These proceedings concern an appeal by an operator at a residential community arising from a dispute with a homeowner under the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act). The proceedings had been listed for the final hearing of appeal on 28 September 2021. However, on the application of the respondent, Mr Jenkins, the Appeal Panel determined that the appeal should be adjourned and directions made to permit the filing of an appeal in the nature of a cross-claim.
These reasons relate to the decision to adjourn the proceedings and make directions.
[2]
History of proceedings
Each of the appellant and the respondent had commenced proceedings in the Tribunal seeking orders in connection with a site agreement made under the RLLC Act. The site agreement was between the appellant and the late Alvis Jenkins and was dated 27 April 2018.
Alvis Jenkins died about 8 March 2019. He left a Will dated 13 September 2011 (Will) appointing his son, the respondent, as the executor and sole beneficiary of his estate.
By application dated 6 July 2020 the respondent claimed damages in respect of alleged conduct concerning the sale or subletting of the residential premises the subject of the site agreement (premises). This was application RC 20/30192.
The appellant separately commenced proceedings RC 20/22889. It is unnecessary to record the details of this claim, save to note that it was heard by the Tribunal with the respondent's claim RC 20/30192 on 19 November 2020 and 4 May 2021. During the course of the hearing the appellant withdrew application RC 20/22889.
On 2 June 2021 the Tribunal determined that the appellant had breached its obligation under the RLLC Act and ordered the appellant pay the respondent $2,845.85 (decision). The Tribunal provided written reasons (Reasons).
The issues which the Tribunal was required to resolve included whether the appellant had complied with its obligations concerning a proposed sale of the residence and/or had inappropriately acted in connection with the subletting of the premises residences. Also in issue was the status of the respondent as a "homeowner" within the meaning of the RLLC Act. This is because at the time of the conduct of the appellant said to constitute a breach of the RLLC Act the respondent had not been granted Probate of the Will.
The Tribunal determined that the appellant had unreasonably interfered with the right of the respondent to sell the residence, it being said by the Tribunal that there was no dispute that the appellant would not allow the sale until the respondent had been granted probate: Reasons [13].
Ultimately, the Tribunal concluded that probate was granted on 4 August 2019. Consequently, the Tribunal made an order that site fees been paid between 21 March 2019 and 3 August 2019 should be refunded. The amount of those fees was determined to be $2,845.80.
Subsequent to making this decision, an application (amendment application) was made to the Tribunal under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). That section permits the Tribunal to amend any reasons or an order to correct an error. The application was made by the respondent, at that time represented by a solicitor Mr Frater. It was said that the Tribunal incorrectly noted the date of probate as 4 August 2019 and not 4 August 2020 being the actual date of grant. Consequently, the respondent contended that the Tribunal should have made an order for a refund of site fees from the original hearing from 5 August 2019 until the grant of probate. The amount claimed was $10,282.64.
The Tribunal determined this application on 23 June 2021. The Tribunal declined to make the amendment requested and provided reasons for its decision. In doing so the Tribunal said in its reason at [6]-[8]:
6. I concede an obvious error was made in relation to the date of the grant of probate as contended by Mr Frater. This is regrettable. I particularly regret any further delay caused to the parties in resolving this matter as a result of this error.
7. While an incorrect date on its face may appear to be an obvious error capable of a s63 amendment, the problem is that the error impacts the reasoning throughout the judgement in relation to amount of the money order made for refund of site fees. Mr Frater submits that sites fees should be set in the sum that relates for the longer period. However, my assessment of the fees refundable was based on a consideration by me that the shorter period payable (albeit erroneous) was a reasonable period of delay in obtaining probate. In his oral evidence Mr Jenkins gave considerable evidence on causes of delay in acquiring probate. It was not the community operator that was responsible for any unreasonable period of delay. In any reconsideration of the money order to be granted, the Tribunal must consider this evidence at least and make a finding as to what would have been a reasonable period of delay for which Mr Jenkins ought to be refunded site fees.
