El Ali v Beaini Enterprises Pty Ltd

1. [1]

   This is an appeal from the NSW Civil and Administrative Tribunal (NCAT) Appeal Panel (the Appeal Panel) whose decision was published on 15 July 2022 and concerns an alleged denial of procedural fairness. The first plaintiff moves on a Further Amended Summons seeking Leave to Appeal which was filed in court without objection on 2 February 2023.

2. [2]

   There are two named plaintiffs, both of whom were appellants in the Appeal Panel proceedings. The first plaintiff is Alan El Ali (Alan) and the second is Yates Holdings Victoria Pty Limited (Yates). Yates took no part in the proceedings before me. Indeed, neither did Yates take any active part in the proceedings before the Appeal Panel. In light of my findings, nothing turns on whether or not Yates was a proper plaintiff or defendant to these proceedings, as I refuse leave to appeal, and I dismiss the Further Amended Summons.

3. [3]

   The following are my reasons.

Facts

1. [4]

   On 17 May 2019, Nathan El Ali (Nathan), who is the younger brother of Alan, signed a Tenancy Application Form on behalf of Yates as an “affiliate” of that company with respect to residential premises at xxx Junction Road, Beverly Hills (the premises). A Residential Tenancy Agreement was executed on behalf of the landlord Beaini Enterprises Pty Ltd (Beaini) and Yates as tenant on 22 May 2019 (the tenancy agreement). The term of the lease was 52 weeks. No further lease was executed, but rent was paid in accordance with terms of the lease to Beaini until the tenant ceased paying rent and there were significant arrears of rent.

2. [5]

   In due course, a Notice to Terminate Tenancy Agreement (Notice of Termination) was issued on 30 September 2021. It was served on Yates and Nathan on 1 October 2021 by Beaini, and the matter was listed before Member Sarofim at NCAT (the First Tribunal) in proceedings RT 21/42308 (the Possession Proceedings). Member Sarofim granted leave to the parties to be legally represented, and she heard the matter by telephone on 8 December 2021 in accordance with the then Covid-19 protocol.

3. [6]

   At the hearing of the Possession Proceedings, there was argument about who was the proper applicant and who was the proper respondent. Member Sarofim found that:

4. [7]

   Nathan was removed as a respondent as he was not listed as a tenant in the May 2019 tenancy agreement. Counsel for Yates confirmed that Yates was the appropriate tenant, that there were arrears in excess of the jurisdictional limit of NCAT ($15,000), and that the arrears were extant at the time of the Notice of Termination.

5. [8]

   Yates challenged the Possession Proceedings application on two grounds: first that the Notice of Termination was not properly served on it pursuant to the provisions of the Corporations Act 2001 (Cth) and second that there was a second landlord named in the Tenancy Agreement who was not named as an applicant in the Possession Proceedings. On the application of Beaini, Member Sarofim added Beaini Corp Pty Limited as the second landlord and cured the apparent defect in service by exercising NCAT’s power pursuant to s 113 of the Residential Tenancies Act 2010 (the RTA). She found that at the date of the Notice of Termination, Beaini was entitled to issue the Notice of Termination pursuant to s 87 of the RTA for non-payment of rent.

6. [9]

   Member Sarofim made the following orders on 8 December 2021:-

7. [10]

   The transcript of the Possession Proceedings reveals that the following exchange took place between Mr Smith, counsel for Yates, and Member Sarofim:

8. [11]

   Mr Farland, who appeared for Alan, relied upon this exchange as the basis for the principal complaint in these proceedings, that Alan was denied procedural fairness by Member Sarofim, and that he ought to have been joined to the Possession Proceedings. I return to this aspect of the proceedings below.

9. [12]

   On 10 December 2021, Alan lodged an application RT 21/50383 in NCAT for an order pursuant to s 77 of the RTA recognising him as a tenant for the purposes of the Possession Proceedings and naming Beaini as a respondent (the Joinder Proceedings). The reasons for seeking the order were as follows:

10. [13]

    Prior to the hearing of the Joinder Proceedings, on 20 December 2021, Member Campbell dismissed an application by Alan to set aside the orders made in the Possession Proceedings because “Mr Elali has not provided a copy of the Residential Tenancy Agreement between himself as tenant and the landlords Beaini PTY LT and Beaini Enterprises Pty Ltd” [sic].

11. [14]

    On that same day Alan filed a Notice of Appeal to an internal Appeal Panel with respect to the Possession Proceedings, naming his brother Nathan as his representative.

12. [15]

    On 21 December 2021, NCAT wrote to Alan asking him to fill in a form if he wished to have the decision stayed, as it had not received a stay application. On that day Alan sent NCAT a stay application citing the same grounds as those in the Joinder Proceedings.

13. [16]

    At a hearing on 23 December 2021, in which Alan was represented by Nathan, Principal Member Suthers made orders joining Yates to the Internal Appeal and dismissing the application for a stay. Reasons were said to have been given orally. No transcript or audio file of that application was tendered in these proceedings and no complaint is made about that decision.

