Barrack Point Holdings Pty Ltd v Jenkins

NCAT Appeal Panel|2021-09-28

In 2021/00174015: E Glover (Appellant) Respondent self-represented

Appeal 2021/00304552: Appellant self-represented E Glover (Respondent)

Appeal 2021/00174015: Osborn Law (Appellant)

REASONS FOR DECISION

These two appeals relate to a dispute concerning a residential community at Barrack Point.
Barrack Point Holdings Pty Ltd trading as Surfrider Caravan Park (operator) is the operator of the residential community. Lee Jenkins (Mr Jenkins) is the executor of the estate of the late Alvis Jenkins (deceased) who had a residential site agreement with the operator dated 27 April 2018 (site agreement). The site agreement was in respect of site 4 (residence).
Mr Jenkins was appointed the executor and sole beneficiary of the estate of the deceased by Will dated 13 September 2011 (Will). Probate of the Will was granted on 4 August 2020.
Following the death of Mr Alvis Jenkins in March 2019, Mr Jenkins approached the operator to advertise and sell the residence and transfer the site agreement to a successful purchaser. The residence was not sold until after probate was granted.
A dispute arose between Mr Jenkins and the operator, Mr Jenkins asserting that the operator had interfered with the proposed sale of the residence. The dispute concerned the operator requesting that Mr Jenkins obtain probate in order to facilitate any sale. Mr Jenkins filed application RC 20/30192 with the Tribunal seeking orders under the Residential (Land Lease) Communities Act 2013 (NSW) (RC Act) seeking various orders, including compensation.
On 2 June 2021 the Tribunal made an award in favour of Mr Jenkins in the sum of $2845.80 (decision). The award equated to the amount of site fees which Mr Jenkins was required to pay from 20 March 2019, being the date the Tribunal found the operator had interfered with the advertising and sale of the residence, until 4 August 2019 (being the date the Tribunal erroneously recorded as the date probate was granted). The Tribunal provided written reasons for decision (reasons).
The Tribunal was subsequently requested by Mr Jenkins to correct the award to allow for damages from 20 March 2019 until 4 August 2020 being the date probate was in fact granted. The application was made under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The Tribunal declined to do so, inter-alia on the basis there was an appeal. The Tribunal published reasons for its refusal on 23 June 2021 (refusal reasons).
The operator appealed the decision by Notice of Appeal filed 17 June 2021 (operator's appeal). The appeal was filed in time. The operator said the application should have been dismissed.
The proceedings were initially listed for hearing before the Appeal Panel on 28 September 2021 (initial hearing). At that time it became apparent that Mr Jenkins also wished to appeal the decision. Mr Jenkins's proposed appeal related to the Tribunal's error in calculating compensation and that the Tribunal had declined to amend its original decision despite an obvious error. On the application of Mr Jenkins, the Appeal Panel adjourned the hearing to permit an appeal in the nature of a cross-appeal to be filed by Mr Jenkins. Mr Jenkins did so by Notice of Appeal filed 26 October 2021 (Mr Jenkins' appeal). The Appeal Panel made procedural directions and ordered that Mr Jenkins pay the operator $1,760.00, being costs thrown away by reason of the adjournment, such costs to be paid on finalisation of the appeal. We provided reasons for decision: see Barrack Point Holdings Pty Ltd v Jenkins [2021] NSWCATAP 312 (adjournment decision)
The operator's appeal and Mr Jenkins's appeal were listed for hearing on 17 November 2021. At that time an order was made to extend the time to file Mr Jenkins' appeal to 26 October 2021.

Grounds of appeal and submissions.

The grounds of appeal were as follows.

Operator's appeal

The operator raised six grounds of appeal. These were: 1. The Tribunal failed to properly interpret the definition of "home owner" in the RC Act. 2. The Tribunal erroneously concluded that the requirements of the Probate and Administration Act 1898 (NSW) (PA Act) had been expressly excluded by the operation of the definition of "home owner" in the RC Act. 3. The Tribunal erroneously concluded that the PA Act is only of application to registrable property interests. 4. The Tribunal failed to properly consider the reasonableness of the operator's decision to require a grant of probate, in view of the risk that it may suffer damages and having regard to the persuasive decision of the South Australian Supreme Court in Public Trustee v CBA and Ors [2018] SASC 25 (Public Trustee v CBA). 5. The Tribunal failed to follow the Appeal Panel decision in ZW2 Pty Ltd trading as Lake Munmorah Residential Resort [2019] NSWCATAP 260 (ZW2), when considering whether compensation was payable. 6. The Tribunal failed to give adequate reasons having regard to issues identified in the written submissions made by the operator lodged on 15 November 2020 (copy attached) or the accompanying documentary materials. In particular, the Tribunal failed to give proper consideration to the following matters: 1. Was the executor a "home owner"? 2. Did the executor interfere with the sale of the home? 3. Calculation of compensation. 4. Failure to mitigate the loss. 5. Lack of evidence to determine loss. 6. Fairness and equity.

