Bauer v Farm Cove Investments Pty Ltd

NCAT Appeal Panel|2020-11-29

Overview

For some 20 years, the appellant, Ms Bauer, along with her husband (Mr Kress) and mother have been living in a caravan on site 25 at the respondent's residential community park on the north coast of New South Wales.
Ms Bauer appeals from orders made by the Tribunal on 8 September 2021 that terminated an agreement in respect of the caravan site, requiring her to give possession to the respondent on 9 September 2021 and suspended this order for possession until 10 December 2021.
These orders were founded upon provisions in the Residential (Land Lease) Communities Act 2013 (NSW) (the RLLC) and upon a finding by the Tribunal that Ms Bauer, as "home owner" (a term defined in this Act) had seriously and persistently breached the site agreement.
For the reasons set out below, we have decided that her appeal should be dismissed.

The orders the subject of appeal and the site agreement

The Tribunal's reasons for decision

Relevantly, the Tribunal's oral reasons included the following: 1. The Tribunal concluded that the required notice of termination had been given to the appellant requiring vacant possession on 1 June 2021. 2. It concluded that there was a residential site agreement between the appellant and the respondent and that upon the commencement of the RLCC this became a residential site agreement within the meaning of the RLCC. It noted that the respondent relied upon breaches of clauses 11 (causing a nuisance) and 17 (keeping the residential premises reasonably clean). 3. The Tribunal made findings about the storage by the appellant of extensive belongings, if not rubbish, on common property near their site and that this interfered with the enjoyment of neighbours' sites and caused a nuisance, along with the noise from their dogs barking. 4. The Tribunal found these were breaches of the site agreement, they were serious breaches, they were persistent and they were sufficient to justify termination. As to this, the Tribunal concluded that in view of the non-compliance with the specific performance orders made in April and October 2020 it had no confidence that any further specific performance order would be complied with. 5. The Tribunal also said it had regard to the nature of the breaches, including their unusual nature, that although some steps had been taken to rectify the breaches such steps had been inadequate and untimely, and that the respondent had tried its best to obtain compliance since early 2020, and in this regard owed obligations to the other residents, but these attempts had been unsuccessful. 6. The Tribunal concluded it would make a termination order but it would suspend that order in order to allow a reasonable time for the appellant to make arrangements to leave the property, having regard to various matters Mr Kress had put to the Tribunal, including the current COVID 19 situation and his ill-health with cancer. In this regard, the Tribunal noted that the family had a place to move to in Tasmania, although, if this could not be achieved because of restrictions on movement, there were other places that arrangements could be made to move to. In the circumstances, the Tribunal decided upon a 90 day period of suspension of the order for possession.

The nature of the appeal

Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 of Schedule 4 of the NCAT Act on the basis that: …..the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)
Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; or 3 an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4 a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

