Colin Davidson v Seachange Living NSW Pty Ltd - [2023] NSWSC 292 - NSWSC 2023 case summary — Zoe

NSWNSWSC

Colin Davidson v Seachange Living NSW Pty Ltd

[2023] NSWSC 292

Supreme Court of NSW|2023-02-07|Before: Member Blake AM

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-02-07

Before

Member Blake AM

Catchwords

Marsh v Pine Resort Management Pty Ltd t/a Gateway Lifestyle The Pines [2018] NSWCATCD 35 Category: Principal judgment Parties: Colin Davidson (Plaintiff)

Source

Original judgment source is linked above.

Catchwords

Marsh v Pine Resort Management Pty Ltd t/a Gateway Lifestyle The Pines [2018] NSWCATCD 35 Category: Principal judgment Parties: Colin Davidson (Plaintiff)

Judgment (34 paragraphs)

[1]

Judgment

This matter involves an appeal from the Appeal Panel of the NSW Administrative Appeals Tribunal involving the Residential (Land Lease) Communities Act 2013 (NSW) ('the RLLC Act').
The plaintiff is Colin Davidson. The defendant is Seachange Living Pty Ltd ('the operator'). The plaintiff is represented by P. Batley of Counsel. The operator is represented by N. Simone. The parties relied on a Court Book (Ex A).
By way of an amended summons filed on 18 July 2022, the plaintiff appeals from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal, constituted by Senior Member Blake AM SC and Senior Member Furness SC ('Appeal Panel'), published on 5 May 2022 (Davis v Seachange Living NSW Pty Ltd [2022] NSWCATAP 142).
The Appeal Panel was itself an internal appeal from a first instance decision of Senior Member Boyce ('the Tribunal member') handed down on 30 November 2021, Davis v Seachange Living NSW Pty Ltd [2021] NSWCATCD (unreported 30 November 2021) ('Tribunal Decision') pursuant to s 32 of the Civil and Administrative Tribunal Act 2013 (NSW) ('CAT Act').
The plaintiff seeks that leave to appeal be granted and the appeal be allowed, the decision of the Appeal Panel be set aside and in substitution for that decision, the appeal from the first instance decision should be allowed and the matter remitted to be heard and decided again by the Tribunal.

[2]

[5]

The Civil and Administrative Tribunal Act (NSW)

It is now appropriate that I briefly set out the relevant provisions of the CAT Act and the RLLC Act. The Tribunal's general jurisdiction is given by sections 28, 29 and 38 of the CAT Act as follows: 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction - (a) the general jurisdiction of the Tribunal, (b) the administrative review jurisdiction of the Tribunal, (c) the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction). … 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. Note - The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction. (4) A general application is an application made to the Tribunal for a general decision. (5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. … 38 Procedure of Tribunal generally The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision, it is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. The Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the proceedings, and to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings the Tribunal also is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and may require evidence or argument to be presented orally or in writing". ...

[6]

Residential (Land Lease) Community Act (NSW)

The relevant provisions of the RLLC Act are as follows:
Section 3 sets out the Objects of the RLLC Act. It reads: "3 Objects of Act The objects of this Act are as follows - (a) to improve the governance of residential communities; (b) to set out particular rights and obligations of operators of residential communities and home owners in residential communities; (c) to enable prospective home owners to make informed choices; (d) to establish procedures for resolving disputes between operators and home owners; (e) to protect home owners from bullying, intimidation and unfair business practices; (f) to encourage the continued growth and viability of residential communities in the State."
Section 4 of the RLLC Act contains the following definitions: "Tribunal" means the "Civil and Administrative Tribunal". … "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. Note A community may be - (a) a caravan park (that is, land, including a camping ground, on which caravans, or caravans and other moveable dwellings, have been, are or are to be placed, installed or erected), or (b) a manufactured home estate as defined in the Local Government Act 1993 (that is, land on which manufactured homes have been, are or are to be placed), whether or not the caravan park or manufactured home estate is the subject of an approval under the Local Government Act 1993."
Site agreements may provide for one of 2 processes for site fee increases, by fixed method increases or by notice (otherwise than by a fixed method): s 65 the RLLC Act. Here we are concerned with the notice provisions to which I shall now refer.
In Division 3 site fees are increased by notice is set out in s 67: "67 Increase of site fees by notice (1) This section applies to a site agreement that provides for the increase of the site fees by notice (otherwise than by a fixed method). (2) An increase in the site fees is not payable unless the fees are increased in accordance with this section. (3) The site fees must not be increased except by notice in writing given to all the home owners in the same community at the same time under site agreements to which this section applies. (4) The notice must-- (a) specify the amount of the increased site fees, and (b) specify the day (the "effective day") on and from which the increased site fees are payable, and (c) include an explanation for the increase, and (d) include such other information as may be prescribed by the regulations, and (e) be in the approved form (if any). (5) The day specified as the effective day must not be earlier than 60 days after the day on which the notice was given. (6) Site fees must not be increased more than once in any 12-month period under this section. This is calculated by reference to the day from which the increased site fees are payable. (7) Increases under this section in site fees payable by home owners in the same community under site agreements to which this section applies must take effect on the same day (and not on different days). (8) A notice under this section may be cancelled. (9) A later notice may provide for a lesser increase than that specified in an earlier notice under this section. A later notice has effect instead of the earlier notice and takes effect from the date on which the earlier notice was to take effect. (10) If the site fees payable under a site agreement are increased under this section, the terms of the agreement are varied accordingly. (11) If a person becomes a home owner after a notice has been given under this section to other home owners in the community but before the date the increase takes effect-- (a) the operator must notify the home owner of the notice and its contents and effect, and (b) the increase applies as if the notice had been given to the home owner at the same time as it was given to other home owners."
Section 69 is the only section that falls within Division 4 of the RLLC Act. It provides for compulsory mediation of disputes about site fee increases and reads: "69 Mediation (1) This section applies if site fees are increased by notice (otherwise than by a fixed method). However, this section does not apply to an increase in site fees objected to solely on the ground that the increase is substantially excessive when compared with increases for similar residential sites in the community. (2) An objection to an increase in site fees on the ground that the increase is excessive may be made by lodging an application for mediation under Division 2 of Part 12 signed by at least 25% (or a lower percentage prescribed by the regulations) of the home owners who received the notice within the first 30 days of the notice period, and not otherwise. (3) Home owners may nominate a representative or representatives under section 146 for the purposes of the mediation of the objection. However, the nomination must be made in accordance with the prescribed procedure if the regulations so provide. (4) The parties to the mediation must use reasonable endeavours to participate in and finalise mediation before the effective day for the fee increase. (5) A home owner may opt out of the mediation, and agree to pay the increase, but only if the home owner follows the process set out in the regulations. (6) The fact that one or more home owners opt out of the mediation, after an application for mediation is made, does not prevent the continuation of the mediation in respect of the remaining home owners. (7) The regulations may make provision for or with respect to the mediation of objections to increases in site fees."
Part 6, Division 5 is headed "Applications to Tribunal about increases in site fees by notice" in residential sites in residential communities. They are relevant here. It contains sections 70 to 75.
Sections 70, 71, 72, 73, and 74 of the RLLC Act read: "70 Application of this Division This Division applies to increases in site fees by notice (otherwise than by a fixed method). 71 Application following failed mediation (1) One or more affected home owners may apply to the Tribunal for an order under section 73 if - (a) the home owners object to the increase in site fees, and (b) an application for mediation of the objection was made in accordance with section 69, and (c) mediation was unsuccessful. (2) The application must be made on behalf of all the affected home owners (other than those who opt out of the application) by one or more of them appointed as the representative or representatives by the participating home owners. (3) The application must be made within 14 days after the date on which the mediation failed. (4) The application must be accompanied by a notice from the mediator stating mediation failed on the date specified by the mediator. 72 Application based on comparable residential sites (1) A home owner may apply to the Tribunal for an order under section 73 if the home owner objects to an increase in site fees on the ground that the increase is substantially excessive when compared with increases for similar residential sites in the community. (2) The application must be made within 30 days after the notice of the increase was given to the home owner. (3) This section does not prevent the home owner from also making or being a party to an application under section 71."
At the Appeal Panel, Mr Davis appeared on behalf of himself and the nine other home owners. Two home owners opted out in the appeal to this Court. Mr Davidson appeared on behalf of himself and the other home owners on appeal to this Court.
Section 73 of the RLLC Act governs the orders that the Tribunal may make on an application under s 71. Section 73 reads: "73 orders as to excessive increases in site fees (1) The Tribunal may, on application under section 71 or 72, make any of the following orders-- (a) an order declaring that an increase in site fees is excessive, (b) an order reducing the amount of the increase by a specified amount, (c) an order setting aside the increase, (d) an order that the site fees must not exceed a specified amount or specified amounts, either-- (i) from a specified day, not being earlier than the day from which the increased site fees were payable, or (ii) during a specified period, (e) an order confirming the increase on the conditions (if any) that the Tribunal considers appropriate, (f) any ancillary order that the Tribunal, in the circumstances, thinks appropriate. (2) The Tribunal may make orders applying to individual participating home owners, groups of participating home owners or all participating home owners. (3) An order applies to all affected home owners in the community (other than those who opt out), unless the Tribunal is satisfied there is a strong reason for making separate orders for different home owners or groups of home owners. (4) The Tribunal cannot make an order that would result in an increase lower than that needed to cover any actual or projected increase (established to the satisfaction of the Tribunal) in the outgoings and operating expenses for the community since the previous increase (if any) in site fees for the community [my emphasis]."
Section 74 provides for the factors that may be taken into account by the Tribunal: "74 Matters to be considered about excessive increases (1) The Tribunal may have regard to any or all of the following factors when deciding whether to make an order under section 73-- (a) the frequency and amount of past increases in site fees for the community, (b) any actual or projected increase in the outgoings and operating expenses for the community as provided by the operator since the previous increase (if any) in site fees for the community, (c) any repairs or improvements to the community-- (i) carried out by the operator since the previous increase (if any), or (ii) planned by the operator for the period covered by the increase being reviewed, (d) the general condition of the community including its common areas, (e) the range and average level of site fees within the community, (f) the value of the land comprising the community, as determined by the Valuer-General, (g) the value of any improvements to the community (including common areas) paid for or carried out by home owners, (h) any explanation for the increase provided by the operator by notice in writing to the affected home owners, (i) variations in the Consumer Price Index (All Groups Index) for Sydney, (j) whether the increase is fair and equitable in the operation of the community, (k) any other matters prescribed by the regulations. (2) The regulations may require the Tribunal to disregard any specified matters (not being a matter referred to in subsection (1)), in any specified circumstances, when deciding whether to make an order under section 73."
So far as 74(k) and 74(2) are concerned, there are no specified matters prescribed by the regulations.
The legislative provision that gives jurisdiction to the Tribunal is section 156 of the RLLC Act. It reads: "156 Applications to Tribunal relating to disputes (1) A home owner, former home owner or operator of a community may apply to the Tribunal for determination of any of the following-- (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. (2) An application to the Tribunal must be made within the period (if any) specified in this Act or prescribed by the regulations."
In order to understand the Appeal Panel's reasons, I have set out the relevant parts of the decisions of the Tribunal Member and the Appeal Panel here.