8. As the matter has been appealed by the community operator, there is little utility in making any s63 amendments even if the Tribunal were minded to do so. If the community operator is successful on appeal it may well be the issue of damages is no longer live. If Mr Jenkins is successful on appeal then the issue of the money order and the erroneous date can be remitted to me for further determination. In the alternative, one, or both the parties may seek to have the error and its consequences dealt with at the appeal hearing.
[3]
The adjournment application
In its Notice of Appeal the appellant contends that the orders of the Tribunal should be set aside and the respondent's application should be dismissed. It is not necessary to set out in detail the grounds of appeal other than to note that they include a challenge to the Tribunal's interpretation of the definition homeowner found in RLLC Act and a challenge to the finding that the appellant's conduct in requesting the grant of probate amounted to an interference with the sale of the home.
The respondent filed a Reply to Appeal. In that reply the respondent said under the heading 3A Orders Challenged on Appeal:
Mr Jenkins reiterates his request that the Tribunal member amend the order of compensation as requested
Despite this Reply to Appeal, the respondent did not file his own appeal seeking a variation of orders from $2,845.80 to $10,282.64.
When the hearing of the appeal commenced on 28 September 2021, it became apparent that the Appeal Panel that Mr Jenkins still wished to pursue a claim for relief that the order of the Tribunal should be varied to the higher amount. At this point the Appeal Panel informed the respondent that it could only do so if he filed a Notice of Appeal (cross appeal).
Consistent with the decision of the Court of Appeal in Italiano v Carbone [2005] NSWCA 177 per Basten JA at [105]-[107] the Appeal Panel thought it appropriate to indicate to the respondent he could apply for an adjournment if he wished to file a cross appeal and pursue this relief. In this regard we note that Mr Jenkins was unrepresented in the appeal proceedings.
This application to adjourn was made by the respondent.
The appellant's Counsel, Ms Glover, opposed the application.
Consequently, the Appeal Panel conducted a hearing of the application for adjournment and permitted the respondent and his partner Ms Jennifer Player to provide evidence in support of the application. In addition, we had a bundle of documents being the evidence from proceedings at first instance together with the Notice of Appeal, and the directions previously made by the Appeal Panel. Those directions included directions by Deputy President Westgarth made on 23 July 2021.
The appellant was given an opportunity to cross examine the appellant and Ms Player concerning their evidence about what had occurred, why no cross appeal had been filed and the circumstances surrounding the application for adjournment.
[4]
Facts
Following is a short summary of the evidence provided to us in relation to the application:
In the proceedings at first instance the respondent was represented by a solicitor Mr Frater. This representation continued up to and including the making of the amendment application.
The present appeal was lodged by the appellant on 16 June 2021. The appeal was lodged within 14 days from the date of the decision (2 June 2021) which is the period applicable for the making of an appeal in connection with "residential proceedings" as defined in r 3 of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules): see r 25(4)(c).
The appeal was listed for callover before the Appeal Panel on 23 July 2021. The respondent agreed he was told by Deputy President Westgarth at that time that he could not pursue his claim for an increased award as no Notice of Appeal had been filed. The transcript from the proceedings of the callover on 23 July 2021 was not available to us. However, Counsel for the appellant, Ms Glover, had appeared at that callover and the statements which she made to us were consistent with the evidence of the respondent.
We note in passing that despite these discussions the directions of the Appeal Panel made at the callover did not include directions permitting the subsequent filing of the Notice of Appeal by the respondent.
After the callover the respondent filed a Reply of Appeal dated 23 August 2021 to which we have referred to above. As indicated above, the Reply to Appeal included a statement by the respondent reiterating his request for the Tribunal Member to amend the order for compensation. The Reply of Appeal was filed following the withdrawal of Mr Frater as his legal representative. At this time the respondent had sought the assistance from Legal Aid in connection with advice and dealing with the appeal.
Initially the respondent was provided with advice from a Legal Aid solicitor Ms Todhunter who assisted him in preparing the Reply to Appeal. However, Ms Todhunter was too busy to continue assisting the respondent. She referred the respondent back to Legal Aid. The respondent was subsequently introduced to Mr Turner a second solicitor from Legal Aid.
Throughout this time the respondent has been living in Queensland in Upper Coomera.
