Allen & Ors v TriCare

The Residential Parks Act

1. Two concepts of importance to explaining the rights of residential park residents are "residential tenancy agreements" to which the RPA applies and "residential site agreements".
2. Subsection 4(1) defines a "residential tenancy agreement" as "any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence" regardless of whether or not the right of occupation is exclusive, the agreement is express or implied or is oral or in writing. Subsection 5(1) of the RPA provides that the Act applies to "residential tenancy agreements" under which: "(a) The residential premises consist of the residential site, or a movable dwelling on a residential site, and (b) the resident occupiers of residential premises at the resident's principal place of residence, and (c) in the case of an agreement entered into after the commencement of this section, the resident has the approval of the park owner or park manager to occupy the premises as the resident's principle place of residence."
3. Subsection 4(1) of the RPA defines a "residential site" to mean a "site within a residential park that is used or intended to be used for the installation of a movable dwelling". A "residential park" means a caravan park or a "manufactured home estate".
4. Subsection 4(1) defines a "residential site agreement" to mean a "residential tenancy agreement" under which: (a) The park owner grants to the resident: (i) a right to install on a residential site a relocatable home or a registered movable dwelling with a rigid annex attached to it (being a relocatable home or registered movable dwelling owned by the resident), and (ii) a right to use the home or dwelling as a residence; and (b) the resident occupies the premises as the resident's principal place of residence, and (c) in the case of an agreement entered into after the commencement of s 5, the resident has the approval of the park owner or park manager to occupy the premises as the resident's principal place of residence, but does not include such a residential tenancy agreement with respect to land: (d) that is within a Crown reserve, if the agreement was entered into after 15 December 1994, unless it is an agreement arising from a lease or licence under section 102 of the Crown Lands Act 1989 to which the Minister administering that Act has granted consent, or (e) that is reserved or dedicated under the National Parks and Wildlife Act 1974."
5. Each of the plaintiffs occupy their dwellings at the park under a "residential site agreement".
6. Part 12 of the RPA deals with the termination of residential tenancy agreements (including residential site agreements). Division 2 sets out the grounds for the termination of a residential site agreement. Leaving aside frustration, Division 2 only enables a park owner to give notice of termination of a residential site agreement on five bases, namely, non-payment of rent (s 98), the relevant dwelling becoming dilapidated (s 99), serious or persistent breach of residential site agreement (s 100), the necessity to undertake repairs and upgrading (s 101), and to enable a park owner to pursue a change of use (s 102).
7. It was this last ground that was invoked by TriCare in this case. Two aspects of s 102 should be noted. First, s 102(1A) precludes the giving of a notice of termination on the ground of a change of use that required development consent under the Environmental Planning & Assessment Act 1979 unless a consent was obtained. It is common ground that TriCare had obtained that consent. Second, s 102(5) provides that "a resident whose residential site agreement is terminated under this section is entitled to be paid compensation by the park owner in accordance with s 128". Section 128 is addressed below.
8. Division 3 of Part 12 addresses the grounds for the termination of a residential tenancy agreement, that is, not a residential site agreement. It need not be considered further.
9. Even though the provisions in Division 2 of Part 12 just identified specify the grounds upon which a notice can be given to terminate a residential site agreement, the agreement is not terminated until one of the events specified in s 95 of RPA occurs. Relevantly, where a notice of termination has been issued then the residential tenancy agreement terminates either when the resident delivers up vacant possession or NCAT makes an order under s 113 terminating the agreement (s 95(a)(ii)). None of the plaintiffs delivered up vacant possession and thus TriCare applied to NCAT.
10. Section 113 is found within Division 5 of Part 12 which is entitled "Termination of Residential Tenancy Agreements by Tribunal". It provides: "113 Application to Tribunal by park owner for termination and order for possession (1) If: (a) a park owner or a resident gives notice of termination of a residential tenancy agreement under this Part, and (b) the resident fails to deliver up vacant possession of the residential premises on the day specified, the park owner may, not later than 30 days after that day, apply to the Tribunal for an order terminating the agreement and an order for possession of the premises. (2) The Tribunal must, on application by a park owner under this section, make an order terminating the agreement if it is satisfied: (a) in the case of a notice given by the park owner on a ground referred to in section 98, 99, 100, 101, 102, 104, 105, 106 or 110: (i) that the park owner has established the ground, and (ii) if the ground is a breach of the residential tenancy agreement, that the breach, in the circumstances of the case, is such as to justify termination of the agreement, or (b) that the resident has seriously or persistently breached the residential tenancy agreement, or (c) that, having considered the circumstances of the case, it is appropriate to do so. (3) Except as provided by section 115, the Tribunal must not make an order terminating a residential tenancy agreement under this section unless it is satisfied that notice of termination was given and that it was given in accordance with this Part. (3A) The Tribunal must not make an order for possession as a consequence of an order terminating a residential tenancy agreement pursuant to a notice given by the park owner on the ground referred to in section 102 (Termination by park owner for change of use) unless it is satisfied that: (a) compensation for the cost of relocating the dwelling to its new location has been determined under section 128, or (b) the park owner has agreed to buy the dwelling from the resident at a price no less than its value, as determined by the Tribunal under section 130A, or (c) the park owner and the resident have reached an acceptable negotiated settlement, and that agreement is bona fide. (4) If the Tribunal makes an order under this section terminating a residential tenancy agreement: (a) the Tribunal must also make an order for possession of the residential premises specifying the day on which the order takes effect, and (b) the Tribunal may, if the circumstances of the case so justify, also make an order that the resident not be a resident under any other residential site agreement in relation to the park and not be a resident of any other residential premises in the residential park."
