Arjunan v Neighbourhood Association DP No 285853

Background

1. The appellants are lot owners in a neighbourhood association constituted under the Community Land Management Act 1989 (NSW) ("the Act"). A management statement for the scheme applies to the 14 private lots and the common property encompassed by the scheme. The appellants own one lot in the scheme and brought proceedings the Consumer and Commercial Division claiming that various contributions levied against lot owners were excessive. They sought orders under s 83 of the Act to reduce those contributions.
2. On 28 September 2020, the Tribunal conducted a hearing in respect of that application. The Tribunal delivered its decision and reasons on 1 October 2020. It thoroughly examined the applicants' claims and, in respect of each of them, made clear findings that the applicants failed to demonstrate that any aspect of the contributions levied were excessive or, to use the words in s 83 of the Act, "too much".
3. A review of those reasons reveals no apparent or obvious error made by the Tribunal and we note that under the terms of s 83 of the Act the Tribunal, in any event, has a discretion to exercise as to whether any contribution should be varied.
4. After the appellants' claim was dismissed, the respondent sought its costs. The Tribunal determined that application on the papers and, on 10 November 2020, determined that the appellants should pay the respondent's costs of the proceedings in a fixed sum.
5. On 11 November 2020, the appellants first lodged an appeal and an application for a stay in respect of both the substantive decision and the costs decision. In addition, the appellants had lodged an application to the Consumer and Commercial Division to have it reconsider its decisions under s 53(4) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), which allows the Tribunal to deal with amendments and irregularities. That application was refused, but renewed by the appellants on 15 October 2020.
6. The appellants say that the second application was similarly dismissed, but not until 21 January 2021.
7. On 23 November 2020, the appellants, via Mr Arjunan, wrote to the Tribunal, relevantly, in the following terms "... further to my email below, I decided to pursue only my miscellaneous application under section 53(4) with NCAT. Given my health conditions and the stressful handling, I decided to withdraw my appeal application. Please confirm withdrawal and cancellation of hearing on stay (sic) scheduled for 27.11.20 …"
8. The Registry sent correspondence to the parties allowing for submissions as to whether the appeal should be dismissed on the basis that it was withdrawn, and allowing the parties to make submissions as to whether that issue could be determined on the papers. By order of the Deputy Registrar on 26 November 2020, the appeal was dismissed.
9. On 8 December 2020, the respondent lodged an appeal against the costs decision but only in respect of the Tribunal's decision to order costs in a fixed sum. As set out above, that appeal was successful and the Tribunal's reasons indicate that the appellants in this appeal participated in that process.

Scope and nature of internal appeals

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, an appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
3. Where the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a further qualification to the possible grant of leave in that we may only go on to consider a grant of leave in the broader sense if we are first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in that the appellants may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. We agree with the Appeal Panel in Collins v Urban where it said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."

An Appeal commenced out of time.

1. In Kelly v Szatow [2020] NSWSC 407, the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No 2) [2007] NSWCA 369 at [55].
2. The appellants bear the onus of demonstrating that strict compliance with the timeframe would work an injustice: see Gallo v Dawson (1990) HCA 30; 93 ALR 479 ("Gallo"). In Gallo, McHugh J stated at [2]: "[2] …The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'"

Should we extend time for lodging the Notice of Appeal?

Prejudice to the respondent

1. The respondent objected to the appellants being given leave to extent time to lodge the Notice of Appeal. In any event, we needed to consider whether it was appropriate to do so. The appeal cannot proceed unless we exercise the discretion conferred by s 41 of the NCAT Act to extend the period of time to lodge the appeal.
2. That discretion must be exercised judicially having regard to the "guiding principle" that the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36. The Tribunal is also to ensure that its practice and procedure are implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act, s 36(4).
3. The prejudice to the respondent if leave to extend time is granted is clear and significant. Not only had it had the benefit of the substantive decision below for six months prior to lodgement of the appeal, but it had also successfully conducted an appeal on the issue of costs. For reasons we will come to, the actual orders sought by the appellants remain unclear, meaning that if the appeal proceeds and succeeds, a new hearing would likely be required, with the attendant expense and delay that would cause.

