indian restaurant located at Kingswood said to be the subject of a retail lease. 2. In the original proceedings, on 31 October 2018, the Tribunal made the following orders (October Restraining Orders): 1. Provided the applicant pays an amount of $6,500.00 (plus GST) on account of rent per calendar month to Fobupu Pty Ltd on receipt of a rent invoice from Fobupu Pty Ltd as the trustee of the Khan Family Trust No 2 ABN 702 604 095 93 the respondents are restrained repossessing the premises the subject of these proceedings or otherwise disturbing the applicant's quiet enjoyment of those premises until the Tribunal has made a decision in application No COM 17/53297. 2. The rent payable by the applicant in November 2018 pursuant to order 1 is to be paid in 4 instalments of $1,625.00 plus GST on 8, 15, 22 and 29 November 2018. Thereafter rent is to be paid on the 10th day of the applicable month. 1. The Tribunal published reasons for this decision (October Reasons). 2. Subsequently in the original proceedings, on 27 November 2018, the Tribunal dismissed an application by the appellant dated 14 November 2018 (the November application). In dismissing the application, the Tribunal did not vary the October Restraining Orders. The Tribunal provided reasons for its decision (November Reasons). In the November Reasons, the nature of the November application was described as follows: On 14 November 2018 the applicant filed an application in the Tribunal seeking among other things an order that the respondent provide evidence of entitlement of the Khan Family Trust No 2 to demand rent and provide a tax invoice to the applicants. The applicant also seeks an order that orders 1 and 2 made by me on 31 October 2018 be stayed until further order. The effect of that order, if made, would mean that the applicant is relieved of the obligation to pay the rent required by my 31 October 2018 orders. 1. In effect, it would appear that the application made on 14 November 2018, which was not in evidence before the Appeal Panel, was an application to maintain the injunction in favour of the appellant but on terms to relieve the appellant of the conditions which were imposed to pay rent pending a resolution of proceedings COM 17/53297. 2. By the present appeal, the appellant challenges the terms of the October Restraining Order and the decision of the Tribunal on 14 November 2018 to dismiss his application (November Dismissal). This challenge was made by Notice of Appeal filed 3 December 2018. While the Notice of Appeal refers in Section 2 of the Notice of Appeal to the October Restraining Order as the decision being challenged, it would seem from Section 5A the challenge is also made to the November Dismissal. For present purposes, it is unnecessary to resolve any ambiguity. 3. In respect of the challenge to the October Restraining Order, it would appear that this appeal is out of time and that leave to appeal will be required. Again, this is not a matter presently relevant to the application which the Appeal Panel is presently required to resolve. Respondent's application to lift stay and dissolve injunction made by Appeal Panel on 14 December 2018 1. It is necessary to set out a brief history of the appeal proceedings to understand the nature of the application made by the respondent. 2. Following the filing of the Notice of Appeal, the proceedings were listed for call over and to determine an application for stay pending determination of the appeal which had been made by the appellant. 3. On 14 December 2018, the Appeal Panel made directions for the preparation of the hearing of the appeal. These directions provide for the parties to file and serve evidence and submissions by particular dates. The appeal was otherwise fixed for hearing on 28 March 2019. 4. In respect of the stay application, the Appeal Panel made orders (Stay Order) in the following terms: STAY ORDER By consent, until further order of the Appeal Panel the operation of Orders 1 and 2 made by the Tribunal on 31 October 2018 (COM 18/39312), is stayed subject to the following conditions: 1. Fobupu Pty Ltd is restrained from repossessing the premises the subject of proceedings COM 18/39312 or otherwise disturbing the applicant's quiet enjoyment of those premises, until the Tribunal has made a decision in application No COM 17/53297, provided that Gurjit Singh pays to the trust account of Fobupu Pty Ltd's solicitors, McGrath, Diecembre & Co (sic): a. By cob 21/12/18 an amount of $6,500.00 (plus GST) on account of rent per calendar month to Fobupu Pty Ltd on receipt of a rent invoice from Fobupu Pty Ltd as the trustee of the Khan Family Trust No 2 ABN 702 604 095 93. b. By cob 21/12/18 the rent payable for December 2018, and c. Thereafter monthly rent is to be paid on the 10th day of the applicable month. 1. As is evident from these orders, the October Restraining Order has been stayed and an alternative restraining order has been made on the conditions set out in 1 (a)-(c) inclusive. Those conditions require payment by the appellant to the solicitor for the respondent (McGrath Dicembre and Company) of amounts equivalent to rent, to be held in the solicitor's trust account until a decision is made in application COM 17/53297. 