[7]

The decision of the Senior Tribunal Member

The Tribunal Member, P. Boyce ('the Tribunal member'), considered that the Tribunal did not have jurisdiction on the basis that the application for mediation was not made in accordance with s 69(2) of the RLLC Act. However, the Appeal Panel determined that the Tribunal did have jurisdiction and set aside the decision of the Tribunal Member in relation to lack of jurisdiction.
The Tribunal Member then went on and considered, in the alternative, the merits of the application.
At [13]-[14] of the reasons, the Tribunal Member sets out the evidence relied upon by the home owners and the operator. They are as follows: "[13] The home owners' evidence before the Tribunal comprised of: (1) Exhibit A1-A bundle of documents filed by the applicant in the Tribunal on 23 June 2021 comprising 63 pages including a report by Mr Nicholls; (2) Exhibit A2-A bundle of documents filed by the applicant in the Tribunal on 23 August 2021 comprising 20 pages; (3) Exhibit A3-A bundle of documents filed by the applicant in the Tribunal on 30 August 2021 comprising 33 pages of copies of site agreements for sites 6, 122, 54, 152, 57, L059, P51, 71, L052, 68. [14] The operator's evidence before the Tribunal comprised of: Exhibit R1 comprising 345 pages; (1) The sworn oral evidence of Catherine Jane Arapali, director of the operator; (2) The sworn oral evidence of Jodie Gumley, Park Manager; (3) The sworn oral evidence of Terry Nicholls, accountant for the operator (and a statutory declaration by Terry Nicholls made on 22 July 2021 with a letter dated 11 March 2021 included at pages 30-33 of Exhibit R1)."
The Tribunal member recorded the notice issued to the home owners and gave reasons for seeking the increase in site fees at [44]. They are: "[44] The Owners now press their application for orders setting aside the increase, the applicant, of $23.32 per fortnight pursuant to the Notice Fee Increase dated 17 March 2021 effective from 24 May 2021 and notices served on the other collective Owners ("Notice"). The Notice gave reasons for the increase of site fees as "Increases in expenses that but they are not limited to advertising, fees, wages and salaries, superannuation workers compensation insurance, office, repairs and maintenance valuation expenses."
Then the Tribunal Member referred to the evidence of Terry Nicholls of Nicholls business management, who prepared financial reports for the operator and summarised each party's submissions. It appears that both parties had relied upon Mr. Nicholls report.
Under the heading Consideration the Tribunal Member stated at [70]-[78]: "[70] The Owners bear the onus of proof to establish their case that the rent increase is excessive (see Anderson & Fines v Bacon Pty Ltd [2017] NSWCATCCD (unreported) (27 January 2017)). [71] In his evidence about considering the operating costs, Mr Nicholls relies on the Operator's book keeping system using the XERO programme. Mr Nicholls explains that XERO is cloud based software that automatically uploads all banking transactions from the Operator's accounts and "cannot be tampered with". Mr Nicholls reconciles the accounts quarterly for the purposes of preparing BAS statements for the Operator. He states that "it is not possible to give the impression of increased expenses as the data is based upon bank transactions and cannot be distorted". [72] The Operator has provided source documents for all expenses incurred in support of the amounts claimed as operating expenses and holding costs. [73] In his letter of 11 March 2021, Mr Nicholls set out a table of operating and holding costs summarising the expenses as follows: Allocation of Increased Operating & Holding Costs Increased Operating & Holding Costs Year end Year end 28/02/21 28/02/20 Expenditure on Repairs & maintenance $148,844.00 $129,020.00 Advertising $3,755.00 $1,460.00 Staff Remuneration Costs (incl Workers) $271,980.00 $183,345.00 Office Costs $8,764.00 $6,036.00 Total $433,343.00 $319,861.00 Total increased expenditure $113,482.00

[10]