14. [17]

    On 14 January 2022, the Joinder Proceedings were heard and determined by Member Gardner. No transcript or audio file of the hearing of the Joinder Proceedings was tendered. Member Gardner granted leave to the respondent to be legally represented and dismissed Alan’s application. His reasons for doing so were as follows:-

Proceedings before the Appeal Panel

1. [18]

   In due course Alan appealed both the Possession and Joinder Proceedings to an internal Appeal Panel of NCAT pursuant to s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) (the Internal Appeal). An Amended Notice of Appeal, filed on 18 February 2022, challenged the two decisions below and sought orders that:

2. [19]

   The Appeal Panel (Senior Members McAteer and Charles) heard the Internal Appeal on 6 April 2022. A decision dismissing the appeal was handed down on 15 July 2022.

3. [20]

   The Internal Appeal was brought as of right on a question of law pursuant to s 80(2) of the NCAT Act. That section provides: -

4. [21]

   The “other grounds” mentioned in s 80(2)(b) are set out in cl 12 of Schedule 4 of the NCAT Act as follows:-

5. [22]

   Thus, to the extent that the proceedings from which Alan appealed were for the termination of a tenancy under the RTA, because a warrant of possession had been executed, he could not rely on “other grounds.”

The Appeal Panel’s decision

1. [23]

   I will briefly summarise the decision of the Appeal Panel.

2. [24]

   The Appeal Panel determined that the key issues before it was first, who was the correct party to the tenancy agreement, and second, who was the entity with standing to seek relief before the First Tribunal with respect to the tenancy. It noted that before Member Sarofim, Yates through their legal representative, confirmed that it was the appropriate tenant and that it was in rental arrears. Before the Second Tribunal and the Appeal Panel there was argument about whether or not Alan was the actual tenant, as he had been an occupant of the premises. The Appeal Panel observed that by the time of the hearing of the Internal Appeal, possession of the premises had been given up to the landlord, and that the premises had since been re-let. In the Possession Proceedings, Yates had maintained that it was the appropriate tenant, but argued that Beaini’s application should be dismissed because it had not been properly served with the Notice of Termination and that by the time that it was received, dates specified in that notice had passed. The Member exercised her discretion pursuant to s 113 of the RTA to cure any defect in notice.

3. [25]

   The Appeal Panel noted that on 10 December 2021, Nathan filed an application with NCAT to be recognised as the tenant of the premises pursuant to s 77 of the RTA. It was conceded before me that the Appeal Panel made an error of fact in this passage, and that it was Alan who had made that application. The Appeal Panel observed that in the listing notice of 10 December 2021 a number of directions were made, but Alan had failed to comply with them, and the matter was dismissed at hearing on 14 January 2022 because the tenancy had been terminated on 7 December 2021 by order of the First Tribunal.

4. [26]

   Both the Possession and Joinder proceedings were the subject of an Amended Notice of Appeal. Alan submitted that the decisions were not fair and equitable because the First and Second Tribunals had not determined who was the residential tenant of the premises, that Alan and his family were removed from the premises without being heard and because a judgment debt was entered against Yates (rather than Alan). Alan also sought to tender fresh evidence, being statements of him and his brother Nathan.

5. [27]

   The Appeal Panel observed that an Internal Appeal is not a rehearing of the matter. It is a reconsideration of the matter at first instance to examine whether the Tribunal erred in its approach to the evidence and material before it and to determine whether or not the Tribunal fell into error. It correctly observed that it matters not whether on the same evidence the Appeal Panel might have reached a different conclusion.

6. [28]

   The Appeal Panel appears to have made another error of fact by suggesting that Alan had been removed as a party to the Possession Proceedings, as it was his brother Nathan who had been in fact removed. However, the Appeal Panel noted – correctly - that “whilst Mr El Ali might have been occupying the premises, he was not a party” to the tenancy agreement. Whether or not the Appeal Panel meant Alan or Nathan is of no moment, as it was Yates who was a party to the tenancy agreement. The Appeal Panel noted that there was no dispute that Alan and his family might have occupied the premises during the tenancy. However, it observed that the First Tribunal focused on who were the proper parties to the tenancy agreement, and that the Member accepted the concession from Yates’s counsel that Yates was the correct tenant responsible for the considerable arrears.

7. [29]

   The Appeal Panel was of the view that whether or not Alan was actually paying rent was not a matter to be considered by the First Tribunal. As the tenant to the tenancy agreement, the obligation to pay rent fell to Yates. How that obligation was met was, in the Appeal Panel’s view, immaterial. Beaini submitted that there was no requirement to give Alan notice of the Possession Proceedings about the premises and no requirement to join him as a party, and thus there was no requirement to give him an opportunity to be heard. Beaini submitted that the First Tribunal did not err in finding that the Tenancy Agreement was between Yates and Beaini. As the proceedings were between landlord and tenant, Beaini submitted that even as an occupant, Alan had no role to play in the proceedings.

8. [30]

   With respect to the Joinder Proceedings, Beaini submitted that because the tenancy had been terminated on 8 December 2021 by order of the First Tribunal, the Second Tribunal had no power to join Alan to the agreement. Beaini submitted that the order with respect to the termination of the agreement was not challenged by Alan at the 14 January 2022 hearing (although I infer from the brief reasons that several matters were canvassed).