11. Subsection 113(3A) imposes constraints on NCAT's power to order termination of a residential tenancy agreement on the basis of a termination by the park owner on the ground referred to in s 102, i.e. a change of use. The constraint relevant to this matter is that imposed by s 113(3A)(a) namely the necessity for NCAT to be "satisfied" that "compensation for the cost of relocating the dwelling to its new location has been determined under section 128". This is a narrower requirement than, say, NCAT being satisfied that compensation is to be paid "in accordance with s 128" which is the scope of s 102(5) and similar provisions noted below.
12. Section 113(3A) was introduced into the RPA by the Residential Parks Amendment (Statutory Review) Act 2005 (No 117 of 2005) (the "Amending Act"). The Amending Act also included s 102(2A) noted above, as well as s 130A noted below.
13. Division 6 of Part 12 deals with recovery of possession of residential premises the subject of a residential tenancy agreement. It was common ground that an order for possession from NCAT was required.
14. Division 7 of Part 12 is entitled "[c]ompensation for termination of a residential site agreement". Section 127 within Division 7 confers on a park owner the option of issuing a notice requiring the resident to relocate to a different residential site in the same residential park or another park operated by the same park owner, instead of issuing a notice of termination under s 101, s 102, s 104 or s 118.
15. Section 128 within Division 7 deals with compensation for termination or relocation. It is referred to in s 113(3A)(a). It provides: "128 Compensation for termination or relocation (1) The amount of compensation that a resident is entitled to be paid by a park owner under this Division is to be fixed by agreement between the resident and the park owner or by an order of the Tribunal. (2) An application for such an order may be made, by the park owner or by the resident: (a) in any proceedings on an application under section 113, being an application made on a ground referred to in section 101, 102 or 104, or (b) in any proceedings on an application referred to in section 118 in respect of a residential site agreement, or (c) in any proceedings commenced within 6 months after the resident vacates a residential site in compliance with a notice or order referred to in section 101, 102, 104, 118 or 127. (2A) An application for a further such order may be made by the resident on the ground that the compensation fixed by any earlier order or orders is inadequate, having regard to the matters referred to in subsection (3) or (4), as the case requires. (3) In fixing the amount of compensation to which a resident is entitled in connection with the relocation of a dwelling to a new residential site, whether in accordance with the requirements of a notice under section 127 or otherwise, the Tribunal must have regard to the following matters: (a) the reasonable costs of removing the dwelling from the old residential site (including the costs of disconnecting any services), (b) the reasonable costs of transporting the dwelling, and the possessions of its residents, to the new residential site, (c) the reasonable costs of installing the dwelling at the new residential site (including the costs of connecting to the available services), (d) the reasonable costs of repairing any damage to the dwelling arising from its relocation, (e) the reasonable costs of landscaping the new residential site so as to bring it up to the condition of the old residential site, (f) the value of any financial or other assistance that the park owner has given to the resident in connection with the relocation. (4) In fixing the amount of compensation to which a resident is entitled otherwise than in connection with the relocation of a dwelling to a new residential site, the Tribunal must have regard to the following matters: (a) the reasonable costs of removing the dwelling from the old residential site (including the costs of disconnecting any services), (b) the reasonable costs of transporting the dwelling to its new location or disposing of the dwelling, (c) the reasonable costs of transporting the possessions of the residents of the dwelling to their new place of residence (whether at the dwelling's new location or some other location), (d) the reasonable costs of repairing any damage to the dwelling arising from its relocation, (e) the value of any financial or other assistance that the park owner has given to the resident in connection with the relocation. (5) Compensation is not payable under subsection (3) (d) or (4) (d) for an amount in excess of the value of the dwelling. (6) Compensation is not payable under subsection (4) (b) or (c) for a distance of travel of more than 500 kilometres. (7) This section operates to the exclusion of any provision of any Act that limits the amount for which the Tribunal can make an order. (8) In this section: dwelling means a relocatable home or a registrable moveable dwelling with a rigid annexe attached to it."
