Bavin v Parklea Operations Pty Ltd

Background

1. Each appellant entered into a site agreement with the respondent in January 2013 and December 2013 respectively. As part of their site agreement, the appellants agreed to pay the operator all charges relating to the operator's supply or resupply of electricity to their respective homes (i.e. residence). Each home is individually metered, but not smart metered. That is, the electricity meter connected to the home of each appellant only records the kWh's of electricity supplied to them, for their use, by the respondent operator. The meters do not record how many of the KWh's were supplied at the off peak, shoulder, or peak kWh rate, which is the basis on which the operator is charged by its retail electricity supplier for the electricity the operator passes on to each appellant.
2. Prior to 1 November 2015, residential parks of the kind operated by the respondent were governed by the Residential Parks Act 1998 (NSW) (the old Act). On 1 November 2015, RLLC Act came into force and repealed the old Act.
3. In July 2017, the appellants commenced proceedings against the respondent, under s 83 of the RLLC Act, seeking copies of the respondent's electricity bills. That application was made after the respondent advised them and other residents in the Park of a substantial increase in the kWh cost of electricity.
4. The Tribunal (differently constituted), in the Consumer and Commercial Division, heard the appellants' claim on 2 November 2017 (initial Tribunal proceedings). Having obtained the respondent's electricity bills, the appellants sought an order for compensation, being the amount they had paid to the respondent for their electricity use, between January 2016 and July 2017, which exceeded what the respondent had been charged by its retail electricity supplier in respect of that use.
5. On 1 December 2017, the Tribunal, in the initial proceedings, dismissed the appellants' claim as it found that their site agreements continued to be governed by the old Act and not the RLLC Act. The provisions of the old Act did not contain provisions similar to those in ss 77 and 85 of the RLLC Act.
6. The appellants appealed this decision to the Appeal Panel. On 24 May 2018, the Appeal Panel allowed the appeal and remitted the 'proceedings' to the Consumer and Commercial Division 'to determine the amount of electricity charges, if any, to be refunded to the appellants': see Bavin v Parklea Operations Pty Ltd Trading as Gateway Lifestyle Stanhope Gardens [2018] NSWCATAP 124 (Bavin v Parklea [2018] or the first appeal). The Appeal Panel also made an order that the parties were at liberty to provide new evidence in the remitted proceedings.
7. In allowing the appeal, the Appeal Panel followed the reasoning of the Appeal Panel in Reckless v Silva Properties Pty Ltd t/as Ballina Waterfront Village and Tourist Park [2018] NSWCATAP 80 that the RLLC Act did apply to site agreements entered into under the old Act that were current at the time the RLLC Act came into force: see Bavin v Parklea [2018], at [28] to [34]. That is, the Appeal Panel held that the RLLC Act did apply to the appellants' site agreements.
8. The appellants' claim was reheard, on 28 September 2018, before the Tribunal in the Consumer and Commercial Division (the Tribunal). At the conclusion of the hearing the Tribunal made the following orders in the remitted proceedings: Pursuant to s 157(1)(b) I order the respondent to comply with the provisions of s77(3) of the Residential (Land Lease) Communities Act 2013. I dismiss the remainder of the applicants' claim for compensation.
9. As we have noted, it is the Tribunal decision to dismiss the remainder of the appellants claim that is the subject of this appeal.

Jurisdiction of the Appeal Panel

1. The decision of the Tribunal below is an internally appealable decision and an appeal can be made from that decision as of right on a question of law, or with the leave of the Appeal Panel on any other grounds: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(1) and (2)(b).
2. As the decision the subject of appeal is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). (see NCAT Act, Sch 4, cl 12)

Grounds of Appeal

1. The appellants' grounds of appeal are discursive, but state that: 1. the Tribunal below erred in deciding that the application was brought out of time; 2. the Appeal Panel ought to extend time for bringing their application pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act); and 3. the Tribunal below was obliged to arrive at a decision as to the amount of overcharge once it found that the respondent overcharged for electricity.

Reply to Appeal

1. In its Reply to Appeal, the respondent contended that the appellants had not identified any error of law by the Tribunal below, or that the appellants had suffered a substantial miscarriage of justice. The respondent contended that the appellants had failed to specifically address the issues of an extension of time and the amount of overcharged electricity, by failing to file and serve additional evidence as directed.

Background and submissions of the parties

1. In their submissions in this appeal, the appellants noted that, at [11] to [13], in its unpublished reasons for decision, of 1 December 2017, the initial Tribunal said the following in regard to time having been extended: "11 The Act provides that any claims to be made for any breach relating to the 2015 Act must be made within three months of the applicants becoming aware of the breach. The recovery of the alleged "overpayments" extended from 1 Jan 2016 to July 2017. Clearly, the dates for recovery lie outside the limitation period. 12 The Tribunal brought this matter to the applicants' attention prior to the end of the hearing. The applicants sought the Tribunal's indulgence to extend the time for making a claim pursuant to section 41 of the NCAT Act. The applicants said they had not become aware of the breach until the respondent supplied certain materials to them requested by summons shortly before the hearing. 13 The operator's representative said that it had no objection to the Tribunal indulging the applicants by extending the time for making the claim. I do not propose to make any further comment on this matter in the absence of any objection as to prejudice from the respondent. The time was extended to bring the application.
2. The respondent submits that time was a live issue in the remitted proceedings before the Tribunal below and that directions were made in the remitted proceedings for the issue to be addressed. It also said that the issue of time was re-opened in the first appeal, and because the appellants did not put a case forward for an extension of time in the remitted proceedings, it was silent on this issue.
3. We note that the first appeal (Bavin v Parklea [2018]) was heard on 5 March 2018. At [36]), of its 24 May 2018 published reasons for decision, the Appeal Panel noted the following: '36 There are other matters which will need to be considered and clarified in the remitted proceedings. It is not clear in the first instance decision, or in the material provided on appeal, what period of time is covered by the application. We note that the Member granted leave under s 41 of the NCAT Act to extend the time to make the application to cover the period from 1 January 2016; however in their supplementary written submissions after the appeal hearing the appellants request access to the operator's electricity bills to March 2018, which is well after the date the application was lodged. …'
4. We have dealt with these remarks of the Appeal Panel below.