9. [31]

   A submission was made to the Appeal Panel that Alan should have been joined to the Possession Proceedings pursuant to s 77(2) of the RTA. Section 77 of the RTA provides:-

10. [32]

    Beaini submitted that as no tenant had died and because the tenant remained in occupation of the premises until the tenancy was terminated, s 77(2) could not assist Alan. Alan submitted that whilst the Possession Proceedings had been finalised (and the tenancy agreement was terminated), relief could still be sought as a residual matter pursuant to s 77.

11. [33]

    Before the Appeal Panel, Alan submitted that he was in possession of the premises from 22 May 2019 until his eviction in December 2021 by the Sheriff. Notice had only been given to his brother Nathan. Alan referred to John Alexander Clubs Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1 (White City in the High Court) at [131] – [136] as authority for the proposition that as Alan was in possession as at 8 December 2021, he had an interest in land (as tenant) and was thus a necessary party in the Possession Proceedings. Alan submitted that whilst the lease gave Yates the right to occupy the premises, it was never given effect as Yates had never occupied the premises. He said that he should have been served and heard in the Possession Proceedings and could have been joined even after they were dismissed, as he was able to show a sufficient interest for the exercise of the Tribunal's discretion.

12. [34]

    The Appeal Panel said that White City Tennis Club Ltd v John Alexander’s Clubs Pty Ltd (No 2) [2009] NSWCA 194 (White City in the Court of Appeal) had reinforced the principle that a court has a discretion to join parties. It observed that White City in the High Court involved a constructive trust which had persisted, and that it was distinguishable from the present matter in which an order had terminated a tenancy, where possession had been given over and where the premises were now occupied by other tenants under a fresh tenancy agreement. Before me, Alan points to these comments as an error of law. He submitted that White City in the High Court established that there was no such discretion, and that if a party has an interest in land, then that person is a necessary party. It was conceded that Alan had to establish that he was a tenant, rather than an occupant

13. [35]

    The Appeal Panel again observed that the proceedings before it concerned a tenancy agreement where the parties to the agreement were determined by the First Tribunal to be Yates (as tenant) and Beaini (as landlord).

14. [36]

    The Appeal Panel found that the appellants were bound by the manner in which Mr Smith of counsel had conducted the case at first instance. Beaini submitted that the arguments being ventilated by the appellants were raised in the appeal for the first time which was contrary to established High Court authority in Coulton v Holcombe (1986) 162 CLR 1 (Coulton). Beaini submitted that arguments being raised on appeal for the first time should only be allowed in exceptional circumstances. The Appeal Panel observed that the issues in the proceedings before it were not matters of significant public importance as referred to by the High Court in Coulton and could not constitute exceptional circumstances. I observe that Mr Farland submitted before me that whilst Yates was bound by Coulton, Alan was not, as he had not participated in the Possession Proceedings.

15. [37]

    The Appeal Panel declined to receive the fresh evidence (referred to above and below), as no reason was provided either in submissions or during the hearing of the appeal as to why that evidence, if relevant, could not have been provided at the time of the original hearings with reasonable diligence. Further, the Appeal Panel found that the evidence went against the appellants’ case. The Appeal Panel noted that in the Possession Proceedings, Yates had not put on any evidence that the claimed rental arrears were without foundation, and neither did it submit that in the circumstances there was no basis to issue the termination notice.

16. [38]

    The Appeal Panel was of the view that the First Tribunal was entitled to take into account the submissions put before it as to who were the proper parties to the tenancy agreement. It was uncontroversial that Nathan had told the landlord's agent that the lease had to be in the name of the company Yates. The reason for the arrangement was not pursued at the hearing from which the appeal arose. The Appeal Panel said that in a matter where a tribunal deals with the case before it and has regard to the submissions of legal representatives of the parties, it was difficult to discern how an error of law might arise other than not affording a party before it a right to be heard. On an examination of the transcript of the proceedings, the Appeal Panel concluded that there was no evidence that the First Tribunal had departed from an orthodox approach to the matter and the arguments before it. The issue as to who was the proper tenant was clarified as a preliminary point. Consistent with the reasoning of the High Court in Coulton, the Appeal Panel found that there was no basis to give leave for the appellants to run a different case on appeal than the case run before the First Tribunal.

17. [39]

    The Appeal Panel observed that with respect to an alleged denial of procedural fairness, it had to consider the practical injustice arising if such a claim could be made out. It was therefore relevant to consider whether the alleged breach of procedural fairness would have made any difference to the outcome of the case. In circumstances where there was no denial of the rent arrears or the issuing of the notice of termination on that basis, and that the liability to pay rent arose under the lease, the Appeal Panel was satisfied that no practical injustice arose. It could not discern any error in the approach of the First Tribunal which would constitute an error of law, or so as to be against the weight of the evidence. Therefore, there was no substantial miscarriage of justice, and Alan had not established that the finding of the First Tribunal was not open to it on the available evidence. Leave to appeal was refused.

18. [40]

    The Appeal Panel also observed that the appeal concerned matters which were overtaken by subsequent events, which created a situation where there would be little utility in reopening the matter even if it had found a basis in law to do so, which it did not.

