Chand v Lifestyle Homes NSW* Pty Ltd [2011] NSWCA 129 (16 May 2011)

Last Updated: 26 May 2011

Court of Appeal New South Wales

Case Title:	Chand v Lifestyle Homes NSW* Pty Ltd
Medium Neutral Citation:	[2011] NSWCA 129
Hearing Date(s):	16 May 2011
Decision Date:	16 May 2011
Jurisdiction:
Before:	Basten JA
Decision:	(1) Dismiss the appeal from the judgment of the District Court filed on 11 March 2010. (2) Give leave to the appellants to file and serve written submissions in support of the proceedings under s 69 of the Supreme Court Act 1970 for review of the decision of the District Court judgment by 4pm on 14 June 2011. (3) The costs of the Notice of Motion filed by the second respondent on 5 May 2010 seeking to have the appeal dismissed as incompetent be paid by the appellants; otherwise any costs incurred in relation to the appeal to date should be costs in the judicial review proceedings. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - civil - objection to competency of appeal - whether appeal lies from the District Court judgment on an appeal from the Consumer Trader and Tenancy Tribunal - District Court Act 1973 (NSW), s 127; Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67. WORDS AND PHRASES - "action" - District Court Act 1973 (NSW), s 127
Legislation Cited:	Consumer, Trader and Tribunal Act 2001 (NSW), s 67 District Court Act 1973 (NSW), s 127
Cases Cited:	Chand v Lifestyle Homes Pty Ltd [2010] NSWCA 135 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46
Texts Cited:
Category:	Principal judgment
Parties:	Ajay Chand (First Appellant) Shashi Chand (Second Appellant) Azurra Pty Ltd (In Liq) (First Respondent) Lifestyle Homes NSW* Pty Ltd (Second Respondent)
Representation
- Counsel:	Mr A Chand in person Ms M Painter - Second Respondent
- Solicitors:	Applicants self-represented Adams & Partners Lawyers (Second Respondent)
File number(s):	CA 2009/329782
Decision Under Appeal
- Court / Tribunal:
- Before:	Hungerford ADCJ
- Date of Decision:	14 December 2009
- Citation:	Chand v Lifestyle Homes NSW* Pty Ltd [2009] NSWDC 335
- Court File Number(s)	DC 4049 of 2008
Publication Restriction:

Judgment

1. HIS HONOUR : In these proceedings Mr Chand, presently appearing on his own behalf and on behalf of his wife, seeks relief in respect of a judgment of Hungerford ADCJ on an appeal from the Consumer, Trader and Tenancy Tribunal ("the Tribunal").
   
2. When the matter came before me on 7 June 2010 there was a notice of motion of the second respondent seeking to have the appeal dismissed as incompetent: Chand v Lifestyle Homes Pty Ltd [2010] NSWCA 135. At that stage I gave directions in response to the notice of motion including a direction that the respondent file a notice of objection to the competency of the appeal. No further document has been filed by the respondent, but, in substance, the notice of motion constituted an objection to competency and may be dealt with as such. The question to be determined is whether the appeal, still on foot, is incompetent and should be dismissed.
   
3. On 7 June 2010 I expressed doubts as to the competency of the appeal. Those issues have been considered and resolved by a judgment of this Court in the matter of Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46 (Campbell, Macfarlan and Young JJA), the judgment being handed down on 27 August 2010. In the principal judgment, Young JA concluded that no appeal lay from a judgment such as this of the District Court, because there was no judgment in that Court "in an action", but rather pursuant to an appeal from the Tribunal. Thus his Honour held that s 127 of the District Court Act 1973 (NSW) did not permit an appeal and, there being no other statutory basis, ruled that the appeal was incompetent and was to be dismissed: at [63]-[66]. Campbell JA agreed with Young JA, spelling out in greater detail the basis in principle and on authority upon which that conclusion was reached: at [6]-[43]. Macfarlan JA agreed with the reasons of both: at [45].
   