2. After the Stay Order was made, the respondent applied to vary the terms of the Stay Order which was refused by order made 21 December 2018. No challenge was made to this decision by the respondent. However, the respondent says that the conditions regarding payment have not been met. Consequently, the respondent asks for the stay to be lifted and the restraining order made by the Appeal Panel to be set aside (Application to lift the Stay Order). 3. In making this application, the respondent, through its Counsel, accepted that the effect of lifting the Stay Order, including dissolving the restraining order made as condition 1 of the orders made on 14 December 2018, will result in reviving the October Restraining Order. Consequently, if successful in the present application, it will be necessary for the respondent to make a further application to the Tribunal, constituted as the Division, in respect of the October Restraining Order. 4. I note no application was made to the Appeal Panel by the respondent to deal with the question of whether the October Restraining Order should also be lifted. In this regard, neither party provide any evidence concerning the nature of the dispute to be resolved in proceedings COM 17/53297, the state of preparation of those proceedings or whether those proceedings had been fixed for final hearing. Further, neither party provided any evidence concerning whether it would otherwise be appropriate to dissolve the October Restraining Order. 5. I will proceed to resolve the present application of the respondent on this limited basis. Consideration 1. The Application to lift the Stay Order was made by letter dated 11 December 2018. This application was filed on 11 January 2019. The application included an affidavit of Dr Ghulam Khan, a representative of the respondent, apparently sworn 11 January 2019 (Khan Affidavit). The orders sought in the Spplication to lift the Stay Order were as follows: 1. That the Stay Order made by the Appeal Panel on 13 December 2018 be discharge and/or lifted. 2. Costs. 3. Such other orders as the Appeal Panel deems fit. 1. The Appeal Panel made directions for the filing and service of evidence and written submissions and fixed the application for hearing on 22 January 2018. The parties filed written submissions. The appellant's material included an affidavit of the appellant sworn 21 January 2019 (January Affidavit). 2. At the hearing, Mr Brown of Counsel appeared for the respondent. With leave, a business associate of the appellant, Mr Jordan, who was apparently a former lawyer, appeared for the appellant. 3. After the hearing on 22 January 2018, the Appeal Panel adjourned the application to lift the Stay Order until 9:30am on 23 January 2018 for the purpose of providing a decision. However, when the matter was listed on 23 January 2018, the Appeal Panel asked the parties various questions concerning the submissions which had been made and sought clarification in respect of the orders finally sought from the Appeal Panel, including concerning the consequences of a successful application and whether the respondent would be required to make a further application to the Tribunal at first instance in respect of the October Restraining Orders. In addition, without leave, the appellant sent in a reference to s 21 of the Civil Procedure Act, 2005 (NSW) (CP Act) which was said to support its contention concerning a right of set-off, a matter to which I will return below. As there was no prejudice to the parties, both Mr Brown and Mr Jordan attending the hearing on 23 January 2018 by telephone, the Appeal Panel heard further oral submissions. 4. There is no question that the Appeal Panel may make stay orders in respect of decisions made at first instance pending determination of an internal appeal: see s 43(3) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). As that section states, the power to do so includes the power to impose conditions. 5. The respondent's application is that the conditions have not been complied with. Consequently, the stay should be lifted and the restraining order dissolved. 6. It is common ground in this application that the appellant has not paid to the trust account of the solicitor for the respondent the amounts required by conditions (a)-(c) inclusive. 7. However, while acknowledging this fact, the appellant said is he is not in breach of the Stay Order. In this regard, the appellant asserts: 1. he has not been provided with a tax invoice in compliance with relevant taxation law and therefore the precondition in order 1(a) is not been satisfied by the respondent's (Tax invoice issue); and 2. he has a right of set-off, being for amounts of $470,000 and $360,000, as described in his January Affidavit (Set-off issue). 3. There is no jurisdiction of the Appeal Panel to deal with this matter as proceedings are presently before the Supreme Court of New South Wales. 