16. Subsection 128(2) identifies a number of avenues by which an application can be made for compensation by a resident as a consequence of a termination or a relocation. The first is in a proceeding on an application under s 113 (s 128(2)(a)). The second is if an application for compensation is made in a proceeding on an application under s 118 (s 128(2)(b)). Subsection 118(1) enables NCAT to terminate a residential tenancy agreement on the basis that the park owner would "in the special circumstances of the case suffer undue hardship" if the agreement was not terminated. If that occurs s 118(5) provides that a "resident whose residential site agreement is terminated under this section is entitled to be paid compensation by the park owner in accordance with s 128". As is the case with s 102(5), this provision appears to contemplate a wider form of compensation being granted than that contemplated by s 113(3A), which is confined to compensation for the cost of the relocation of a dwelling to its new location.
17. The third means of invoking s 128 is in proceedings commenced by a resident within six months after they vacate their site in compliance with a notice or order referred to in s 101, s 102, s 104 and s 108 and s 127 (s 128(2)(c)). The scope of s102(5) has already been addressed. The other provisions each confer a similar entitlement to apply for compensation to that conferred by s 102(5) and s 118(5) (s 101(3), s 104(3), and s 127(3)).
18. Subsection 128(3) specifies various mandatory factors relevant to an assessment of the compensation to which a resident is entitled in connection with the relocation of their dwelling to a new residential site. Sub-section 128(4) specifies a number of mandatory factors relevant to an assessment of the compensation to which a resident is entitled otherwise than in connection with the relocation of a dwelling to a new residential site. This provision appears to be principally, but perhaps not exclusively, directed to a scenario involving either the relocation of the dwelling to a "new location" which is not a residential site (s 128(4)(b)), or the disposal of the dwelling in which case one factor to be considered is the reasonable cost of that disposition (e.g. sale and advertising costs) (s 128(4)(b)).
19. The various factors listed in s 128(3)) or s 128(4) do not expressly accommodate the park owner compensating a resident in an amount representing the value of their dwelling. In the case of relocation to either a new residential site or new location the owner retains the dwelling and in the case of a disposal the owner would ordinarily receive the proceeds of sale from the purchaser of the dwelling. It may be that the factors listed in s 128(3) and s 128(4) are not exhaustive of the matters to which regard can be had in assessing compensation in the circumstances to which they apply so that, in a particular case, a park owner could be required to pay compensation representing the disposal cost of a dwelling (as well as other costs referred to in s 128(4)). It is not necessary to decide that issue.
20. However, as will be explained, the critical question in this case is whether NCAT was properly satisfied of the criteria in s 113(3A), namely that it had determined "compensation for the cost of relocating the dwelling to its new location" under s 128. As already noted, this phrase is narrower than other provisions which simply refer to an entitlement to be paid compensation by the park owner "in accordance with s 128" (e.g. s 102(5)). Subsection 113(3A)(a) contemplates an assessment of compensation under s 128 referable to the relocation of the resident's dwelling to "its" new location. This location could either be "a new residential site" as contemplated by s 128(3), or a "new location" which is not such a site as contemplated by s 128(4)(b). However, s 113(3A)(a) will not be satisfied by an assessment of the amount a resident might notionally receive if required to dispose of their dwelling with some allowance for the resident to relocate. It is not clear whether subsection 113(3A)(a) can only be satisfied if a location to which the dwelling is to be relocated has been identified. It may be that a new location must be identified so that a proper measure of, for example, transport costs can be undertaken. Alternatively, it may be sufficient if all that is known is that the dwelling will be relocated even if the new location is not yet identified. In such a case an assessment based upon a likely cost within the appropriate radius (s 128(5)) may be permissible. It is not necessary to consider this further because s 113(3A)(a) cannot be satisfied if it is known that the dwelling will not be relocated at all. In such a scenario there is no place that answers the description "its location" in s 113(3A)(a).
21. This conclusion is of particular significance to this case because it was common ground throughout the proceedings in NCAT that the plaintiffs' dwellings could not be relocated. It is arguable that NCAT did not reach a state of satisfaction under s 113(3A)(a) (see [44]) but, even if it did, that was only after it had assessed compensation payable to the plaintiffs by attempting to apply s 128(4) and making provision for TriCare to pay to the plaintiffs an amount that they would have received if they had disposed of their dwellings after having removed them from the park. This was not an assessment that satisfied s 113(3A)(a).
22. It follows that, in a case such as this where a dwelling is not to be relocated, then termination under s 113(2) on the grounds of a change of use to the park can only be ordered if either s 113(3A)(b) or (c) are satisfied. Section 113(3A)(c) requires a consensual arrangement. No consensus was arrived at in this case. However, its presence throws light on what is meant by "agree" in s 113(3A)(b). It suggests that s 113A(3)(b) is not adverting to an agreement between a park owner and the residents, but to a park owner who unilaterally agrees to buy dwellings from the residents at not less than the price determined by NCAT under s 130A.