Grounds of appeal and aspects of the conduct of the appeal

Apart from some assistance from Legal Aid with respect to an application for a stay of the orders, the appellant had no legal representation. In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal and that in such circumstances it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. We have approached the appeal in this manner.
The Notice of Appeal, lodged on 24 September 2021, included the following statements concerning the grounds for appeal: The Caravan does not belong to me. I am only the tenant when Tony Kress is not here. He is still on….. for Bone Cancer and Prostate. …. Bill Disney tell (sic) everyone he is waiting for the 10 of December when we are being evicted!!! And all this is because stupid me signed a new contract with Bob and Pauline on the 6.6.2006.
With respect to a contention that leave to appeal should be granted because the decision was not fair and equitable, the following was said in the Notice of Appeal: Belinda had a Deal with Tony that he will try and his condition of health if the Weather permitted to clear our Driveway but they came and took many photos without our permission. They did not wait the 2 week we got from NCAT a letter. I did ask Linda why she wants to get rid of me. She said she does not because I otherwise paid in advance for 4 weeks. So she lied to me when she knew what I was going through with Tony because of his sickness.
With respect to a contention that leave to appeal should be granted because the decision was against the weight of evidence, the following was said in the Notice of Appeal about what evidence the appellant gave at the hearing and about what evidence the Tribunal should have given more weight to: None whatsoever [no evidence presented at the hearing] because it was not me doing the damage. The first Court Case in Murwillumbah was on the Monday the 9 March 2021. They did not come because the mobile did not work. Funny 3 times we could not get through on the phone Telstra told us. To the first Court Case in Murwillumbah [the evidence the Tribunal should have given more weight to] when we asked them for proof they told us only NCAT got the paper they only rental (sic) the Court in Murwillumbah.
With respect to a contention that leave to appeal should be granted because of significant new evidence, in the Notice of Appeal it was said that the significant new evidence was "All those letters" and that the reason the evidence was not available at the time of the hearing was: because I did not want to be included in this mess what seems to me all only harassment and making me sick I never thought that this could happen in Australia.
The references in the statements to Bill and Belinda Disney were references to directors of the respondent who dealt with the operation of the community park. The reference to "Tony" was a reference to Mr Kress.
The reference to the first Court Case in Murwillumbah was a reference to the first proceedings brought by the respondent against the appellant in February 2020 for breach of the community rules. As will be seen below, these proceedings were dismissed on 9 March 2020 in the absence of the respondent. The respondent succeeded in having the proceedings reinstated in circumstances where it claimed that it did not receive notice of the hearing on 9 March 2020 because the Tribunal had an incorrect email for the respondent.
As expanded upon below, it seems to us that the only tenable ground of appeal that emerges from the material put forward by the appellant and from her oral submissions relates to the question whether the proceedings for termination should have been brought against the appellant's husband instead of against the appellant. In respect of this question the appellant asserted on the appeal that the caravan is owned by her husband, not by her. In turn, as will appear from our analysis of the relevant statutory provisions, the appellant asserted that she is not the "home owner" against whom a right of termination could be claimed by the respondent. The appellant asserted that the Tribunal erred by proceeding on the incorrect basis that she was the "home owner".
The respondent says that the Tribunal, correctly, proceeded on the basis that the appellant was the "home owner" and, hence, the appellant was the correct party because it concluded that this issue had already been determined in previous Tribunal proceedings. In any event, the respondent says that the relevant evidentiary material that it has put forward on the appeal pursuant to directions concerning the conduct of the appeal and the prospect that the Appeal Panel may decide to conduct a new hearing demonstrated that the appellant is the "home owner". It says that the appellant's position about this consisted of nothing more than an assertion concerning the ownership of the caravan.
The Tribunal gave oral reasons for its decision. Despite the directions that were made for the conduct of the appeal, no party provided the Appeal Panel with any part of the transcript of the Tribunal's hearing, including the Tribunal's reasons. The directions made by the Tribunal for the conduct of the appeal included that the appellant was to provide a sound recording or transcript of the hearing at first instance if oral reasons were given.
On the Thursday before the appeal hearing on Monday, 29 November 2021, the respondent provided to the Tribunal a bundle of documents, including a sound recording of the Tribunal's hearing. This bundle was also provided to the appellant and was supplied pursuant to a direction for the respondent's material on the appeal to be lodged and given to the appellant by 22 November 2021. In providing this bundle the respondent explained that the sound recording of the reasons for decision had not been transcribed due to time constraints.
At the commencement of the hearing of the appeal, after discussion with the parties, we decided that we would take a short adjournment in order to listen to the sound recording of the Tribunal's reasons for decision. Our summary of the relevant aspects of those reasons appears below.
As will appear below, it was a fundamental premise of the Tribunal's decision that Ms Bauer was the "home owner". The Tribunal Member's oral reasons given at the end of the hearing did not make any reference to an issue as to whether the appellant or her husband was the "home owner". However, at the hearing of the appeal we were informed by Mr Tarnawsky (who appeared for the respondent with the permission of the Tribunal) that earlier in the hearing, after this issue had been raised on behalf of the appellant, the Tribunal stated that this issue had already been determined against the appellant in earlier proceedings in the Tribunal, in particular, in a proceeding brought by Mr Kress against the respondent in May 2020.
Subsequent to the hearing of the appeal, we listened to the whole of the sound recording of the Tribunal's hearing. This revealed that the appellant had contended that Mr Kress was the owner of the caravan. From this it was implicit that the appellant contended that the proceedings against her as the "home owner" were misconceived. The sound recording did not reveal any statement by the Tribunal at any point in the hearing that the issue as to whether the appellant or her husband was the owner of the caravan had been determined in earlier proceedings in the Tribunal.
In the circumstances, we regard the appellant as having raised as a ground of appeal that the Tribunal erred in law in failing to address the appellant's contentions that, in truth, Mr Kress was the "home owner" and that as a consequence the termination proceedings against her pursuant to s 122 of the RLLC were misconceived (Ground 1).

