Steak Plains Olive Farm Pty Limited v Australian Executor Trustees Limited [2015] NSWSC 42

Supreme Court New South Wales

Medium Neutral Citation: Steak Plains Olive Farm Pty Limited v Australian Executor Trustees Limited [2015] NSWSC 42 Hearing dates: 5 February 2015 Decision date: 11 February 2015 Jurisdiction: Common Law Before: Button J Decision: (1)The proceedings in the New South Wales Civil and Administrative Tribunal are stayed until 4 pm on 28 February 2015. (2)The appeal by way of summons filed 5 December 2014 is listed for hearing at 10 am on 27 February 2015. (3)The costs of the motion before me are to be costs in the cause. (4)If interlocutory orders are sought from the Registrar with regard to the preparation of the appeal, liberty is granted to restore before the Registrar to either party on two (2) days' notice. Catchwords: ADMINISTRATIVE LAW – appeal pursuant to s 54 against a defendant of the New South Wales Civil and Administrative Tribunal – whether a stay of proceedings in the Tribunal should be granted pending determination of the appeal Legislation Cited: Agricultural Tenancies Act 1990 (NSW), ss 20, 21 Civil and Administrative Tribunal Act 2013 (NSW), s 54 Uniform Civil Procedure Rules 2005 (NSW), r 50.7 Category: Principal judgment Parties: Steak Plains Olive Farm Pty Limited (Plaintiff) Australian Executor Trustees Limited (Defendant) Representation: Counsel: E Holmes (Plaintiff) I Archibald (Defendant)

Solicitors: Bradbury Legal (Plaintiff) Sparke Helmore Lawyers (Defendant) File Number(s): 2014/358386