Mr Jenkins' appeal

Mr Jenkins raised the following grounds of appeal: 1. The Tribunal was in error in determining probate was obtained on 4 August 2019. Probate was obtained on 4 August 2020. 2. Adopting the methodology used by the Tribunal to calculate loss, the amount of damages that should have been awarded was $10,051, such damages calculated up until 4 August 2020. 3. The Tribunal's decision assumes Mr Jenkins was required to obtain probate to transfer title to a prospective purchaser, but, as Mr Jenkins put it: There is no evidence to establish this requirement and the assumption is legally incorrect.
Mr Jenkins sought a variation of the amount awarded to $10,051 and payment of his legal costs of $12,992.21.

Consideration

There is a right of appeal on a question of law. Otherwise leave to appeal is required. In each appeal, leave is sought to the extent that it is required.
Leave may only be granted if the Appeal Panel is satisfied an appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, against the weight of evidence or there is significant new evidence that has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
It is convenient to deal with the operator's appeal and Mr Jenkins appeal in turn. We will deal with the operator's appeal under the headings contained in its written submissions in chief.
Prior to doing so we will deal with the new evidence sought to be relied upon by Mr Jenkins.

New evidence

Mr Jenkins sought to rely on three documents constituting new evidence. These were a bill of sale, a contract for sale of a manufactured home and an affidavit of Jennifer Anne Player sworn 22 October 2021.
All of this material was reasonably available at or prior to the hearing of the proceedings at first instance. This fact was conceded by Mr Jenkins. Consequently, leave should not be granted to permit this material to now be relied upon in the appeal: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19] and following.

Whether Lee Jenkins was a "home owner" and entitled to sell the home while the home was located on the residential site?

Submissions

In relation to whether Mr Jenkins was a home owner within the meaning of the RC Act the operator said the Tribunal did not make a finding as to whether, prior to the grant of probate, Mr Jenkins acquired an interest in the site agreement. Reference was made to ss 44 and 61 of the PA Act and the decision of the Court of Appeal in Deigan v Fussell [2019] NSWCA 299 (Deigan) and what was said and [174]-[177].
The operator submitted the Tribunal failed to determine whether the interest to be acquired to satisfy the definition of home owner in s 4 of the RC Act was a legal or beneficial interest and that this question was not correctly addressed by the Tribunal. The operator also submitted that the Tribunal had an erroneous view concerning the operation of s 61 of the PA Act which applies to persons who die intestate as well as those who die testate. In reaching the conclusion that the operator had "no reasonable ground to assume it was an intestate estate" under s 61 of the PA Act the operator said this constituted impermissible speculation by the Tribunal and is demonstrative of an erroneous approach.
Lastly, the operator submitted that the Tribunal's interpretation of s 104 of the RC Act was incorrect because there was no specific exclusion contained in that section or in the Act as to the need for probate.