Extension of time

In the Notice of Appeal the appellant sought an extension of time in which to lodge the appeal. The appellant needs such an extension because the Notice of Appeal was lodged more than 14 days after the appellant was notified of the decision and of the reasons for the decision: see Rule 25 (4) (b) of the Civil and Administrative Tribunal Rules 2014. These are "residential proceedings" within the meaning of that rule: see the definition in Rule 3 (1). Such notification occurred at the hearing on 8 September 2021.
The extension of time sought by the appellant is a very short one - 2 days. The 14 day time limit expired on 22 September 2021 and the Notice of Appeal was lodged on 24 September 2021. The explanation for the delay suggested in the Notice of Appeal was that the appellant did not receive the formal, written notice of orders until 14 September 2021. The respondent did not say anything in opposition to the grant of the necessary extension of time. In these circumstances, and taking account also of what we have already said about Ground 1 of the appeal, we have decided that the necessary extension of time in which to lodge the appeal should be granted.

Legislative provisions

As we have said, the respondent relied upon a written agreement between the previous park owners and the appellant made on 6 June 2006. This was an agreement for a fixed term of six months with a provision that at the end of the term the appellant could stay in the "residential premises" unless or until the agreement was ended in accordance with the Residential Parks Act 1998 (NSW).
This Act was repealed by the Residential (Land Lease) Communities Act 2013 (NSW) (the RLLC), which commenced on 1 November 2015. The RLLC introduced new provisions regulating occupancy of sites within these communities, including the notion of a "home owner" occupying an area within such a community under a "site agreement".
Savings and transitional provisions in Schedule 2 of the RLLC made provision for existing agreements made under the old legislation to continue. Importantly, there was, relevantly, the following provision: 5 Existing agreements (1) Agreements entered into under the repealed Act that have not been terminated remain valid after the commencement of the relevant provisions of this Act. ….. (3) A residential site agreement, moveable dwelling agreement or NPWS agreement (other than an excluded agreement) in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a site agreement between the resident (as or on behalf of the home owner) and the park owner (as operator of the community in which the home is located). ….. (6) In this clause - …… moveable dwelling agreement means an agreement of a kind referred to in clause 5(1)(c) or (d) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act.
Relevant definitions in the RLLC (section 4) include: community or residential community means an area of land that comprises or includes sites on which homes are, or can be, placed, installed or erected for use as residences by individuals, being land that is occupied or made available for occupation by those individuals under an agreement or arrangement in the nature of a tenancy, and includes any common areas made available for use by those individuals under that agreement or arrangement. ….. home means - (a) any caravan or other van or other portable device (whether on wheels or not) other than a tent, used for human habitation, or ….. 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 ….. resident means a person who is a home owner or tenant in a community. ….. residential site means a site in a community for a home that is used, or is intended to be used, as a residence by an individual. site agreement means an agreement under which the operator of a community grants to another person for value a right of occupation of a residential site in the community.
Other pertinent provisions of the RLLC are as follows: 6 Application of Act to site agreements (1) This Act applies to all site agreements, whether existing immediately before or coming into existence after the commencement of this section, unless a provision of or under this Act provides otherwise. (2) Where this Act applies to a site agreement, it so applies despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section. (3) This Act applies to a site agreement until it is terminated in accordance with this Act. 31 Duration of site agreement ….. (5) A home owner's right under a site agreement to occupy a residential site continues until the agreement is terminated in accordance with this Act, whether or not a fixed period (if any) has expired, and accordingly all terms of the agreement remain in full force and effect. 36 Home owner's responsibilities A home owner has the following responsibilities - ….. (l) otherwise, to comply with the site agreement and the community rules. 52 Change of operator (1) If another person becomes the operator of a community, the benefits and obligations under existing site agreements pass from the old operator to the new operator. …. 