19. [41]

    On 10 November 2022, a costs order was made by the Appeal Panel against the appellants Alan and Yates. The reasons for that order being made have not been provided to this court.

The Further Amended Summons

1. [42]

   On 8 August 2022 Alan filed a Summons seeking Leave to Appeal the 15 July 2022 decision of the Appeal Panel. An Amended Summons for Leave to Appeal was filed on 10 October 2022. Alan moves on the Further Amended Summons filed in court on 2 February 2023.

2. [43]

   Leave of the Supreme Court is required to appeal on a question of law. Section 83 of the NCAT Act provides:-

3. [44]

   The substance of the appeal is that Alan alleges that he was denied procedural fairness when he was not given notice of the Possession Proceedings, to which he was allegedly entitled as an occupant of the premises, and that he was entitled to be joined to those proceedings. It is alleged that as his rights were affected, he was a necessary party to the Possession Proceedings and ought to have been joined. The denial of the opportunity to be joined to the Possession Proceedings is said to be a denial of procedural fairness. It was submitted that the Appeal Panel, finding that Alan was not denied procedural fairness, amounts to an error of law.

4. [45]

   The plaintiff seeks the following orders:

   1. (1)

      Pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) leave to appeal from the whole of the decision below;

   2. (2)

      The appeal is allowed;

   3. (3)

      Orders of the Appeal Panel made on 15 July 2022 be set aside;

   4. (4)

      Orders that the Court reconsider the matter de novo or by rehearing on the material before the Appeal Panel;

   5. (5)

      An order that the defendants pay Yates the sum of $15,223.72 plus interest, or such other amount as the Court thinks fit;

   6. (6)

      Such further or other order as the Court sees fit;

   7. (7)

      Costs; and

   8. (8)

      Leave be granted to appeal the costs order made by the Appeal Panel dated 10 November 2022.

5. [46]

   Alan relies on six grounds of appeal as follows:-

   1. (1)

      That the Appeal Panel erred in law in finding that Alan had to show exceptional circumstances in order to run an appeal based on lack of procedural fairness and the denial of an opportunity to be heard;

   2. (2)

      That the Appeal Panel erred in law in failing to hold that Alan was denied procedural fairness by not being given notice of the proceedings that resulted in his and his family’s eviction from the Property;

   3. (3)

      That the Appeal Panel erred in law in irrelevantly considering matters concerning Mr Nathan El Ali in respect of the first plaintiff, Mr Alan El Ali;

   4. (4)

      That the Appeal Panel erred in law in finding that the appellants’ claim was not against the weight of evidence;

   5. (5)

      That the Appeal Panel erred in law in refusing leave to the first plaintiff to adduce evidence by reason of finding that the first plaintiff could have adduced that evidence at the hearing; and

   6. (6)

      That the Appeal Panel erred in law in failing to hold that the injustice flowing from the denial of procedural fairness was, at least, that Alan was not given an opportunity to be heard before his interest in land was affected and he was evicted from the Property;

6. [47]

   Further, Alan submits that if this court allows the appeal and sets aside the orders of 15 July 2022, the costs order of 10 November 2022 should also be set aside because there will be no event from which costs follow.

The plaintiff’s argument in this court

1. [48]

   Alan requires leave to appeal on a question of law to this court: s 83(1) of the NCAT Act. As argued before me, the real question to be determined is whether or not Alan was denied procedural fairness before the First and Second Tribunals and whether or not the Appeal Panel erred in finding that he was not. As noted by Mr Farland in his written submissions, the appeal is based fundamentally on whether or not Alan was given an opportunity to be heard in the Possession Proceedings before the First Tribunal.

2. [49]

   It bears repeating that the Possession Proceedings were proceedings for termination and possession. Beaini was required to serve a termination notice prior to applying to the Tribunal for a termination order. Most of the proceedings before the First Tribunal were concerned with whether or not notice was properly effected. Beaini was required to comply with s 223 of the RTA which provides:-

3. [50]

   There was no suggestion before the Appeal Panel or in these proceedings that Beaini knew or ought to have known that Alan was the sole tenant (which in any event in my view he was not) under a tenancy agreement and failed to comply with s 223(3) by failing to notify him.

4. [51]

   Section 83 of the RTA provides:-

5. [52]

   Member Sarofim made an order that the Tenancy Agreement was terminated as of 8 December 2021 and an order for the immediate possession of the residential premises was made but suspended until 20 December 2021.

6. [53]

   The RTA defines tenant in s 3 as follows:-

7. [54]

   The RTA foreshadows the granting of a right of occupation under a residential tenancy agreement to a corporation, who in turn allows the use of the premises by a natural person. Section 13 of the RTA provides:-

8. [55]

   In this case, the First Tribunal (Member Sarofim) clearly did not think that Yates occupied the premises, but understood that a natural person used the premises as a residence. So much is implied in both the transcript and her reasons.