23. Thus, a park owner who seeks to terminate a residential site agreement on the basis of a change of use, but is faced with a resident with whom no agreement can be reached and whose dwelling cannot be relocated, can nevertheless satisfy s 113(3A)(b) if they persuade NCAT that they have agreed to purchase that dwelling for not less than the price determined under s 130A. The mechanism by which NCAT may be so satisfied is not entirely clear, but presumably it includes the situation where NCAT requires the delivery by the park owner of a signed contract to purchase the dwelling for a particular price with an undertaking to keep the offer open for a specified period.
24. This discussion leads to s 130A which provides: "130A Tribunal may value dwellings to facilitate sale (1) The object of this section is to enable the Tribunal to assist a park owner and a resident to come to an agreement as to the value of the resident's dwelling where there is a proposed sale of the dwelling from the resident to the park owner. (2) The Tribunal may, by order, determine the value of the resident's dwelling and, for that purpose, may obtain a valuation of the dwelling, or seek advice as to the valuation of the dwelling, from one or more registered valuers. (3) An application for such an order may be made by the resident or by the park owner, or by both. (4) The Tribunal's determination may not have regard to the dwelling's location. (5) The Tribunal's determination of the value of the resident's dwelling is advisory only, and does not bind the resident or the park owner or affect any agreement between them for the sale of the dwelling. (6) Any costs payable to a registered valuer for any valuation or advice provided to the Tribunal for the purposes of proceedings under this section are payable by the Tribunal, except to the extent to which the regulations provide that the parties to the proceedings are to pay such costs. (7) The regulations may provide that the parties are to pay such costs: (a) in such proportions as are agreed between them or, failing agreement, as are ordered by the Tribunal, or (b) in any other manner prescribed by the regulations. (8) In this section: dwelling means a relocatable home or a registrable moveable dwelling with a rigid annexe attached to it. registered valuer has the same meaning as it has in the Valuers Act 2003."
25. There is nothing in s 130A which precludes applications being made for a valuation in proceedings under s 113. The efficient disposition of such applications suggests that that should occur. To the extent that there is any doubt about this, resort may be had to the Second Reading Speech to the Amending Act in which the relevant Minister stated that s 130A would enable "issues [concerning the valuation of the dwelling to be brought] to the attention of the Tribunal when a park owner seeks to regain possession at the end of the process" of termination (NSW Legislative Assembly Hansard, 8 November 2005 at p 62; Interpretation Act 1987, s 33).
26. Subsection 130A(5) provides that the outcome of a valuation process is not binding on either the resident or the park owner, but that does not deny a valuation any legal significance. An order by NCAT determining the value of a resident's dwelling represents a floor price for it to consider in its assessment of whether a park owner has satisfied s 113(3A)(b). In particular, if the park owner has not "agreed" to purchase a dwelling for not less than the amount that NCAT has determined, then NCAT cannot be appropriately "satisfied" under that provision, and it cannot ground a basis for making an order terminating the residential site agreement.
27. Section 130A(2) requires NCAT to make an assessment of the "value of the resident's dwelling". Subsection 130A(4) precludes consideration being had to the dwelling's location. However, the valuation can be taken to include the rights attached to the dwelling under the RPA, such as the right of quiet enjoyment, rights of alienation and the protections on defeasibility afforded by Part 12 itself. In the ordinary course, it is to be expected that the value of a dwelling determined under s 130A would be different and probably exceed the proceeds of disposal of the dwelling if it were to be removed from the site and sold.
28. The result is that s 113(3A) imposes a significant burden on park owners who seek to terminate residential site agreements to pursue a change of use. Subsection 113(3A)(a) can only be satisfied if a resident's dwelling is to be relocated to "its" new location. It does not contemplate residents becoming homeless. Failing that, the park owner either has to agree to purchase the dwelling for not less than the price determined by NCAT (s 113(3A)(b)) or reach a consensus with the resident (s113(3A)(c)).

TriCare's application and the Tribunal's decision

1. At the hearing of these proceedings the Court was provided with copies of NCAT's decision, as well as the transcript of the hearing and the exhibits. To the extent that the Court is addressing a complaint of error of law on the face of the record, it is confined to considering the documentation initiating the application, NCAT's orders and its reasons (Supreme Court Act 1969; s 69(4); see Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531 at [89]). However, the plaintiffs also allege that NCAT committed jurisdictional error. In considering that complaint the Court can, subject to the applicable procedural and evidentiary rules, take account of any relevant material placed before it (Craig v State of South Australia [1995] HCA 58; 184 CLR 163 at 176). In the discussion that follows, I have had regard to material that extends beyond the initiating application, NCAT's orders and its decision. I have done so in a context where I am considering and upholding a complaint of jurisdictional error.
2. As noted, throughout the hearing of the application before NCAT it was accepted by all parties that the plaintiffs' dwellings could not be relocated. NCAT recorded this common position in its decision (NCAT reasons at [21]). Despite this, in opening TriCare's case to NCAT, its counsel contended that s 113(3A)(a) could be satisfied by NCAT making an order for compensation by reference to s 128(4). In her opening, Counsel for the plaintiffs fixed upon s 128(1) and submitted that it conferred on NCAT a "complete discretion as to the amount of compensation that [NCAT] can fix in the first instance in respect of having these people relocated". Thus, during the opening, the matter in issue between the parties was the measure of compensation which should be awarded and not whether the residential site agreements should be terminated and orders for possession made.
