Allen, Anderson, Byng v Tricare; Tucker v Tricare

NCAT Consumer and Commercial|2016-11-14

Background

There are two sets of proceedings (RC 16/42122 and RC 16/41917), constituted by applications which were filed with the Tribunal on 20 September 2016.
In both sets of proceedings the applicants sought: 1. Orders under s 141 of the Residential (Land Lease) Communities Act 2013 (RLLC Act) including under s 141(8) to have the Tribunal resolve a dispute concerning the operation of s 141 in the circumstances of these particular cases; and 2. Compensation pursuant to s 141 arising out of orders for termination of homeowners' residential site agreements.
The current applications concern a dispute between the parties, which has been unresolved for the past several years. The respondent (which is a park owner and operator of a residential park) issued notices of termination to the applicants (who are residents in the residential park) in 2012. The respondent commenced proceedings in the Tribunal (or its predecessor) and the applications were heard and decided in 2014. An appeal to the Supreme Court occurred resulting in a decision that the proceedings be remitted to the Tribunal for rehearing.
I dealt with the rehearing earlier this year (see Tricare v Allen and others [2016] NSWCATCD 25) and on 6 April 2016 published a decision which contained the following orders: (1) The residential tenancy agreements of each of the respondents is hereby terminated; (2) The respondents will deliver up vacant possession of their respective residential sites on or before 20 September 2016; (3) Notwithstanding order 2, the orders for possession are suspended until the respondents receive payment in full, of the amounts determined in these reasons to be the values of the dwellings (or until payment in full is tendered) namely: Site 39 $60,000 Site 51 $85,000 Site 54 $20,000 Site 58 $45,000 Site 59 $40,000 (4) Once payment in full is made or tendered by the applicant to the respondents then in respect of those respondents who have received payment in full or been tendered payment in full the suspension of the order for possession is lifted; and (5) Liberty to renew.

The respondent's submissions

In summary the respondent submits that s 141 of the RLLC Act does not operate in the particular circumstances of these cases for the following reasons: 1. The previous proceedings have not been finalised. Accordingly there is no notice of termination for the purposes of the RLLC Act, and accordingly, no claim for compensation pursuant to s 141 of that Act can currently be made; 2. Section 141 of the RLLC Act does not apply by reason of s 141(9) in that arrangements have been made for the purposes of the sale of a home to the park owner; and 3. The applicants are estopped from pursuing a claim for compensation pursuant to s 141 of the RLLC Act under the Anshun principle.
The respondent elaborated upon the submission that the previous proceedings had not been finalised as follows: 1. The present applicants have filed a notice of intention to appeal to the Court of Appeal (that is an appeal from the decision of the Appeal Panel published on 19 September 2016) the effect of which is to grant to the applicants the option of pursuing an appeal within three months after 19 September 2016. The filing of such a notice precludes a conclusion that at this stage the previous proceedings decided on 6 April 2016 have been determined because the determination of those proceedings is dependent upon the pursuit of the appeal to the Court of Appeal and that Court's decision; 2. Accordingly, the respondent submits, at this stage the proceedings have not been determined. The relevance of that conclusion concerns how one interprets cll 6 and 8 of Sch 2 RLLC Act. As stated, Sch 2 deals with savings and transitional provisions and those two clauses are set out earlier in these reasons. 3. In this case the termination notices were issued in May 2012 and because the previous proceedings are proceedings to which cl 6 applies they are proceedings in respect of which s 141 of the RLLC Act does not operate; and 4. The effect of cl 8 is that the termination notices the subject of the previous proceedings are to be considered under cl 6 and therefore under the RP Act. There is no termination notice issued or taken to be issued under the RLLC Act to enable an application pursuant to s 141 of that Act to occur.
The respondent also submitted that s 141 does not apply by reason of s 141(9) in that arrangements have been made for the purposes of the sale of the homes of the applicants to the respondent. Section 141(9) is in these terms: (9) This section does not apply: (a) in the circumstances to which section 140 applies, or (b) to arrangements made for the purposes of the sale of a home to the owner or operator of the community.
The effect of the submission made by the respondent is that arrangements have been made between the parties for the purposes of the sale of the dwellings of the applicants to the respondent. The respondent made submissions concerning the meaning of the word "arrangements" and the respondent submits that in the present case the respondent has agreed to buy the dwellings of the residents. It was found at first instance (and not disturbed by the Appeal Panel) that the respondent had agreed to buy the applicants' dwellings. Accordingly, the respondent submits that given the agreement or commitment to buy the applicants' dwellings, there has been an arrangement for the purposes of the sale of a home to the owner or operator. The conclusion therefore is that the criteria in s 141(9)(b) are met and s 141 of the RLLC Act does not apply.
The respondent further submits that the applicants are estopped from now claiming compensation because such a claim is so connected with the subject matter of the previous proceedings as to make it unreasonable in the context of those proceedings for the claim not to have been pursued. This is the "Anshun" estoppel point referred to above.
The respondent submitted that the issue of compensation was so relevant in the previous proceedings that it was unreasonable for the applicants not to rely on it and continue to rely on it.
When the proceedings were first heard in the Tribunal (i.e. before the appeal to the Supreme Court) no application was made for compensation pursuant to s 128 of the RP Act. In the Supreme Court proceedings Beech-Jones J examined at some length s 128 of the RP Act. His Honour held that it was not necessary for him to decide the question of compensation under s 128 given the common ground that the residents' dwellings could not be relocated. His Honour did not conclude that no compensation was possible under s 128 and the Appeal Panel subsequently confirmed its view of the ability to seek compensation pursuant to s 128.
Having regard to the authorities and circumstances of this matter, the respondent submitted that to allow the applicants to now make an application for compensation when the matter was so relevant to the previous proceedings is not only unreasonable in the circumstances such that they are estopped from pursing such an application but also such an application would work an unacceptable injustice to the respondent. This is especially so when one considers the history of the litigation between the parties.
For the above reasons, the submission of the respondent was that s 141 of the RLLC Act does not operate in the particular circumstances of these applications.
The respondent sought an order that the applications be dismissed with costs.

