Astley v J H Properties Pty Ltd

NCAT Appeal Panel|2017-06-29

Dr G Martin (Appellants) R Tavrowsky (Respondents) File Number(s): AP 17/12176 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 21 February 2017 Before: N Vrabac, Senior Member File Number(s): RC 16/35825

Background

This is an appeal from consent orders made in the Consumer and Commercial Division of the Tribunal on 21 February 2017 in the following terms: 1. By consent, the parties agree that the rent will be increased by $8.00 from 22-Jul- 2016 for a period of 12 months or a further order of the Tribunal. 2. Any amount of rent which has been paid in excess of $8.00 is to be refunded to the applicants by way of rent credit.
The above consent orders were made as a result of an application filed on 25 July 2016 in which the applicants sought orders under s 73(1)(a) of the Residential (Land Lease) Communities Act 2013 (the RLLC Act). Section 73(1)(a) provides that the Tribunal may on application under s 71 or 72 of the RLLC Act make an order declaring that an increase in site fees is excessive.
The objects of the RLLC Act are set out in s 3 of that Act in the following terms: 3 Objects of Act The objects of this Act are as follows: (a) to improve the governance of residential communities, (b) to set out particular rights and obligations of operators of residential communities and home owners in residential communities, (c) to enable prospective home owners to make informed choices, (d) to establish procedures for resolving disputes between operators and home owners, (e) to protect home owners from bullying, intimidation and unfair business practices, (f) to encourage the continued growth and viability of residential communities in the State.

Notice of Appeal

The Notice of Appeal was filed by the homeowners on 9 March 2017. . The Notice of Appeal states that the decision was received on 27 February 2016. If that is the correct date from which to calculate the relevant period of 14 days then the appeal was filed within time: see r 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules) and in particular r 25(4)(b) and the definition of residential proceedings contained in r 3. As the operator has not submitted that the appeal was filed out of time, we will proceed on the basis that the appeal was filed within time and is not an issue upon which our decision is required.
The grounds of appeal contained in the Notice of Appeal may be summarised as follows: 1. The Member erred at law in providing advice to the homeowners that he could take into account financials supplied by the operator for the years 2013, 2014 and 2015, when in fact the RLLC Act at s 73(4) states: (4) The Tribunal cannot make an order that would result in an increase lower than that needed to cover any actual or projected increase (established to the satisfaction of the Tribunal) in the outgoings and operating expenses for the community since the previous increase (if any) in site fees for the community. 1. The operator sought to rely on financials for periods before the rent was last set. The site fee increase was last set was on 3 July 2015. Therefore any previous financials provided to that date should not have been allowed in evidence, nor should the Member have taken the operator's word that these figures were valid. 2. The Member advised, after a brief conversation with the operator's advocate, that "gap year accounts" could be used despite a site increase previously taking those into account, in the absence of any evidence explaining how the previous year's financials were to be accounted for.
In the Notice of Appeal, the homeowners submitted that the Appeal Panel should order that the orders be set aside and that the application should proceed to a hearing. The homeowners also sought an order "that any financials supplied prior to the site fee increase last set cannot be used as part of the costs justified for this site fee increase …".
The Notice of Appeal attached a statutory declaration of L R Wakeling dated 8 March 2017 and a statutory declaration of Allan Wilkinson of the same date. We will refer to those two documents in greater detail subsequently.

Reply to Appeal

The operator has filed a Reply to Appeal which may be summarised as follows: 1. The orders were made by consent and in accordance with s 59 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). The homeowners agreed in writing and signed indicating acceptance of the orders. The Tribunal Member was satisfied that he had the power to make the orders in the terms of the agreed settlement; 2. Both parties were represented by advocates who have significant experience running hearings at the Tribunal. If the homeowners did not consent to the orders, they should not have indicated their acceptance in writing; 3. The consent orders are the final determination of the matter and there is no error of law, further there was nothing unfair or inequitable about the decision; and 4. There is no ground of appeal in relation to an error of law and the homeowners have not demonstrated that the orders made by the Tribunal were not fair and equitable, or against the weight of evidence or that any new evidence has arisen that was not available at the time of the original hearing.