[76] Notwithstanding Mr Nicholls calculation and recommendation for the apportionment of increased site fees between annual sites and permanent sites, in which the Owners "By Notice" sites are included, the Operator gave notice of site fee increase less than Mr Nicholls recommendation. [77] The Owners conducted their own analysis of the Operators full disclosure of invoices and Mr Davis included that analysis in Exhibit A2 where he extracted from the Operators evidence invoices that he challenged as contributing to the increased operating expenses of the Operator. The Operator's evidence, which is accepted by the Tribunal, in the absence of evidence to the contrary is that most of those expenses have not been included in the expenses of the Park. Rather than provide a commentary for each line item, the Tribunal will provide a summary. Of the amount challenged by the owners of $67,145.24, the Operator's evidence in response is that most have not been included in the operating expenses and other expenses identified were operating expenses of the Park. The Owners challenge $172,722.32 for a Cherry Picker, SCC and Milton Tree Solutions explained by the Operator as projected costs that will benefit the Park its occupiers and not included in the operating expenses. [78] As cited in Davis v Seachange Living NSW Ply Ltd t/a Milton Valley Holiday Park [2020] NSWCATCD (23 December 2020) (unreported) the Operator is not required to provide an extensive report by an accountant and a meticulous forensic examination of each and every item of expense is not necessarily required or appropriate: Maher v Pine Resort Management Pty Ltd t/a Gateway Lifestyle The Pines; Marsh v Pine Resort Management Pty Ltd t/a Gateway Lifestyle The Pines [2018] NSWCATCD 35 at [71]; there remains an evidential obligation on the respondent to provide evidence and/or an explanation of the claimed increase in outgoings and operating expenses to the satisfaction of the Tribunal. In Glennaker Pty Ltd t/as Homestead Park v Bennett [2020] NSWCATAP 12 at [46] the Appeal Panel stated "Whilst the Appellant [the operator] was entitled to decide what level of detail it provided, it would follow that it must also accept the consequences of its decision" to withhold information from the Tribunal."

The Tribunal member continued at [80] to [83]: "[80] The Owners do not include in their evidence any expert or other suitably qualified accounting evidence to challenge the Operator's figures upon which it bases its challenge to the increase in site fees. The Operator offered the Owners access to and authorised its accountant to meet with the Owners to discuss aspects of their concerns subject to the payment of Mr Nicholls fees for the time to be taken to meet with the Owners. The Owners did not accept the offer. [81] In previous proceedings, Griffith (RC19/24763) the Tribunal was unable to find on the evidence before it, that the Operator was obliged to pay invoices for Seachange Parks Australia Pty Ltd. [82] In these current proceedings the Operator has now included in its evidence a copy of a Deed of Land and Chattels Lease made on 1 July 2014 between Sea Change Parks Australia Pty Ltd, as Lessor, and Sea Change Living NSW Pty Ltd, as Lessee where, relevantly, at Clause 9 the Lessee indemnifies the Lessor against all its expenses incurred by the Lessor in the Lessee's operation of the Lessee's operation of the holiday park. As such, the Tribunal is now satisfied that the expenses incurred by Seachange Parks Australia Pty Ltd in provision of the leasehold interest to the Operator are properly payable by the Operator and are included as expenses in the operation and conduct of the Park. [83] The Tribunal is satisfied that the evidence given by the Operator and Mr Nicholls establishes the increase in operating expenses for the operating entity and that the proposed increase in site fees is required to cover the actual increase in operating expenses."
The Tribunal Member concluded at [84]-[85]: "[84] Having regard to the evidence adduced by the Operator in support of the proposed increase in fees, the Tribunal is satisfied that the increase in site fees proposed by the Operator to commence on 24 May 2021 should not be set aside as the amount of the increase reflects less than the actual increase in operating costs and other expense of the Park projected for the forthcoming year. [85] The matters considered by the Tribunal under section 74, as set out in these reasons, justify an increase. The assertions made by the Owners are not supported by evidence to challenge the Operators evidence justifying an increase in site fees, or at all. The Owners have not satisfied their onus of proof [My emphasis]."
The Tribunal member dismissed the home owners application.
In summary, the Tribunal member made a finding under s 73(4) of the RLLC Act that the actual increase in site fees reflects less than the actual increase in operating costs and other expenses of the Park at [84]. Therefore, the Tribunal is prohibited from making an order that the increases are excessive.

[11]

The decision of the Appeal Panel

The Appeal Panel was constituted by G. Blake SC and G. Furness SC, both Senior Members ('The Appeal Panel'). The Appeal Panel stated at [12] and [29]: "[12] In the Tribunal Decision, the Tribunal relevantly; (1) set out details of the dispute and the parties (at [1]-[3]); (2) set out the applicable legislative provisions (at [4]-[10]); (3) set out details of the hearing and the evidence. The home owners' evidence comprised three bundles of documents of 63, 20 and 33 pages respectively. The operator's evidence comprised a bundle of documents of 345 pages, and the sworn oral evidence of Catherine Jane Arapali (Ms Arapali), a director of the operator, Jodie Gumley, the park manager, and Mr Nicholls, the accountant of the operator (at [11]- [22]); (4) decided that it did not have jurisdiction to determine the collective application because the mediation application failed to comply with s 69(2) of the RLLC Act, and accordingly a condition precedent to the making of the collective application under s 71 of the RLLC Act had not been satisfied (at [23]-[42]); (5) indicated that, in case it was wrong in deciding it did not have jurisdiction to determine the collective application, it would in the alternative consider the merits of the collective application so far as the setting aside order, set out the nature of the evidence relied upon by the operator and noted the Tribunal was directed to consider the matters prescribed in s 74 of the RLLC Act (at [43]-[49]); (6) summarised the operator's evidence under headings which correspond with the subparagraphs in s 74(1) of the RLLC Act (at [50]-[65]); (7) summarised the home owners' submissions (at [66]-[69]): (a) there are a number of invoices included in the operator's documents that they consider can be deducted from the operating costs; (b) some of the invoices are made out to Seachange Parks Australia Pty Ltd (SCP) and not the operator, and should be rejected; (c) They challenge six invoices as not being operating expenses of the park; (d) they challenge the accuracy of the operator's actual and projected operating expenses by reason of the omission of government assistance, the inclusion of capital costs and SCP expenses, and the failure to apportion increased staff costs between the park and another residential community of the operator; (8) considered the evidence of the operator (at [70]-[83]): (a) it accepted the operator's evidence that most of those expenses have not been included in the operating expenses of the park; (b) it was satisfied that the expenses incurred by SCP in provision of the leasehold interest to the operator are properly payable by the operator and are included as expenses in the operation and conduct of the park; (c) it was satisfied that the evidence given by the operator and Mr Nicholls establishes the increase in operating expenses for the operating entity and that the proposed increase in site fees is required to cover the actual increase in operating expenses; (9) concluded that the home owners had not satisfied their onus of proof that the proposed increase in site fees was excessive, and accordingly dismissed the collective application (at [84]-[86])."
At [20], the Appeal Panel referred to the test for the requirements as to leave to appeal to the Appeal Panel referred to in Collins v Urban [2014] NSWCATAP 17.
The Appeal Panel at [29] stated: "[29] In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, 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."
In accordance with Cominos, the Appeal Panel identified the three grounds of appeal as set out in this judgment at [31]. For convenience I will refer to them again here. They are: "(1) ground 1: the Tribunal erred in finding that it had no jurisdiction to determine the collective application; (2) ground 2: the Tribunal erred in failing to provide proper reasons ('proper reasons'); (3) ground 3: the Tribunal erred in finding that the home owners had not satisfied their onus of proof that the proposed increase in site fees was excessive ('onus of proof')."
As previously stated, the Appeal Panel set aside the Tribunal Member's decision concerning jurisdiction ('Appeal Ground 1 above'), so it is unnecessary to refer to it any further. That leaves in issue appeal grounds 2 (proper reasons) and 3 (statutory interpretation of Part 6 of the RLLC Act and onus of proof) to be considered here.