93 Enforcement of community rules (1) The operator of a community must ensure that the community rules are enforced and interpreted consistently and fairly. (2) The operator of a community may give a notice to a resident to remedy a breach of a community rule within a specified period of at least 30 days. The notice is to be in writing and to be in the approved form (if any). (3) If it appears to the operator that the breach has not been remedied within the period specified in the notice, the operator may, within a further period of 30 days, apply to the Tribunal for orders under this section. (4) The Tribunal may, on application under this section and if it considers the breach is in the circumstances sufficient to justify its doing so, make any one or more of the following orders - (a) an order requiring compliance with the rule within a specified period, (b) an order terminating the resident's site agreement or tenancy agreement, (c) any ancillary order that the Tribunal, in the circumstances, thinks appropriate. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following - (a) the nature of the breach, (b) any previous breaches of the community rules by the resident, (c) any steps taken by the resident to remedy the breach, (d) any steps taken by the operator about the breach, (e) the previous history of the operator or resident so far as it is relevant, (f) whether the community rule is being enforced and interpreted consistently and fairly. (6) The Tribunal may refuse to make an order if it is satisfied that the breach has been remedied. 116 Termination of site agreements A site agreement terminates only in one or more of the following circumstances - ….. (b) if the Tribunal makes a termination order for the agreement and the home owner delivers up vacant possession of the residential site or a warrant for possession is enforced, 122 Termination by operator for breach of agreement (1) The operator of a community may give a termination notice on the ground that the home owner has seriously or persistently breached the site agreement. (2) The termination notice must not specify a date for vacating the residential site that is earlier than 90 days after the day on which the notice is given. ….. (5) The Tribunal may make a termination order if it is satisfied that - (a) a termination notice was given under this section and the home owner has not vacated the residential site as required by the notice, and (b) the home owner has breached the site agreement, and (c) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement. (6) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following - (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the home owner to remedy the breach, (d) any steps taken by the operator of the community about the breach, (e) the previous history of the home owner's occupation of the residential site. (7) The Tribunal may refuse to make the termination order if it is satisfied that the home owner has remedied the breach. 131 Possession orders (1) If the Tribunal makes a termination order, it must also make an order for possession of the residential site (a possession order) specifying the day on which the possession order takes or took effect. (2) The Tribunal may suspend the operation of a possession order if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the operator and home owner by the suspension.

"First Court Case" and the reinstated proceedings

In early 2020 the respondent brought proceedings in the Tribunal against the appellant in respect of site 25 for orders that community rules relating to accumulated rubbish and keeping of dogs be complied with (proceedings RC 20/15369). This, ultimately, led to Tribunal orders made on 27 April 2020 (Member Priestley), including that the appellant comply with community rules by removing rubbish from her site and adjacent common areas, removing vehicles from community grounds and removing all but two animals from her site.
We say "ultimately" because the first application that the respondent commenced against the appellant, dated 7 February 2020, was dismissed on 9 March 2020 in the absence of an attendance by the respondent at hearing on that day. Subsequently, these proceedings were reinstated following application by the respondent on the basis that it never received notice of the hearing. This was the "first Court case in Murwillumbah" referred to in the appellant's Notice of Appeal, to which we have already referred.

Renewal proceedings

In renewal proceedings brought by the respondent against the appellant in September 2020 (proceedings RC 20/40361), the respondent sought further orders that the appellant comply with community rules. This led to Tribunal orders made on 13 October 2020 (Member Priestley), including that the appellant comply with community rules on a before 15 November 2020 by removing all rubbish from her site and adjacent common areas, and that the appellant comply with community rules about pets by removing all the two animals from her site on a before 15 November 2020.
It was on the basis that the problems concerning accumulated rubbish and keeping of dogs had not been rectified, that the respondent took action to terminate the site agreement for breach pursuant to s 122 of the RLLC commencing with the giving of a notice to terminate the site agreement for breach dated 15 February 2021. This notice requested vacant possession to be provided on 1 June 2021.
We elaborate upon this matter further below, but for now point out that in view of s 36 (l) of the RLLC, which required the "home owner" to comply with community rules, these orders made on 27 April 2020 and 13 October 2020 were necessarily founded upon the appellant being the "home owner"-the site agreement did not impose any obligation upon the appellant to comply with the community rules. No appeal was brought against these decisions.