Jurisdiction

This is an internal appeal as defined in the NCAT Act and is regulated by the provisions of s 80 of the NCAT Act. In essence, an internal appeal may be made as of right on any question of law or with the leave of the Appeal Panel only if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because of one of the matters identified in cl 12 of Sch 4 of the NCAT Act.

Directions

The appeal came before a member of the Tribunal for the purposes of making directions. The parties were directed to file submissions, including a transcript of the hearing before the Member at first instance or a disc of the sound recording. Neither party provided a transcript or a sound recording. At the hearing of the appeal, we were informed that the homeowners attempted to obtain a copy of the sound recording but found the quality to be poor and that the recording was inaudible.

Homeowners' Submissions

In the following paragraphs, we summarise the effect of the homeowners' submissions made in writing and at the hearing of the appeal.
The homeowners submitted that the question of whether the consent order may be set aside "depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle a party to equitable relief against it on grounds such as illegality, misrepresentation, nondisclosure of material fact, duress, mistake, undue influence, abuse of confidence or the like".
The basic facts giving rise to the above submission were that: 1. During the hearing of the homeowners' application, the Senior Member stopped the hearing and proceeded to conduct a conciliation between the parties to see whether the dispute could be resolved between them by agreement. The Senior Member asked the operator's representatives to leave the room. He turned off the sound recording equipment so that the discussion could proceed without being recorded; 2. A number of statements were made by the Senior Member (the details of which we will refer to subsequently). The Senior Member went to the room where the operator's representatives were and returned to the room containing the homeowners with an offer from the operator reducing the rental increase by 49 cents. The offer was accepted and the agreement between the parties was written down. That agreement was signed by a representative for both parties. The Senior Member then made the orders which are the subject of this appeal; 3. The homeowners' submissions state that the Senior Member "used language that frightened or coerced the applicants into deciding quickly, despite the protest from their representative"; 4. The homeowners' submissions state that during the hearing and prior to the conciliation commencing, the Senior Member was handed a previous Tribunal decision concerning the operator and that after the Senior Member read the decision, "it appeared" that he had "made up his mind". The homeowners submitted that they had evidence which would have contradicted this decision. However they were not given the opportunity to submit such evidence; and 5. The homeowners' submissions state that the Senior Member "in his discussions may have exerted undue influence or duress" upon the homeowners. The homeowners are described as elderly and at a disadvantage.
In support of their submissions, the homeowners relied upon a number of statutory declarations. It is necessary to refer to each of them: 1. The statutory declaration of E M Astley: she declares that when the Senior Member returned from discussing the case with the operator, he said that they have offered 49 cents reduction and "advised us to accept". The declaration states that the Member was not interested in any more discussion and "when I asked for $1.00, he stated he would recall the Tribunal and award $8.49.00". She states that the homeowners felt coerced into accepting the offer; 2. The statutory declaration of H A Warren: this states that the homeowners were told by the Senior Member that "if we did not accept the offer of a 49 cent reduction, the residents could have to pay $20,00.00 - $30,000.00 for a forensic accountant - I believe this was coercion"; 3. The statutory declaration of J M Moloney: this states that the Senior Member advised that "if we wished to dispute the evidence of the park owner, we would need to consider engaging a forensic accountant costing $20,000.00 or more". The declaration also states that the Member said that he would be "happy if he could obtain a 50 cent reduction in our weekly site fees". In addition, it states that the Senior Member "did not indicate that he had made any assessment of any the evidence produced at the hearing, but indicated that it our acceptance of the owner's proposal of a 49 cent increase could be prudent"; 4. The statutory declaration of R L Bennett: this states that the homeowners were subjected to considerable pressure from the Tribunal Member and were coerced into accepting the offer and that "the only alternative was the employment of the forensic accountant at a probable cost exceeding $20,000.00"; 5. The statutory declaration of L R Wakeling: this states that Ms Wakeling was the advocate representing the homeowners. She provides some information as to the conduct of the hearing prior to the commencement of the conciliation. She states that the Senior Member "advised the applicants in attendance that if they wished to appeal his decision they would need approximately between $20,000.00 and $30,000.00 for a forensic accountant to audit the books". In addition, the declaration states that after the Member came back with an offer of a rent reduction of 49 cents, he advised the homeowners that they "accept this offer or he would award the full increase that the community owner wanted". The declaration then states that: I spoke to the applicants and advised them that there was little option but to accept the low reduction offer. 1. The statutory declaration of A Wilkinson: this stated that Mr Wilkinson was an advocate assisting Ms Wakeling. The declaration describes matters occurring prior to the commencement of the conciliation. The declaration then states that the Senior Member "advised the applicants that attended that if they wished to appeal the decision that he made, they would need to provide evidence from a forensic accountant to audit the previous years and they would need approximately $20,000.00 to $30,000.00 to have this type of order completed". The declaration records that the Member conveyed an offer of a rent reduction of 49 cents from the operator and advised the homeowners that "it would be advisable to accept the offer or he had no other alternative than to award the increase sought by the operator". The declaration records that Ms Wakeling spoke to the residents and "advised them to accept the offer of a reduction of 49 cents".
In addition, the homeowners' submissions state that the Senior Member should not have provided advice to the homeowners that he could take into account financial information supplied by the operator for the years 2013, 2014 and 2015. The operator had relied on "financials" for periods before the rent was last set (3 July 2015) and therefore the financial information prior to that date should not have been allowed in as evidence because that financial information had already been used as the basis for, or in support of, the increase which took effect from 3 July 2015. The submissions stated that the Member advised that "gap year accounts" "could be used despite a site fee increase previously taking those into account". The residents submitted that if the appeal were to be allowed, the site fee increase should be based solely on figures supplied by the operator since July 2015. No such financial information has been provided by the operator and therefore on a rehearing, the amount to be awarded should be based upon the CPI increase of 1.3%.