1. It being conceded that the payments required by conditions 1(a)-(c) have not been made, the question is whether there is a lawful excuse for non-payment or whether there has been a failure to comply with the conditions. If the latter, then there is a discretion to be exercised as to whether to lift the stay and dissolve the restraining order. Tax invoice issue 1. The appellant says that the tax invoices issued to him as part of the conditions of the Stay Order, found at Annexures B and E of the Khan Affidavit, do not comply with relevant tax legislation. 2. The appellant variously contends: 1. there is an obligation on the respondent to comply with relevant tax legislation and the fact of proceedings in the Tribunal does not displace this obligation; 2. Tax rulings TR2002/9 and GSTR 2013/1 apply. Inter alia, the appellant contends that there is a failure to show the trust is a supplier in accordance with paragraph 9 of the 2002 tax ruling; 3. any undertaking provided by Dr Khan to the Tribunal in the original proceedings should not be accepted. These submissions do not appear to identify the particular undertaking said to have been given and/or challenged on appeal. In this regard it should be noted that neither the October Reasons nor the November Reasons record any undertaking having been given. Rather, the Tribunal records in the November Reasons that there was a concern about whether an Australian Business Number (ABN) properly belonged to Fobupu Pty Ltd as the trustee for the Khan Family Trust No 2, a matter clarified on instruction by the solicitor for the respondent. 1. In relation to this issue, the appellant said at para 25 of his written submissions: In all the circumstances, before making an enforcement order, any order involving tax compliance and tax invoicing, this Appeal Panel would need to be satisfied that the trust is the supplier and capable of rendering a tax invoice. That is to say, that Ghulam Khan provide the evidence to this Appeal Panel that has been requested 14 times and ignored by Ghulam Khan. 1. I do not accept these submissions. 2. The conditions of the Stay Order required that the payment of rent was to be made by the appellant on the dates as specified to the trust account of the solicitor for the respondent "on receipt of a rent invoice from Fobupu No 2 as the trustee for the Khan Family Trust No 2 ABN 702 604 095 93". 3. These invoices were provided to the appellant as evidenced by the Khan Affidavit paragraphs 8 and 11 and Annexures B and E. The three documents marked "tax invoice" and headed "Fobupu No 2 as the trustee for the Khan Family Trust No 2 ABN 702 604 095 93" meet the description required by the order, each setting out the rent payable plus GST. As such, that part of the condition has been satisfied. 4. To the extent there may be some illegal conduct in connection with the issuing of tax invoices contrary to relevant Australian tax legislation, this is not a matter necessary for the Appeal Panel to resolve in determining the present application. 5. Further, and in any event, the effect of the orders made is to require a deposit of the amounts of rent said to be the subject of a dispute into the trust account of the solicitor for the respondent. That is, the respondent is not in fact receiving payment for the disputed amount. Rather, on the proper construction of the Stay Order, the disputed sums (if paid in satisfaction of the conditions) are to be placed in the trust account to be held pending further order of the Tribunal when the substantive issues in the appeal are determined. To the extent it is relevant for the Tribunal to determine who is entitled to the money deposited in the trust account, this is a matter to be resolved at the conclusion of the substantive dispute. Consequently, the conditions imposed could not be considered inappropriate having regard to the nature of the dispute. 6. Accordingly, insofar as this ground is relied upon to support a contention that there was a lawful excuse for not complying with the condition imposed by order 1(a), or that the time for compliance with the condition has not arisen in respect of the rent for the periods November and December 2018 and January 2019 I reject this claim. Set-off issue 1. The second proposition put by the appellant said to excuse any non-compliance with the Stay Order is that he was entitled to set off against amounts payable as a condition of the stay and interim restraining order amounts which he claimed were due to him as a debt. 2. As indicated above, there were two amounts referred to in the appellant's January Affidavit. One was an amount of $470,000 said to be a "refund" due from the respondent arising from the appellant's obligation to retain and remit to the Australian Taxation Office relevant withholding tax, said to arise in connection with the invoice issue. This claim is said to arise from the appellant's claim that, "acting in error of law", he paid $1 million to the respondent in cash, 47% of which should have been remitted to the Australian Taxation Office as a relevant withholding amount. The second amount is said to be an additional amount of $360,000 "arising from fraud, deception and concealment by Ghulam Khan pending the final decision of Senior Member Goldstein". 3. The right to set-off is asserted on several bases. 