Mr Kress' proceeding

Another proceeding concerning site 25 was commenced by Mr Kress, the appellant's husband, against the respondent in May 2020. However, this was not an application for orders under the RLLC but instead was for an order under the Holiday Parks (Long-term Occupation) Act 2020 (NSW) for an order under s 11 of that Act that a clause of the "occupation agreement" was void. The clause the subject of this challenge was not identified.
We note this legislation is concerned with long-term casual occupation of sites in holiday parks in the sense that an occupant has a principal place of residence elsewhere and occupies the site for no more than 180 days in any 12 month period (s 5). Provisions are made for the Tribunal to make orders in respect of disputes. However, the legislation was not applicable to the circumstances concerning the appellant and Mr Kress' occupancy of site 25.
At the hearing of the appeal, Mr Tarnawsky informed us that the Tribunal in the Mr Kress' proceedings had rejected the contention that Mr Kress and not the appellant was the owner of the caravan on site 25. Mr Kress made his application on the basis that the appellant did not own the caravan and that he had notified the management several times that he owned the caravan.
On 31 July 2020, the Tribunal (Member Rickards) dismissed Mr Kress' application. Short reasons were supplied in the Notice of Order. These outlined three reasons, namely that there was no appearance at the hearing by Mr Kress and no satisfactory explanation for his failure to appear had been given to the Tribunal, the Tribunal had no jurisdiction to determine the application and the Mr Kress did not have proper standing to bring the application.
Subsequent to the hearing of the appeal, at our request, the respondent provided us with a sound recording of the hearing of Mr Kress' application on 31 July 2020, which included the short oral reasons for decision. These include reference to the issues between the parties as having already been determined by the Tribunal's decision on 27 April 2020 but do not otherwise elaborate upon the reasons we have already referred to and do not expressly refer to the contention that Mr Kress was the owner of the caravan.