Analysis

The Tribunal found that Mr Jenkins was a "home owner" within the meaning of the RC Act. For the following reasons, it was correct to do so.
Section 4 of the RC Act defines a homeowner as follows: home owner means - (a) a person who owns a home on a residential site in a community that is the subject of a site agreement (whether or not the person resides at the site), or (b) a person who obtains an interest in a site agreement as the personal representative, or a beneficiary of the estate, of a deceased individual who, immediately before the individual's death, was a person mentioned in paragraph (a), or (c) another successor in title of a person mentioned in paragraph (a), but does not include any person, or any person of a class, excluded from this definition by the regulations.
Section 104 of the RC Act (found in Part 10 Sale of homes) provides: 104 Application of this Part (1) This Part applies to a home owned by a home owner or former home owner that is located on a residential site in a community. Accordingly, references in this Part to a home owner include former home owners. Note - The definition of home owner in section 4 provides that the term includes an executor, administrator or beneficiary of the estate of a deceased home owner. (2) Nothing in this Part applies to the sale of a home that is not located in a community.
There is no dispute in these proceedings that the Will was valid.
The definition of home owner in s 4 of the RC Act refers to the "personal representative or a beneficiary of the estate". The expression "personal representative" is not defined in the RC Act. However, in our view there can be no doubt the definition includes an executor or an administrator of the estate.
A will operates on the death of the person to whom it relates: Succession Act 2006 (NSW) s 30. At the point in time when Mr Alvis Jenkins died, Mr Jenkins became a beneficiary of the estate. This status as a beneficiary was not dependent upon the grant of probate. Rather, it was dependent upon the death of the testator and a valid will.
As to the status of Mr Jenkins as the personal representative, even if the obiter dictum of White JA in Deigan (namely that is that an executor can take action on behalf of the estate before a grant of probate) is rejected, nonetheless: 1. it is the Will of the deceased that appoints a person to the position of an executor; and 2. that status is acquired upon the death of the testator.. That is, a grant of probate is not a prerequisite for the appointment as the personal representative under the Will to take effect.
In this regard, in Deigan White JA referred to a passage in Byers v Overton Investments Pty Limited [2001] FCA 760, where the Full Court of the Federal Court of Australia said at [21]: 21 … In the above passage, Gibbs J is not referring to the vesting of the deceased's property but to the source of the executor's appointment as executor which undoubtedly is the will (emphasis added). His Honour's position is quite consistent with the proposition that the vesting of the property is effected by statute. At common law a grant of probate was purely evidentiary albeit the only acceptable evidence of an executor's appointment. As explained above, title to the property of a testate estate vested in the executor at the death of the testator. Section 61 alters that position in relation to the vesting of property only. It does not alter the fact that the title to the position of executor stems from the will (emphasis added). As such it makes a distinction between the powers of the executor before and after probate that does not exist at the common law.
The RC Act confers rights under that Act on those defined as a home owner. In the present case they are a "personal representative or a beneficiary of the estate". In either case, Mr Jenkins fits within the definition and is therefore a home owner for the purpose of the RC Act. Consequently Mr Jenkins may exercise the rights so conferred.

Whether the operator caused or permitted any interference with, or any attempt to interfere with the owner's right to sell the home?

Submissions

The operator says that the Tribunal erred in finding that it had interfered with the homeowner's rights to sell a home in contravention of s 107 of the RC Act.
The operator submits that the decision is not fair and equitable or was against the weight of evidence. The operator says that the conduct constituting interference with the homeowner's right to sell does not include an election by the operator not to act as selling agent on a sale until a grant of probate is obtained. The operator is not obliged to act as a selling agent for a homeowner and as such its decision not to act, for whatever reason, does not amount to interference under the RC Act.
The operator also points to the fact that Mr Jenkins was always able to obtain an alternative selling agent.
In the operator's submission, it must follow that the Tribunal was in error in finding that it was not disputed that the operator would not allow the sale until Mr Jenkins had obtained a grant of probate.
Five matters were put forward to support this submission: 1. A reading of the email exchange referred to by the Tribunal reveals that the operator declined to list the home for sale and declined to terminate the existing site agreement and enter into a new agreement with another party until a grant of probate was obtained. An election not to act as a listing agent until grant of probate was entirely permissible. That election left it open to Mr Jenkins to appoint an alternative agent for the sale. There was no evidence to suggest he took such a step, nor did he place any "for sale" sign in or on the home as permitted by s 106 of the RC Act. 2. The statement by the operator's witness that there was a need for probate before the residence could be sold was correct because any sale could not be completed until probate was obtained. In this regard the operator accepted the Tribunal's conclusion that probate was required in order for Mr Jenkins to deal with property in his capacity as executor. 3. Reliance was placed on the operator's witness, Ms Jodie Carr, who was manager of the residential community, employed by the operator. The operator says Ms Carr's evidence was that Mr Jenkins first requested the operator to list the residence for sale in an email dated 14 May 2019. 4. It was not put to the operator's witnesses that the operator would not allow the sale to take place until probate was obtained. 5. As the operator would not be a party to any contract for sale of the residence, the operator had no mechanism by which to allow the sale of the residence. Prior to the grant of probate the operator was never contacted by a prospective home owner about a proposed sale, as contemplated by s 108 of the RC Act.
In these circumstances the operator says there was no evidence to support the finding that it had interfered with the proposed sale of the residence.
Further, the operator says that it acted prudently "in choosing to protect (itself) by insisting on the production of a grant of probate before they will terminate the [site agreement] with the estate of a deceased resident and enter into a new agreement with another party or acting as selling agent". The operator referred to the decision of Public Trustee v CBA and that it would be taking a risk in executing any documents or terminating the site agreement in the absence of a grant of probate. That case dealt with the liability of third party dealing with a person who purported to have authority to act in respect of estate matters.