3. To that end, each party produced valuation evidence. TriCare called evidence from a licensed real estate agent, Mr Kevin Price. NCAT recorded that the valuation methodology adopted by Mr Price assumed that each of the dwellings had been removed from the park and "auctioned off in a car park" (at [36]). The plaintiffs adduced evidence from a valuer, Mr Rutlidge. NCAT described the approach he adopted as a "direct comparison approach" (at [53]). NCAT recorded that Mr Rutlidge's valuations were "based on a capacity to occupy a site and the total figure included a right to occupy with the value of the building placed on a site if it were relocated" (at [54]). This approach appears to be generally consistent with s 130A.
4. As the hearing progressed the consensus amongst the parties that the matter should be approached by reference to s 113(3A)(a) and s 128 began to fracture. TriCare put forward an alternative case based on it satisfying s 113(3A)(b). It tendered a letter offering to purchase the plaintiffs' dwellings for various amounts. It submitted that enabled NCAT to be satisfied that s 113(3A)(b) had been met.
5. Counsel for the plaintiffs maintained the position that her clients sought an order for compensation under s 128(1). She also submitted, possibly in the alternative, that s 113(3A)(a) could not be satisfied as relocation could not occur, that s 113(3A)(b) was also not made out because "no order could be made to force these people to sell their properties", and as s 113(3A)(c) was also not satisfied the result was that "this Tribunal cannot order possession".
6. In its decision NCAT noted the submission by Counsel for the plaintiffs that the RPA did not allow it to make an order for termination "as it cannot make an order for compensation" (NCAT reasons at [19]). However it did not expressly address that contention. Instead it proceeded to address compensation under s 128(4). NCAT stated: "103. … Underneath its lack of precision, s 128 is based on an assumption that relocation must occur either to a new residential site under s 128(3) or some other location under s 128(4). The resident has to relocate to somewhere under s 128(4). The resident does not disappear into the ether. … 108 Underpinning s 128(4) is that on termination and the giving of vacant possession residents must go somewhere and must have a right to occupy somewhere else. That right to occupy somewhere else and any compensation allowed for is inherent in the s 128(4) factors that allow a compensation order in excess of the mere value of the dwelling. 109 The addition of the word 'disposal' to the statutory language at s 128(4)(b) was in a context where all other costs are treated as relocation considerations. It cannot mean that in a case where relocation is not possible the only compensation a resident should get is the disposal amount which would most probably be far less than those amounts Mr Price valued for the residents. It is not the object of the Act for the residents' rights to be treated so shabbily." (emphasis added)
7. Nevertheless, NCAT rejected the approach suggested by the plaintiffs of compensating to the "full value of having a dwelling on a comparable park" (NCAT reasons at [113]). Instead, NCAT determined an amount of compensation by taking the top of the range of values suggested by Mr Price, i.e. the disposal value, and then adding a further amount of $15,000 per dwelling calculated as follows: "121. … To this should be added for s 128(4) factors beyond the value of the dwelling for relocation factors rather than a factor that incorporates the value of the land subject of the site. Considering the dearth of evidence in relation to s 128(4) factors but that there is some evidence that some residents have been paid in excess of the value of their dwelling, the amount that each of the residents ought to be paid in excess of the value of their dwelling as compensation for the factors set out in section 128(4) is $15,000 each. This amount would not be affected the relative values of their dwellings as the other s 128 factors are more probably a fixed, or very similar sum for each resident." (emphasis added)
8. NCAT ultimately concluded: "123. … Having made an order as to compensation under s 128(4), the power for the Tribunal to terminate the site agreements under s 113 for the ground of change of use as provided for in s 102 is enlivened." On its face this paragraph does not record NCAT being satisfied of the criteria in s 113A(3A)(a), namely that "compensation for the cost of relocating the dwelling to its new location has been determined under s 128".
9. The figure of $15,000 referred to in the passage at [43] seems to be a reference to some form of average of the amounts received by other residents "in excess of the value of the dwellings". NCAT appears to have used this as a proxy for an assessment of amount referable to the "s 128(4) factors". There are two related difficulties with this.
10. First, in substance NCAT's approach did not constitute any assessment of the cost of relocating a dwelling but instead the costs incurred by a resident as a consequence of a disposal of the dwelling. The "some residents" referred to in the passage in [43] were not relocating their dwellings either. They were instead "disposing" of them by leaving them at the park. In the extract set out in [41] NCAT observed that all of the factors in s 128(4) other than disposal costs referred to in s 128(4)(b) are relocation costs. However, they are not necessarily the costs of relocating a dwelling to a new location. The costs referred to in s 128(4)(a) and (d) can be incurred if a dwelling is removed and repaired for the purposes of relocating it or for the purposes of disposing of it. The costs referred to in s 128(4(c) are applicable to either a relocation of a dwelling or its disposal in that in either case the resident will (hopefully) have a new home to go to.