Operator's Submissions

The operator draws attention to the fact that the orders made were made by consent and signed by the representatives of the parties in accordance with s 59 of the NCAT Act. Section 59 states: 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if: (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.
The operator submitted that the Senior Member was satisfied that he had the power to make orders in terms of the agreed settlement. It was not disputed that both parties were represented by advocates who have had extensive experience in the Tribunal.
Accordingly, the operator submitted that the appeal should be dismissed. No error of law has been identified and none of the grounds described in cl 12 of Sch 4 of the NCAT Act apply.
The operator submitted that there is no evidence in support of the homeowners' contention that the Senior Member used language that frightened or coerced the homeowners into deciding quickly despite the protest from their representatives. No evidence in the form of the transcript or sound recording has been produced. The operator acknowledges that it was not privy to discussions between the Senior Member and the homeowners during the conciliation.
The operator further submitted that the discussions which took place between the Senior Member and the parties during the conciliation process are not admissible. The operator relied upon cl 2 of Sch 1 of the Civil and Administrative Tribunal Regulation 2013 (the Regulation). Clause 2 states: 2 Protection from liability and inadmissibility of statements and admissions (1) A mediator, conciliator or other person facilitating a resolution process to which parties to proceedings have been referred by the Tribunal under section 37 of the Act has, in the exercise of his or her functions as such, the same protection and immunity as a member has in the exercise of his or her functions as a member. (2) Any statement or admission made before the Tribunal or any person at a meeting or other proceeding held for the purposes of a resolution process to which parties have been referred by the Tribunal under section 37 of the Act is not admissible in the proceedings in which the referral was made, or in any other legal proceedings before a court or other body, unless the person who made the statement or admission consents to its disclosure in the proceedings. (3) Subclause (2) does not apply with respect to proceedings in which the parties have been referred for mediation under section 37 of the Act. Note. Part 2 makes special provision with respect to disclosures made in connection with mediation sessions.
The operator points out that there is an inconsistency between the homeowners' submissions (to the effect that their representatives protested at the use of language by the Senior Member) and the acknowledgment contained in the statutory declarations of Ms Wakeling and Mr Wilkinson (to the effect that Ms Wakeling advised the homeowners to accept the operator's offer).
The operator submitted that the homeowners were represented by two advocates and that it is difficult to accept that the homeowners were unduly influenced.
The operator has tendered statutory declarations of J L Thomas and J Harris (who were employed by, or associated with, the operator). The only part of their statutory declarations which appear to be relevant is the statement that at the conclusion of the conciliation process, the operator's representative returned to the hearing "to finish the hearing with both parties agreeing to the site fee increase of $8.00 per week" (Ms Thomas' declaration) and in the case of Ms Harris' declaration, that when the conciliation was completed "we all then went back to the hearing room to complete the process with all parties in attendance to agree on the final decision".