Analysis

Section 107 of the RC Act provides: 107 Interference with right to sell home (1) The operator of a community must not cause or permit any interference with, or any attempt to interfere with - (a) a home owner's right to sell a home, or (b) a home owner's right to display a "for sale" sign in or on a home. Maximum penalty - 100 penalty units. (2) Without limiting subsection (1) - (a) interference with a home owner's right includes hindering the exercise of the right, and (b) interference with a home owner's right to sell a home includes unreasonably restricting prospective home owners from inspecting the home or any common area of the community, and (c) interference includes making false or misleading statements about the community that affect or may affect either right, and (d) interference includes taking any action to require the home owner to comply with any requirement made by or under the Local Government Act 1993 after becoming aware that the home owner is seeking to sell his or her home (unless the matter has been the subject of previous action). (3) An operator does not interfere with the right to sell the home if the operator declines to enter into a site agreement with a prospective home owner and does so on reasonable grounds. (4) Without limiting subsection (3), reasonable grounds can be established on - (a) the basis of unfavourable information about the prospective home owner contained in a residential tenancy database referred to in the Residential Tenancies Act 2010, other than a database referred to in section 210 of that Act, or (b) the basis that the prospective home owner has been evicted from the community or another community within the past 5 years for a breach of a site agreement by the prospective home owner.
The definition of interference is an inclusive definition and includes conduct that constitutes both interference and an attempt to interfere. Under subs 107(2) interference includes hindering the exercise of a right.
In an email dated 14 May 2019 sent at 2:34 pm (Appeal Bundle AB 119), the operator's manager, Ms Carr said: As previously discussed, we are not able to list the property for sale until a Grant of probate is obtained. All deceased estates become a vested interest of the Public Trustee, until a grant of probate is obtained, it cannot be sold by anyone. I am still waiting for a Legal department to explain this in a letter form, to you and your solicitors, as per your request. We can not move forward until this is taken care of.
This was in response to an email from Mr Jenkins (AB 119-20) sent on 14 May 2019 at 2:22 pm where he said: I have been advised by my solicitor to write to you to formally request that you list [the property] for sale on the Surfrider Caravan park website for $115,000. I have provided you with a certified copy of my father Alvis Wesley Jenkins final will and testament which clearly states that I Lee Jenkins am the sole beneficiary and executor of my father Alvis Jenkins estate.
Thereafter, there were further communications from the operator's representative regarding payment of site fees and obtaining probate: AB 121 and following. On 12 November 2019 (AB 123) Ms Carr sent an email in the following terms: I have spoken to head office with regards to your request to allow you to sub- let the property on site for to your father in law to avoid more fees becoming overdue. Unfortunately, the company will not consider your sublet request unless all outstanding fees are paid up-to-date. I can confirm we gave Jim a TICA application yesterday in case we were able to proceed, and we are happy to look at is application once all outstanding fees are paid. I also confirm that you advise yesterday that you have started the probate process again "about a week ago" and we hope that this will be sorted within the next 6 weeks as it is generally the timeframe for a Grant of Probate to be achieved. Although we do understand it can take longer if there are complications. If I can be of any assistance in the meantime, please contact me direct.
It our view the statements made by the operator could constitute interference under s 107. In this regard, such statements could hinder a home owner from exercising a right. Further, in declining to advertise the property and/or act as agent, this was also conduct that could amount to interference within the meaning of s 107.
The Tribunal found that such conduct did constitute interference.
This is a finding of fact for which leave to appeal is required. Sch 4 cl 12 of the NCAT Act provides that leave may only be granted if the Tribunal is satisfied the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable always against the weight of evidence. Collins v Urban [2014] NSWCATAP 17 sets out the principles applicable to the grant of leave.
In the present case, it seems to us that it was open to the Tribunal on the evidence before it to reach the conclusion that there had been interference. Further, it could not be said that "the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach" (Collins at [77]). Accordingly, we are not satisfied the decision on this aspect was not fair and equitable or was against the weight of evidence and would refuse leave on this basis.