Decision of the Tribunal below

1. In its unpublished reasons for decision (reasons for decision), the Tribunal below described the application of the appellants in the following terms, at [2]: 2. An application was filed on 7 February 2018 by 2 residents of the community seeking orders against the operator pursuant to section 85 and section 157(1)(d) of the Act for refunds of $1184.04 and $792.84 respectively for the period November 2015 to March 2018.
2. At [10], of its reasons for decision, the Tribunal below noted: 10 The respondent did not file any evidence or submissions and, more importantly, the parties did not address the Tribunal on the issue of time.
3. The Tribunal below dealt with the issue of time, at [50] to [53] of its reasons for decision. At [50], The Tribunal set out the relevant rule of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) in regard to when an application is to be made to the Tribunal. It found that the applicable provision was rule 23(3)(b) of the NCAT Rules.
4. At [51] of its reasons for decision, the Tribunal below went on to say (italics added): 51 The parties were specifically directed to address the Tribunal on the issue of time. The direction was clearly set out in writing. Neither party complied. The question of whether or not an application was brought in time is a jurisdictional threshold question. It appears to me that the Tribunal does not have jurisdiction to determine applicability of s77(3) to utility bills which were not issued within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. The applicants made the application on 7 February 2018. It follows that any application challenging a utility date that pre-dates 9 January 2018 is brought out of time. The question then becomes whether the Tribunal should grant an extension of time under s 41 of the Act.
5. At [52] of its reasons for decision, the Tribunal found that the appellant's claim for compensation was 'doomed to fail' and on this basis the Tribunal declined to extend time 'in respect of any claim for moneys for invoices issued before 9 January 2018'.
6. At [53] of its reasons for decision, the Tribunal declined to extend time 'in respect of any claim for moneys for invoices issued before 9 January 2018.' said:

NCAT Rules

1. Rule 23(3) of the NCAT Rules is in the following terms: 23 (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made: (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application.
2. The word 'application' is defined in s 39 of the NCAT Act to mean: 39 What constitutes an application For the purposes of this Act, an application to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision
3. The term 'enabling legislation' is defined in s 4(1) to mean any legislation, other than the NCAT Act or NCAT Rules, that provide for applications or appeals to be made to the Tribunal with respect to a specified matter or class of matters. It is not disputed that the RLLC Act and the Residential (Land Lease) Communities Regulation 2015 (NSW) (RLLC Reg) are the relevant enabling legislation in the proceedings of the appellants.

RLLC Act

1. Part 7 of the RLLC Act sets out the rights and obligations of home owners/residents and operators in regard to utility (including electricity) and other charges. Section 77 in this section relevantly provides as follows: 77 Utility charges payable to operator by home owner (1) This section applies if, under a site agreement, the home owner is required to pay utility charges to the operator for the use by the home owner of a utility at the residential site. (2) The home owner cannot be required to pay for the use unless: (a) the use is separately measured or metered, and (b) the operator gives the home owner an itemised account and allows at least 21 days for the payment to be made. (3) The operator must not charge the home owner an amount for the use of a utility that is more than the amount charged by the utility service provider or regulated offer retailer who is providing the service for the quantity of the service supplied to, or used at, the residential site. Maximum penalty: 20 penalty units.
2. Section 85, also in Part 7 of the RLLC Act, provides as follows: 85 Recovery of amounts paid under a mistake of law or fact (1) A home owner is entitled to recover an amount paid under this Part to the operator under a mistake of law or fact. (2) A home owner may, with the consent of the operator of the community, recover an amount mistakenly paid to the operator under this Part by deducting it from site fees payable by the home owner under the site agreement. (3) The Tribunal may, on application by a home owner or operator, make an order resolving a dispute concerning the operation of this section in the circumstances of a particular case.
3. Section 156(1) of the RLLC Act makes provision for a home owner, a former home owner or operator of a community to apply to the Tribunal for determination of: 156(1) … (a) a dispute relating to a right or obligation under this Act, (b) a dispute arising from, or relating to, a site agreement or collateral agreement, (c) any other matter that may be determined by the Tribunal under this Act.
4. Section 156(2) provides that an application must be made within the period (if any) specified in that Act or as prescribed in the regulations. Regulation 16 of the Residential (Land Leases) Communities Regulation 2015 (NSW) (RLLC Reg) provides: 16 Applications to Tribunal For the purposes of section 156 (2) of the Act, an application to the Tribunal under a provision referred to in Column 1 of Schedule 3 must be made within the period specified opposite in Column 2.
5. Column 1 of Schedule 3 of the RLLC Reg does not contain any reference to ss 77(3) or 85 of the RLLC Act.
6. Section 157(1) of the RLLC Act sets out the orders the Tribunal can make on an application by a party to a dispute or other matter before the Tribunal. This includes an order for the payment of money and compensation: see RLLC Act, s 157(1)(d) and (e).