9. [56]

   With respect to s 13 of the RTA, Mr Farland submitted that Alan by virtue of his occupancy of the premises was the proper tenant pursuant to s 13. In my view, that section does not assist him. A residential tenancy agreement is an agreement under which a person (Beaini) grants to another person, for value, a right of occupation of residential premises: s 13(1). The evidence does not establish that this occurred between Beaini and Alan. Furthermore the RTA contemplates that which in fact occurred: Beaini granted the right of occupation to a corporation (Yates) although it was intended that the premises were to be used as a residence for natural persons: s 13(4). Thus, the residential tenancy agreement was established between Beaini and Yates.

10. [57]

    Mr Farland’s primary submission before me was that Alan ought to have been joined to the proceedings by the First Tribunal pursuant to s 77(2) of the RTA Act (the text of which I have set out at paragraph [31] above). I reject this submission.

11. [58]

    First, it must be observed that section 77(1) contemplates an order being made on the application by a person who is occupying residential premises, either by recognising the person as a tenant under a residential tenancy agreement or by joining the person as a party to any proceedings relating to the premises, or both. There is no dispute in this case that Alan did not make such an application until the time of the Joinder Proceedings. Thus section 77 could not have been engaged until Alan (belatedly) made an application to the Second Tribunal in the Joinder Proceedings.

12. [59]

    Furthermore, in my opinion the discretion to make the order in s 77(1) can only be exercised if either of the two subsections in s 77(2) are satisfied, i.e., either the sole tenant has died or the tenant no longer occupies the premises. In this case, the sole tenant had not died, and the tenant had not vacated the premises. Thus the statutory criteria in ss 77(2)(a) or (b) were not satisfied. Mr Farland submitted that section 77(2)(b) should be read as including the word “never”, as his case was that Yates never occupied the premises. No previous interpretation of that section was advanced in submissions.

13. [60]

    The applicable principles of statutory interpretation are set out in the joint judgment of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]:-

14. [61]

    In my view, Mr Farland’s submission puts an impermissible gloss on s 77. In my opinion, to read into s 77(2)(b) the word “never” would alter the purpose of the section itself, to recognise a surviving co-occupant of residential premises as a tenant in the event of the death of the tenant or if the nominated tenant vacates, perhaps without notice to his or her co-occupants, so that the remaining occupants will have rights (and obligations) pursuant to the residential tenancy agreement.

15. [62]

    As to whether or not Alan was a necessary and proper party because of the judgment of the High Court in White City in the High Court, Mr Farland’s argument presupposes that Alan was in fact a tenant (with an interest in land). In my opinion, Alan was never a tenant within the meaning of that word in the RTA and was therefore never a necessary or a proper party. It follows that Alan was not denied procedural fairness by not being joined to the Possession Proceedings.

16. [63]

    In oral argument I asked Mr Farland what the Tribunal should have done after it had the exchange with counsel for Yates about “possession” set out above at paragraph [10] above, which he relied upon as the time that the First Tribunal should have realised that any orders it made would have directly affected Alan. Mr Farland said that it was then incumbent on the First Tribunal to have notified Alan. I reject this submission.

17. [64]

    First, there is nothing in the RTA which permits or mandates the Tribunal to take such action. Second, the exchange between the First Tribunal and Yates’s counsel did not nominate any person other than “a brother.” Rhetorically, one might ask how far was the Tribunal to go? Should it have asked how many occupants there were? Should each occupant have been notified? How should they have been notified? As I have said, no provision in the RTA prescribes such action. In fact, s 77 contemplates an application made by a person in occupation rather than by the Tribunal (as suggested by Mr Farland).

18. [65]

    Mr Farland further submitted that the notice of termination ought to have been served on Alan as the occupier, although he conceded that s 223 of the RTA did not assist him, as notice to Yates was notice to all: see s 223(3).

19. [66]

    It follows that in my opinion, there was no breach of procedural fairness at any time during the Possession Proceedings. Alan was never a tenant and had no right to be heard. In my view, on the evidence before the Tribunal, it was entirely open to Member Sarofim in light of the concession made by Yates and on the documentary evidence, to find that Yates was the tenant. In my view, the Appeal Panel did not err in finding that Yates was the tenant and Alan was not denied procedural fairness in the Possession Proceedings.

20. [67]

    As to the Joinder Proceedings, and in particular Alan’s application to be joined to the proceedings pursuant to s 77 of the NCAT Act, Mr Farland submitted that Member Gardner erred by finding at para [7] of his reasons:

21. [68]

    In particular, Mr Farland submitted that it was wrong to say that the tenancy agreement had no legal effect because like any contract, there can be a suit for breach despite its termination.

22. [69]

    I do not understand Member Gardner’s comments to mean that there could not ever be continuing legal consequences for a breach of contract. Rather, my understanding of his comments is that because the tenancy agreement was terminated, there was no practical utility in joining Alan to proceedings that had already been determined.

23. [70]

    Moreover, I observe the following. First, Yates was not a party to the Joinder Proceedings, and as its rights were to be affected, it was a necessary party with a right to be heard if Alan was to be joined. Second, Alan faced the same difficulties with respect to a joinder application pursuant to s 77 as I have set out at length above. Third, and perhaps most significantly, Alan was in fact heard before the Second Tribunal on several matters, including the s 77 application and an order staying or otherwise delaying the operation of the warrant for possession which had been issued. Although the Member’s reasons are brief, it can be easily inferred that Alan was not denied procedural fairness in the Joinder Proceedings. Rather, he was given a full opportunity to be heard.