4. The first basis for set-off asserted by the appellant was in accordance with s 21 of the CP Act. That section provides: 21 Defendant's right to set-off (1) If there are mutual debts between a plaintiff and a defendant in any proceedings, the defendant may, by way of defence, set off against the plaintiff's claim any debt that is owed by the plaintiff to the defendant and that was due and payable at the time the defence of set-off was filed, whether or not the mutual debts are different in nature. (2) This section extends to civil proceedings in which one or more of the mutual debts is owed by or to a deceased person who is represented by a legal personal representative. (3) This section does not apply to the extent to which the plaintiff and defendant have agreed that debts (whether generally or as to specific debts) may not be set off against each other. (4) This section does not affect any other rights or obligations of a debtor or creditor in respect of mutual debts, whether arising in equity or otherwise. (5) This section is subject to section 120 of the Industrial Relations Act 1996. (6) In this section, debt means any liquidated claim. 1. Secondly, reliance was placed on s 96 of the CP Act. This section provides: 96 Set-off of judgments (cf DCR Part 31, rule 23; Act No 11 1970, section 64) (1) This section applies if, in relation to any two or more judgments of the same court, the judgment creditor and judgment debtor under one or more of the judgments are the judgment debtor and judgment creditor, respectively, under the other judgments. (2) The judgment debtor under any such judgment (the first judgment) may apply to the court for an order that the judgment be set off against any other such judgment (the second judgment) in respect of which he or she is the judgment creditor. (3) An order under this section has the following effect: (a) if the amount of the first judgment is less than the amount of the second judgment, the first judgment is taken to have been satisfied and the amount of the second judgment is taken to have been reduced by the amount of the first judgment, (b) if the amount of the first judgment is equal to the amount of the second judgment, both judgments are taken to have been satisfied, (c) if the amount of the first judgment is greater than the amount of the second judgment, the second judgment is taken to have been satisfied and the amount of the first judgment is taken to have been reduced by the amount of the second judgment. (4) (Repealed) (5) This section does not apply to judgments of the Supreme Court. 1. Reliance on these sections of the CP Act is misplaced. As pointed out by the Appeal Panel to the appellant's representative in the course of oral submissions at the hearing on 23 February 2019, s 4 and Sch 1 of the CP Act make clear that Part 3 and Part 7 in which is found ss 21 and 96 respectively, only applies to the courts designated in Sch 1. The Tribunal is not designated as a "court" in that schedule. 2. The appellant asserted that the section, on its proper construction did not exclude the Tribunal. 3. This submission must be rejected. 4. Section 4 provides: 4 Application of Parts 3–10 (1) Subject to this section, Parts 3–9 apply to each court referred to in Schedule 1 in relation to civil proceedings of a kind referred to in that Schedule in respect of that court. (1A) Part 10 applies in relation to civil proceedings in the Supreme Court. (2) The uniform rules may exclude any class of civil proceedings from the operation of all or any of the provisions of Parts 3–9. (3) The Governor may, by regulation, amend or substitute Schedule 1. (4) A regulation under this section may contain provisions consequent on the amendment or substitution of Schedule 1, including: (a) provisions excluding any class of civil proceedings from the operation of all or any of the provisions of Parts 3–9, and (b) provisions modifying any specified provision of Parts 3–9, or of any other Act or law, in its application to any class of civil proceedings. (5) Subject to any such regulation, this Act does not limit the operation of any other Act with respect to the conduct of civil proceedings. 1. The Tribunal is not listed as a "court" in Sch 1 2. Otherwise, it is clear on any view of s 4 and Sch1 that the expression "court" does not include the civil and Administrative Tribunal of New South Wales (NCAT). The reasons for this conclusion are as follows: 1. The list found in Sch 1 is prescriptive, and not expressed to be "inclusive": 2. Schedule 1 makes reference to particular Tribunals, namely the Dust Diseases Tribunal. It also makes reference to the Industrial Relations Commission. All other bodies are identified are courts: 3. Insofar as reference was made to NCAT in that schedule, it is only in the context of the Local Court exercising powers under Part 3A the NCAT Act, which relates to the exercise of "federal jurisdiction" of a kind referred to in section 75 or 76 of the Commonwealth Constitution in "substitute proceedings". Substituted proceedings are those before the District Court or Local Court in consequence of the grant of leave by one of those courts: see Part 3A particularly ss 34A and 34C of the NCAT Act. 1. Thirdly, the appellant says there is a right of set-off at common law or in equity. The appellant refers to the decision of McDougall J in Smith v Acquire Asia Pacific Philippines Inc [2016] NSWSC 1084. At [73] and following, his Honour set out various principles and authorities relevant to the availability of a defence by way of equitable set-off. 2. As to the right of set-off generally, the appellant's submissions misconceive the nature of a condition imposed in connection with the grant of a stay or the granting of other interlocutory relief. 