Consideration

1. While not raised by the appellants in their Notice of Appeal, it is apparent from the records of the Tribunal that the Tribunal's finding that the appellant's application was filed on 7 February 2018 was an error. We note from the records of the Consumer and Commercial Division that the appellant, Mr Bavin, lodged an unrelated application in that Division on this date (file no RT 18/06280). That unrelated application was dismissed on 21 June 2018.
2. The Tribunal nevertheless correctly noted, at [6] of its reasons for decision, that the Appeal Panel in the first appeal had 'allowed the appeal and remitted the application to the Consumer and Commercial Division of the Tribunal to determine the amount of electricity charges, if any, to be refunded to the appellants'.
3. Although the Appeal Panel in Bavin v Parklea [2018] said it was the 'proceedings' of the appellants that were being remitted, the 'proceedings' were clearly the 'application' the appellants had lodged in the Consumer and Commercial Division on 21 July 2017 (i.e. file number RC 17/32155). Hence, it was these proceedings (i.e. appellants' 21 July 2017 application) that were remitted.
4. For completeness, we note that on remittal of proceedings (i.e. an application) from the Appeal Panel to the Consumer and Commercial Division, the Registry of that Division has a practice of allocating a new file number to the remitted proceedings/application. In this case, in accordance with that administrative practice, on remittal, the application of the appellants were given a new file number RC 18/23674. This is the file number recorded on the decision of the Tribunal. Hence, the application that was before the Tribunal was the same application the appellants had made in July 2017.
5. In regard to the issue of an extension of time, as we have noted, at [51] of its reasons for decision, the Tribunal said that the parties were specifically directed to address the issue of time in directions made, on 18 June 2018, prior to the hearing and that neither party did so. The directions were set out in full in the Tribunal's reasons for decision, at [8]. The only direction that made any reference to time was order 4 in which the respondent was directed to provide the Tribunal and the appellants with 'written submissions in relation to the facts of the case and the law to be applied (including any issues in relation to time)'.
6. We agree that rule 23(3)(b) of the NCAT Rules was the applicable provision in determining the time within which the appellants were required to lodge their claim in the Consumer and Commercial Division. However, in our view, the Tribunal erred in its application of that rule to the circumstances of the appellants' application.
7. As noted above, rule 23(3)(b) provides that an application must be made within 28 days from the day on which the applicant 'became entitled under the enabling legislation' to make the application. The appellants' entitlement to make their application in the Consumer and Commercial Division arose under s 156(1) of the RLLC Act, as this is the section that gave the appellants the right to bring their claim. That section, vests an operator or home owner with the right to bring an application to the Tribunal 'for determination of a dispute relating to a right or an obligation' under that Act. Section 85 of the RLLC Act sets out a right of a home owner to recover an amount paid under Part 7 of the Act that was paid under a mistake of fact or law. Section 77(3) sets out an obligation of the operator in regard to utility charges that are payable by the home owner (i.e. to charge a home owner no more for the supply of a utility to the home owner's premises than what the operator was charged by its retail supplier).
8. Accordingly, in this case and on the proper construction of rule 23(3)(b) of the NCAT Rules and s 156 of the RLLC Act, time began to run from the time the appellants were in dispute with the respondent in regard to the alleged overcharging and not from the time the respondent issued an electricity bill the appellants allege to exceed what the respondent was entitled to charge under s 77(3) of the RLLC Act. The fact that the dispute between the appellants and the respondent involved bills that had been issued and paid for over an extended period of time prior to the date on which the dispute actually arose is, in our view, not material to the question as to when time begins to run for the purposes of rule 23(3)(b). Had this been the case, Parliament would have included a time period in Schedule 3 of the RLLC Reg for bringing an application to the Tribunal under s 85 of that Act that involved a breach of s 77(3).
9. We understand a dispute between the appellants and the respondent occurred sometime around June/July 2017 when the respondent advised the appellants of a substantial increase in its kWh charge for their electricity usage. It was also at around this time, 21 July 2017, when the appellants lodged their application in which they specifically raised the issue of an increase in electricity charges. At the time, the relief sought was an order that the respondent provide a copy of its latest electricity accounts, as they believed they were being overcharged.
10. Nevertheless, it is accepted that the dispute the subject of the appellants' 2017 application before the Tribunal ultimately related to the alleged overcharging by the respondent for electricity usage from January 2016 to July 2017. This being the ambit of their claim, the only issues were whether the dispute arising from that claim was brought within time and, if brought in time, the amount of the overcharge.
11. As the appellants have explained, at the hearing of their claim in the initial Tribunal proceedings, in November 2017, the Tribunal extended the time within which they were to lodge their claim. In extending time, other than referring to s 41 of the NCAT Act as the source of power to extend time and noting a prescribed three-month period within which the appellants were to lodge their claim, the Tribunal did not explain which legislative provision applied or when time began to run.
12. Hence, a question remains as to whether the appellants lodged their claim under s 85 of the RLLC Act within time. In their response to the respondent's Reply, the appellants explained that in the initial proceedings, it was not until they obtained access to the documents produced under summons by the respondent, that they became aware of the extent to which they had been overcharged. In our view, on this basis and the material before us, the appellants' dispute with the respondent concerning overcharging for electricity arose approximately three months after the appellant's application had been lodged.
13. Accordingly, if an extension of time was needed, in our view, the reasoning of the Tribunal in the initial proceedings should stand. As noted by the Tribunal (see at [18] above): 1. the appellants did not become aware of the overpayments until shortly before the 2 November 2017 hearing; 2. the respondent did not object to such an extension of time; and 3. the absence of any evidence of prejudice to the respondent.
14. While the Tribunal in the initial proceedings extended time, in our view, for abundant caution and in accordance with the Tribunal's guiding principle stated in s 36(1) of the NCAT Act, we consider it appropriate, for abundant caution, to make an order extending the time within which the appellants are to bring their claim under s 85 of the RLLC Act in regard to excess electricity charges they paid to the respondent since January 2016.
15. This leaves the remark of the Appeal Panel in Bavin v Parklea [2018], at [36], concerning an extension of time. This remark was made in relation to the appellants' request for access to the respondent's electricity bills for March 2018. Section 83 of the RLLC Act contains an obligation on an operator to provide a home owner with reasonable access to bills or other documents relating to utility charges.
16. This was not an issue dealt with by the Tribunal in the remitted proceedings, nor in our opinion was it required to do so as it is evident from the material before us that the respondent provided the appellants with a copy of the March 2018 bills from AGL, its retail energy supplier at that time. These bills we note were included in the bundle of documents the appellants had relied on at the hearing below, a copy of which the respondent provided to us during the course of the hearing.
17. It has not been contended, and in our view appropriately so, that the appellants required an extension of time in regard to their claim in so far as it related to the alleged excess electricity charges the respondent continued to bill each month, from August 2017 to March 2018, and which the appellants paid. The appellants' claim is in effect an allegation of a continuing breach by the respondent, since July 2017, of s 77(3) of the RLLC Act. Hence, the issue as to whether the appellants' claim in regard to the payments made, between August 2017 to March 2018, has been lodged within time does not arise.
18. However, as noted by the Tribunal, the appellants had failed to place before it, in support of their claim, copies of all relevant electricity bills and charges, for the entire period of their claim. We have dealt with this in more detail below.