11. Second NCAT's approach does not involve an assessment of the cost of relocating each of the plaintiffs' dwellings to its new location because they do not have such a location. In an earlier part of its decision NCAT observed that both parties before it had not "given the Tribunal any evidence of the quantum to be allowed for the factors in s 128(4)". This is not surprising. How could the parties assess the repair costs of removing a dwelling for relocation (s 128(4)(d)) and transporting the dwelling (s 128(4)(b)) if it was not being relocated? If NCAT was assessing compensation consequent upon a disposal of a dwelling then the approach it adopted to the "s 128(4) factors" may have been sufficient. However, it did not constitute an assessment of the cost of relocating the dwelling to "its" new location so as to satisfy s 113(3A)(a).
12. The plaintiffs make a number of complaints about the approach adopted by the NCAT, including that they did not have a proper opportunity in advance to address NCAT's methodology of determining compensation under s 128(4). However most of their complaints only emphasise that the relevant error in NCAT's approach was that it purported to assess compensation for relocation of a dwelling to its new location when no relocation was to occur. In substance NCAT determined an amount of compensation that represented the notional proceeds of a disposal of their dwelling and an assessment of costs consequential upon such a disposition. This measure of compensation did not satisfy s 113(3A)(a).
13. Before NCAT could order termination of a residential site agreement under s 113(1) it had to be "satisfied" of one of ss 113(3A)(a) to (c). Satisfaction of one of those matters was a jurisdictional fact upon which the making of NCAT's order depended (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [131] per Gummow J). In this case it only (arguably) purported to be satisfied of one matter, namely s 113(3A)(a). If satisfaction of s 113(3A)(a) was arrived at by NCAT taking into account irrelevant matters or misconstruing the provision then the "basis for the exercise of [its] power [was] absent" (R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432 per Latham CJ; see also Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs J), and it fell into jurisdictional error (Kirk at [72]).
14. NCAT ultimately concluded that "having made an order as to compensation under s 128(4) the power … to terminate the site agreements under s 113 for the ground of change of use as provided for in s 102 is enlivened" (see [44] above). As noted, NCAT did not expressly state that it was "satisfied that … compensation for the cost of relocating [each of] the [plaintiffs'] dwelling[s] to its new location" had been determined under s 128 as required by s 113A(3A)(a). Further, NCAT did not purport to determine an amount of compensation that answered that description. Alternatively, to the extent that it did so, it proceeded upon a misconception of what that required and took into account the irrelevant matters noted in [48]. On either view it follows that the basis for the exercise of NCAT's power was absent and it fell into jurisdictional error.
15. It is readily understandable how NCAT arrived at this position. As noted the opening position of the parties was that the making of an order under s 113(3A)(a) was not in issue. A doubt about that only emerged towards the conclusion of the hearing. NCAT recognised the apparent difficulties in attempting to apply s 128(4) to the circumstance where the plaintiffs' dwellings were not to be relocated, but were to remain at the park. It sought to achieve a fair result for the plaintiffs by awarding an amount above the disposal value of each dwelling. However the difficulties it experienced only highlighted that s 113(3A)(a) was not engaged so that no question of even attempting to apply s 128(4) or any other provision of s 128 truly arose.
16. It is also necessary to note what NCAT made of TriCare's attempted reliance on s 113(3A)(b). NCAT reasoned as follows: "111 I also do not accept [TriCare's] submission that the park owner has agreed to buy the dwelling from the resident at a price no less than its value [as] provided under s 113(3A)(b). There is no determination by the Tribunal under s 130A as required by s 113(3A)(b). I accept [Counsel for the plaintiffs] submission that s 130 of the RPA is voluntary and does not apply. The Second Reading Speech of the amending legislation makes plain that this section cannot be binding … 112 The object of s 130A is for the Tribunal to enable the parties to come to an agreement as to value. If anything is certain in this matter, it is that the parties have been unable to come to an agreement as to a value [of] the residents' dwelling. Section 130A does empower the Tribunal to seek an evaluation of the sites. Either party may apply to the Tribunal for a statement of value. But such a statement by way of an order is advisory only and 'does not bind the resident or park owner or affect any agreement between for the sale of the dwelling'. Residents did not seek an agreement under s 130A. I did not seek that evaluations were provided by way of expert evidence. I accept [Counsel for the plaintiffs' submission] that residents ought not be bound by an order as to valuation under s 130A for an agreement they did not seek."