3. A right of set-off arises in circumstances in which the Tribunal is required to adjudicate about competing claims and those claims fit within the relevant criteria permitting set-off, one against the other. The imposition of a condition does not arise from the adjudication of the Tribunal of the ultimate rights of the parties. A condition is not an order. It is not a debt or claim against which an amount can be set-off. 4. Rather, a condition is a constraint or requirement imposed by the Tribunal on the operation of an order which the Tribunal might make. A condition, if satisfied, may make an order operative or, if not satisfied, may provide for an order to have no effect or to be liable to be set aside. 5. In the event the condition is not satisfied, there is no right of enforcement of the condition. Only orders which the Tribunal makes can be enforced. 6. The imposition of a condition may involve the adjudication of rights to determine what, if any, conditions should be imposed and what should be the terms of any condition. However, once imposed, a condition operates according to its terms. 7. It follows from the above that no right of set-off generally arises in respect of conditions imposed in the grant of a stay. 8. In the present case, items 1(a)-(c) of the stay order are expressed to be conditions and not orders. Neither party suggested otherwise. Consequently, there is no right of set-off. 9. Further, in the present instance, the condition required the doing of an act, namely the payment of money to the trust account. As such, there was no relevant claim for money against which any alleged counterclaim, liquidated or otherwise, might be set off. 10. Contrary to the appellant's submission at paragraph 59 and following, there is no claim which a set-off could "defeat". Rather, a failure to pay would amount to non-compliance with the condition. 11. Finally, the conditions imposed by the Tribunal do not permit set-off. Rather, they are in absolute terms requiring the payment of the sum of money (subject to delivery of a tax invoice for rent) failing which the stay and restraining order are subject to being set aside or dissolved. In part, such orders secure the position of the respondent who is otherwise deprived of the benefit of the October Restraining Order if rent is not paid at all. 12. The appellant made reference to discussions at the hearing of the stay application concerning rights of set-off. These discussions can have no effect on the proper meaning of the conditions imposed. 13. In my view, this meaning is clear and there is no reason to revert to extraneous material to construe the orders made. Upon provision of a tax invoice for the particular monthly rent amount plus GST, it is a condition of granting the stay of orders 1 and 2 made 31 October 2018 and a condition for the imposition of the interim restraining order that the amount of rent specified in the conditions be paid to the solicitor's trust account. 14. To reach a different conclusion would be to defeat the purpose of the interlocutory relief, to maintain the status quo and prevent such relief from operating unjustly on the respondent. 15. For these reasons, I do not accept there is a right to "set-off" any of the amounts claimed by the appellant so as to relieve him from his obligation to meet the conditions imposed by the Tribunal as a condition of the orders made by the Appeal Panel on 14 December 2018. No jurisdiction 1. The last matter to deal with is the "no jurisdiction" submission. This submission was put in two ways. 2. In written submissions, the appellant submitted that Sch 4 cl 5(7) of the NCAT Act operated to prevent the Appeal Panel from dealing with the claim by reason of the fact that a decision made by the Appeal Panel in proceedings AP 18/15303 was the subject of Supreme Court proceedings 2018/00278850. In making this submission, the appellant also referred to other proceedings which are before the Tribunal which are also the subject of appeals to the Supreme Court of New South Wales. 3. There are a number of problems with this submission. 4. The proceedings in the Supreme Court of New South Wales, which the appellant has identified, concern challenges to decisions made by the Tribunal sitting in the Consumer and Commercial Division in proceedings at first instance or by the Appeal Panel dealing with internal appeals or applications for leave to appeal decisions made by the Tribunal at first instance. This is reflected in the reasons of Adamson J in Singh v Fobubu Pty Ltd; Singh v Khan [2018] NSWSC 1817. 