The respondent gave evidence that the Legal Aid services were slow to respond to his requests and that he has been trying to obtain assistance for a considerable period of time. He outlined some of his experiences in trying to obtain assistance.
The respondent also said that he suffers from anxiety and other psychiatric disorders. He gave evidence that he has been unable to attend to his affairs due to his health issues.
Ms Player, the respondent's partner of some years, gave evidence to corroborate the statement of Mr Jenkins. Ms Player said that since the respondent's father had passed away, the respondent was a totally different person and was now prone to uncontrolled fits of rage and weeping. She also gave evidence that the respondent had seen psychologists in an attempt to obtain some assistance.
[5]
Submissions
In short the respondent said he has spent considerable money on this dispute, that his father's estate had been consumed by costs for its administration and that he wished to dispute the amount of the order made by the Tribunal.
The appellant opposed the adjournment application.
Ms Glover submitted that her client was permitted legal representation on condition that no legal costs could be recovered in the appeal. In this regard s 45 of the NCAT Act allows leave to be granted for a party to be legally represented including in an appeal. In granting permission the Tribunal can impose conditions under s 59 of the NCAT Act.
Ms Glover submitted that by reason of that condition her client suffered a detriment that was irremediable because costs would be thrown away by the adjournment and could not be recovered.
Ms Glover also submitted that this case had been proceeding for a considerable amount of time and that there had been delays since June 2021. She said that there were thousands of site agreements governed by the RLLC Act and that there are legal principles required to be determined by the appeal.
In making these submissions, Ms Glover referred to s 36 and the guiding principle in the NCAT Act, namely the just, quick and cheap resolution of the real issues in dispute.
Ms Glover submitted that there was no proper or adequate explanation of the delay and having regard to the fact that Mr Jenkins had been legally represented that the request for adjournment should be refused.
[6]
Consideration
In Armee v Brealey [2007] NSWCATAP 141 the Appeal Panel made the following statement in connection with the adjournment of proceedings at [121]-[125]
121. The Tribunal has the power to adjourn proceedings under s 51 of the Act. The power to adjourn is to be exercised according to the principles set out by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] (see O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [21]). Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case: see Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]-[22].
122. The matter of Dubois v R & B Bergin Pty Ltd [2011] NSWCA 309 involved an application to the NSW Court of Appeal for leave to appeal against a refusal of the District Court to grant an adjournment and vacate a hearing. Young JA, with whom Giles JA agreed, in his reasons granting leave to appeal, allowing the appeal and vacating the hearing, stated at [42] that whilst it is seldom that an appellate court will feel justified in reviewing a decision to refuse an adjournment, the court has power to review such an order and in certain circumstances it is its duty to do so. His Honour went on to make the following statements:
38 43. As the Full Federal Court said in Petrovic at 460, it is not sufficient that the Court of Appeal considers that an adjournment should have been granted, the applicant must show that refusal of the adjournment produced, in the circumstances, an injustice. It must be remembered too, that the decision is a discretionary judgment.
39 44. "Injustice" is a coloured word with pejorative overtones. What is meant is that the refusal of the adjournment must not set up a situation where there is a likelihood that there cannot be a fair trial unless that factor is outweighed by prejudice to the opposing party.
40 45. In making the balanced judgment required, a judge must also take into account the public interest that the judicial process must be just, cheap and quick.
41 46. Again this matter must be considered in a balanced way. Mr Romaniuk relied on what the plurality said in Aon Risk Services Australia v National Australia University [2009] HCA 27; 239 CLR 175, 214 at [102], that the objectives of modern court rules do not require that every application for amendment (and by analogy, adjournment) should be refused just because it wastes costs and causes some delay. Whilst these are significant matters, they are not necessarily overriding considerations. I accept that submission.
123. In Carryer v Kelly (1969) 90 WN (Pt. 1) (NSW) 566 at 569 F - G, a similar statement was made by Asprey JA with whom Holmes JA agreed: "An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party."
124. In Squire v Rogers (1979) 27 ALR 330; 39 FLR 106 (Federal Court) at 337, Deane J made the following statement:
42 The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: Conroy v Conroy [1917] 17 SR (NSW) 680 at 682. Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal (see, for example, Federal Court of Australia Act 1976 s 27) and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.