Ground 3 - The requirement for the Member to make a decision

1. We have divided this ground into two parts. The first part being the Tribunal's application of ss 77(3) and 85 to the material before it (ground 3(a)). The first part being the Tribunal's approach to assessing the amount of overcharge once it is established that the operator had not charged the appellants in accordance with s 77(3) of the RLLC Act (ground 3(b)).
2. However, before we do so it is necessary to briefly set out the submissions of the parties and the Tribunal's reasoning in regard to the claim of each appellant as to the amount they were overcharged.

Submissions of the parties

1. The appellants' grounds of appeal refer to the findings of the Tribunal below, at [17] and [19] of its reasons for decision. As the findings were that the respondent had failed to charge them for their electricity use in accordance with s 77(3) of the RLLC Act, the appellants went on to contend that 'on any view of the matter they had been overcharged', but failed to arrive at a precise calculation of the amount overcharged. In this regard the appellants said the following in regard to the decision of the Tribunal below: … [that] this decision as a whole does not obtain the quality of being a precise or conclusive decision and does not genuinely resolve the issues in dispute. A finding that the operator has not (and had not) charged the Appellants correctly must be followed by precise finding of how so, if not how much. This was the most significant gist of the appellants written submissions dated 19 July 2018. The Tribunal's further observation at [28] that the averaging formula maybe flawed only serve to create further legal uncertainty.
2. In their Notice of Appeal, the appellants noted they had placed the following material before the Tribunal at the hearing: 1. Copy of Appeal Panel NSWCATAP Decision. 2. Copy of electricity to Brian Bavin dated 27/6/18. 3 Summary of total SAC charge for one month for all the 208 sites in the EN. 4. Copies of Respondents electricity bills from AGL. Copies of emails to and from the CEO of GL regarding the amount per kw/h that residents should be paying for their electricity. 6. Summary of amount of refund due to Mr Bavin.
3. As we have noted, a copy of this material was provided to us during the hearing of this appeal.
4. In its Reply to Appeal, the respondent said that the alleged failure of the Tribunal's decision being precise or conclusive was as a result of the appellants' evidence before the Tribunal being deficient as to the amount they overpaid.