24. [71]

    Mr Farland then turned to the decision of the Appeal Panel. He conceded that Yates (who did not participate in proceedings before me) could not have run a different case before the Appeal Panel, and that it could not withdraw its clear concession that it was the tenant pursuant to the RTA.

25. [72]

    Mr Farland contended that the Appeal Panel wrongly focussed on what was put in submissions before the First Tribunal in the Possession Proceedings in circumstances when it ought to have known that Alan was in occupation (relying on the exchange with Yates’s counsel at paragraph [10] above). He submitted that the Appeal Panel’s conclusion that how the obligation to pay rent was met was immaterial was an error. Mr Farland submitted that the Appeal Panel perceived the wrong issue to be before it. He said that the question it ought to have asked was whether Alan was heard in the Possession Proceedings. For reasons I have already stated, Alan was never a tenant and had no right to be heard.

26. [73]

    In my view, the Appeal Panel and the First Tribunal were correct to characterise the Possession Proceedings as being between the landlord and the tenant, being between Beaini and Yates (who was granted the right of occupation and had the obligation to pay rent). That the payment of rent was satisfied by Nathan (on his affidavit) or organised by Nathan (on Alan’s affidavit) is immaterial. It has never been in dispute, as sworn by Nathan in his affidavit, that the lease “had to be in the name of the company.” So much is permitted by s 13(4) of the RTA, and the obligation to pay rent fell to Yates as the tenant. There is no dispute that the tenant was in significant arrears of rent at the time of both the Possession and Joinder Proceedings.

27. [74]

    The essence of Mr Farland’s argument was that Alan was a necessary party because his rights and entitlements were affected, and he relied on White City in the High Court. In that case Walker Corporation Pty Ltd had lost its priority as an equitable mortgagee. Mr Farland submitted that there was no discretion not to join a party if its rights were so affected and he relied on the High Court’s statement at [138]:

28. [75]

    The Appeal Panel found that the present case was different. Here there was a termination of a tenancy, whereas in White City in the High Court, the interest persisted. Here, not only was the interest terminated, but possession had been given over and the premises were now occupied by other tenants under a fresh tenancy agreement. Mr Farland relied on these statements of the Appeal Panel as an error of law. I disagree. For reasons expressed by the Appeal Panel, this case is distinguishable from White City in the High Court.

29. [76]

    If I were looking at the matter afresh, I may have come to the same conclusion for different reasons. These are proceedings that are governed by the RTA, and in my view Alan has never, and could never establish that he should be recognised as a tenant within the meaning of s 77 of the RTA, so that any application to be joined was doomed. Further, the interest in land (i.e., the tenancy) was abandoned before the Appeal Panel heard the appeal and the only remedy sought by Alan was a remitter to deal with the monetary order.

30. [77]

    In reply, Mr Farland raised – for the first time - that there may have been no valid lease at the time of termination and that an oral lease may have existed to which Alan paid rent. I reject this submission. First, it was not raised before the Appeal Panel, and Alan is bound by his conduct in that forum: see Coulton. Second, the evidence discloses that it was Nathan who paid the rent on behalf of others, rather than Alan.

The parties’ written submissions

1. [78]

   Alan and Beaini filed written submissions and made oral submissions at the hearing on 2 February 2023. I will briefly summarise here their arguments on each ground of appeal in turn, noting that the parties’ written submissions have reversed grounds 1 and 2 as they appear in the Further Amended Summons.

2. [79]

   In his primary written submissions, Alan submitted that the Appeal Panel wrongly applied Coulton by finding that the appeal should only be allowed in exceptional circumstances, i.e., it concluded that there was no basis for Alan and Yates to argue a different case on appeal than the one put before the First Tribunal. Alan submitted that the requirement by the Appeal Panel for him to show exceptional circumstances was an error because he was not a party to the basal proceedings below, and the way Yates ran its case cannot bind him. In circumstances where Alan alleges that he was not given an opportunity to be heard at all in the Possession Proceedings, he submitted that it cannot then be said that he sought to run a different case before the Appeal Panel, and so Coulton does not apply to him.

3. [80]

   Mr Horowitz submitted that the effect of the Appeal Panel’s decision was that it rejected Alan’s argument that he had been denied procedural fairness and that it focused on the principle of “avoiding practical injustice” in its findings. He submitted that Alan’s submissions both before the Appeal Panel and in this court failed to address what practical injustice Alan has suffered by reason of not being heard at the Possession Proceedings. In his submission, Alan’s eviction from the premises is not a practical injustice, because he does not deny the rental arrears and the issuing of the notice of termination. He emphasised that both before the Appeal Panel and this court, the only complaint by Alan is that he should be replaced as judgment debtor (which was conceded by Mr Farland). Mr Horowitz submitted that it is difficult to understand how that could be conceived as a practical injustice, in circumstances when on Alan’s best case he was the tenant and someone else is responsible for the arrears of rent. In any event, as I have already set out, in my opinion there was no denial of procedural fairness and no denial of an opportunity to be heard at either the Possession or Joinder Proceedings.