Whether compensation was payable/ Causation/ Quantum/ Failure to Mitigate Loss

It is appropriate to deal with submissions made under these headings together.

Submissions

There is no dispute that the Tribunal may award compensation under s 115(2)(f) if there has been a contravention of s 107 of the RC Act.
The operator says that any contravening conduct must cause relevant loss and damage. However, in the present case, the operator submits the award of damages, namely the site fees incurred because of any delayed sale, could not be said to have been caused by any conduct of the operator.
The operator says: 1. There was no evidence that there were any prospective buyers of the home prior to Mr Jenkins engaging Illawarra estate agents to sell the home. 2. The operator was not contacted by any prospective buyer until well after the grant of probate. 3. The Tribunal accepted the evidence of Mr Jenkins at [7] that it took between 3 to 6 months to sell the home from the date of grant of probate.
Consequently, the Tribunal's finding that there was delay in the sale of a home "is entirely speculative and was not an inference that could be drawn from the evidence".
The operator also relied upon evidence that Mr Jenkins had unsuccessfully applied for probate and thereafter engaged a lawyer to assist. The operator said delay arising from the grant of probate was not attributable to the operator.
Finally, the operator said that the Tribunal erred at [19] of its reasons by conflating the concept of "interference" with that of "deterrence" and misdirected itself in concluding that the question to consider was what would have happened if Mr Jenkins had not been deterred from sale by the demand of probate when he met the operator on or about 20 March 2019". In written submissions the operator said at paras 56-7: 56. At [19] the Tribunal below made a finding that but for Mr Jenkins being deterred from sale, the home would have been advertised and perspective (sic) purchases would have looked at it and the community facility. No such finding could have been made based on the evidence. The evidence was that Mr Jenkins had made no attempt to advertise or list the home for sale, even though he had been advised by his solicitor that he was entitled to take such steps. It is submitted that this is not fact-finding, but rather impermissible speculation and conjecture. For these reasons, it is submitted that the Tribunal Member erred in his reasoning in this respect, on the basis that the reasoning was based on impermissible speculation and conjecture, not-finding. 57. The evidence does not support the conclusion that the conduct identified as interference in contravention of s 107 of the [RC Act] cause [sic] Mr Jenkins to incur site fees from March 2019 until the grant of probate. In the absence of proof of causation, the Tribunal below should have dismissed the claim for compensation.
In relation to the quantum assessed, again the operator referred to the delay in obtaining probate. The operator said that until probate was obtained, a new site agreement could not be entered into nor could there be an assignment of the existing site agreement to a prospective purchaser. The Tribunal's assessment of damages was arbitrary, reference being made to the refusal reasons. In those reasons the Tribunal said: … 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 ordered 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.
Consequently, the operator says that quantum must be assessed against delays solely attributable to Mr Jenkins in obtaining probate.
Lastly, on the question of mitigation, the operator said that Mr Jenkins could have engaged an alternative selling agent or taken it upon himself to advertise the sale to ensure that any sale could be completed as soon as a grant of probate was obtained. The operator says that it made submissions on this topic which the Tribunal failed to consider. Those submissions included that Mr Jenkins had obtained advice from a solicitor concerning these matter and what he could do.
In reply, Mr Jenkins submitted that he had not pursued any claim for diminution of the value of the home by reason of the delay. Rather, he simply sought recovery of site fees and charges he had incurred from the date he was advised by the operator that he required probate to the date probate was granted. This period, Mr Jenkins contended, represented the extent of the interference in the sale of the home by the operator. Mr Jenkins says his claim was consistent with the decision of the Appeal Panel in ZW2.
Mr Jenkins submitted that the operator had refused to deal with him as there was no probate.
In oral submissions Mr Jenkins said he was bullied into believing he had no rights. Mr Jenkins also relied upon a letter from the Mr Richard Black, Group Manager-Resident Relations dated 12 February 2020, which was sent to Mr Jenkins' solicitor, Mr Wells. That letter (AB 126) said: We refer to your letter of 29 January 2020 and note that on 15 May 2019 we wrote to your client informing him that he would need to obtain a grant of probate before we would be prepared to terminate the existing site agreement and enter into a new site agreement with another party. Enclosed for your information is a copy of our letter dated 15 May 2019 and we advise that our position on this matter remains the same. We are not prepared to agree to any abatement or reduction of the rent payable by the Estate pursuant to the site agreement and note that on 14 November 2019 a notice of termination was served upon the NSW Trustee & Guardian in respect of the non-payment of site fees. The notice required vacant possession of the site to be provided on 20 February 2020. A copy of this notice is enclosed for your information. In the event that outstanding site fees are not paid in full by 20 February 2020, we intend to lodge an application with the NSW Civil & Administrative Tribunal seeking orders for termination and vacant possession.
Mr Jenkins submitted that this letter was proof that he could not act until he had probate. He said there was no point in securing a purchaser when he had a letter to say the operator would not sign any assignment or new agreement. Reference was made to a discussions with Ms Carr.
The Appeal Panel sought references to the evidence to support this submission. Following discussions with his partner, Ms Player, we were referred to the evidence at AB 118-9 (which includes Ms Carr's email dated 14 May 2019 and Mr Jenkins earlier email on the same day which we have set out above).
In making these submissions Mr Jenkins accepted that the operator was entitled to decline to act as his selling agent and entitled to refuse to enter a new site agreement as permitted by the RC Act.
Finally, Mr Jenkins otherwise opposed the grant of leave.