Decision of the Tribunal

1. At [14] of its reasons for decision, the Tribunal noted that the onus was on the appellants to prove their claim, including the amount they were overcharged. The Tribunal accepted that they had not been charged in accordance with s 77(3) of the RLLC Act, but went on to say the following in regard to the calculation of the amount of overcharge: 14 In accordance with the findings of the Appeal Panel I am satisfied that the applicants have not been charged in accordance with section 77(3). However in the absence of precise formulation of a methodology by the applicants, I am unable to arrive at a precise formula. The applicants bear the onus and burden of proof to establish what, if any, losses have been incurred and how a formula compliant with section 77(3) may be applied. In the absence of such evidence and submissions setting out a formula that is compliant with the Act, the application must be dismissed.
2. At [16] to [19] of its reasons for decision, the Tribunal dealt with the evidence relied on by each appellant in regard to the amount of overcharge, as follows: Ms Raczkowski 16 The second applicant relies on a summary document (attachment 12) setting out the meter readings taken at her site by the operator. The spreadsheet shows rates charged by a former energy provider, Origin, to the respondent between November 2015 and March 2018. It also shows the Usage rate she was charged by the respondent per kWH, in comparison to the rate the respondent was charged by its electricity provider Origin, the amounts she paid to the respondent, the amount the applicant states she should have paid pursuant to s 77(3) and a summary of overcharges purportedly incurred. 17 The difficulty with this methodology is that the second applicant has calculated the average rates charged by Origin the operator. I am not being critical of the second respondent, however, it is impossible to ascertain when the operator was charged at Peak, Shoulder and Off Peak Rates, and if and when the resident used Peak, Shoulder and Off Peak electricity and what amount she should have been charged according to s 77(3). Averaging out the rates does not allow for precise usage charges which should be levied on the end user at any given time. I am satisfied that the operator has not charged Ms Raczkowski in accordance with section 77(3) and on any view she was overcharged, but I am unable to arrive at a precise calculation. Mr Bavin 18 The first applicant has provided a spreadsheet using a different methodology. 19 Mr Bavin has considered the most expensive Peak rate charged to the operator by Origin. Between November 2015 and March 2018 the operator charged between 0.052 and 0.059 cents per kWh at Peak times. The rates vary from billing period to billing period. The operator in turn charged Mr Bavin between 0.16 and 0.29 cents per kWh during the same period. I am satisfied that the operator has not charged Mr Bavin in accordance with s 77(3). The usage charge exceeds the most expensive rate, and does not take into account that the lesser usage s at Shoulder and Off Peak times. I am satisfied that the operator has not charged Mr Bavin in accordance with section 77(3) on any view of the matter he was overcharged, but I am unable to arrive at a precise calculation.
3. The Tribunal dealt with the respondent's case at [20] to [28] of its reasons for decision. It noted that the respondent: 1. had tendered no documents and provided no submissions; 2. denied it had overcharged the appellants on the basis set out in their documents. It was contended that each appellant had used an oversimplified method in calculating electricity charges used by it (i.e. the respondent); 3. noted that the appellants' calculations were based on Origin bills when the operator had changed from Origin to AGL in 2018; 4. noted that AGL supplies electricity to the respondent through two separate meters and for which they issue separate bills. The two AGL bills issued to the respondent in May 2018 were divided into 15 different line items; 5. submitted Mr Bavin's use of the AGL Peak rate at which it was charged failed to take into account that which was supplied at the shoulder and off peak rates and should be rejected; 6. submitted that the averaging out of the various rates is not prescribed by the legislation and would not comply with s 77(3) because this method: does not allow for the fact that the two meters installed at the site would arrive at different kWh readings and it cannot be ascertained which metre feeds which site; and if averages were applied, residents using electricity at off peak times would be subsidising residents that use electricity at peak times. …
4. At [28], of its reasons for decision, the Tribunal made the following finding in regard to the appellants' evidence: 28 I agree with the respondent that the spreadsheets prepared by the applicants can be afforded little weight as they cannot accurately compare the rates which the operator was charged by AGL with the rates the applicants were charged by the respondents. There is no way of ascertaining whether the park residents used Peak, Off Peak or Shoulder rates. The spreadsheets are therefore of little probative value and I (sic) based on the calculations contained therein I cannot come to a concluded view how section 77(3) should be applied or by how much the applicants were overcharged.
5. At [33], of its reasons for decision, the Tribunal said: 33 It was incumbent on the applicants to provide a method of calculation compliant with the Act. The Tribunal is not able to "devise a method of calculating usage charges that is compliant with section 77(3)" as none was advanced by the applicants. It may be that the Act requires amendment to prescribe a method.
6. At [52], the Tribunal re-iterated its earlier findings and concluded as follows (italics added): 52 The applicants' case for compensation must be dismissed for lack of probative evidence establishing what, if any, formula should be applied to arrive at a money order. The applicants have not discharged their onus and burden of proof and have failed to provide evidence in the form of source documents, failed to comply with directions, and failed to provide a formula that is demonstratively compliant with section 77(3) of the Act. The case for an order for compensation was therefore doomed to fail. …
7. We understand the Tribunal's reference to source documents to be those referred to in the directions made prior to the hearing, which included a direction that the appellants provide to the respondent and the Tribunal additional documents that included 'accounts, receipts, a schedule setting out the amount charged for electricity, the amount of alleged overpayments and an explanation for the calculation of the overpayments'. The respondent was also directed to provide 'invoices, receipts, a response to the applicants' overpayment schedule'.

Consideration

1. Before we deal with the grounds of appeal we make the following observations about the jurisdiction of the Tribunal under s 85 of the RLLC Act.
2. First, s 85(1) gives a home owner an 'entitlement' (i.e. a right) to recover an amount he or she paid, under Part 7 (i.e. a charge for the supply of a utility), to the operator under a mistake of law or fact.
3. At common law, a claim of this nature is known as a claim for restitution and arises whenever the circumstances indicate that the receipt or retention of a benefit obtained by the defendant from the plaintiff is unjust: see J W Carter and D J Harland Contract Law in Australia (4th Edition LexisNexis Butterworths) at [2302]. At common law, unjust enrichment involves three concepts: benefit, at the plaintiff's expense and injustice.
4. The law governing the recovery of money paid by mistake was reformed and restated by the High Court in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 as follows: 1. the fact that a payment has been caused by a mistake is sufficient to give rise to a prima facie obligation to make restitution. The mistake is the factor which makes the enrichment of the payee unjust and the payee bears the onus of displacing the inference: David Securities (supra) at 379, 401-2; 2. the inference arises whether the mistake is one of fact or law and mistake includes not only cases of positive incorrect belief, but also ignorance and other situations: David Securities (supra) at 376, 393 and 402; and 3. to displace the inference of unjust enrichment, the payee can rely on voluntariness, good consideration and change of position.
5. As can be seen from the terms of s 85(1) of the RLLC Act, the home owner's right for restitution is limited to payments made, to the operator under Part 7 of the RLLC Act, under a mistake of law or fact. However, unlike the common law, once a home owner has established that his or her alleged payment to the operator was made under a mistake of law or fact, s 85(1) gives the home owner an entitlement or a right to recover that amount. Accordingly, in this respect the section is wider in its operation to the common law. While we make no conclusive finding, we doubt the concept of an inference of unjust enrichment and the above defences to such an inference applies under s 85.
6. As we have noted, s 85(1) gives the home owner an entitlement to recover the amounts paid under a mistake of law or fact and s 85(2) makes provision for the amounts paid under a mistake of law or fact to be recovered by deducting those amounts from the home owner's site fees, subject to the operator's agreement.
7. Finally, where a home owner or an operator makes an application to the Tribunal under s 85(3), that section gives the Tribunal jurisdiction to 'make an order resolving a dispute concerning the operation' of that section in the circumstance of that case. In our view, this section gives the Tribunal a wide discretion in resolving the dispute between the parties in so far as that dispute concerns the operation of that section. However, in doing so, the Tribunal must determine whether or not the amount the home owner seeks to recover from the operator, is: 1. an amount the home owner paid to the operator under Part 7 of the RLLC Act; and 2. the home owner paid that amount under a mistake of law or fact.
8. That is, the Tribunal must determine whether, in the circumstances, the home owner paid the alleged amount under a mistake of law or fact.
9. If not satisfied of the above, the Tribunal can not make an order under s 157(1)(d) of the RLLC Act for the repayment of the amount the home owner alleges he or she is entitled to recover from the operator by reasons of s 85(1). However, if satisfied of the above, the Tribunal nevertheless has a discretion as to whether or not to make the order sought.