5. Insofar as the proceedings in the Supreme Court are challenges to decisions made by the Tribunal sitting as the Consumer and Commercial Division, or are in respect of internal appeals to the Appeal Panel of such decisions, the Supreme Court proceedings must have been commenced after any proceedings in the Division were commenced. 6. Clause 5(7) provides: (7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue. 1. It follows that the Supreme Court proceedings could not have been "pending before (the) court" "at the time when an application [was] made to the Tribunal for the exercise of a Division function" and cl 7(5) could not operate so as to deprive the Tribunal or the Appeal Panel jurisdiction to resolve any claim. 2. Further, Sch 4 cl 7(5) does not operate in respect of the Appeal Panel determining an internal appeal. This is because the Appeal Panel: 1. is not a "Division" of the Tribunal: see ss 4- definition of "Division" and 16(1). 2. is not exercising a function of a Division: see s 16(4) of the NCAT Act. 1. In this regard, Sch 4 cl 7(5) operates in respect of "an application … made to the Tribunal for the exercise of a Division function (emphasis added)" in which "an issue arising under the application was subject of a dispute in proceedings pending before a court". Sch 4 cl 1 provides: Division function means a function of the Tribunal allocated to the Division by this Schedule. 1. Consequently, insofar as internal appeal proceedings are commenced in the Appeal Panel after proceedings are commenced in the Supreme Court of New South Wales by way of appeal from other, but separate, decisions of the sitting as the Appeal Panel, Sch 4 cl 5(7) does not operate. 2. Therefore, this ground is rejected. 3. The last jurisdictional issue raised by the appellant, which only arose in oral submissions at the further hearing on 23 January 2019, was that the issues raised in the appeal were matters of federal jurisdiction within the meaning of Part 3A of the NCAT Act. 4. On this aspect, the appellant contended that the invoices provided were not in accordance with Australian taxation law and therefore a federal matter was raised so as to deprive the Tribunal of jurisdiction. 5. I do not accept this submission. 6. In Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275, the Appeal Panel dealt with the circumstances in which there might be a federal matter. At [22] the Appeal Panel said: 22. Drawing from a raft of cases, the following non-exhaustive set of principles, relevant to this case, emerge: (1) Not every proceeding that is touched by a Commonwealth law is a federal matter. For instance, a matter that requires only the interpretation of a federal law will not render the proceedings a federal matter. Similarly, it is not sufficient if the federal statute arises in an incidental fashion: Felton v Mulligan (1971) 124 CLR 367 at 408 (Walsh J); [1971] HCA 39; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476 (Stephen, Mason, Aickin and Wilson JJ); [1980] HCA 32; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); [1983] HCA 31. (2) The question of whether a federal matter arises is one of substance and not form: Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1; [2000] FCA 864 at [16] (Burchett J, Wilcox and Tamberlin JJ agreeing); Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473 (Barwick CJ); [1981] HCA 7. (3) To identify the "matter" it is necessary to identify the justiciable controversy: Smith v Smith (1986) 161 CLR 217 at 237 (per curiam); [1986] HCA 36; Re Wakim (1999) 198 CLR 511; [1999] HCA 27 at [139] (Gummow and Hayne JJ). (4) It is sufficient if the matter could be decided by reference to the federal law, it is not necessary that the matter be disposed of in that way: Felton v Mulligan at 374 (Barwick CJ); Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 at [21] (per curiam). (5) A federal issue may arise even where the parties have not directly asserted it, but where the court must nevertheless examine whether a right or duty under federal law exists: Moorgate at 476 (Stephen, Mason, Aickin and Wilson JJ). (6) A federal matter will arise whenever the right, duty or enforcement owes its existence to federal law: LNC at 581; Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (1997) 189 CLR 654 at 656-7 (per curiam); [1997] HCA 40. (7) It is not necessary for the form of relief sought to depend on federal law; it is sufficient if the source of the right or subject matter of the claim exists as a result of federal law: LNC at 581-2 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). (8) A federal matter will also arise where the source of a defence is a federal law: Felton v Mulligan at 375 (Barwick CJ) and 408 (Walsh J); LNC at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). (9) Unless a federal issue is colourable, there is a federal "matter": ie: the whole of the proceedings is a federal matter requiring the exercise of federal jurisdiction: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd at 499 (Gibbs J); Felton v Mulligan at 373 (Barwick CJ) and 408 (Walsh J); Fencott v Muller (1983) 152 CLR 570 at 606 (Mason, Murphy, Brennan and Deane JJ); [1983] HCA 12; Smith at 237 (per curiam); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at [7] (Gleeson CJ, Gaudron and Gummow JJ); Rana v Google Inc at [20]. 