As we understand the home owners' submissions, they contend that it is unfair for the Tribunal not to hear the proceedings when there is a conflict between s 69(2) of the RLLC Act and the important information included in the standard form application for compulsory mediation of NSW Fair Trading.
[2]
Consideration and determination
If made out, this ground would constitute an error of law.
Part 6 Division 4 (s 69) of the RLLC Act provides for compulsory mediation about increases in site fees by notice. Section 69 relevantly provides:
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.
…
The only provision of the Residential (Land Lease) Communities Regulation 2015 (NSW) which relates to a mediation under s 69 of the RLLC Act is cl 15 which relevantly provides:
15 Cases where a residential site has 2 or more home owners
(1) The purpose of this clause is to ensure that regard is to be had to only one home owner for each residential site for the particular purposes mentioned in subclause (2).
(2) This clause applies for the purposes of the following matters, in cases where there is more than one home owner for a particular residential site -
…
(b) determining the percentage of home owners - in connection with an application under section 69 (2) of the Act for mediation that is to be signed by a certain percentage of home owners.
…
Part 6 Division 5 (ss 70 75) of the RLLC Act contains provisions dealing with applications to the Tribunal about increases in site fees by notice. Section 71 provides:
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.
There is no issue that the mediation application was not signed by at least 25% of the home owners who received the notice within the first 30 days of the notice period as required by s 69(2) of the RLLC Act, and accordingly the condition in s 71(1)(b) of the RLLC Act was not satisfied. The issue which arises is whether the consequence of the home owners not satisfying this condition is that the Tribunal did not have jurisdiction to determine the collective application.
In S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 (S & G Homes), at [55]-[66], the Appeal Panel considered whether the Tribunal was deprived of jurisdiction to determine an application where it had been accepted by the registrar contrary to the prohibition in s 48J of the Home Building Act 1989 (NSW):
"55. We now turn to consider whether s 48J of the Home Building Act relates to the power of the Tribunal. According to the builder, there is no evidence that the claim has been investigated by the Commissioner of Fair Trading pursuant to s 48D and no written report as required by s 48D(2) of the Act. In those circumstances the builder submitted that the Tribunal has no jurisdiction to hear it and therefore no power to make consent orders under s 59 of the NCAT Act. The owner submitted that compliance by the principal registrar with s 48J does not affect the Tribunal's jurisdiction.
56. There are no appellate decisions of which we are aware interpreting the words "must reject any application" in s 48J of the Home Building Act. There are two inconsistent first instance decisions. In 2005 the Consumer, Trader and Tenancy Tribunal (the predecessor to the Consumer and Commercial Division) held that s 48J of the Home Building Act relates to the Tribunal's jurisdiction to hear and determine 'building claims': Napper v Miracle Handyman Services (Home Building) [2007] NSWCTTT 87 at [14]. In 2015 the Tribunal described non-compliance with s 48J as a "procedural irregularity" which could be cured by a grant of leave under s 48J or by an investigation under Division 2: Lavery v Dimension Tilers Pty Ltd [2015] NSWCATCD 59 (14 April 2015) at [10].
57. Provisions relating to compulsory pre-lodgement processes are directed to ensuring that as many claims as possible are resolved before proceedings are commenced in the Tribunal. As well as the Home Building Act, three other statutes which give NCAT jurisdiction provide for compulsory pre-lodgement processes. The relevant provisions are found in the: Retail Leases Act 1994 (NSW), s 68(1), Strata Schemes Management Act 1996 (NSW), s 125 and Community Land Management Act 1989 (NSW), s 64.
58. Section 68(1) of the Retail Leases Act provides that certain retail tenancy disputes:
" … may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter."
59. In Fordham Laboratories Pty Limited v Sor [2011] NSWSC 706 Price J held at [43] that the requirement to mediate "is not a condition precedent to the commencement of proceedings, but the court may not proceed to hear and determine the dispute unless satisfied that mediation is unlikely to resolve the dispute."
60. Other civil statutes which provide for damages encourage or require pre-lodgement investigation, conciliation or mediation. Relevant phrases include "cannot be commenced," "cannot commence court proceedings," "may not be the subject matter of proceedings" and "is not entitled to commence court proceedings."
61. The builder relied on several decisions interpreting s 262 of the now repealed Workers Compensation Act 1987 (NSW) and s 108 of the Motor Accident Compensation Act 1999 (NSW): Nassim Attileh v State Rail Authority of New South Wales [2005] NSWCA 64 at [29]; Baker v Rothmans of Pall Mall (Australia) Ltd (1999) NSWCCR 374; and Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231 at [44] and [73]. The homeowner sought to distinguish these decisions on the basis that s 48J does not prevent a person from commencing proceedings. It merely obliges the Registrar to reject any application to the Tribunal for the determination of a building claim unless the claim has been investigated or the President directs that the building claim be accepted without an investigation.
62. Neither party drew our attention to the High Court's decision in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364. That decision is relevant and authoritative. The provision in issue was s 151C(1) of the Workers Compensation Act 1987:
A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.
63. The plaintiff was injured in the course of his employment with the defendant. In contravention of s 151C(1) the plaintiff commenced proceedings in the District Court less than two months after giving notice of injury to the defendant. The defendant made an offer of compromise but notified the plaintiff that it wished to withdraw the offer and relied on s 151C. The plaintiff accepted the offer. The defendant then applied to the District Court for leave to withdraw the offer and for an order that the proceedings be dismissed. The District Court held that the proceedings were a nullity for want of jurisdiction. The plaintiff appealed to the Court of Appeal.