Applicants' submissions

The applicants have made submissions in reply to the respondent's submissions and their effect is set out in the following paragraphs.
The applicants submit that the previous proceedings have been determined. They were determined on 19 September 2016 when the Appeal Panel published its decision. This is consistent with s 61 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) which provides that a general decision or a decision determining an external or internal appeal takes effect on the date on which it is given or such later date as may be specified in the decision.
The applicants are not entitled to compensation under s 128 of the RP Act because that section provides only for compensation where the resident relocates their dwelling either to a new residential site or elsewhere. In the context of these proceedings, that provision is not relevant because the applicant residents are unable to relocate and thereby keep their dwellings. Accordingly they are not entitled to compensation under s 128.
Unlike the RP Act, the RLLC Act makes specific provision for compensation where relocation cannot occur upon termination. That is provided for in s 141 of the RLLC Act.
In the context of these proceedings one has to have regard to cl 10 of Sch 2 of the RLLC Act which is set out again for convenience: 10 Compensation for closure If notice for closure or change of use under the repealed Act has been given and compensation to any residents affected has not yet been paid at the commencement of the relevant provisions of this Act, this Act applies in relation to the compensation.
In the previous proceedings the Appeal Panel found that the applicants could apply for s 141 compensation in fresh proceedings and the applicants rely upon the reasoning of the Appeal Panel contained in paragraphs 389 to 398 of the Appeal Panel decision.
The applicants have not received any form of payment from the respondent and as such the possible terms of dispute as envisaged by the Appeal Panel in the above paragraphs has not yet emerged. Accordingly, the applicants have withdrawn that aspect of their application pursuant to s 141(8) and have sought directions to put on their evidence in chief.
In response to that withdrawal, the respondent has put forward its own application and has put forward arguments contrary to the findings made by the Appeal Panel in paragraphs 389 to 398. In doing so, the applicants contend that an argument of this nature, in these proceedings, is an abuse of process. If the respondent seeks to argue against the findings of the Appeal Panel, the applicants contend that the respondent should do so in the Court of Appeal.
With respect to the respondent's argument that s 141(9)(b) applies, the applicants say that that subsection does not apply to them given that they have never offered to sell their dwellings at any time. The reference to an arrangement in that subsection clearly refers to a contract or agreement (see s 7(3) of the RLLC Act) and here there is no contract for sale between parties and nor has there ever been any agreement from the residents to sell their dwelling to the respondent.
Although the Appeal Panel found that the respondent had "agreed to buy" the dwellings of the applicants, that does not constitute compliance with what is envisaged by s 141(9).
The applicants dispute the respondent's assertion concerning Anshun estoppel. They say that a claim for compensation was not available under s 128 as they were not relocating their dwellings or that the monies to be tendered by the respondent is in fact compensation in broad terms. In any event, the applicants have not received compensation and they are therefore entitled to claim compensation under s 141.
In conclusion, the applicants contend that the submission of the respondent that s 141 does not operate is erroneous and against the express findings of the Appeal Panel.