125. In O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22], the Appeal Panel identified the following principles governing applications for an adjournment:
1. "matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above,
2. an application for an adjournment should be seen as the exceptional rather than the ordinary course;
3. where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment."
As can be seen from these authorities, matters should ordinarily proceed to be heard on the dates they are allocated for hearing and adjournments are exceptional and not ordinary.
However, in determining an adjournment request the Tribunal must ensure there is no injustice in connection with the decision made. In this regard the circumstance of the party requesting the adjournment needs to be weighed up against the prejudice to the opposing party.
In the present case we are satisfied by the evidence of the respondent that he has had to obtain additional legal assistance from different lawyers in circumstances beyond his control because Mr Frater withdrew the proceeding and did not assist in the appeal.
Secondly, Ms Todhunter, a Legal Aid solicitor, provided some assistance in preparation of the Reply to Appeal however was not able to continue to provide assistance due to her other commitments. A third lawyer has provided some assistance.
Despite the assistance provided so far, it is clear that the appellant has had difficulties in comprehending what is required, particularly the filing of a Notice of Appeal if he wishes to pursue his claim that the original order should be varied to a larger sum. Although he has not taken steps to file a Notice of Appeal, directions were not made by the Appeal Panel to require that action.
We are satisfied that the respondent did not appreciate what he was required to do if he wished to do so. It is clear from the Reply to Appeal that at all times the respondent wished to pursue his application that the money order be varied to require a higher sum.
Essentially, three bases were put forward by the appellant opposing the adjournment application.
First, it was said that there had been a delay of the resolution of the proceedings which had been commenced in June.
The time taken to list this appeal for hearing, namely, two months after the callover cannot be said to be a delay which would give rise to any concern about possible prejudice to the appellant.
Secondly, the appellant said that the present appeal raises important legal questions that need to be resolved. This can readily be accepted. However, the adjournment will not unduly delay a final resolution or cause any relevant injustice on the appellant.
Thirdly, the appellant says that there will be costs thrown away in consequence of any order made by the Appeal Panel adjourning the proceedings. When asked, Counsel of the appellant identified that these costs $1760.00.
We accept the submission that by reason of the conditional grant of legal representation, costs may not generally be recovered by the appellant in this appeal, even where it is successful.
Ms Glover appeared to submit that we could not make an order for costs and could not ameliorate any prejudice. We do not accept this proposition.
The grant of leave for legal representation on conditions is an interlocutory order made at the time when there was no extraordinary circumstances of the type which we have recounted above.
The respondent indicated that he would not oppose an order of costs if the adjournment was granted.
There is no prohibition on this Appeal Panel varying an interlocutory order made at the callover including in relation to the appointment of legal representation and the recovery of legal costs. While such discretion should be exercised infrequently, it is appropriate to do so in circumstances where a relevant prejudice needs to be corrected and where it is necessary to do so in order to avoid a more substantial injustice to the respondent namely the inability to pursue his appeal.
For these reasons we granted the adjournment application and made an order that the respondent pay to appellant costs thrown away by reason of the adjournment assessed by us in the sum of $1760.00.
[7]
Directions connection with the respondents proposed Notice of Appeal
We have described above the history of the proceedings at first instance and before Appeal Panel.
The adjournment order has been made to correct a possible injustice arising from the health issues of the respondent and his inability to obtain legal advice and pursue his cross appeal.
We are satisfied the respondent is able to understand the case he wishes to bring. As such, the adjournment should not be taken as permitting Mr Jenkins a variable, uncontrolled, opportunity to file a Notice of Appeal or delay the final resolution of these disputes.
We made clear to the respondent at hearing and in the orders we made that he must take immediate action to prepare his appeal so that this new appeal can be determined on the next occasion, namely the 17 November 2021. In this regard we note Mr Jenkins' partner, Ms Player, who supported him, was in attendance for part of the telephone hearing and that she acknowledged our comments.
In granting the adjournment application we have provided an indulgence to the respondent. He should not expect any further indulgences if he fails to comply with the directions.
For these reasons we granted the adjournment and made the directions previously published to the parties.
[8]
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
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Decision last updated: 08 October 2021