Consideration-Ground 1

In Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182, at [170]-[175], the Appeal Panel referred to the requirement that the Tribunal consider and address contentions that are squarely raised and seriously advanced. It also said (at [175]): Where, as here, the Tribunal is presented with numerous submissions about a diverse range of issues, the dividing line between those which can be characterised as having been seriously advanced, obliging the Tribunal to consider them, and those which cannot, can be difficult to identify. The Tribunal was not required to consider every submission made by a party. As the Full Court of the Federal Court stated in Applicant WAEE at [49], the Tribunal was not obliged to consider submissions that were misconceived or those where it had rejected the factual premise upon which the submission was based. Nor, in our view, was the Tribunal required to consider poorly developed submissions or those given scant attention by the submitting party…..
In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, at [24], Justices Gummow and Callinan JJ said (Hayne agreeing at [95]) that: To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice….
The sound recording of the hearing before the Tribunal on 8 September 2021, relevantly, reveals the following. Near the commencement of the hearing, in the context of the Tribunal's consideration as to whether Mr Tarnawsky should have permission to appear for the respondent, Ms Bauer stated that the caravan was not hers, it was her husband's caravan. In the course of the presentation of the respondent's case to the Tribunal (as the applicant), Mr Tarnawsky said that to counter this statement from the appellant, Mr Kress, in earlier proceedings brought by him against the respondent, had made an application claiming he was the owner of the caravan and this application was dismissed. Mr Tarnawsky referred the Tribunal to the orders made on 31 July 2020 (referred to above) dismissing the proceedings. The Tribunal looked at these orders and noted their existence.
The sound recording also reveals that when it came to the presentation of the appellant's case in answer to the application, the Tribunal noted that the appellant had not presented any statements or other documents in response to the application. The appellant said that she wished Mr Kress to speak as he knew more about the subject of the proceedings. Mr Kress then spoke at some length about a variety of matters the relevance of which was far from apparent, as the Tribunal noted. In the course of doing so, he said that he owned the caravan. At one point, he also said that about half of what the respondent claimed was common property was, in truth, part of their site at the park and included his driveway. He said that this was the reason he brought the proceedings against the respondent, to which the Tribunal commented that that these proceedings had been dismissed.
In view of the orders made by the Tribunal against the appellant in April and October 2020, which depended upon the position that the appellant was the "home owner", in the proceedings for termination the respondent had a strong basis, at the least, for establishing that the appellant was the "home owner" against whom termination pursuant to s 122 of the RLCC should be sought. Despite this, the appellant herself, or through Mr Kress, made no attempt to substantiate the assertion that she was not the "home owner" either through the material presented before the hearing (as required by the Tribunal's procedure) or at the hearing itself.
In these circumstances, although being the "home owner" was an essential element of the claim against the appellant and the appellant, at the hearing, made it sufficiently clear that this was disputed, on balance, we think that it was legally unnecessary for the Tribunal to consider and address the issue in its oral reasons. The contention had not been developed and substantiated. No proper basis for the Tribunal to conclude that the appellant was not the "home owner" had been presented to the Tribunal.
We consider that this view is supported by the guiding principle in s 36 (1) of the NCAT Act with that provision's emphasis upon resolving the "real issues" in the proceedings.
Furthermore, we are satisfied that what occurred did not amount to a failure to accord natural justice to the appellant on the basis referred to in Dranichnikov. It could not be said that the appellant's contention relied upon established facts.
Accordingly, we do not agree with Ground 1 of the appeal.
Even if we had considered that the Tribunal erred in law by failing to consider and address the question as to who was the "home owner", we would not have upheld the appeal on this basis because, in our opinion, the appellant was prevented or "estopped" from advancing the contention that she was not the "home owner".
The Appeal Panel has recognised that the common law principle of estoppel that operates to preclude the raising of an issue of fact or law (or the assertion of a right or obligation) applies, at least, to decisions of the Tribunal of the nature involved in these proceedings; see, for example, Ravenscroft v Skinner [2016] NSWCATAP 107; Mae v Ho and Ors [2021] NSWCATAP 5 at [72].
In the Ravenscroft decision the Appeal Panel set out the various forms of such principle, as expounded by the plurality of the High Court in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; 256 CLR 507, as follows: 8. The High Court has recently outlined the nature of issue estoppel and how it works in practice: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [21] and [22]. The following discussion summarises the principles the High Court explained in that decision. 9. Issue estoppel in relation to judicial determinations is a common law doctrine informed by considerations of finality and fairness. It operates "as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law": Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [21] citing Jackson v Goldsmith (1950) 81 CLR 446 at 446. The High Court has identified three forms of estoppel: cause of action estoppel, issue estoppel and Anshun estoppel. 10. Cause of action estoppel prevents a party from asserting in a subsequent proceeding a claim to a right or obligation which was asserted in earlier proceedings between the same parties and in relation to which a final judgment or decision was made. That doctrine applies to the facts of this case because the second proceedings were based on the same claim or cause of action that Mr Ravenscroft made in the first proceedings. That claim was that when supplying the boat, Skinner Marine engaged in deceptive or misleading conduct in breach of s 18 of the ACL (NSW) or that Skinner Marine had breached the consumer guarantee in s 54 of the ACL (NSW). The Tribunal determined those claims in the first proceedings and awarded Mr Ravenscroft damages. 11. The Tribunal relied on the second form of estoppel, issue estoppel, to dismiss the second proceedings. That doctrine operates "to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination" made in the first proceedings: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]. It operates regardless of whether the cause of action is the same in each proceeding. In our view, the second proceedings did not just raise certain issues of fact and law that had been resolved in the first proceedings; the cause of action was the same. 12. Alternatively, the Tribunal relied on the third form of estoppel, Anshun estoppel, to dismiss the second proceedings. The High Court has described that form of estoppel as an extension of the first and second forms: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]. It operates to preclude the assertion of a claim or the raising of an issue of fact or law "if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding:" Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]. The second proceedings were not just connected with the subject matter of the first proceeding; the cause of action was the same.
We do not know whether the question about who was the "home owner" was raised in the earlier proceedings the subject of the orders made in April and October 2020 and determined against the appellant or whether the appellant ever raised any issue about this. Either way, in our opinion, the appellant was estopped from raising the contention in the proceedings the subject of this appeal. If the point was previously raised and determined against the appellant in the proceedings the subject of the orders made in April and October 2020 then an issue estoppel operated. If the point was not raised, then because of its centrality to those proceedings it was unreasonable for the appellant not to raise it, in which event, an Anshun estoppel operated against the appellant.
The respondent submitted that the issue as to who was the "home owner" had been determined against Mr Kress in the proceedings he brought in May 2020. It contended that because of the principle of res judicata the appellant was prevented from raising the issue in the current proceedings, presumably, on the basis that she was Mr Kress' "privy".
We do not agree with that submission or that a relevant issue estoppel arises against the appellant because of the decision in that case. As appears from our analysis of the decision in that case, the Tribunal's reasons do not reveal that this particular issue was raised and determined against Mr Kress, let alone that the cause of action was the same as in these proceedings.
On the basis that the Appeal Panel might itself re-determine the question as to who was the "home owner" the respondent also presented evidence on appeal that the appellant was the "home owner", including a hand written, signed document, dated 6 June 2006, stating the appellant's mother transferred the caravan to the appellant. However, in view of the conclusions we have already arrived at, the significance of this evidentiary material does not arise for consideration on the appeal.