4. [81]

   I accept that Alan was not bound by Coulton before the Appeal Panel, but as I have explained above, in my opinion there was no error by the First Tribunal or a denial of procedural fairness to Alan. Any mechanism with respect to joinder depended on a finding that Alan was a tenant, which in my view he was not. I reject this ground of appeal.

5. [82]

   Alan submitted that the Appeal Panel erred by wrongly adopting the reasoning of the Court of Appeal in White City in the Court of Appeal by saying that there was a discretion to join a non-party.

6. [83]

   Alan submitted that the Appeal Panel purported to exercise a discretion it did not have, and that he should have been joined because as the tenant, he was a necessary party. Mr Horowitz submitted that the Appeal Panel was correct in finding that Alan was never a necessary party because the tenancy had been terminated, possession given over and was occupied by other tenants under a fresh tenancy agreement at the time of the appeal. This, he submitted, was in stark contrast to the position in White City in the High Court, where the appellant had a continuing interest in land. I observe that it was conceded by senior counsel before the Appeal Panel that the only interest in the subject matter of the lease which Alan had was the judgment order against Yates. In Mr Horowitz’s submission, where the First Tribunal had made an order terminating the lease, and that order was not challenged on appeal, the Appeal Panel was correct in finding that Alan was not a necessary party.

7. [84]

   I repeat my finding that Alan was never a tenant and had no requisite interest in land. I reject this ground of appeal.

8. [85]

   Counsel for Alan submitted that the Appeal Panel appeared to confuse Alan and Nathan on several occasions in its judgment, with the effect that it considered Alan to have had notice of the proceedings when in fact he did not.

9. [86]

   The defendants accepted that the Appeal Panel made two mistakes with respect to the names of Alan and Nathan. The defendant’s submission on this ground was ultimately that, even if there were mistakes of name in part of the Appeal Panel’s decision, nothing turns on them because the Appeal Panel found that Alan’s denial of procedural fairness argument was not made out because there was no evidence of a practical injustice.

10. [87]

    In reply, the plaintiff submitted that because of the confusion in names, the Appeal Panel erroneously concluded Alan had at least constructive knowledge of the Possession Proceedings which led the Panel to finding that there was no denial of procedural fairness.

11. [88]

    As I have already set out above, I accept that there were two errors of fact, but in my opinion they do not amount to an error of law. In my view, the Appeal Panel did not err in finding that there was no procedural unfairness that amounted to a practical injustice, and I reject this ground of appeal.

12. [89]

    The plaintiff says that the Appeal Panel erred by refusing leave for Alan to adduce fresh evidence, being statements of Nathan and Alan (later prepared as affidavits in these proceedings) because it considered that the evidence should have been provided at the time of the hearings before the tribunals. I observe that the Appeal Panel was also of the view that the evidence would not have advanced Alan’s case. Mr Farland submitted that the evidence was not reasonably available at first instance because Alan had not been given notice of those proceedings.

13. [90]

    The defendants submitted that the statement of Nathan was at least reasonably available, and it should be reasonably inferred that Alan did have notice of the Possession Proceedings through his brother Nathan. Further, the defendants point to the Appeal Panel’s comments that the evidence went “against the appellants’ case,” and that the fresh evidence, if led at first instance, would not have led to a different or more favourable result for Alan.

14. [91]

    I make the following observations with respect to the affidavit evidence before me.

15. [92]

    Nathan’s affidavit, sworn on 27 September 2022 (which is the same as the evidence before the Appeal Panel), relevantly confirms that he negotiated the lease on behalf of his family (mother, brother Alan and his family) and that he required the lease to be in the name of the company Yates. No explanation is provided as to why Yates was required to be the tenant. Through to the death of his mother in October 2020, he paid the rent on her behalf. Thereafter, he paid the rent or arranged for the rent to be paid on behalf of Alan and his family.

16. [93]

    Alan’s affidavit, sworn on 27 September 2022 (which is the same as the evidence before the Appeal Panel), relevantly says that Nathan organised the lease on his behalf and that Nathan paid rent on his behalf.

17. [94]

    An Appeal Panel may permit fresh evidence as it considers appropriate in the circumstances: s 80(3) of the NCAT Act. In my opinion, the Appeal Panel was correct in excluding the evidence. Whilst I accept that Alan’s evidence may not have been reasonably available at the time of the Possession Proceedings, no reason has been advanced as to why it was not available at the time of the Joinder Proceedings. I also agree with the Appeal Panel that the evidence went against the plaintiff’s case. First, it confirms that Yates was the tenant at the request of Nathan. Second, the person who at all times paid the rent was Nathan, and on all the evidence, Alan never paid the rent. Third, there appears to be a conflict in the fresh evidence which cannot easily be reconciled. I reject this ground of appeal.

18. [95]

    Alan submitted that the decision of the Appeal Panel was against the weight of the evidence, and he repeats the submissions made with respect to other grounds.

19. [96]

    Mr Horowitz repeated his submissions with respect to ground 4.