Consideration

As the homeowners' submissions point out, a consent order may be set aside in certain circumstances. In an Appeal Panel decision of this Tribunal in Prenc v Stojcevski [2016] NSWCATAP 244, the President and a Principal Member of the Tribunal stated: A consent order can properly be described as an order which expresses an agreement in a more formal way than usual and can be set aside on any basis upon which the underlying agreement could be set aside: Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209 at [71]. In Harvey v Phillips (1956) 95 CLR 234; [1956] HCA 27, Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ stated, at 243 -4: "The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. … [T]here is a dictum of Lindley L.J. which is distinct enough: "… nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual .... To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if that agreement cannot be invalidated the consent order is good": Huddersfield Banking Co. Ltd. v. Henry Lister & Son Ltd [(1895) 2 Ch 273 at 280]." It might be noted that the High Court in that case refused to set aside the compromise despite the "very unwilling and ephemeral character of the consent which the plaintiff was led to give." The High Court in this regard said, at 244: "But it is enough if she expressed a real intention to consent, even if experience might have suggested that it was an attitude she was not likely to maintain. In the circumstances one might have expected that she would be asked to sign a written authority. But that was not done. However the finding of the Supreme Court, supported as it is by evidence, suffices to establish that she definitely did give her authority, however reluctant it may have been. It is impossible to regard the authority she thus gave as insufficient to support the compromise. The issue is one which must be considered from the defendants' point of view as well as from hers." (par 43 and 44)
In an Appeal Panel decision in McDonald v McDonald [2016] NSWCATAP 252, the Appeal Panel summarised the relevant principles as follows: (1) At common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside; (2) Whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence and the like; (3) In order to set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent for instance: (a) with respect to duress, it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative but for her to submit; (b) with respect to undue influence, not only must there be a source of power to deprive the other person of free and voluntary consent, but it must be shown that the agreement was the result of the actual influence; (4) With respect to mistake: (i) the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract; (ii) a common mistake arises when the mistaken belief is held by both parties; (iii) a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake. (5) With respect to other doctrines which may be applicable, such as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be "special" to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. (6) There may be other factors which arise such as non est factum which defence would arise in very limited circumstances to persons who, through circumstances such as blindness or illiteracy, are unable to have any understanding of the meaning of the document evidencing the agreement and who signed it in the belief it was radically different to what was in fact signed.
The question arises as to whether we may accept the evidence put forward by both parties concerning conduct at the hearing and at the conciliation having regard to the fact that this is an appeal and that, generally speaking, the receipt of new evidence is not permitted. However, cl 12(1)(c) of Sch 4 of the NCAT Act expressly contemplates the receipt of significant new evidence on an appeal if such evidence was not reasonably available at first instance.
Here, the homeowners' submission is in effect that the agreement they entered into should be set aside because of what was said or done during the hearing and during the conciliation process, and that accordingly, it is logical that the evidence of what happened during the hearing and during the conciliation should be considered. In Yuen v Thom [2016] NSWCATAP 243 at par [22] the Appeal Panel allowed fresh evidence for the same reasons.
However, before concluding that the fresh evidence should be allowed, it is necessary to consider the operator's submissions concerning the effect of cl 2 of Sch 1 of the Regulation (the text of which has been set out earlier).
Clause 1 of Sch 1 states that the purpose of the schedule is to set out the practice and procedure in connection with the use of resolution processes to which parties to proceedings have been referred by the Tribunal under s 37 of the NCAT Act. Clause 1(2) states that nothing in the schedule requires the use of a resolution process mentioned in the schedule in proceedings unless the Tribunal refers the parties to the process under s 37 or prevents or limits the use of resolution processes whether or not they are mentioned in the schedule.