Analysis

The loss Mr Jenkins said he suffered was the rent paid under the site agreement until probate was granted and the residence was sold.
The operator says its actions were not the cause of Mr Jenkins incurring these charges. The operator says that it was open to Mr Jenkins to sell the property independently of the operator and that the operator could not be responsible in respect of the delay in obtaining a grant of probate.
At [15] of the reasons, the Tribunal found that the operator "prevented [Mr Jenkins] from placing the home for sale until probate was obtained". This finding is based on a conversation between Mr Jenkins and Ms Carr on 20 March 2019 set out in the affidavit of Mr Jenkins sworn 13 July 2020 (AB 108 at AB 109 para 7). The Tribunal also made reference to subsequent communications from the operator's representative concerning the need for probate.
At [16] of those reasons the Tribunal found that the claim by the operator of the need for Mr Jenkins to first obtain probate constituted an interference with the sale. Having dealt with the issue of whether or not Mr Jenkins was a home owner, the Tribunal continued: Furthermore, Mr Jenkins requirement for probate would relate to a dealing on (sic) property in his capacity as executor such as transfer of the title of the home or registration of a mortgage on the home. These are registrable property interests. They are not something in which the community operator plays any role with regard to the sale of the home If Mr Jenkins had no probate by the time he accepted an offer made by a prospective purchaser, his ability to deliver title on the sale would be between him and the purchaser, not the community operator. Under the Act the role of the community operator is not to interfere in activities such as advertising premises, putting up a sale sign, not restricting potential purchasers from inspecting the home or common areas of the community, providing copies of community rules to potential purchasers and negotiating any site agreements if necessary with a potential purchaser. None of these roles is a registrable dealing on property which would have required Mr Jenkins to have had probate. They are obligations under the Act with which a community operator is not to unreasonably interfere when a home is being sold.
Having found there had been interference in the sale, the Tribunal then said at [19]: The question to consider is what would have happened if Mr Jenkins had not been deterred from sale by the demand for probate when he met with the manager on, or about 20 March 2019. The home would have been advertised. Prospective purchasers would have looked at it and community facilities. Mr Jenkins would have applied for probate. He may have had problems obtaining it and have had to get his solicitor to apply on his behalf. Mr Jenkins says the home took 3 to 6 months to sell once probate was granted. The delay cause was the delay from 20 March until Mr Jenkins obtained probate on 4 August 2019. He later had to pay site fees from sale funds. The fees would not have been payable for this period of delay. From March 2019 Mr Jenkins would have wanted to sell the home with vacant possession so there would have been no issue of subletting. Site fees would have been payable but the delay in the sale process caused site fees to be incurred in this period. Site fees during the period were $147.20 per week. Probate was granted on 4 August 2019. Consequently, the site fees paid between 21 March 2019 and 3 August 2019 ought to be refunded. That is the period of 140 days at a daily rate of $21.08 being the sum of $2,845.80.
As can be seen from the passage quoted above, the Tribunal found the operator liable on the basis it had deterred Mr Jenkins from selling the residence because of a requirement that probate be first obtain before it would agree to the sale. That is, the statements made by the operator's representative prevented Mr Jenkins from selling the residence and caused him to incur site fees. In reaching this conclusion, the Tribunal appears to accept that the operator was not responsible for giving Mr Jenkins legal advice concerning what he could do: reasons at [15]. In this regard, at or shortly after 20 March 2019 Mr Jenkins was being advised by Mr Warren Creswick from the firm Creswick McCarthy solicitors about his rights as owner: see Mr Jenkins' email to Ms Carr dated 3 April 2019 AB 117-8 and Mr Jenkins evidence in cross examination AB 175.