[12]

Leave to Appeal in this Court

The plaintiff requires leave to appeal to this court from the Appeal Panel's decision on a question of law.
Section 83(1) of the CAT Act reads: "A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings."
In BHP Billiton Ltd v Dunning [2013] NSWCA 421 ('BHP Biliton') the Court of Appeal set out the following principles with respect to a grant of leave to appeal in this Court at [19] and [20]: "Principles relevant to leave applications [19] In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary judge was arguably wrong in the conclusion arrived at: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 per Sheller JA; Zelden v Sewell [2011] NSWCA 56 at [22] per Campbell JA (Young JA agreeing). [20] Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable: Carolan per Kirby P; Jaycar Pty Ltd v Lombardo [2011] NSWCAS 284, Campbell JA (Young and Meagher JJA agreeing) at [46]. See also Lee v New South Wales Crime Commission [2012] NSWCA 276 per Bathurst CJ (Macfarlan and Barrett JJA agreeing)."
In Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWSA 164 ('Das'). Basten JA at [35] stated: "[35] In Coulter v The Queen [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure 'recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention': at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction."
From Das, it is important to bear in mind that the requirement that an appellant seeking leave to appeal is intended to act as a filter to ensure that unsuitable appellate proceedings are not permitted to run where it would place an undue burden on the other parties, delays to other litigants and disproportionate demands on the resources of the court.

[14]

The operator's submissions

There are no issues of principle which warrant leave being granted: 1. Appeal ground 1: leave to appeal has already been refused by the Appeal Panel. Even if that were not so, the adversarial role of the Tribunal in determining commercial disputes between private parties needs no further clarification, nor does the proposition that the moving party in a civil suit will generally bear the onus to prove the matters which it alleges; 2. Appeal ground 2: no issue of principle arises from the adequacy of the Tribunal's reasons, nor does the plaintiff's submissions assert such an issue of principle; and 3. Appeal ground 3: the balance of the matters raised in the plaintiff's submissions relate to factual matters and are impermissibly raised.
In addition, in oral submissions, counsel for the operator submitted that one party brings an appeal to this jurisdiction. The site increase is $23.32 per fortnight, an annual increase amounts to precisely $606.32. I agree that amount in dispute is a factor to be considered in whether to grant leave. However, I place little weight on this factor as $23.32 per fortnight or $606.32 per annum may be a lot of money to these home owners.
The grant of leave is a discretionary decision. There is no identifiable error in the exercise of that discretion in the House v King (1936) 55 CLR 499 sense. Absent an error of law, appeal from the Appeal Panel's decision to this Court in relation to the refusal to grant leave is impermissible: CAT Act s 83(1).
Leave was refused because the home owner, who was afforded the opportunity to submit documentary evidence and a transcript to the Appeal Panel, failed to do so: Appeal Panel Decision [55]. Notwithstanding that the now-home owners contention is flawed at law, the Appeal Panel could not have been satisfied to any level of proof absent that material. In those circumstances, where leave was dependant on establishing a "substantial miscarriage of justice" within the meaning of CAT Act, sch 4, cl. 12(1), it is unsurprising that the application for leave to appeal was refused.
To the extent the Appeal Panel made a finding with respect to the 'onus of proof ground, it did so as but one part of its decision to refuse leave to appeal: Appeal Panel Decision [55]. Even if the home owners are correct about the error of law it now posits, the Appeal Panel could not have been satisfied.
Before I decide whether to, in the exercise of my discretion, grant leave to appeal, I will briefly consider whether the decision of Appeal Panel was arguably wrong. Leave to appeal was refused on 2 bases. They are that: 1. in the absence of the documentary evidence and a transcript of the hearing before the Tribunal as required by the 2 February 2022 orders they were unable to demonstrate why the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach; and 2. there is no basis for finding that there was a denial of procedural fairness to them by the Tribunal.

[17]

The onus of proof

Both parties referred to Glennacker and Graeme Anderson & Don Fines v Baclon Pty Ltd (Unreported 27 January 2017) ('Anderson').
In Glennacker, the appellant Glennacker was the operator of the residential community. The home owners objected to the increase and brought an application to invoke the provisions of the RLLC Act. They were advised by notice of the proposed increase of site fees. The Tribunal, at first instance, found that the increase to the site fees was excessive and reduced the site increase to 2% of the amount payable.
In relation to the onus of proof, the Appeal Panel in Glennacker stated at [44]-[45]: "[44] In our view the Decision does not display any error in rejecting Ms Hinkling's evidence partly on the basis of her lack of independence. She was a director of the Appellant with duties to act in the interests of the Appellant and the Tribunal was entitled to have supporting evidence to enable it to be reasonably satisfied that the Appellant's expenses had increased as asserted by Ms Hinkling. Her lack of independence was not the only basis for the Tribunal being unpersuaded. The Tribunal's task in considering whether to make an order under s 73 of the Act (in this case whether to declare that the increase was excessive) was to consider the factors set out in s 74. It is clear from the Decision that the Tribunal did so, including specifically the factors under s 74(1)(b) (which concerns increases in outgoings and expenses) and under s 74(1)(h) (which concerns any explanation for the increase provided by the operator by notice in writing to affected home owners). The Tribunal was critical of the lack of detail of the increases by category of expense and the lack of supporting evidence. The Tribunal was also concerned about the lack of independence of the Appellant's main witness and concerned about the evidence concerning the apportionment of expenses between the residential community and the tourist operations. The Tribunal's approach does not display any error of law or a cl 12 leave ground. [45] The Appellant's submission that the respondents had the onus of proving that the increase was excessive is misconceived. It is clear from ss 67(4) and 74(h) that the operator must provide an explanation in the notice for the increase and that the Tribunal may have regard to the explanation. In addition the Tribunal may have regard to other factors referred to in s 74, some of which constitute information known only to the operator. The Tribunal was entitled to consider the evidence provided by the operator and to determine that the increase in site fees was excessive because there was insufficient evidence explaining the increase in outgoings and expenses."
In Anderson, the Tribunal Member stated under the heading "Decisions and Reasons": "I note that the applicants bear the onus of proof in order to establish their case the rent increase is excessive. A home owner may apply to the Tribunal for an order under section 73 if the home owner objects to an increase in site fees on the ground that the increase is substantially excessive when compared with increases for similar residential sites in the community. I am satisfied that the onus remains with the applicants at all times to establish that the proposed increase is excessive, by reference to comparative sites and when having regard to evidence of increases for similar residential sites."
In the appeal to this Court, Anderson supports both the Tribunal member and the Appeal Panel's decision. Glennacker supports the home owners position.