Ground 3(a) - Application of s 77(3) to an application brought under s 85

1. It is convenient to re-iterate the terms of s 77(3) of the RLLC Act: 77(3) The operator must not charge the home owner an amount for the use of a utility that is more than the amount charged by the utility service provider or regulated offer retailer who is providing the service for the quantity of the service supplied to, or used at, the residential site. (italics added)
2. Section 77(3), in effect, sets out the maximum amount an operator can charge for the electricity it supplies to the residence of a home owner for his or her usage. A breach of that section is an offence that carries a maximum penalty of 20 penalty units.
3. It is now accepted that on its proper construction, s 77(3) the maximum an operator can charge a home owner for the electricity it supplies to his or her residence for his or her use is no more than what the operator was charged by its utility service provider for that supply: see Silva Portfolios Pty Ltd trading as Ballina Waterfront Village & Tourist Park v Reckless [2018] NSWSC 1343, at [42], where Davis J said: 42 In my opinion, s 77(3) is intended to ensure that the operator may not pass onto the home owner a charge for electricity greater than that which the operator has effectively been charged in respect of that home owner. That is supported by the words "is more than the amount charged" in s 77(3). The words do not say "that is more than the amount that could be charged". The evidence in the present case demonstrates that the operator is being charged by Origin Energy, not at the standing offer rate, but at the rate which is evidenced from the account from Origin Energy to the operator at pages 270 and 271 of the Court Book. Those charges are not charged at the rate of the standing offer that might have been charged.
4. In this case, consistent with the decision of Davies J as to the meaning of s 77(3), the Tribunal below found that the respondent had in fact charged each appellant more for their electricity usage than it had been charged by its retail electricity supplier for that electricity.
5. While the Tribunal did not go on to make a finding as to whether the amounts paid by each appellant was made by mistake of law or fact, we understand the parties are in agreement that this is the case given the finding of the Tribunal that the appellants had been charged more per kWh for their use of the electricity that was supplied by the respondent. What is in issue in this appeal is how is the amount the appellants' have paid above what the respondent was charged for their respective electricity use (the overcharge amount). The Tribunal held that a 'method of calculation compliant' with s 77(3) of the RLLC Act was required and the onus was on the appellant to provide such a method. In our view, this is not necessarily what is required under s 85 of that Act in order for the Tribunal to resolve the dispute between that parties.
6. It is accepted that, an exact calculation of what the operator was charged for the usage of the electricity supplied to the home owner cannot be calculated with precision. This is because the electricity meters of the home owners only record the number of kWh that the home owner has used. On the other hand, the operator is charged at different rates for the kWh supplied to it by its retail electricity supplier. These rates change depending on the time of day it is supplied. There is a peak, standard and low rate. As the operator uses some of the electricity for its operation generally and also supplies electricity to the residence of many home owners, the meters of the home owners do not record whether the electricity that was supplied was supplied at the peak, standard or low rate.
7. In our view, while this difficulty or inexact calculation may have consequences where an operator is prosecuted for a breach of s 77(3) of the RLLC Act, this is not the case in proceedings brought by a home owner under s 85 of that Act.
8. At the same time, it is not the role of the Tribunal, in a claim brought under s 85 of the RLLC Act, to calculate the maximum amount the respondent operator is entitled to charge under s 77(3), as the claim is not made under that section.
9. As we have noted above, the role of the Tribunal in a claim brought under s 85 is to resolve the dispute between the parties concerning the alleged payment that that the home owner made, under Part 7 of the RLLC Act, to the operator under a mistake of fact or law. In this case, the alleged overpayment for electricity by the appellants to the respondent.
10. As noted by the respondent the amount of overcharge in this case was not an easy task to determine. The Appeal Panel in Reckless v Silva Portfolios Pty Ltd trading as Ballina Waterfront Village & Tourist Park (No 2) [2018] NSWCATAP 80, at [72], also recognised that the amount of overpayment, in similar circumstances, would not be 'a simple exercise to calculate'. Nevertheless, the Appeal Panel did not go on to say that this meant the home owner was not entitled to recover the amounts he/she was overcharged.
11. We reiterate, that in an application under s 85 of the RLLC Act to recover an amount paid under a mistake of fact or law, the role of the Tribunal and its sole focus is to resolve the dispute between the parties concerning the alleged overpayment which will include, if necessary, in cases such as this, estimating, as best as it can on the evidence before it, the amount the home owner has paid the operator for its utility use which exceeds the amount the operator has permitted to charge.
12. For the reasons set out above, we find that the Tribunal erred, in its application of s 85 of the RLLC Act to the circumstances of the case before it, that the section required the home owner to provide a 'precise formulation of a methodology', or a 'precise calculation' of the amount he or she claimed was paid to the operator by mistake of fact or law (i.e. the overpayment). That error, in our opinion, was an error on a question of law and on this basis alone, the appeal should be allowed. Nevertheless, there remains an onus on the home owner to prove, on the balance of probabilities, that he or she has paid the operator an amount under Part 7 (e.g. electricity) and that amount was paid under a mistake of law or fact. In this appeal, the respondent has acknowledged that each appellant was overcharged and they paid the overcharged amount.
13. Hence, the question remains about how, in the circumstances of this case, the overpayment is to be determined or calculated. We have dealt with this issue in more detail below.