Other matters raised in the Notice of Appeal

We have outlined various other matters set out in the Notice of Appeal in support of an application for leave to appeal on grounds that the decision was not fair and equitable, was against the weight of the evidence and on the basis of new evidence that was not reasonably available at the time of the hearing.
We are unable to discern any merit with respect to these matters. The matters referred to concerning the point that the decision was not fair and equitable do not disclose any recognisable ground of appeal. As to the weight of the evidence point, the dismissal of the first Court Case is of no consequence given the reinstatement of those proceedings, as described, and the new evidence sought to be relied upon was reasonably available to the appellant at the time of the Tribunal's hearing.
As to Orders (4) and (5) below, at the hearing of the appeal, we ordered that the Tribunal's orders concerning termination of the residential site agreement and the giving of possession to the respondent were stayed until the determination of the appeal. The appeal has now been determined and the appellant has been unsuccessful. Accordingly, the stay of the orders made by the Tribunal must come to an end. However, we consider that the appellant should have a reasonable period of time in which to consider any appeal from our decision, during which the subject matter of any appeal is preserved, and also to allow the appellant and her family to make arrangements to leave the premises, bearing in mind that the appellant has already had a considerable period of time in which to plan for the prospect that her appeal will be unsuccessful.
In these circumstances, by Orders (4) and (5), we have made provision for the appellant to have 30 days from the date when these reasons are published before the Tribunal's orders made on 8 September 2021 become operative and so as to ensure that the requirement for the appellant to give possession of site 25 is extended for this period of 30 days.

Orders

For the above reasons, we make the following orders: 1. The appellant is granted an extension of time until 24 September 2021 in which to lodge the Notice of Appeal. 2. Leave to appeal is refused. 3. The appeal is dismissed. 4. Subject to Order (5), the stay of Orders 1,2 and 3 concerning termination of the residential site agreement and the giving of possession to the respondent ordered by the Appeal Panel on 29 November 2021 is lifted upon the expiry of 30 days from the date when these reasons for decision are published. 5. Vary Order 3 of the Tribunal's orders made on 8 September 2021, which ordered that the order for possession made in Order 2 was suspended until 10 December 2021, so that the period of time for which the order for possession made in Order 2 of the Tribunal's orders made on 8 September 2021 is suspended is extended to 30 days from the date when these reasons for decision are published.

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: 20 January 2022

Holiday Parks (Long-term Occupation) Act 2020(NSW)

Residential Parks Act 1998(NSW)

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