[18]

The home owners' submissions

The Appeal Panel held at [55]: "[55] We are satisfied that the home owners have not established that Tribunal made any error in finding that the home owners had not satisfied their onus of proof that the proposed increase in site fees was excessive..."
The home owners submitted that the Appeal Panel had approached the question as if the appeal from the Tribunal was on the basis that the decision below was against the weight of evidence and not fair and equitable. In doing so, it assumed that the approach of the Tribunal below, requiring the home owners to satisfy an onus of proof was correct as a matter of law.
The home owners argued that the approach of the Tribunal at first instance and the Appeal Panel was incorrect as a matter of law because the role of the Tribunal under ss 71 and 73 of the RLLC Act and the CAT Act was inquisitorial rather than adversarial and, accordingly, the home owners did not have the onus of proof. The only extent to which a party bears a burden of proof, that party is the operator of the community in respect of the issue under s 73(4) of the RLLC Act.
It is inappropriate to speak of the home owners as having an onus of proof in the kind of inquiry being undertaken in ss 71, 73 and 74 of the RLLC Act.
It is notable that the language of ss 71, 73 and 74 of the RLLC Act does not speak of requiring the home owners to establish a matter to the satisfaction of the Tribunal. The only reference to a matter being established to the satisfaction of the Tribunal is in s 73(4): the actual or projected increase in the outgoings and operating expenses for the community since the previous increase in site fees. Information about that issue lies in the hands of the operator.
The proposition in Glennacker is supported by the principle referred to by Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 ('Bushell'): "Proceedings before the Administrative Appeals Tribunal may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the Administrative Appeals Tribunal is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the Administrative Appeals Tribunal may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial Tribunals, has no part to play in these administrative proceedings."
While the Tribunal's power in a case under s 71 of the RLLC Act is not to determine the correct and preferable decision, the structure of its review power, engaged only after mediation has failed, is more akin to an inquisitorial role than an adjudicative role in an adversarial setting.

[19]

The grounds of appeal in this Summons in this Court

The operator at [16], [24] and [59(a)] incorrectly characterised the function of the Tribunal as resolving a private contractual dispute. While there is a contract, the terms of the contract are tightly regulated by the RLLC Act and the Tribunal is given significant powers of oversight and intervention.
The contract between the parties, the site agreement, is regulated by the RLLC Act as follows: 1. There must be a written agreement: s 26. 2. If a standard form of site agreement is prescribed, the site agreement must conform with the standard form and is taken to include the terms of the standard form: s 27. 3. There is a prescribed form: Residential (Land Lease) Communities Regulation 2015 (NSW) ('RLLC Regulation') cl 6, Schedule 1. 4. Additional terms are permitted but are not to contravene the RLLC Act or any other Act, are not to be inconsistent with the terms in the prescribed standard form and are to be set out in a separate and clearly labelled part of the site agreement. The Tribunal is empowered to declare that an additional term is void if it does not comply with these requirements: s 28. 5. The RLLC Regulation may prohibit a specified type of term: s 29. RLLC Regulation cl 8 specifies several prohibited types of contract term. 6. The Tribunal is empowered to reduce the site fees payable under a site agreement by an amount the Tribunal considers appropriate if there is a reduction in the amenity of common areas or a reduction in community facilities or services: s 64. 7. The ways in which site fees may be increased are restricted and controlled: ss 57 to 75. 8. The fees and charges that operator may impose on home owners are restricted: s 76. 9. There are limits to the utility fees that home owners may be charged and the way in which those charges may be calculated: ss 76 and 77. 10. The Tribunal is empowered to reduce site fees if there is a specified change in the use or availability of the utility and to have regard to "relevant available information about the costs of supplying utilities in the local government area in which the community is situated": s 82. 11. The RLLC Act makes provision for community rules. A term of a site agreement has no effect to the extent that it would make community rules part of the agreement: s 86(7). 12. A home owner has the right to sell the home on the site: s 105. 13. The operator may only decline to enter a site agreement with the purchase of a home on reasonable grounds or if the purchaser and the homeowner do not agree on the terms of the proposed site agreement: s 109(2). 14. When the operator enters a new site agreement with the purchaser of a home on a residential site the site fees must not exceed fair market value: s 109(4). 15. The grounds on which site agreements may be terminated and the consequences of termination (including compensation to home owners) are tightly regulated: Part 11. 16. Only the Tribunal has power to grant orders terminating a site agreement (s 116) and an operator is prohibited from bringing an action in a court to obtain possession of a site: s 132.
The specific conferral of jurisdiction on the Tribunal for consideration of notice method site fee increases is given by ss 71 and 72 of the RLLC Act. The grant of jurisdiction on this issue and the criteria for the determination of the issue in ss 73 and 74 of the RLLC Act are not simply matters of resolving a dispute about a private contract between the parties. It is not a question of breach of the site agreement. Nor is it a matter of construction of the effect of the site fee increase term and the application of that construction to the facts found. Rather, the Tribunal is exercising a supervisory power over the operation of the site fee increase and is permitted to have regard to any or all of the factors set out in s 74(1) in making a determination.
It is incorrect for the Tribunal to approach the matters in s 74 on the basis of the applicant having the burden of proof.
The basis of the jurisdiction has six elements: 1. The home owners object to the increase in site fees; 2. The home owners made an application for mediation under s 69; 3. The mediation was unsuccessful; 4. The application is made on behalf of affected home owners by one or more of them appointed as representative by the affected home owners; 5. The application is made within 14 days after the failed mediation; and 6. The application is accompanied by a notice from the mediator.
To the extent that is possible to speak of the elements of an application under s 71, the criteria in s 71 are the elements. It is not an element of the claim that fee increase is asserted to be excessive. It is simply the case that the home owners must object to the increase. In the language of "he who alleges must prove", the applicant under s 71 must prove that the home owners object to the increase.
When the Tribunal's jurisdiction is invoked, it has power to make any of the orders set out in s 73(1). The making of an order setting aside the increase (for example) does not need to be predicated on a declaration that a site fee increase is "excessive". The limitation on the Tribunal's powers under s 73(1) is given by s 73(4): "the Tribunal cannot make an order that would result in an increase lower than that needed to cover any actual or projected increase (established to the satisfaction of the Tribunal) in the outgoings and operating expenses for the community since the previous increase (if any) in site fees for the community".
The language of s 73(4), "established to the satisfaction of the Tribunal," suggests that, to the extent that there is a burden of proof, it lies on the operator and not on the home owner.
The proposition by the operator that s 38 of the CAT Act "merely" frees the Tribunal "from any suggestion it might be bound by the rules of evidence" is not supported by the authority cited. In Health Care Complaints Commission v Hill [2022] NSWCA 270 at [32], Basten AJA (Ward P agreeing) said: [32] Provisions governing practice and procedure in the Tribunal are found in Pt 4 of the Civil and Administrative Tribunal Act 2013 (NSW) ("Tribunal Act''). Those principles include the "guiding principle" for the Act and rules, namely "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36(1). Section 38 frees the Tribunal from any suggestion it might be bound by the rules of evidence and allows it to "inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": s 38(2). It is also required to act "with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms": s 38(4).
This passage should be seen as a restatement of the key principles in Part 4 of the CAT Act. There is no suggestion that s 38 is "merely" concerned with the displacement of the rules of evidence.
The operator claims that the Appeal Panel made an error with respect to a question of law by accepting the Tribunal's conclusion that the home owners bore the onus of proving that the proposed increase in site fees was excessive.
It was the Appeal Panel itself which described the "onus of proof ground as challenge to the factual findings of the Tribunal. The home owners submitted that it ought to have alternatively or additionally identified the "onus of proof ground as raising a question of law.
This qualified right of appeal is confined to the decision of the Appeal Panel: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10] per Basten JA.
'The right of appeal conferred by s 83 is narrow insofar as it is confined to a question of law and qualified by the requirement of leave. However, it is broad insofar as it extends to "any decision", rather than, as is common, "any judgment or order"': Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1 at 62 [286] per Leeming JA.
The right of appeal is not limited to explicit decisions of the Appeal Panel formulated in the proceedings. It 'extends to decisions which were necessary steps in the Tribunal's reasoning, whether or not made explicit by the Tribunal': Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 398 [2010] HCA 32 at [23] per French CJ.
As a general rule, parties to proceedings in NCAT are not entitled to legal representation and may be represented by a legal practitioner only with leave of NCAT; CAT Act s 45(1). In this case all parties were unrepresented at first instance and before the Appeal Panel.
NCAT is required 'to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms'; CAT Act s 38(4).
The operator referred to a number of cases such as White v Johnson (2015) 87 NSWLR 779; [2015] NSWCA 18. These cases are relevant to an onus of proof for a cause of action not the interpretation of statutory provisions.
The Appeal Panel made an implied decision with respect to a question of law when it assumed that the Tribunal at first instance had correctly determined that the applicant bore the onus of proof in a case under ss 71, 73 and 74 of the RLLC Act.
In oral submissions, counsel for the home owners submitted that section 69(1) didn't apply to an increase in site fees objected to solely on the ground that the increase is substantially excessive when compared with increases for similar residential sites. That's a different category of objection to a site fee increase and that's the one under section 72, which talks about substantially excessive site fees, so there is no mediation in those cases.
The operator's submissions is that there probably was an onus of proof on a home owner in a section 72 application to satisfy the Tribunal that the increase is substantially excessive when compared to increases with other sites within the community but that's not the case we are dealing with here.
Section 73 deals with applications under either of those sections, but the criterion under section 72 is an independent one. So that's substantially excessive compared to other sites.
The Appeal Panel erred in finding that the Tribunal's reasons were adequate.
The Tribunal did not explain the reasoning process that led it to its conclusions: 1. that the operating costs of the park should be apportioned between "annual" sites and residential land lease sites based on a notional number of days per site; 2. that the ratio of annual sites to permanent resident sites was 104:19, when (as held by the Appeal Panel at [3]) the comprised 120 annual sites, 19 permanent sites and 21 camping sites; 3. it was relevant to the expenses of the residential land lease community that Holiday Park had: 1. an expense of advertising and employing an experienced tourism industry staff member to attract trade from the Australian market because of increase in local travel since Covid (cf Tribunal reasons at [52]); and 2. office expenses in cost of Covid compliance for check in; 1. it was appropriate to apportion the costs of Holiday Park under the Deed of Land and Chattels between annual sites and residential sites based on a notional number of days available for occupation of sites rather than some other method, such as revenue earned from each type of site, or the land area occupied by each type of site.