Decision

I am of the view that these applications should not be dismissed for the reasons set out below. I intend to make directions for the parties to file and serve evidence. I am also of the view that the stay on the operation of the orders made on 6 April 2016 should be lifted for the reasons which appear later in these reasons.
The analysis of the Appeal Panel in the previous proceedings is, in my respectful view, correct and in coming to my conclusions in these reasons I adopt the reasoning of the Appeal Panel.
In particular, my views are as follows: 1. The effect of the previous proceedings was to require the current applicants (i.e. the residents) to give vacant possession of their residential sites to the current respondent (the operator) provided the respondent makes payment, or tenders payment, of the amounts identified in the orders made on 6 April 2016. There was no entitlement to compensation under s 141 of the RLLC Act in the previous proceedings by reason of the operation of cll 6 and 8. This view is expressed in par 386 of the Appeal Panel decision; 2. However, for the reasons given by the Appeal Panel (see in particular pars 369, 370 and 383) cl 10 of the RLLC Act applies to the present proceedings but not to the previous proceedings. The effect of cl 10 is to entitle the applicants to compensation under s 141 of the RLLC Act. I respectfully adopt the reasoning set out in the Appeal Panel decision particularly from par 389;
This conclusion has the consequence that in the particular circumstances of the dispute between the parties, the notices of termination have had two effects. They were notices for the purposes of the previous proceedings to be considered under the RP Act by reason of cll 6 and 8 leading to the consequence expressed in the orders made on 6 April 2016 in the previous proceedings. The notices were also notices which in the present proceedings, by the operation of cll 8 and 10, have the effect that compensation is to be determined under the RLLC Act. The relevant provision of that Act in the context of the present proceedings is s 141. This is the view of the Appeal Panel as expressed in pars 396 and 398.
Section 141 requires the compensation to be assessed having regard to the matters set out in that section.
One issue which the parties did not address in their submissions was the effect of s 141(3). In summary that subsection includes provision for compensation to be payable "in advance of relocation". In the circumstances of these proceedings given the effect of cll 6, 8 and 10 and given the existence of the orders made on 6 April 2016 (which were affirmed by the Appeal Panel) the result is that relocation (in the sense of requiring the applicants to give vacant possession to the respondent) may occur prior to payment of compensation provided that the amounts identified in the orders of 6 April 2016 are paid or tendered.
I will now turn to the respondent's submissions.
The respondent's first submission to the effect that s 141 does not apply by reason of cl 6 (and that cl 10 is not engaged) is a submission contrary to the reasoning of the Appeal Panel and for the reasons which I have given above is a submission which I do not accept. Even if (as the respondent contends) the previous proceedings have not been determined, the present proceedings engage cl 10 and thus s 141. However, it is my view that the submission of the applicants is to be preferred namely that by reason of s 61 of the NCAT Act the previous proceedings have been determined. The respondent referred to the decision of the Court of Appeal in Cai v Zheng [2009] NSWCA 13 to support the submission that the previous proceedings have not been determined and that therefore cl 6 applies. In my view, that decision does not assist in considering the effect of the transitional provisions in the RLLC Act in the present proceedings.
The second submission of the respondent was to the effect that s 141(9) is engaged because arrangements have been made for the purposes of the sale of the homes of the applicants to the respondent. Those arrangements were the orders of 6 April 2016. In my view, the reference to "arrangements" refers to arrangements which have been reached mutually between the operator and the residents. If the operator were to unilaterally arrange to purchase the home of a resident (in the sense of making an offer to purchase) and thereby cause s 141 to be inoperative, that would appear to have the effect of enabling an operator to effect a sale on terms unacceptable to the resident and also on a basis which is unsupported by evidence as to the value of the resident's home. Although the RP Act permitted an operator to acquire a home unilaterally in some circumstances, that could only occur if the amount which the operator agreed to pay for the resident's home was an amount which the Tribunal was satisfied was the value of the resident's home. Thus, the resident was protected by the requirement for the amount to be to the satisfaction of the Tribunal.