17. NCAT's repeated emphasis on the non-binding effect of valuations under s 130A reflects the emphasis on that matter in the submissions made to it by Counsel for the plaintiffs. This is ironic in that the plaintiffs' best prospect of obtaining compensation in the range assessed by Mr Rutlidge was via s 130A and not via s 128. In any event it follows from what I have stated earlier that the non-binding nature of valuations was irrelevant to whether s 113A(3)(b) was satisfied. A valuation by NCAT under s 130A can be sought in proceedings under s 113. Once it is given, it is then a matter for NCAT to determine whether the park owner has agreed to buy the dwelling from the resident "at a price no less than its value" as determined under s 130A. A determination of that price will not bind the resident to accept it. There may be other factors they can bring to the negotiating table to increase the price.
18. The jurisdictional error that I have identified on the part of NCAT was only first articulated at the commencement of oral argument in this Court. Instead, the plaintiffs pleaded a number of specific complaints about the manner in which NCAT proceeded under s 128(4) including that, for example, it purported to apply the mandatory considerations referred to in s 128(4) even though they had no application to the facts before NCAT, and that NCAT attempted to apply s 128(4) by reference to the resident having a right to occupy some other place where the nature of that right and that other place was not identified. It is not possible to address these grounds separately as they are subsumed into the error of turning to s 128 in a case under s 113(3A) where relocation could not occur.
19. Counsel for TriCare took no issue with the fact that the jurisdictional error identified was not pleaded by the plaintiffs. However, he submitted that as a matter of discretion, relief should be refused because it was not a matter agitated before NCAT. However, as I have explained, while it was common ground at the commencement of the hearing before NCAT that compensation of some measure or other should be ordered under s 128, by the end of the proceedings Counsel for the plaintiffs submitted that an order under s 113(2) of the RPA could not be made.

Section 34 of the Civil & Administrative Tribunal Act 2013

1. From the time these proceedings were commenced, TriCare has repeatedly contended that they have been brought in the wrong forum. TriCare contends that the plaintiffs could have and should have pursued an internal appeal with the appeal panel of NCAT pursuant to Division 2 of Part 6 of the CAT Act.
2. Subsections 80(1) and (2) of the CAT Act conferred on the plaintiffs a right of appeal on any question of law against NCAT's decision and a right to seek leave to appeal "on any other ground". Subsection 80(3) of the CAT Act enabled the appeal panel to deal with an internal appeal by way of a new hearing, and even admit the tender of fresh evidence if it considered that those steps were warranted or appropriate. An appeal from decisions of the appeal panel to this Court is available with leave "on a question of law" (CAT Act, s 83(1)). That is a wider form of review than is available under s 69 of the Supreme Court Act 1969.
3. The time for the lodging of the appeal to the appeal panel was fourteen days from the later of the date the plaintiffs were notified of NCAT's decision, or given reasons for the decision (sub-rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014). This period expired on or around 17 September 2014. A power to extend that time is conferred by s 41 of the CAT Act. These proceedings were commenced on 3 December 2014.
4. Section 34 of the CAT Act provides: "34 Inter-relationship between Tribunal and Supreme Court (1) The Supreme Court may: (a) refuse to conduct a judicial review of an administratively reviewable decision if it is satisfied that, in all the circumstances, adequate provision is made for an internal review of the decision or an administrative review of the decision by the Tribunal under the Administrative Decisions Review Act 1997, or (b) refuse to conduct a judicial review of a decision of an external decision-maker if it is satisfied that, in all the circumstances, adequate provision is made for the review of the decision by the Tribunal by way of an external appeal, or (c) refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision. (2) This section: (a) permits, but does not require, the Supreme Court to refuse to conduct a judicial review of a decision on a ground referred to in subsection (1), and (b) does not limit any power that the Supreme Court has, apart from this section, to refuse to conduct a judicial review of a decision. (3) In this section: internal review of an administratively reviewable decision means an internal review of the decision conducted by or on behalf of an administrator under: (a) the Administrative Decisions Review Act 1997, or (b) any other Act instead of the Administrative Decisions Review Act 1997. judicial review does not include an appeal to the Supreme Court under this or any other Act."
5. This provision confirms the discretion this Court has to refuse to entertain judicial proceedings where "adequate provision" for internal review is available. The provisions noted at [57] easily meet that description.
6. In his affidavit, the plaintiffs' solicitor explained why an internal appeal to NCAT was not pursued: "The plaintiffs have not pursued an appeal according to the process set out in the Civil & Administrative Tribunal Act 2013 for the following reasons: (i) Counsel for the plaintiffs was overseas when the reserved decision of the Tribunal was received and the plaintiffs' barrister did not return to Chambers until 7 October 2014. (ii) The plaintiffs' solicitors had to obtain instructions from all of the residents who were parties to the Tribunal proceedings. (iii) Fresh applications had to be made on behalf of residents to the Legal Aid Commission NSW initially pursuant to s 33 Legal Aid Commission Act 1979. A written opinion of Counsel was also requested by the Grants Division of Legal Aid NSW before a decision was made to provide full grants of legal aid to all plaintiffs on 3 December 2014. (iv) By the time the written opinion of Counsel was provided and instructions received from all of the residents, the plaintiffs were out of time to commence any appeal pursuant to the Civil & Administrative Tribunal Act 2013 and the Civil & Administrative Tribunal Rules 2014."