[20]

The operator's submissions

The operator disagrees that the Tribunal's function in determining the dispute pursuant to s 71 and 73 of the RLLC Act as inquisitorial is the basis for the assertion that the Tribunal erred at law in finding that the home owners failed to discharge its onus of proof. The home owners position is incorrect as: 1. first, the Tribunal was not performing a function which can be described as inquisitorial, wholly or otherwise - the litigation before the Appeal Panel was adversarial litigation; and 2. second, the Tribunal was entitled to describe the plaintiff's failure to sufficiently satisfy it of the matters which fall for consideration in s 74 of the RLLC Act as a failure to discharge an onus of proof - the plaintiff was the moving party in the proceedings and bore the legal onus accordingly.
Counsel for the operator submitted that the task of the Tribunal was to determine a private dispute between the parties pursuant to s 71 and 73 of the RLLC Act. No element of that task suggests it is appropriate to describe the Tribunal's function as inquisitorial.
In Bushell, the High Court was speaking of a merits review process in administrative law proceedings before the Administrative Appeals Tribunal; that is, where the task before that particular Tribunal was to consider whether a public decision-maker has arrived at a correct decision.
It is well-established that merits review proceedings before Tribunals are non- adversarial by their nature; that is because such proceedings generally involve no contradictor, no joinder of issue and, in those circumstances, the concept of the onus of proof (otherwise relevant in Tribunal fact-finding) has no role to play: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618; 297 ALR 225 [10] (French CJ) ('Li').
The function of a Tribunal in merits review in administrative law proceedings is to arrive at "the correct or preferable decision" by exercising the functions conferred or imposed on the administrator who made the decision in the first place: Administrative Decisions Review Act 1997 (NSW), s 63; ABB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 715 [61].
In the case of the Administrative Appeals Tribunal, which was the Tribunal which the High Court was addressing in Bushell, the original decision-maker has a positive duty to assist the Tribunal to redetermine the decision, being a position starkly different to a contradictor: Administrative Appeals Tribunal Act 1975 (Cth), s 33(1AA).
For that reason, the Tribunal is described as 'standing in the shoes' of the respondent in merits review proceedings in circumstances where there is "no necessary conflict between the interests of the applicant and of the government agency": Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (ALRC 89), Australian Government Publishing Service, Canberra, 2000, p 758 [9.11].
It is for these reasons, in line with what the High Court said in Li, that the term "inquisitorial" may be appropriate to describe merits review proceedings before certain Tribunals such as the Administrative Appeals Tribunal. The proceedings before this Court are starkly different.
The Tribunal members decision was a decision made in the consumer and commercial division of the Tribunal to resolve a contractual dispute between private parties. Where the internal appeal proceeded from the consumer and commercial division of the Tribunal, carved out from the functions allocated to the Appeal Panel in considering the first instance decision, were any functions involving the exercise of its administrative review jurisdiction: CAT Act, sch 4, cl. 3(3)(a).
Having regard to the objects of the RLLC Act (see s 3(d)), the purpose of s 71 and 73 of the RLLC Act is "to establish procedures for resolving disputes between operators and home owners" such as may arise from a site operator's decision under a contract to raise site fees: Interpretation Act 1987 (NSW), s 33.
The internal appeal proceedings proceeded in circumstances of a clear joinder of issue and with a contradictor, being the now the operator. There is nothing in s 71 or 73 of the RLLC Act to suggest that the Appeal Panel was tasked with stepping into the shoes of the first home owner for the purpose of merits review.
Save for where the nature of proceedings bears obvious "inquisitorial" characteristics, such as merits review in the circumstances described by the High Court, the use of terms "inquisitorial" and "adversarial" as labels of contradistinction is not helpful, those terms do not embody a "homogenous characterisation of functions": Swift v SAS Trustee Corporation [2010] NSWCA 182 [40] (Allsop P).
The Tribunal has inquisitorial powers which are broadly applicable, including in adversarial disputes: see e.g. s 38(2) of the CAT Act which provides that the Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". The fact that the Tribunal has discrete powers of inquiry does not make the Tribunal's function in all such disputes "inquisitorial", including because those powers are so broadly applicable to disputes across divisions of the Tribunal where the Tribunal's task varies. Regard must be had to the nature of the dispute and the jurisdiction being exercised by the Tribunal.
The home owners were was at all times the moving party before the Appeal Panel, pursuant to s 80(1) of the CAT Act, and before the Tribunal member, pursuant to ss 71(1) and 73(1) of the RLLC Act.
The operator submitted that the plaintiff relies on Glennacker in support of the proposition that it is inappropriate to speak of the home owners bearing an onus of proof. There is nothing in Glennacker which displaces what Leeming JA stated in White v Johnston, where his Honour stated "he who alleges" at all times bore the legal onus of proof. The plaintiff is incorrect in its reliance on it for that purpose.
The Appeal Panel in Glennacker (at [45]) points to the mandatory requirement for site fee increase notices to include an explanation (s 67(4) of the RLLC Act) and makes the point that the absence of such an explanation, for the purpose of s 74(h) of the RLLC Act, is not excused by the operator pointing to the home owners' onus to prove the matters in s 74 of the RLLC Act referred to Glennacker at [46].
The point made by the Appeal Panel in Glennacker is simply an affirmation of the principle in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 that evidence is to be weighed according to the capacity of a party to adduce it.
It is notable that, at first instance, the Tribunal had express regard to Glennacker and interpreted it in the same way. The principle in Blatch v Archer can be taken into account to determine whether a party has discharged its onus of proof, but it does not reverse the onus of proof: Sampson in his Capacity as Trustee for the Bankrupt Estate of Tannous v Tannous [2022] FCA 1427 [140].
Even if the proposition in Glennacker assisted the home owners at law, it does not assist them on the facts of this case, having regard to the fact that the operators explanation for the site fee increase was accepted by the Tribunal.
The home owners points to the language of s 73(4) of the RLLC Act, which refers to "the satisfaction of the Tribunal". The reference does not assist them. To the extent the words place an onus on the operator, the words demonstrate a shifting of the onus to the operator for the purpose of that subsection.
That is so because the Tribunal's power to order under s 73(1) of the RLLC Act is only enlivened "on application" by a moving party. The clear intention of those words is to require an onus on the moving party, in the usual way.
The suggestion that the words evince an intention that an onus exists nowhere except where the express words "to the satisfaction of the Tribunal" must be rejected - those words appear only once in the RLLC Act, being in s 73(4)).