20. [97]

    I repeat my comments set out above and reject this ground of appeal.

21. [98]

    Alan submitted that practical justice arises from the denial of procedural fairness if Alan was not given an opportunity to be heard before he was evicted from the property following the Possession Proceedings. This submission repeats the fundamental submission made in the proceedings before me.

22. [99]

    The defendants submitted that first, the First Tribunal Member was not required to hear from Alan because he was not a necessary party (see ground 2 above). Second, it was submitted that even if Alan was a necessary party, he had to establish a practical injustice, and this was not made out. Mr Horowitz said that the Appeal Panel considered that any alleged breach of procedural fairness would not have made any difference to the outcome, and it was correct to deny the relief sought: Nathanson v Minister for Home Affairs (2022) 403 ALR 398 (Nathanson) at [109]. Mr Horowitz submitted that properly viewed, Yates was the party seeking relief from a monetary order against it, and it is precluded from arguing that it was not the tenant by reason of its conduct in the Possession Proceedings: Coulton.

23. [100]

    Mr Farland submitted that Alan was the occupant causing the rent to be paid and was a necessary party as occupant and tenant of the premises. The practical injustice is that Alan was never given an opportunity to be heard, and the wrong party was ordered to pay the rental arrears. He relied on s 77 of the RTA to assert that Alan was such a person occupying a property who ought to have been joined to the Possession Proceedings. I reject this ground of appeal.

24. [101]

    A considerable amount of court time was occupied by a debate about the concept of materiality in the event that the plaintiff had established a failure to be afforded procedural fairness. As I have found that there was no such failure, the issue does not arise. However, because of the right said to be affected here - that a judgment debt has been assumed by another party - there would have a real question about whether there was any practical utility in remitting the matter to the Tribunal. That is so, particularly in circumstances when the lease has been terminated and the premises let to others, and Alan now lives elsewhere with his family.

25. [102]

    Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome and the appellant bears the onus of demonstrating that the denial of procedural fairness was material in this sense: Nathanson at [1], citing Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 and MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 (MZAPC).

26. [103]

    Materiality requires a practical injustice. In Nathanson at [31] Kiefel CJ, Keane and Gleeson JJ observed:

27. [104]

    In Nathanson, Kiefel CJ, Keane and Gleeson JJ affirmed the court’s earlier explanation in MZAPC that the materiality of a breach requires a plaintiff to prove, on the balance of probabilities, the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition as a matter of reasonable conjecture within the parameters set by the historical facts determined: Nathanson at [32]. A plaintiff is not required to have articulated a specific course of action which could realistically have changed the result. The standard of reasonable conjecture is undemanding and there will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration: Nathanson at [33].

28. [105]

    I note N Adam J’s thorough and thoughtful distillation of the Nathanson principles in Star Training Academy Pty Ltd v Commissioner of Police (NSW) [2023] NSWSC 153 at [155] – [189].

Conclusion

1. [106]

   I reject each ground of appeal. In my opinion, in both the Possession and the Joinder Proceedings, there was no denial of procedural fairness. For reasons already stated, Alan was never the tenant for the purposes of the Possession Proceedings, and he was given an opportunity to be heard at the Joinder proceedings. That the Member at the Joinder Proceedings dismissed his application is not to the point. It can be gleaned from Member Gardner’s reasons that he considered all issues, and that Alan, assisted by Nathan, was given an opportunity to be heard. Thus there has been no failure to afford Alan procedural fairness.

Leave to Appeal

1. [107]

   Mr Farland submitted that the establishment of a breach of procedural fairness is enough for leave to appeal to be granted: Carolan v AMF Bowling Club Pty Ltd t/a Bennetts Green Bowl [1995] NSWCA 69 at 3.

2. [108]

   Reference was made to the judgment of Davies J in John Maiolo t/a M&N Peninsular Kitchens & Joinery v Chiarelli [2017] NSWSC 982 where his Honour noted at [29] that a party seeking leave to appeal must point to something more than error, and citing Jaycar Pty Limited v Lombardo [2011] NSWCA 284, that ordinarily it is appropriate to grant leave to appeal only in matters concerning issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] being merely arguable (at [31]): see also Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (Be Financial). To those principles I would add that leave will not ordinarily be granted where the claim is a monetary claim and the amount in dispute is small and out of proportion to the costs that would be incurred if leave were granted, lest the costs involved swamp the money sum in dispute: Be Financial at [37] to [39] and Soulis v R & A Henry Auto Repairs Pty Limited [2023] NSWCA 50 at [8] per White JA, Simpson AJA agreeing. In this matter, the amount in dispute is no greater and likely less than $15,223.72

3. [109]

   In my opinion, for reasons already stated, as there is no issue of principle, no question of public importance, no injustice which is reasonably clear, and the amount in dispute is small and out of proportion to costs which would be incurred if leave were granted, I refuse leave to appeal.

Orders

1. [110]

   I make the following orders:

   1. (1)

      Leave to appeal pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 is refused.

   2. (2)

      The Further Amended Summons filed on 2 February 2023 is dismissed.

   3. (3)

      The first plaintiff is to pay the defendants’ costs.