Judgment 1. This is an application by the plaintiff for a stay of proceedings pursuant to r 50.7 of the Uniform Civil Procedure Rules 2005 (NSW) in the New South Wales Civil and Administrative Tribunal (NCAT) pending an appeal to this Court founded upon asserted errors of law. The defendant opposed the granting of the stay, chiefly on the basis that the appeal does not reveal a good arguable case. I was provided with a substantial amount of evidence, detailed written submissions, and extensive and helpful oral submissions. Nevertheless, due to the urgency of the matter, I must be concise. 2. The background is as follows. The plaintiff in this Court, Steak Plains Olive Farm Pty Ltd, was the tenant of a property located in Hillston near Griffith in western New South Wales. The defendant, Australian Executor Trustee Ltd, is the owner. A written lease was entered into by the two parties. There was no dispute before me that the Agricultural Tenancies Act 1990 (NSW) (the Act) applies in the circumstances. On 4 December 2013, the defendant issued a notice to the plaintiff purporting to terminate the lease and threatening to take possession of the property. On 12 February 2014, the defendant brought proceedings in NCAT. 3. On 5 December 2014, the plaintiff commenced proceedings in the Equity Division of this Court. Those proceedings arose from the same lease between the same parties with regard to the same property. 4. On 13 August 2014, a Principal Member of NCAT handed down a judgment with regard to whether, pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), the proceedings before the NCAT should be transferred to this Court. To state the determination of the Principal Member very succinctly, it was that, whatever restrictions may apply to the jurisdiction of the Tribunal with regard to equitable relief, there was no utility in transferring the proceedings, because the Tribunal was amply empowered by s 20 and 21 of the Act to make orders that would provide appropriate relief to the plaintiff. Because such a transfer would be of no utility, the Principal Member declined to order it, and gave reasons at [93] – [97] for doing so. 5. The plaintiff appealed against that judgment to the Appeal Panel of the Tribunal. On 17 November 2014, the Appeal Panel handed down a decision to the effect that it saw no error in the judgment of the Principal Member. In particular, with regard to the question of the breadth of the powers of the Tribunal, the Appeal Panel said at [28] – [29] that the powers invested in the Tribunal by virtue of the Act are broad and include a power to grant relief in the nature of relief against forfeiture. With regard to the question of utility of transfer, and whether the discretion of the Principal Member miscarried in the refusal of the Principal Member so to order, the Appeal Panel at [30] found no error. 6. Pursuant to s 54 of the CAT Act, the plaintiff has appealed to this Court asserting that there were errors of law in the determination of the Appeal Panel. Although that appeal does not have a hearing date, in the interests of expedition, counsel for the plaintiff would be content for the appeal to be fully heard on 27 February 2015. That would be a convenient date, because it is on that date that a motion of the defendant in the Equity proceedings, seeking to have the proceedings of the plaintiff struck out, is listed for hearing. 7. Although detailed and having various bases, counsel for the plaintiff was content for me to understand the grounds of appeal to this Court as possessing one central proposition: that the Appeal Panel erred in its failure to find that the Principal Member was in error in failing to transfer the matter. It was said that that is an error of law, in that the Appeal Panel misconstrued the true meaning of the powers vouchsafed to the Tribunal by s 20 and 21 of the Act. Properly construed, it was said, those powers are not sufficiently extensive to provide the plaintiff with appropriate relief, in particular with regard to the equitable doctrine of relief from forfeiture. If that be the case, she submitted, there were sound reasons for transferring the proceedings from the Tribunal to this Court. 8. Separately, counsel for the plaintiff explained that the hearing in the Tribunal is to proceed on 16 February 2015. As I have indicated, she was content for the appeal itself to be heard eleven days later on 27 February 2015, at the same time as the strike out application in the Equity proceedings. She submitted that, although the appeal to the Appeal Panel was (in theory) interlocutory, in truth it was substantive, in that, if her contentions are correct, the proceedings should have been transferred from the Tribunal and would no longer exist in that forum. In other words, she submitted that I would be cautious indeed about being so confident that her grounds of appeal are unmeritorious as to render her statutory right of appeal otiose by way of it being superseded by proceedings continuing in NCAT. 9. Indeed, she submitted that the fact that I required the assistance of extensive oral submissions at the hearing of the application for a stay inherently demonstrates that her contentions on appeal are at the least reasonably arguable. 10. In contrast, counsel for the defendant submitted that the prospects of success of the appeal are not sufficient for a stay to be appropriate. He submitted that the determination of the Principal Member was quite correct, and that it contains a persuasive analysis as to why the contention of the plaintiff about the narrowness of the powers of the Tribunal was rejected. He submitted that a careful reading of the determination of the Appeal Panel reveals no error whatsoever. He took me to particular parts of s 21 of the Act to assert that each and every form of relief sought by the plaintiff, even if it were fully successful, can be amply accommodated within the flexible powers of the Tribunal. In short, he submitted that no stay should be granted founded upon the fact that an appeal has been lodged in this Court, because it will simply postpone the resolution of this matter for no good reason. 11. Turning to my determination, I consider that there is sound force in the submissions of counsel for the defendant. In particular, having sought to assess the attack on the determination of the Appeal Panel in the short time available to me, it is difficult to discern legal error therein. As a matter of statutory interpretation, it is hard to understand why Parliament would have provided a tribunal that is empowered to determine disputes about tenancies in a less formal way than a court with powers that are anything other than ample and flexible. If that be the case, and the plaintiff could be just as well accommodated in NCAT as this Court, there would have been no utility in a transfer. It would follow that there was no error in the approach of the Appeal Panel, either as a matter of statutory interpretation, or as a matter of its evaluation of the reasons for the Principal Member's refusal to transfer the proceedings. 12. Having said that, I accept the submission of counsel for the plaintiff that, if the proceedings in the Tribunal were not stayed, that would render the appeal otiose. That would require a firm confidence on my part that the appeal is baseless. It is one thing to say that I suspect that the appeal is without merit; it is another thing to say that I am confident about that proposition. I do not possess the latter state of mind. 13. As well as that, the stay contended for by the plaintiff is a matter of days, not weeks or months. It is quite possible that, if the defendant is manifestly correct in its contentions, the appeal will be dismissed on 27 February 2015. I consider that it could be inappropriate to refuse a stay of the subject matter of an appeal when in truth the delay occasioned by the stay will be very short. 14. In all of the circumstances, and having had time to reflect, I have come to the view that the proceedings in NCAT should be stayed in order to permit the plaintiff effectually to exercise the appeal right with regard to a matter of law that Parliament has seen fit to grant. 15. Having said that, I do not consider that the stay should extend beyond 4 pm on the day after the appeal will be heard. If the Judge who hears the appeal on 27 February 2015 considers that it is meritorious, or at least requires reflection, it will be open to that Judge to extend the stay. 16. I also think that there must be a mechanism put in place whereby, if the hearing date is endangered, the matter can be brought back to the Registrar's list very promptly, in order to remove the obstacle. 17. Finally, although both parties sought costs of the motion if successful before me, on reflection I consider that costs should be in the cause. Even though the plaintiff succeeded before me, to my mind the costs of the motion with regard to a stay ancillary to an appeal should be consonant with the determination of that appeal. 18. For the foregoing reasons, I make the following orders: 1. The proceedings in the New South Wales Civil and Administrative Tribunal are stayed until 4 pm on 28 February 2015. 2. The appeal by way of summons filed 5 December 2014 is listed for hearing at 10 am on 27 February 2015. 3. The costs of the motion before me are to be costs in the cause. 4. If interlocutory orders are sought from the Registrar with regard to the preparation of the appeal, liberty is granted to restore before the Registrar to either party on two (2) days' notice.

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