There was no evidence of an express referral under s 37 in this matter. It is our view that the conciliation conducted by the Senior Member in these proceedings was not one to which the provisions of Sch 1 applied. It is clear that the Tribunal is free to engage in conciliation processes which are not the subject of a referral under s 37 and therefore not regulated by the provisions of Sch 1.
Given that cl 1(2) contemplates resolution processes which are not governed by the schedule, it follows in our view that where the Tribunal embarks upon a resolution not regulated by cl 2 of Sch 1, there may nevertheless be an understanding between the parties that what is said during the resolution process will be confidential. However, in our view, confidentiality can be overcome if it is necessary to consider evidence relevant to whether the agreement may be set aside.
We have considered the evidence put forward on behalf of the homeowners. It is our view that the evidence relied upon by the homeowners for the purposes of seeking to have the consent order set aside is insufficient to justify a finding that the consent order should be set aside.
The homeowners put forward two arguments. The first was that the Senior Member made a misrepresentation to them which had the effect of inducing them unfairly into entering into the agreement with the operator and therefore agreeing to the consent order. The representation concerned the statement that the homeowners would need to spend $20,000.00 to $30,000.00 for a forensic accountant. The second argument was that the Senior Member made statements which amounted to undue influence or coercion.
We accept the evidence that the Senior Member informed the homeowners and their representatives that they might need to spend a significant sum of money (between $20,000.00 and $30,000.00) on a forensic accountant. In our view, such a statement did not do more than provide a warning to the homeowners that if they wished to overcome the operator's arguments that the operator's costs had increased, they would need to provide evidence rebutting the operator's assertions.
Section 73(1) of the RLLC Act provides that the Tribunal cannot make an order concerning site fee increases that would result in an increase lower than that needed to cover any actual or projected increase in the outgoings and operating expenses of the community. If the operator put forward evidence to the Tribunal (for the purpose of arguing for a site fee increase) concerning its actual or projected increases in outgoings and expenses, the homeowners may have had to put forward their own evidence contesting the operator's evidence if they (the homeowners) sought to put forward an alternative position. We are of the view that the homeowners have not established that the alleged statements made by the Senior Member concerning the prospect of having to spend a considerable sum of money on accountants was a misrepresentation. Rather, it was a representation which was reasonable in the circumstances.
At the appeal hearing, the homeowners' representatives submitted that the above analysis ignores that fact that all of the evidence put forward by the operator concerned expenses and outgoings incurred up to and including 2015 but that there was no evidence of expenses and outgoings incurred after July 2015. In their submissions filed in this appeal, the homeowners have attached a copy of the operator's submissions filed in the proceedings before the Senior Member. Those submissions reveal that the operator asserted that since the last site fee increase, the outgoings and operating expenses had increased by $32,301.00.
Those submissions state that evidence is attached demonstrating an increase in outgoings and expenses since the last site fee increase. It was open to the homeowners to take the view that the operator's evidence in support of the contention that its outgoings and expenses had increased by $32,301.00 was very weak and that, accordingly, it was not necessary for the homeowners to provide their own evidence. However, such a view would be based upon a confident assessment of the weakness of the operator's evidence. In the circumstances, a statement by the Senior Member that the homeowners would or may need to spend money on an accountant was no more than a reasonable warning to the homeowners that they needed to consider such a possibility in weighing up whether to settle with the operator (as they did) or continue with the proceedings (in which case they might need to engage a forensic accountant and, one presumes, seek an adjournment of the hearing).