1. The present application does not involve a consideration of a defence to a claim arising under federal law. The only question is whether or not an invoice has been provided as required by the condition imposed by the Stay Order. 2. As I said above, I am satisfied the pre-condition requiring delivering an invoice to the appellant has been fulfilled by the respondent. I have referred to the relevant evidence. The conditions required delivery of documents containing the appropriate name and ABN and described as a tax invoice. The documents being Annexures B and D meet these requirements. 3. Further, and in any event, no issue arises because of a claim or a defence raised under Commonwealth law and therefore s 76(ii) of the Constitution could not apply. There is no relevant justiciable issue concerning a remedy claimed or defence arising in consequence of the condition which the Appeal Panel imposed. At best, there is a matter of interpretation as to whether the invoice falls within the definition of a tax invoice which, for the reasons stated at [22(1)] of Murphy, does not give rise to a federal matter. 4. Accordingly, the challenge based on "no jurisdiction" fails. Orders 1. Having regard to the agreed facts, namely that payments had not been made in accordance with the conditions imposed by the Stay Order, in my view the respondent has established non-compliance sufficient to justify the lifting of the stay and the dissolving of the restraining order. 2. I have a discretion whether or not to lift the stay and dissolve the restraining order. 3. I have been provided no evidence concerning the collateral proceedings COM 17/53297 which are continuing in the Tribunal nor have I been provided evidence concerning the proceedings pending in the Supreme Court of New South Wales. As such, there is no material, one way or the other, concerning issues relating to the balance of convenience insofar as regard is to be had to the likely resolution of the substantive issues and matters of injustice that might arise by reason of the stay being lifted and the restraining order being dissolved. This factor therefore provides little guidance as to what order should be made. 4. As the respondent acknowledged, if the stay is lifted and the restraining order is dissolved, a further application would be required to be made to the Tribunal at first instance to lift the stay. This may give rise to further disputation between the parties. Potentially, this further dispute will include a claim by the appellant that he misapprehended his obligations, a matter about which he was only informed upon the delivery of these reasons for decision. 5. On balance, I have formed the view that I should lift the stay and dissolve the order restraining the respondent from repossessing the premises. This is because terms of the Stay Order were clear. The appellant did not comply with the conditions, chose not to comply with the conditions (at best under the mistaken belief he had a right to set off) and did not otherwise approach the Tribunal for any relief from the orders. 6. The appellant can choose whether he wishes to comply with the October Restraining Orders and/or seek an extension of time from the Tribunal in the proceedings at first instance. Otherwise, the respondent will be free to make whatever application it wishes to bring in relation to the October Restraining Orders. 7. Accordingly, the Appeal Panel makes the following orders: 1. The stay of orders 1 and 2 made by the Appeal Panel on 14 December 2018 it is lifted; 2. The order made by the appeal panel on 14 December 2018, restraining Fobupu Pty Ltd from repossessing the premises, the subject of proceedings see COM 18/39312 or otherwise disturbing the appellant's quite enjoyment of those premises, is dissolved. Costs 1. The respondent sought costs of its application. 2. I have decided to reserve costs for the Appeal Panel to determine at the final hearing of this Appeal on 23 March 2019. On the material presently available to me, I am not able to determine whether, by reason of r 38A of the Civil and Administrative Tribunal Rules, 2014 (NSW), r 38 would apply to these proceedings or whether the appellant would need to establish special circumstances. Prima facie, there is no amount claimed or in dispute in the proceedings in which interim relief is sought: see The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256. 3. If this is correct, s 60 of the NCAT Act would apply and each party should pay their own costs unless the respondent can establish special circumstances. 4. Because an issue of costs might also arise when the appeal is finalised, to invite submissions on these topics now will simply increase the costs to the parties. For these reasons I make the following order: 1. Costs of the application are reserved. ********** 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 Amendments 01 February 2019 - Order two, typographical error corrected on coversheet and paragraph 87. 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: 01 February 2019