The respondent referred to the fact that it has agreed to buy the applicants' homes as recorded in par 145 of the Appeal Panel decision. That finding was made in the context of considering s 113 of the RP Act which involved the Tribunal being satisfied (in the circumstances of the previous proceedings) that, either the park owner had agreed to buy the dwelling from the resident at a price no less than its value, or in the alternative, that the park owner and the resident have reached an acceptable negotiated settlement. Satisfaction concerning the second basis clearly involved the park owner and resident mutually reaching an agreement. On the other hand, satisfaction of the first basis, namely that the park owner has agreed to buy the dwelling was determined by the Appeal Panel to be in the nature of a unilateral commitment. In the context of assessing the meaning of s 141(9)(b) the requirement of the Tribunal is to interpret the reference to "arrangements". Clearly, that expression means arrangements reached mutually between operator and resident. I am of the view that "arrangements" in that context does not mean a unilateral commitment by the operator to purchase the home of a resident. The essential reason for this view is that it is impossible to concede that the legislature would have intended that an operator could offer any amount (no matter how inadequate) and thereby bring about the ouster of s 141.
The respondent sought to rely upon a dictionary definition of "arrangements" and to the decision of the Court of Appeal in House Of Peace Pty Ltd & Anor v Bankstown City Council [2000] NSWCA 44 which, to some extent, supports the use of dictionaries in assisting to construe the meaning of an ordinary word. However, Mason P in that decision also drew attention to the limitations on the use of dictionaries and said that dictionaries "can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose" (par 28). Although the word "arrangements" may involve in some contexts the notion of one party unilaterally arranging or committing to do something, that is not the sense it is used in s 141(9) in my view.
Counsel for the respondent took me to a number of cases concerning the estoppel submission. These included Port Of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, Henderson v Henderson (1843) 67 E.R, Tomlinson v Ramsey Food Processing Pty Limited (2015) 98 ALJR, Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118, Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 and Mamo v Surace (2014) 86 NSWLR 275.
As was stated in Mamo v Surace the particular circumstances of each case must be considered (par 77). Here the previous proceedings were commenced a considerable time before s 141 came into effect (which was on 1 November 2015) but s 141 was in effect when the previous proceedings were heard and decided in early 2016.
The previous proceedings were required to be determined in accordance with the RP Act (see par 363 of the Appeal Panel Decision). The applicants could not have obtained compensation under s 141 in the previous proceedings (see par 379 of the Appeal Panel Decision).
Therefore I do not accept that the applicants are now estopped from bringing these proceedings for compensation and I do not think that the Anshun estoppel submissions put by the respondent are made good. The claims for compensation now brought in the present proceedings involve different considerations from the considerations which the Tribunal was required to consider in the context of the previous proceedings. The matters to be considered under s 141 are not matters which the Tribunal was required to consider in the previous proceedings, namely the value of the residents' dwelling. Accordingly, I do not accept the respondent's submission that the issue of compensation was so relevant in the previous proceedings that it would be unreasonable for the applicants to be allowed to pursue the present proceedings for compensation.
The result is that the respondent's application to have these proceedings dismissed is refused.
At the hearing counsel for the applicants indicated that the applicants could provide their evidence in chief within approximately four weeks including expert evidence. Given the orders I have made separately for a mediation to take place and that mediation has been directed by the Principal Member conducting the mediation to take place on 15 December 2016, I propose to make an order to the effect that if the mediation fails, then the evidence in chief will be provided by the applicants within six weeks of 15 December 2016 (the extra two weeks is given in recognition that the Christmas/New Year period will interrupt progress). The evidence of the respondent will follow within four weeks thereafter.