7. Of itself, this is not an adequate basis for a party seeking to invoke this Court's supervisory jurisdiction without having first attempted to invoke the (more than) adequate internal appeals mechanisms provided for in the CAT Act. As noted, the CAT Act conferred a power to extend time to lodge an appeal. At the very least, an application for an extension should have been made before the plaintiffs approached this Court. If an application had been made then it can be expected that its determination would have involved a consideration of, inter alia, the nature of the interests affected, namely the plaintiffs' right to their homes, the reasons for the delay, the fact that the orders were still yet to expire, and the strength of the appeal. These plaintiffs would have had a strong case for the grant of any extension, notwithstanding the delay.
8. During oral argument, the Court queried with Counsel for the plaintiffs why an appeal was not filed in time while legal aid was being applied for. The Court was advised that funds were not available to meet the fees necessary to file an appeal as the cost would be "around three to four hundred dollars per client". In fact, given that it was only one set of orders made in respect of the current plaintiffs, it seems likely that it would be only necessary to file one appeal to cover all of them. The relevant filing fee is $396. In any event, the Principal Registrar of NCAT is conferred with a power to waive or postpone payment of the fees if there are "special reasons for doing so" (Civil and Administrative Tribunal Regulation 2013, reg 6(4)). An application for waiver or a postponement pending the outcome of the legal aid application or the appeal could have and should have been made to the Principal Registrar.
9. These matters weigh in favour of the Court dismissing the proceedings and leaving the plaintiffs to pursue their appeal rights under the CAT as they should have done in the first place. However, with some reluctance, I will not take that course. For the reasons already indicated, there was a jurisdictional error on the part of NCAT in dealing with the application. This error was so fundamental it meant that the proceedings wholly miscarried. In saying that I mean no disrespect to NCAT as that outcome was principally contributed to by the parties. It follows that, if the Court was to proceed to dismiss the proceedings and an appeal was pursued in the appeal panel, and no extension was granted then the plaintiffs would suffer a significant injustice affecting their rights over their homes. If an extension was granted, then ultimately the appeal would be allowed, and the appeal panel would have to determine the matter itself or remit the matter to NCAT in the first instance for a re-hearing. The delay involved in that course would be likely to be disadvantageous to both parties. The plaintiffs are entitled to know what is happening with their homes so that they can plan their lives. TriCare is entitled to an expeditious treatment of its application so that it can pursue its redevelopment if it is so entitled.

Relief

1. In light of the above, relief will be issued in the nature of certiorari setting aside NCAT's orders so far as they concern the plaintiffs and requiring the rehearing of TriCare's applications against them according to law. Three further matters should be noted.
2. First, one prejudicial aspect of the plaintiffs' decision to pursue proceedings in this Court rather than in the appeal panel is that it exposed the parties to a different costs regime. Subsection 60(1) of the CAT Act provides that each party to proceedings in NCAT is to pay their own costs, although there is power to depart from that position if "special circumstances" warrant it (s 60(2) and (3)). Having regard to that, TriCare's position can be preserved by the Court ordering that each party pay their own costs of these proceedings, although either party can apply to vary that order within the time provided for in Uniform Civil Procedure Rule ("UCPR") 36.16(3A) if they wish to be heard further.
3. Second, UCPR 59.10(1) required these proceedings to be brought within three months of the date of the decision. In fact, they were commenced one day late apparently because the plaintiffs' legal representatives mistook the date of the decision as the date of the letter sent to them by NCAT enclosing the decision. This excuse only begs the question as to what was happening in the meantime, a matter that has already been addressed. However, in light of the Court's other findings, the extension of time will be granted.
4. Third, at the hearing of the proceedings leave was granted to two residents to discontinue and adding a further person as a plaintiff. The plaintiffs will need to correct the record by filing an Amended Summons naming the correct parties within seven days hereof.
5. Accordingly, the Court orders: 1. The time for the commencement of these proceedings be extended pursuant to Uniform Civil Procedure Rule 59.10(2) up to and including 3 December 2014. 2. Within seven days, the plaintiffs file an Amended Summons naming the correct parties as plaintiffs. 3. The orders made by the NSW Civil and Administrative Tribunal dated 2 September 2014 in so far as they concern each of Sue Allen, Beryl Anderson, Kevin Byng, Lorraine Byng, Phillip Tucker and Judy Tucker be set aside. 4. The NSW Civil and Administrative Tribunal re-hear according to law the applications of TriCare (Hastings) Pty Ltd seeking orders under s 113 of the Residential Parks Act 1998 against Sue Allen, Phillip Tucker, Judy Tucker, Kevin Byng, Lorraine Byng and Beryl Anderson. 5. There be no order as to costs.

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: 17 April 2015