. Ground 3(b) - Tribunal's approach to the assessment of the amount overcharged

1. We have dealt with this ground of appeal in two parts; namely the Tribunal's approach and some suggestions for calculating the overpayment.

Tribunal's approach to the assessment of overpayment

1. For the reasons that follow, we find that the Tribunal erred in its approach to assessing the amount of overpayment. In our view, this error was also an error of law.
2. There is well established authority that a court and a tribunal, must do the best it can to assess damages: see Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 at [31]; Baak v Concrete Services Group Pty Ltd [2016] NSWCATAP 42, at [17] and Tuck v White [2016] NSWCATAP 132, at [44].
3. In our view, these authorities equally apply to proceedings brought under s 156 of the RLLC Act where an order for payment of money or the payment of compensation is sought: see RLLC Act, s 157(1)(d) and (e). That is, once the right or obligation the subject of the dispute has been established as being a right or obligation arising under the RLLC Act and an order for the payment of money or payment of compensation is sought, the Tribunal must do the best it can, on the material before it, to assess the amount that should be paid or compensated as a result of the findings in regard to the dispute.
4. In Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 at [31], Mason CJ and Dawson J noted the following: 31 The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J. went so far as to say that the 'assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation." Where precise evidence is not available the court must do the best it can. And uncertainty as to profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.
5. The Appeal Panel has accepted that this 'settled rule' equally applied to the Tribunal in that it was obliged to assess the loss or damage arising by reason of a breach of contract: see Baak v Concrete Services Group Pty Ltd [2016] NSWCATAP 42, at [17] and Tuck v White [2016] NSWCATAP 132, at [44].
6. In Baak, at [46], the Appeal Panel also referred to the High Court decision in Fink v Fink [1946] HCA 54; (1946) 74 CLR 127, at page 143 where their Honours, Dixon and McTiernan JJ (with whom Latham CJ and Williams J agreed) said: Where there has been an actual loss of some sort, the Common Law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages.'
7. In JLW (Vic) Pty Ltd v Tsiloglou and Others [1994] VicRp 16; [1994] 1 VR 237, at 241, Brooking J said (omitting citations): A plaintiff cannot recover substantial as opposed to nominal damages unless he proves both the fact and the amount of damage: …. If he proves the fact of the loss but does not call the necessary evidence as to its amount he cannot be awarded substantial damages …: he must put the tribunal in the position of being able to quantify in money the damage he has suffered: … So juries in personal injuries cases are often directed that the plaintiff must prove to their satisfaction what he has suffered and will suffer and what is fair and reasonable compensation in respect of that. It is often said that the amount of the damage must be proved with certainty, but this only means as much "certainty" as is reasonable in the circumstances: …. Where precise evidence is obtainable, the court naturally expects to have it; where it is not, the court must do the best it can. (italics added)
8. In Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117, at [51], the Appeal Panel stated: 51 The settled rule is subject to the proviso that the difficulty must not arise from the fact that the plaintiff has produced no evidence of loss or damage, or because the court has rejected the evidence which was put forward on loss caused by the breach. In either case the plaintiff will be restricted to a nominal sum (Carter on Contract [41-180]). The settled rule only applies where the facts and circumstances which the court is considering make it difficult for the court to estimate the damages suffered by a particular litigant. It does not apply where the party who has the onus of proof does not call evidence which is readily available to be placed before the Court, but the party does not do so (see Gerrard v Slamar [2004] WASCA 253 at [32] and [33]). In that case Heenan J with whom Steytler and Le Miere JJ agreed said at [33] - "To my mind, this is not a case where evidence attempting to quantify the loss from the vehicle being unavailable for that three month period was impossible to obtain nor inherently uncertain or incapable of reasonably precise calculation … ." At [34] his Honour continued: "In those circumstances I consider that this is a case where the respondent has failed to establish damages and that the court cannot estimate or guess in an endeavour to make good that omission".
9. In this case, notwithstanding a clear finding that the respondent had failed to charge each appellant for his and her electricity usage in accordance with s 77(3) of the RLLC Act, the Tribunal failed to consider whether it could, on the material before it, assess, as best as it could, or by 'guesswork' the amount each appellant had been charged and paid that he or she was not obliged to pay by reasons of that subsection. In this regard, each appellant had submitted a form of calculation based on the information they had available to them and the kWh's they had used each month. We understand there has been no dispute about the kWh's used by each appellant every month. Other than to contend that the methods used by each appellant as to the amount they were overcharged, the respondent provided no evidence or assistance to the Tribunal in this regard.
10. In our view, given the position of the respondent, the Tribunal was nevertheless required to approach the issue of assessing the amount each appellant had paid in excess of what the respondent was entitled to charge by doing the best it could, or by 'guess work' or 'estimate' on the material before it.