[21]

Resolution

The plaintiff's filed an application against the owner in the Tribunal proceeding under s 71 of the RLLC Act. A distinguishing feature of this process is that, unlike other Tribunal proceedings under the RLLC Act, it provided for compulsory mediation, provided that 25% of affected home owners sign an application for mediation and a representative procedure where one owner may represent all affected home owners and home owners who do not wish to be involved may opt out. Other owner rights enforceable by the Tribunal under the RLLC Act must be exercised by individual home owners acting on their own behalf, with one exception: home owners may nominate a representative for mediation under s 146 of the RLLC Act in respect of a matter for which orders may be sought from the Tribunal arising out of the same or similar circumstances.
Section 72 of the RLLC Act is a stand-alone section that refers to an application made by a home owner where he/she objects to an increase in a specific circumstance. As to proper statutory construction of Part 6 of the RLLC Act, that is where the increase in site fees is substantially excessive when compared with increases for similar residential sites in the community. Section 72 concerns the application that can be made by the home owners. Section 72(1) states that a home owner may apply to the Tribunal for an order under section 73 if the home owner objects to an increase in site fees on the ground that the increase is substantially excessive when compared with increases for similar residential sites in the community. Section 73(4) stipulates the Tribunal cannot make an order that would result in an increase lower than that needed to cover any actual or projected increase (established to the satisfaction of the Tribunal) in the outgoings and operating expenses for the community since the previous increase (if any) in site fees for the community.
Section 74 specifies the factors that may be taken into account by the Tribunal. In relation to excessive increases in sites fees. Section 74(1) states that Tribunal may have regard to any or all of the following factors set out in s 74(1)(a) to (k) when deciding whether to make an order under section 73.
The Tribunal can inform itself in accordance with s 38 of the CAT Act. The Tribunal member did consider the factors in 73(1) including the evidence and submissions of the parties.
Once the Tribunal Member made a factual finding (established to its satisfaction) pursuant to s 73(4) that the increase in site fees would result in an increase would be lower than that needed to cover any actual outgoings and operating expenses for the community, since the previous increase in site fees for the community it cannot make the order sought by the home owners. That same decision would have been made regardless if the plaintiff bore the onus of proof or if the role of the Tribunal was an inquisitorial one.
While it is not necessary for me to decide, my tentative view is that the decision in Glennacker is correct. The Tribunal's task in considering whether to make an order under s 73 of the RLLC Act (in this case whether to declare that the increase was excessive) was to consider the factors set out in s 74. From the decision the Tribunal did so, including specifying the factors under s 74(1)(b) (which concerns increases in outgoings and expenses) and under s 74(1)(h) (which concerns any explanation for the increase provided by the operator by notice in writing to affected home owners).
From ss 67(4) and 74(h) that the operator must provide an explanation in the notice for the increase and that the Tribunal may have regard to the explanation. In addition the Tribunal may have regard to other factors referred to in s 74, some of which constitute information known only to the operator. The Tribunal was entitled to consider the evidence provided by the operator in order to determine that the increase in site fees was excessive because there was insufficient evidence explaining the increase in outgoings and expenses. It is my view that the Tribunal's consideration of the factors in s 74(1)(a) to (h) involves it in exercising an inquisitorial role to some extent.

[22]

Appeal Ground 2 - Adequate reasons

Appeal ground 2 is whether the Appeal Panel made an error of law by finding that the Tribunal had given adequate reasons, when the Tribunal's reasons did not: 1. show how the Tribunal determined which expenses challenged by the home owners as operating costs of the holiday park business of the defendant and not operating expenses of the residential community were either: not taken into account; or properly considered operating expenses of the residential community; 2. explain how the Tribunal concluded that holiday sites: 1. numbered 104, when the Tribunal found that there were 120 holiday sites and 21 campsites at the holiday park in addition to 19 residential community sites; and 2. should be treated as if they were only available for occupation on 180 days each year.
The Appeal Panel (at [49]) correctly summarised the Tribunal's obligation to give adequate reasons with reference to the following statement of Bell P (as he then was) in Orr at [66], [71], [76] and [77]: "[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection; Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley). … [71] That having been said, even in the less formal setting of a Tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based, 2. the Tribunal's understanding of the applicable law, and 3. the reasoning processes that lead the Tribunal to the conclusions it made. 4. … [77] What constitutes adequate reasoning on the part of a Tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzoianic at 287." [78] These principles include the following: 1. "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Applicant S106/2002 v Minister for immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); 2. the Court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] PC A 739 at [14]; 20ATR108 at 111; 3. the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; 4. the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Ry Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; 5. there should be a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the Tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."

[23]

The Appeal Panel's decision

The Appeal Panel correctly set out the principles in NSW Land and Housing Corporation v Orr [2019] 100 NSWLR 578; [2019] NSWCA 231 ('Orr'). These principles have been set out earlier in this judgment.
At [50], the Appeal Panel set out the Tribunal findings at [77] and [81]-[82]: "[77] The Owners conducted their own analysis of the Operator's full disclosure of invoices and Mr Davis included that analysis in Exhibit A2 where he extracted from the Operators evidence invoices that he challenged as contributing to the increased operating expenses of the Operator. The Operator's evidence, which is accepted by the Tribunal, in the absence of evidence to the contrary, is that most of those expenses have not been included in the operating expenses of the Park. Rather than provide a commentary for each line item, the Tribunal will provide a summary. Of the amount challenged by the Owners of $67,145.24, the Operator's evidence in response is that most expenses have not been included in the operating expenses and other expenses identified were operating expenses of the Park." "[81] In previous proceedings, Griffith (RC19/24763) the Tribunal was unable to find on the evidence before it, that the Operator was obliged to pay invoices for Seachange Parks Australia Pty Ltd. [82] In these current proceedings the Operator has now included in its evidence a copy of a Deed of Land and Chattels Lease made on 1 July 2014 between Sea Change Parks Australia Pty Ltd, as Lessor, and Sea Change Living NSW Pty Ltd, as Lessee where, relevantly, at Clause 9 the Lessee indemnifies the Lessor against all its expenses incurred by the Lessor in the Lessee's operation of the Lessee's operation of the holiday park. As such, the Tribunal is now satisfied that the expenses incurred by Seachange Parks Australia Pty Ltd in provision of the leasehold interest to the Operator are properly payable by the Operator and are included as expenses in the operation and conduct of the Park."
Then at [51], the Appeal Panel concluded: "[51] Having regard to the principles in Orr at [66] and [71], we do not accept the homeowners' submissions that there are inadequate reasons in the Tribunal Decision regarding the expenses of $21,610.00 paid by SCP and the expenses of $775.50 for work done on the operator's own income producing properties within the park. The reasons for the acceptance of the expenses of $21,610.00 paid by SCP are adequately stated in the Tribunal Decision at [81]-[82]. The reasons for the acceptance of the expenses of $775.50 for work done on the operator's own income producing properties within the park are adequately stated in the Tribunal Decision at [77]."
Appeal ground 3 whether the Tribunal erred in finding the home owners had not satisfied their onus of proof that the proposed increase in site fees was excessive.
Under the heading 'Consideration and determination' the Appeal Panel stated at [54]-[55]: "[54] If made out, this ground would constitute an error for which leave is required. [55] We are satisfied that the home owners have not established that Tribunal made any error in finding that the home owners had not satisfied their onus of proof that the proposed increase in site fees was excessive for the following reasons: (1) in the absence of the documentary evidence and a transcript of the hearing before the Tribunal as required by the 2 February 2022 orders they were unable to demonstrate why the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable by the Tribunal member could reach; (2) there is no basis for finding that there was a denial of procedural fairness to them by the Tribunal."
In relation to whether leave to appeal should be granted, the Appeal Panel at [56] concluded: "[56] It follows that we are not satisfied that the home owners may have suffered a substantial miscarriage of justice on one or both the bases in cl 12(1)(a) and of Sch 4 of the NCAT Act, the questions of the exercise of the discretion whether to grant leave to appeal under s 80(2)(b) of the NCAT Act does not arise."
This ground of appeal was rejected. Leave to appeal was refused and the Appeal was dismissed.