The stay application

The respondent submits that the stay should be lifted whereas the applicants submit that the stay should continue.
The applicants submit that if they accept the money set out in the order of 6 April 2016 from the respondent then s 141(9) applies and they would not be able to obtain compensation under s 141.
In my view, s 141(9) is limited in its effect to an arrangements made mutually by the parties for the purposes of a sale of a home. The decision in the previous proceedings found that the respondent had agreed to buy the dwellings from the residents at a price no less than their value and that that could mean that the residents were "dragooned" into the sale of their dwellings. The orders that were made on 6 April 2016 were the consequence of the Tribunal's finding that the respondent was able, under the RP Act, to unilaterally acquire the dwellings under certain conditions. If the respondent now tenders the amounts identified in those orders and if the residents accept the amounts (with the consequence that they will be obliged to give possession to the respondent) there is, in my view, no arrangement of the kind identified in s 141(9). This is so because the applicants have also commenced proceedings for compensation (namely the present proceedings) which remain unresolved. Thus, there are no arrangements for the purposes of a sale of a home as envisaged by s 141(9) because the present proceedings for compensation have not been decided and the fact that the residents might accept the amounts identified in order 6 of the orders made 6 April 2016 does not have the effect that arrangements for the purpose of a sale have been made. The parties may be in a position where their differences have been partially resolved, namely that part which achieves for the operator vacant possession and requires the residents to yield possession, but what remains unresolved is the compensation under s 141.
The general principles for granting or continuing a stay are well known. Generally, the party having the benefit of an order is entitled to have the benefit of the order. The onus is on the applicant for a stay to make out a case that it is appropriate for the Tribunal to make or to continue the order for a stay. The argument for the stay as articulated by the applicants concerns the consequential effect of accepting the money identified in the orders of 6 April 2016. I have already dealt with that issue above.
Given the above analysis, I do not think that these proceedings would be rendered nugatory if a stay is not granted. In all of the circumstances and having regard to the overall interests of justice, and the view of the Appeal Panel which refused to remit the previous proceedings back to the Tribunal for consideration of the applicants' compensation claim under s 141, it is my conclusion that the appropriate decision is not to grant a stay.
There is also a question as to whether I have authority to stay the operation of the orders of 6 April 2016. The existing stay was made by consent of the parties. The Appeal Panel confirmed the orders of 6 April 2016 and it is arguable therefore that the orders of 6 April 2016 are also orders of the Appeal Panel. In those circumstances, any application for a stay on the operation of the orders would be appropriately considered, not by me, but either by the Appeal Panel or by the Court of Appeal.
I do not think it is appropriate to make an order for costs in respect of this application. The question of costs should be determined at the final hearing of these proceedings.

Orders

The Tribunal makes the following orders: 1. The application of the respondent to dismiss the present proceedings is refused; 2. The applicants are to file and serve their evidence in chief (including expert evidence) by 31 January 2017 but this order only operates if the proposed mediation to be held on 15 December 2016 does not successfully resolve the issues between the parties; 3. The respondent is directed to file and serve its evidence in response to the evidence in chief of the applicants within four weeks after the receipt of the applicants' evidence; 4. The proceedings are to be listed in March 2017 for directions and for the appointment of a hearing date on a date to be fixed by the Registrar; and 5. The order made on 10 October 2016 staying the operation of the orders 2, 3 and 4 of the orders made on 6 April 2016 is set aside and the stay is lifted. S Westgarth Deputy President Civil and Administrative Tribunal of New South Wales 29 November 2016 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 January 2017

At a glance

Court

Decision date

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Judgment (6 paragraphs)

Cases Cited (8)