In our view, it is understandable that the Senior Member would have thought it appropriate to raise with the homeowners the possibility that if the operator had evidence in support of its contentions that its outgoings and expenses had increased, the homeowners may be left in the position of having to rebut that evidence by the provision of evidence from its own accounting experts.
The second basis for the homeowners' contention that the consent order should be set aside was said to be the exercise of undue influence by the Senior Member. That contention is partly based upon the statement apparently made by the Senior Member that the homeowners might need to incur between $20,000.00 and $30,000.00 for a forensic accountant. We have already dealt with that matter in the above paragraphs.
In addition, the homeowners contend that the Senior Member had made his mind up and that unless they agreed to the 49 cent reduction he would award the operator the full increase. The difficulty with this contention is that it is not supported by all homeowners. For example, the statutory declaration of H A Warren states that the Senior Member said that if the offer of a 49 cent reduction is not accepted then the homeowners would have to pay $20,000.00 to $30,000.00 for a forensic accountant. It does not say that the full increase would be awarded against the homeowners. The statutory declaration of J M Moloney is to a similar effect, as is the statutory declaration of R L Bennett.
Based upon the statutory declarations which vary in what they state, we are not satisfied that the Senior Member stated that unless the homeowners accepted the 49 cent reduction, he would award the full increase to the operator. Indeed such contention is inconsistent with the contention that the Senior Member said that the homeowners may need to spend money on an accountant.
We note there is a difference between the submissions put forward by the homeowners in the Notice of Appeal compared with the subsequent written and oral submissions. So far we have dealt with the homeowners' submissions as contained in the written and oral submissions. In the Notice of Appeal it is stated that the Member erred in providing advice to the homeowners that he could take into account financials supplied by the operator for the years 2013, 2014 and 2015. In our view, s 74(1)(a) specifically permits the Tribunal to have regard to earlier increases. If the operator relied only upon the 2013, 2014 and 2015 financials, then the homeowners may have been in the strong position of being able to argue that there was no evidence in support of the contention that the outgoings and expenses had increased by $32,000.00. But that does not mean that the Member erred in provided such advice (assuming it was given). None of the statutory declarations repeat that assertion.
Other factors in support of the conclusion that the conduct of the Senior Member at the conciliation did not justify setting aside the consent orders are the following: 1. The evidence of Ms Wakeling to the effect that she advised the homeowners to accept the offer. Mr Wilkinson gives evidence to the same effect; and 2. The fact that the operator and the homeowners, by their respective representatives, apparently signed an agreement which was reflected in the consent orders.
The two matters listed in the above paragraph lead us to conclude that the homeowners essentially made up their own minds to settle the proceedings based upon the advice from Ms Wakeling and their assessment of their prospects that they would not do better if they proceeded with the hearing. Even if their assessment of their prospects was influenced by what was said by the Senior Member, what was said did not constitute a misrepresentation, nor did the conduct or the statements made by the Senior Member amount to coercion of the homeowners.
Having regard to the principles referred to in the two cases earlier mentioned (Prenc v Stojcevski and McDonald v McDonald), the appeal must be dismissed. To elaborate using the language taken from McDonald v McDonald: the evidence does not disclose that illegitimate pressure was placed on the homeowners such that there was no reasonable alternative but to submit to the settlement, the evidence does not disclose that the homeowners were deprived of free and voluntary consent and that the settlement was the result of the actual influence of the Senior Member, nor does the evidence establish that the homeowners were at a special disadvantage given the presence of two advocates capable of advising them.

Orders

The Appeal Panel makes the following order: 1. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 01 September 2017

At a glance

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Decision date

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Judgment (12 paragraphs)

Parties

Cases Cited (7)

Cited By (1)