[25]

The home owners' submissions in reply

It was noted by the home owners that the operator argued that the summary of the conclusions reached by the Tribunal included matters that were evidence for the operator rather than Tribunal conclusions. However, the point made is that the opinion of Mr Nicholls was accepted in its entirety. This implicitly involved acceptance: 1. that the apportionment of costs between different types of accommodation in the park according to a ratio was appropriate; 2. that the ratio of annual sites to residential land lease sites was 104:19; 3. Mr Nicholl's assumption about the number of days of available occupation of annual sites was well-founded; and 4. That apportionment of costs between different types of sites should be based on notional days available for occupation rather than another criterion such as revenue earned from each type of site or land area of the park available for each kind of site.
No reasons were given for accepting these propositions. And no explanation was made for the resolution of the conflict between Mr Nicholls' evidence about the number of sites to be considered and the Tribunal's factual finding that there were 120 annual sites, 19 land lease community sites and 21 camping sites.
In oral submissions, counsel for the home owners submitted that there is no reason given for the Tribunal adopting and accepting that breakdown by Mr Nicholls when that departed from the actual number of relevant sites, and the only number correctly identified was the number of permanent sites.
It is not explained why it was accepted by the Tribunal that the holiday site should be treated as if they are only occupied on 180 days of the years. It was not explained by the Tribunal why it was relevant to the expenses of the land lease community that the operator had an expense of advertising and employing an experienced tourism industry staff member to attract trade from the Australian market because of increase in local travel since COVID.
That matter is referred to in paragraph 52 of the Tribunal's reasons, also on that page is reference to additional office expenses in the costs of COVID compliance for check-in which there are two categories of office equipment, but one of them is costs of COVID compliance for check-in. The permanent residents are not checking in, they don't contribute to that cost.
Finally, the home owners argued that the Appeal Panel did not give reasons for why it was determined that it was appropriate to apportion the costs of the operator under a deed of land and chattels between annual sites and residential sites based on the notional number of days available for occupation rather than some other method such as the revenue earned from each type of site or the land area occupied by each type of site. There's no explanation for the Tribunal for the assumption that it made that the basis of apportioning expenses adopted by the accountant was appropriate.

[30]

The home owners' submissions in reply

The home owners rely on the principles above in support of his argument that the Appeal Panel made an implied decision with respect to a question of law when it did not identify the implied decision on a question of law of the Tribunal at first instance that costs and expenses associated with the operator's tourism and holiday park business were relevant costs and expenses of providing the residential land lease community.
A new point may be taken on appeal if it escaped the attention of the parties and was an implied decision on a matter of law that was necessary step in the Tribunal (or Appeal Panel) reaching its conclusion: Edyp v Brazbuild [2011] NSWCA 218. For this reason, the principle in Coulton v Holcombe (1986) 162 CLR 1 is inapplicable.
Neither the Tribunal nor the Appeal Panel addressed the issue of what is properly to be regarded as "any actual or projected increase in the outgoings and operating expenses for the community as provided by the operator since the previous increase (if any) in site fees for the community.
The operator's submissions at [53] refer to Tribunal's conclusion at first instance (at [82]) that all expenses claimed by the operator are "properly payable by the Operator and are included as expenses in the operation and conduct of the Park." The operator's submissions correctly characterise this conclusion as a finding of fact, but it is important to note that the fact found refers to the whole park and is not expressed to be a finding in relation to the outgoings and expenses of the residential land lease community, which forms a subset of the park. The Tribunal finding contains an implied decision of law; that "expenses in the operation and conduct of the Park" are outgoings and expenses "for the community" within the meaning of ss 73 and 74 of the RLLC Act.
Section 74 of the RLLC Act exhaustively sets out the matters that may be considered by the Tribunal. In the language of Ballantyne, matters not encompassed within the s 74 criteria are "extraneous to the proper exercise of the power". There is no room for the operation of the proposition that there will be "legitimate factors, consideration of which is neither mandated or precluded."
The outgoings and expenses of the operator's tourism and annual (holiday) site business is not one of the factors permitted to be considered in relation to site fees paid by home owners with site agreements under s 74 of the RLLC Act.
It is not mandatory for the Tribunal to consider all the s 74 factors. Nevertheless, it is clearly mandatory that the Tribunal consider the issue in s 73(4) so as not to impose a lower site fee increase than is necessary to cover any actual or projected increase in outgoings and operating expenses for the community established to the satisfaction of the Tribunal.
However, the issue here is not mandatory relevant considerations. It is irrelevant considerations. The Tribunal is not permitted to consider outgoings and operating expenses of the operator that do not relate to the operation of the residential land lease community.
Unlike other provisions in the RLLC Act s 74 does not permit the Tribunal to consider specified matters and state that it is not limited to considering those matters. For example, s 122(6) uses the language, "in considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following...".
For these reasons, the Appeal Panel erred in law in failing to identify and correct the error of the Tribunal in taking into account an irrelevant consideration. In oral submissions, counsel for the home owners submitted that it is only the increased expenses or projected expenses passed on under the notice site increase method. To the extent that the Tribunal treated the overall expenses of operating the park, it was addressing itself to the proper question, which was the costs of operating the community, so what the Tribunal did at first instance and what the Appeal Panel failed to connect was to conflate the park with the community (T.21, 23-24).
In oral submissions, counsel for the home owners drew the Court's attention to Mr Nicholls report such as (1), (2) and [53] from CB 31. They are: "(1) Advertising-employing an experienced tourism industry staff member whose duties include overhauling the Operators Website and promotion of the business to attract trade from the Australian market because of increase in local travel since Covid. … (7) Office expenses- cost of Covid compliance for check in, replacement of office equipment. … [53] The Operator has made a full disclosure of the costs incurred in operating the Park supported by invoices for verification and the Operator's accountants report."

Colin Davidson v Seachange Living NSW Pty Ltd

At a glance

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Judgment (34 paragraphs)

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Cases Cited (34)

Cited By (5)