The relative merit of the appeal

1. In terms of the relative merit of the appeal we will deal firstly with the challenge to the substantive decision. We note that, despite concessions made by the respondent, it is not the case that the appellants raise questions of law. Rather, other than challenging factual findings of the Tribunal, the appellants simply assert that the Tribunal misinterpreted the relevant provisions of the Act and their application to the management statement for the scheme. That raises an error of law, or more particularly an error in the application of the law but not a question of law, which is a different proposition: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13].
2. The existence of a question of law is "…not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself": TNT Skypak International (Aust) Pty Limited v Commissioner of Taxation (Cth) [1988] FCA 119; (1988) 82 ALR 175.
3. On that basis, the appellants would need leave to proceed, even if an extension of time to lodge the Notice of Appeal was granted. We should assess the likelihood that they might obtain such leave in weighing the relative merit of the appeal.
4. The appellants claim that there is an issue of general or public importance raised, in that the substantive decision is contrary to the decision of the Appeal Panel in Shonroo Pty Ltd v Community Association DP 270482; Casuscelli v Community Association DP 270482 and Shonroo Pty Ltd [2019] NSWCATAP 168. We disagree. Even if the appellants could establish that this was the case, which is by no means clear, the principles enunciated by the Appeal Panel in that matter, to the extent that they have a bearing on future decisions of the Consumer and Commercial Division, are untrammelled by a first instance decision in the Division.
5. As regards the costs decision, the appellants claim that the respondent "falsely claimed special circumstances" to establish an entitlement to an award of costs. Again, the appellants would require leave to agitate this argument on appeal. Further, it could, and properly should, have been raised during the conduct of the respondent's appeal from the costs decision. If necessary, the appellants should have lodged and maintained their own appeal whilst those proceedings were on foot and sought to have them heard together. They elected not to do so and were refused leave to raise the issues at the hearing of the respondent's appeal: Neighbourhood Association DP No 285853 v Kannapiran [2021] NSWCATAP 92 at [19].
6. We interpolate to note that the appellants also seek to raise an argument not made in the proceedings which are the subject of this appeal, as to the whether the respondent's lawyers had been properly retained. Again, they would need leave to do so in this appeal and, given the history of the matter, it is highly unlikely that they would be given leave to agitate the issue.
7. Whilst an appellate Tribunal may allow a point to be raised even though it was not raised at the trial, it will generally only do so if it is persuaded that evidence could not "have been given which by any possibility could have prevented the point from succeeding" Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438. As the High Court said in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; 60 ALR 68, [1985] HCA 28 at [7]: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

Ensuring that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings

1. Insofar as we are able, we have also tried to determine the amount in dispute between the parties, i.e. the amount which the appellants may be refunded if they are successful in overturning the substantive decision. This is a relevant consideration, having regard to our obligation under s 36(4) of the NCAT Act: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 per Basten JA at [37] - [39], with Tobias AJA in agreement; Gibson v Drumm [2016] NSWCA 206 at [20]; Fletcher-Jones v Avant Garde Logistics Solutions Pty Ltd [2021] NSWCATAP 201 at [20].
2. The answer to that enquiry is not entirely clear from a review of the appellants' material. In the reasons for the substantive decision, at [48], the Tribunal noted that the appellants had "not indicated either which amount they seek to have varied or what the varied amount should be." The relevant order sought in the Notice of Appeal is simply that we should "… set aside the 1 October 2020 decision and make another decision to be substituted for it pursuant to section 81(1)(d) [of the NCAT Act]."
3. From a calculation taken from two tables annexed to their notice of appeal (at page 9) it appears that the appellants seek a refund in the total sum of $2,348.00. That is consistent with submissions they made in the proceedings below which led to the costs decision, that the amount in dispute was "less than $4,000.00". We can only assume, then, that the reference in the appellants' submissions to levies by the respondent for fencing in the amount of "$30,000 to $54,000 for all members" is not a relevant aspect of the claim. Certainly it does not appear to have been clearly raised in the proceedings from a review of the reasons for the substantive decision.
4. The importance of finality of proceedings is a weighty consideration, particularly where the appellants' claims in respect of the substantive decision are apparently modest and remain unclear.

A reasonable explanation for the delay?

1. The appellants assert that they have not delayed to the extent set out by us above.
2. In submissions, they refer to an appeal lodged by them, not put before us, and refer to correspondence asking the Tribunal to "hold onto" that appeal until after the respondent's appeal from the costs decision was determined. They also claim to have been hampered by difficulty obtaining "advice" from the Registry as to how they could, or should, proceed. As best we can tell, that was yet another appeal by the appellants, relating to the second refusal of their application under s 53(4) on 21 January 2021, which was rejected for non-payment of the filing fee.
3. Anything that occurred in that regard is irrelevant to the appellants' request to withdraw their initial appeal, and the order of 26 November 2020 dismissing it. The appellants were clearly aware of their right to appeal. They elected to take another course. In that context, their delay in lodging this appeal is unreasonable.
4. It seems to us that: 1. to the extent that there may have been any misapplication of legal principle by the Tribunal, the principles themselves are not in issue in the appeal or in doubt; 2. on that basis, there is no issue likely to warrant leave to appeal being granted if time is extended, as there is no broader interest than that of the parties, and 3. the expense conducting a hearing where the appellants claims could be assessed would far outweigh the amount in issue.
5. Weighing those issues, refusing an extension of time to lodge the Notice of Appeal will work no injustice on the appellants.
6. Any prejudice they may suffer has been brought about by their own delay.

Costs of the appeal

1. The respondents indicated, in the event that they were successful in the appeal, that they sought costs.
2. We do not know whether the costs of the proceedings below have been assessed or agreed. If so, we do not know whether they exceed $30,000.00, which would be relevant to our determination on costs: Civil and Administrative Tribunal Rules 2014, r 38A.
3. On that basis, we will make directions for the filing of submissions on costs.

Orders

1. Our Orders are as follows: 1. Leave to extend time to lodge the Notice of Appeal is refused. 2. The respondent is to lodge submissions and evidence in support of its costs application with the Appeal Registry and give them to the appellants within 14 days of the publication of these orders; 3. Any submissions and evidence in response to the costs application are to be lodged with the Appeal Registry and given to the respondent within 14 days thereafter. 4. Submissions on the application for costs are not to exceed five pages in length. 5. The Appeal Panel may dispense with a hearing and determine any application for costs on the basis of the written submissions and evidence provided. If the parties oppose this course they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application.

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: 11 November 2021