64. Mason P (with whom Sheller JA and Beazley JA agreed) held at [34] and [35] that although s 151C(1) is a condition precedent of a procedural nature that must be satisfied before the commencement of proceedings, proceedings commenced in contravention of that provision are not a nullity.
65. The High Court affirmed the Court of Appeal's decision but for slightly different reasons. Rather than being a nullity, proceedings commenced in contravention of s 151C engage the jurisdiction and procedural rules of the court but are vulnerable to an application by the defendant to strike out the initiating process. At 376 [36] the High Court said that s 151C should not be read as if it is a pre-condition to the court's jurisdiction to determine claims for damages based on work injuries.
66. Like s 151C of the Workers Compensation Act and s 68(1) of the Retail Leases Act, s 48J of the Home Building Act is not a pre-condition to the Tribunal's jurisdiction to determine home building claims. The Tribunal's discretion in s 59(1)(b) will not miscarry if it fails to be satisfied that s 48J has been complied with before making a consent order."
Having regard to the principles in S & G Homes at [55]-[66], the failure of the home owners to satisfy the condition in s 71(1)(b) of the RLLC Act did not deprive the Tribunal of jurisdiction to determine the collective application. There is no textual indication in s 71(1) or elsewhere of the RLLC Act that the Tribunal does not have jurisdiction to determine a collective application where the application for mediation had not been signed by the required percentage of home owners. While we accept that the three conditions s 71(1) of the RLLC Act are a condition precedent of a procedural nature that must be satisfied before the making of an application about an increase in site fees by notice, proceedings commenced in contravention of that provision are not a nullity. Satisfaction of these three conditions is not a pre-condition to the Tribunal's jurisdiction to determine an application about an increase in site fees under the RLLC Act.
It follows that the Tribunal misconstrued s 71(1)(b) of the RLLC Act in finding that it did not have jurisdiction to determine the collective application.
For these reasons, we uphold ground 1.
[3]
Ground 2: the Tribunal erred in failing to provide proper reasons
[4]
Introduction
As we understand the home owners' submissions, they contend that that the Tribunal in the Tribunal Decision did not specifically address the acceptance of expenses of $21,610.00 paid by SCP and expenses of $775.50 for work done on the operator's own income producing properties within the park.
[5]
Consideration and determination
If made out, this ground would constitute an error of law.
In NSW Land and Housing Corporation v Orr [2019] 100 NSWLR 578; [2019] NSWCA 231 (Orr) Bell P at [66] and [71] (Ward JA at [109] agreeing) dealt with the adequacy of reasons of the Tribunal:
"[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):
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law, and
(c) the reasoning processes that lead the Tribunal to the conclusions it made."
The Tribunal in the Tribunal Decision at [77] and [81]-[82] relevantly made the following findings:
"[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 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."
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].
For these reasons, we reject ground 2.
[6]
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
[7]
Introduction
As we understand the home owners' submissions, they contend that the finding of the Tribunal that they had not satisfied their onus of proof that the proposed increase in site fees was excessive was against the weight of evidence and was not fair and equitable.
[8]
Consideration and determination
If made out, this ground would constitute an error for which leave to leave is required.
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 Tribunal member could reach;
2. there is no basis for finding that there was a denial of procedural fairness to them by the Tribunal.
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 (b) of Sch 4 of the NCAT Act. Accordingly, as the home owners have not satisfied the necessary condition in cl 12(1) 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.
For these reasons, we reject ground 3.
[9]
Orders
We make the following orders:
1. time is extended for the appellants to lodge their notice of appeal to 4 January 2022;
2. leave to appeal is refused;
3. the appeal is dismissed.
[10]
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: 05 May 2022
Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law, which relevantly includes whether there has been a failure to provide proper reasons, and whether the Tribunal identified the wrong issue or asked the wrong question, or applied a wrong principle of law.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
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).
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where:
"… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." (emphasis in original)
In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that:
1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act;
2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins, the Appeal Panel at [84(2)] stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
"(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
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.
Whether time should be extended for the appellants to lodge their notice of appeal
The Appeal Panel may of its own motion extend time for a person to lodge a notice of appeal under s 41 of the NCAT Act.
In Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel provided some guidance as to the principles to be considered in the granting of an extension of time. The Appeal Panel stated at [22]:
"[22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal),
- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."
None of the parties raised the question of an extension of time for the appellants to lodge their notice of appeal at the hearing of the appeal.
We are satisfied that it is appropriate of our own motion to extend time for the appellants to lodge their notice of appeal to 4 January 2022 for the following reasons:
1. the length of the delay was short, being 22 days which included the Christmas and New Year public holidays;
2. while there is no explanation for the delay, we do not regard this absence of an explanation as being a decisive factor;
3. as will be seen, the appellants have a fairly arguable case, particularly regarding ground 1;
4. the operator did not argue it was prejudiced, and in fact said in its Reply to Appeal that it did not object to the Appeal Panel extending time for lodging the appeal;
5. the appeal raises an important question as to whether the Tribunal had jurisdiction under s 71(1) of the RLLC Act to determine a collective application where the application for mediation had not been signed by the required percentage of home owners as required by s 69(2) of the RLLC Act.