It should also be noted that after this time Mr Jenkins first unsuccessfully applied for probate, which he did without legal assistance due to cost issues: see reasons at [6].Subsequently, Mr Jenkins appointed a solicitor who obtained probate on 4 August 2020.
In our view, in concluding the operator caused Mr Jenkins to suffer loss by reason of interference by the operator the Tribunal did not account for several important facts: 1. As noted at [71,] from at least about 20 March 2019 Mr Jenkins was being independently advised about his rights. 2. At all times Mr Jenkins was able to advertise the property and obtain a purchaser independently of the operator. 3. After obtaining probate, Mr Jenkins appointed an independent agent, Illawarra Estate Agents, to act on his behalf and list the property for sale: Mr Jenkins affidavit sworn 28 August 2020 (AB 134 at AB 135 para 6). 4. The operator was entitled to insist upon a grant of probate prior to signing a transfer of the existing site agreement to a prospective purchaser or entering into a new site agreement with the prospective purchaser, which would have the consequence of terminating the existing site agreement or transferring rights to a new person. This was because, without such a grant, the operator would be at risk of dealing with the estate property inappropriately: see eg Public Trustee v CBA and Ors. Mr Black, the operator's Group Manager made that position clear in a letter to Mr Jenkins' solicitor Mr Wells, dated 12 February 2020 (the relevant parts of which are set out at [61] above). 5. Similarly, acting as agent and promoting a sale on behalf Mr Jenkins prior to the grant of probate may also have placed the operator at risk of liability to prospective purchasers concerning statements made. 6. The operator was otherwise entitled to insist on payment of rent pending sale of the property.
During the hearing of the appeal, Mr Jenkins accepted that the operator was entitled to decline to act as his selling agent. Indeed, as the evidence reveals, he in fact appointed an independent agent to act on the sale, that agent ultimately securing a purchaser. Further, it is clear that the operator had no obligation to or responsibility for Mr Jenkins obtaining probate and there were delays in obtaining probate which had nothing to do with the conduct of the operator.
When these matters are taken into consideration, it seems to us that the identified conduct, although constituting interference, did not relevantly cause the loss and damage in question to be suffered. Rather, it remained for Mr Jenkins, who had independent legal advice, to appoint his own selling agent and obtain probate and thereby facilitate a sale at an earlier point in time.
In the meantime, the estate remained liable for site fees applicable to the agreement.
In our view the operator has suffered a substantial miscarriage of justice as the decision was not fair and equitable or was against the weight of evidence and to the extent necessary leave to appeal should be granted.
It follows that the Tribunal was in error in awarding Mr Jenkins damages in the sum of $2,845.80. Rather, that order should be set aside and Mr Jenkins' application dismissed.
Having regard to the decision that we have reached, the appeal by Mr Jenkins should be dismissed.
Finally, as leave for legal representation was granted on the condition that no costs would be sought in any event, we will not make any further orders in relation to costs. We confirm however that this conclusion does not affect the adjournment decision in which we granted an adjournment on the application of Mr Jenkins and ordered that Mr Jenkins pay the operator $1,760.00, being costs thrown away by reason of the adjournment, such costs to be paid on finalisation of the appeal.

Orders

The Appeal Panel makes the following orders:

In appeal 2021/00174015: 1. Leave to appeal is granted, the appeal is allowed the order made 2 June 2021 is set aside. 2. In lieu thereof, application RC 20/30192 is dismissed.

In appeal 2021/00030452: 1. The appeal is dismissed.

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: 13 January 2022

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (7)