Suggestions for calculating the overpayment

1. In the recent decision of the Tribunal, in the Consumer and Commercial Division and on remittal from the Appeal Panel, in Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Tourist Park (No. 2) [2018] NSWCATCD 59, at [35] to [37], the Tribunal set out two formulas proposed by the respondent operator's expert witness in that case as follows: 35 The respondent's position is that all the charges on the accounts it has received from Origin are amounts charged for the quantity of electricity supplied to it. The respondent proposes two possible methods of charging the applicant for the electricity it supplies to her. The first is to group all the components of Origin's charges into 3 categories - "Energy charges that vary with energy usage", "Supply charges that vary with demand" and "Fixed supply charges"; then divide each of the three amounts by the total amount of kilowatt hours the respondent has consumed. This exercise results in a separate cents per kilowatt hour rate for each of the three categories. Each rate can then be applied to the total kilowatt hours Mrs Reckless' has used, as recorded on the meter at her home for the same period. 36 The second method simply divides the respondent's total kilowatt hour usage, into the total Origin has charged the respondent, to produce an overall cents per kilowatt hour rate. This rate can be then be applied to Mrs Reckless' recorded usage. In both cases, the result is the same. The only difference in the two methods is that the first one would reveal more detail, or itemisation, to the respondent. However, the lack of detail can be overcome, if the respondent provided the applicant with a copy of the account it received from Origin. 37 Ms Petkovic acknowledges that this method is not perfect, as is outlined in the assumptions she has made in her report. The difficulties arise because the meter at Mrs Reckless' home is not a "smart meter", and cannot precisely identify when Mrs Reckless consumed electricity. Consequently it is not possible to say how much electricity Mrs Reckless used for which the respondent was charged at the off peak rate, rather than the peak rate or shoulder rate. Therefore, if Mrs Reckless has consumed more electricity at the off peak rates than the respondent has, she will be charged a greater amount for the use of electricity than the respondent has been charged by Origin. However in this case, there is no evidence that has occurred, and it seems the only way such evidence could be obtained in future, would be by the installation of a smart meter at Mrs Reckless' home. It appears on the evidence just as likely Mrs Reckless might on occasions, be charged less than the respondent was, because her usage of electricity at "peak" rates, was greater than the respondent's. As Ms Petkovic says in her report, such discrepancies, if they occurred are likely to be minor, and to even out over time.
2. At [38], the Tribunal concluded: 38 The fact the methods proposed by the respondent may not be 100% accurate, does not mean they cannot be used to determine the amount of compensation that is to be paid to the applicant. As Brooking J said in JLW (Vic) Pty Ltd v Tsilogou [1994] 1 VR 237 at 241 "[T]he plaintiff must prove what he has suffered and will suffer and what is fair and reasonable compensation in respect of that. It is often said the amount of the damage must be proved with certainty, but this only means as much "certainty" as is reasonable in the circumstances. Where precise evidence is obtainable, the court naturally expects to have it; where it is not, the court must do the best it can".
3. Each case must of course be decided on its own facts. Whether the formula proposed and applied in the case of Reckless will depend on the material that has been filed by the parties. In that case, we note the respondent put on expert evidence to assist the Tribunal in its role to resolve the dispute between the parties in calculating or estimating the amount the appellant in that case had paid the respondent for electricity usage under a mistake of fact or law (i.e. the overcharge).
4. In this case, the respondent did not provide any evidence to assist the Tribunal in its role. In our view, the respondent should be given an opportunity to do so. In this regard, we note the requirements of s 36(3)(b) of the NCAT Act, which places a duty on a party to the proceedings before the Tribunal to co-operate with the Tribunal to give effect to the guiding principle set out in s 36(1), which is in the following terms: (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
5. We make no adverse finding against the respondent and the manner it has defended the application of the appellants. We appreciate that this dispute has also been difficult for the respondent, who believed it had charged the appellants correctly, but have acknowledged in this appeal that has not been the case. We also appreciate that this dispute may not be an isolated one for the respondent.
6. Nevertheless, we note that, in this case, the respondent is the holder of all the relevant information about what it has been charged for the electricity supplied to it by its retail electricity supplier, how that supply of electricity is supplied throughout its facility, including to the residence of each home owner, the number of kWh hours supplied to each home owner and what it charged the home owner for those kWh supplied. Hence, where the operator, such as the respondent, acknowledges that the home owner has been charged more than they should have been charged, is the person best equipped to make an estimate as to what the amount of overcharge might be and to provide copies of all relevant documents in its possession.
7. We reiterate, the role of the Tribunal under s 85 of the RLLC Act is not to determine exactly the maximum amount the respondent could charge each appellant for their electricity use, the role of the Tribunal is to resolve the dispute and make the appropriate order(s) under s 157 of the RLLC Act.

Conclusions

1. For the reasons stated above, we are satisfied that the Tribunal erred in law: 1. in its application of rule 23(3)(b) of the NCAT Rules as to when time within which the appellants were to lodge their application under the RLLC Act began to run.; 2. in its application of section 85 of the RLLC Act, in that the appellants were required to provide a method of calculating usage charges that was compliant with s 77(3) of the RLLC Act; and 3. in its approach to assessing the amount each appellant was entitled to recover under s 85 of the RLLC Act.
2. In this regard, we have found that the appellants' claim was probably lodged within time. However, for abundant caution we consider it is appropriate to make an order extending time in accordance with what the Tribunal had decided at the initial hearing of the appellants' claim on 2 November 2017.
3. In light of our findings, it is also appropriate to allow the appeal, set aside the Tribunal's order to dismiss the remainder of the appellants claim for compensation and remit the proceedings for reconsideration by the Tribunal. For the reasons we have given it is also appropriate that further evidence be allowed on remittal.

Orders

1. Accordingly, we make the following orders: 1. Appeal allowed in part. 2. The decision of the Tribunal to dismiss the remainder of the applicants' claim for compensation is set aside. 3. To the extent necessary time is extended within which the appellants are to lodge their claim under s 85 of the Residential (Land Lease) Communities Act 2013. 4. The appellants' claim under s 85 of the of the Residential (Land Lease) Communities Act 2013 is remitted to the Tribunal below for reconsideration, with further evidence in accordance with these reasons for decision.

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: 09 May 2019