4. Before me, Mr Chand submitted that their Honours proceeded on a technical interpretation of the unpromising word "action" in s 127, which Mr Chand fairly says may, in an ordinary sense, have a wide variety of meanings. However, it is not entirely true to say that Muldoon's case proceeded on such a basis. As Campbell JA explained, with the agreement of Macfarlan JA, there is a history of provisions permitting matters to go to the District Court by way of appeal, the determinations of which have been held not to fall within the scope of s 127. This jurisdiction is simply the latest in that history, resulting from the September 2008 amendment of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67, providing for appeals from that Tribunal to the District Court. Needless to say, I am bound by the decision in Muldoon .
   
5. Mr Chand suggests that the matter might be reviewed by a five judge bench of this Court. That is so in principle. However, as has been explained in Muldoon and in earlier judgments of my own, there is a line of authority which supports the conclusion which is sought to be challenged. No significant doubt has been cast on that line of authority by the written submissions filed by Mr Chand or by other arguments raised in the course of the hearing. Accordingly, I do not think it is appropriate that this matter should form a vehicle for reconsidering that decision. That being so, the proper course is to accept the conclusion in Muldoon . The order which must follow is that the appeal be dismissed as incompetent and I propose to make that order.
   
6. That gives rise to a further question as to the future of these proceedings, which have already been long drawn out and should proceed with as much expedition as is possible.
   
7. In a letter filed with his written submissions in respect of the competency of the appeal, Mr Chand raised three issues. One is that there be no enforcement action pending the outcome of the summons seeking judicial review of the District Court decision. No such action having been threatened in the past, I do not see any reason to believe that there would be enforcement action now while there is still a proceeding pending in this Court. The fact that the appeal is struck out does not alter that situation.
   
8. Secondly, he asks whether there are further appeal books to be filed. The answer to that question is that the material which has been filed by way of an expanded white folder appears on its face to be more than sufficient. Indeed, Ms Painter, for the respondent, has taken objection to the extensive nature of the material in that book. Mr Chand, however, says that it is all of the material before the Tribunal and he thought it appropriate to have the material before the Court. Given that it is now before the Court, I do not intend to make any further directions in relation to it. Appeal books are not required in summons proceedings.
   
9. Thirdly, and perhaps most importantly, Mr Chand seeks leave to file further written submissions in the review proceedings. He seeks that leave on the basis that he is now no longer able to obtain the services of Mr Patel of counsel, who had been assisting him on a pro bono basis, but hopes to have counsel to represent him at the hearing of those proceedings. Ms Painter does not object in principle to there being further written submissions, especially if prepared by counsel, nor do I think she takes objection to the date proposed, namely that they be filed by 14 June 2011, although she submits that an earlier date should give sufficient time.
   
10. Because there is still no counsel briefed in the matter it seems to me unlikely that it would assist to press for a date earlier than that proposed by Mr Chand. Accordingly, I intend to give him leave to file further submissions by 14 June 2011. I should add that, in his efforts to obtain counsel, it should be made clear to counsel that that date is fixed having regard to the date fixed for the hearing, which it is not intended to vary. If counsel is unable to comply with that timetable his or her obligation will be to decline to assist, if it is thought that further written submissions are needed. Further, if counsel is unavailable on the date fixed for the hearing, a similar principle should apply. Counsel's assistance would be welcomed, but applications to vacate the date fixed are likely to be opposed.
    
11. In those circumstances I make the following orders:
    

(1) Dismiss the appeal from the judgment of the District Court filed on 11 March 2010.

(2) Give leave to the appellants to file and serve written submissions in support of the proceedings under s 69 of the Supreme Court Act 1970 for review of the decision of the District Court judgment by 4pm on 14 June 2011.

(3) The costs of the Notice of Motion filed by the second respondent on 5 May 2010 seeking to have the appeal dismissed as incompetent be paid by the appellants; otherwise any costs incurred in relation to the appeal to date should be costs in the judicial review proceedings.

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